Summary: Mr B says the Council delayed processing his application for a scrap metal dealer’s licence, failed to tell him it would not accept him as a suitable person for a licence until his criminal conviction expired and delayed responding to his communications. There was delay processing the application, the Council wrongly asked Mr B for updated DBS checks and failed to respond to some of his communications. Payment to cover two of the DBS checks, payment to Mr B to reflect his time and trouble pursuing the complaint and an apology is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained about the way the Council dealt with his application for a scrap metal dealer’s license. Mr B complained the Council:
• delayed processing his application for a scrap metal dealer’s licence;
• failed to tell him it would not accept him as a suitable person to have a licence until his criminal conviction expired despite knowing he had a criminal conviction; and
• delayed responding to his communications.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided;
• considered the Council’s comments on my draft decision; and
• gave Mr B an opportunity to comment on my draft decision.

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What I found

Legal and administrative background

5. The Scrap Metal Dealers Act 2013 (the Act) says ‘In determining whether the applicant is a suitable person, the authority may have regard to any information which it considers to be relevant.’ That includes:
• (a)whether the applicant or any site manager has been convicted of any relevant offence;
• (b)whether the applicant or any site manager has been the subject of any relevant enforcement action.
6. Schedule 1 of the Act says a licence is to be issued or renewed on an application, which must be accompanied by:
• (a)if the applicant is an individual, the full name, date of birth and usual place of residence of the applicant,
• (b)if the applicant is a company, the name and registered number of the applicant and the address of the applicant’s registered office,
• (c)if the applicant is a partnership, the full name, date of birth and usual place of residence of each partner,
• (d)any proposed trading name,
• (e)the telephone number and e-mail address (if any) of the applicant,
• (f)the address of any site in the area of any other local authority at which the applicant carries on business as a scrap metal dealer or proposes to do so.
7. Schedule 1 of the Act also says:
• The local authority may request (either when the application is made or later) that the applicant provide such further information as the authority considers relevant for the purpose of considering the application.
• If an applicant fails to provide information requested…the authority may decline to proceed with the application.
8. Home Office guidance on determining suitability to hold a scrap metal dealer’s licence says the application form must provide details of any conviction of the applicant for a relevant offence. To verify the information provided in the application form, local authorities request that applicants submit a Basic Disclosure Certificate. The Certificate will list unspent criminal convictions. If the Certificate is not submitted, this may delay the consideration of the application.

Chronology of the main events

9. The Council prosecuted Mr B for working without a scrap metal licence. The Magistrate’s Court convicted Mr B of collecting scrap metal when he did not have a licence.
10. On 5 December 2018 the Council wrote to Mr B and said it was aware he was still operating/advertising as an unlicensed scrap metal dealer. The Council reminded Mr B he could not carry out any business as a scrap metal dealer unless authorised by a licence. The Council asked Mr B to stop collecting scrap metal until fully licensed or the Council would take formal legal action against him. The Council provided Mr B with the scrap metal collector’s licence application form.
11. Mr B put in a completed application for a scrap metal dealer’s licence on 9 December. The Council acknowledged receipt and asked Mr B to provide an up-to-date basic disclosure certificate as the one he had provided showed no unspent convictions and the Council knew he had recently been convicted of an offence. The Council also asked for written consent/approval from Mr B’s housing provider that it would allow him to run his business from his home address. The Council told Mr B it could not process his application until he provided that information.
12. The Council wrote to Mr B again following a telephone conversation on 28 December. The Council told Mr B it needed written permission from his housing provider that it would allow Mr B to run his business from his home address. The Council also asked for an up-to-date basic disclosure certificate as the one provided showed he had no unspent convictions and the Council knew he had a conviction. The Council again said it could not process the application until it had received the requested information.
13. Mr B contacted the Council on 11 January 2019. Mr B told the Council if he did not receive a call back he would resume work from 14 January.
14. Mr B chased the Council on 25, 26 and 27 February.
15. On 27 February enforcement officers visited a scrap metal dealer site and seized documentation relating to Mr B and unlicensed scrap metal dealing.
16. The Council contacted Mr B on 27 February. The Council apologised for the delay. The Council told Mr B it had put his application on hold as the Council was investigating Mr B for continued unlicensed scrap metal dealing activity after the prosecution. The Council told Mr B it would contact him again when it had completed its investigation.
17. Mr B asked the Council for details of the investigation on 27 February. On 4 March the Council told Mr B it could not provide details of the investigation.
18. Mr B chased what was happening 6 March. A Council officer returned Mr B’s call and explained the Council was investigating him for offences under the Scrap Metal Act 2013.
19. Mr B asked the Council for an update on 15 and 22 March. On 22 March the Council told Mr B it was still investigating. The Council told Mr B it could not provide any advice about how long the investigation would take. Mr B raised concerns about that.
20. On 3 April the Council wrote to Mr B. The Council reminded Mr B it had asked him for evidence from his housing provider that it was content for him to use his home address as his business address. The Council said he needed to supply an up-to-date basic disclosure form as the one he had provided on 10 December 2018 did not include his conviction for unlicensed scrap metal offences.
21. Mr B contacted the Council on 9 April. On 10 April the Council told Mr B he needed to supply an up-to-date DBS form and confirmation of the address he intended to use for his business. Mr B provided an updated DBS check on 16 April which did not show any unspent criminal convictions. The Council asked Mr B for details of the address he intended to use on his application form. On 17 April Mr B provided an address for his business which was his uncle’s address. Mr B’s uncle’s address is in a different council area.
22. Mr B chased what was happening on 2 May.
23. The Council began putting together a prosecution file on 3 May and consulted the legal team on 22 May. The Council’s legal team provided advice on 23 May. The Council’s legal team told enforcement officers the previous scrap metal prosecution would not appear on Mr B’s DBS check because it does not carry a potential prison term.
24. Mr B chased the Council on 28 and 30 May. On 31 May the Council told Mr B it was considering his application and would provide an update as soon as it could.
25. The Council wrote to Mr B on 17 June. The Council told Mr B it intended to refuse his licence application as it did not consider him a suitable person to hold a license. The Council explained that was due to his unspent conviction for a relevant offence. The Council told Mr B he could reapply after his conviction was spent.
26. Mr B provided a further DBS check on 21 June. Mr B told the Council the DBS check did not show any unspent convictions. The Council responded on 26 June to tell Mr B the DBS check would not show a criminal conviction that did not include a prison sentence. The Council explained the criminal conviction remained a relevant consideration for the licence application.
27. Following a further complaint the Council responded to Mr B at stage two of its complaints procedure on 10 July. The Council accepted it could have decided Mr B’s licence application earlier and had delayed responding to his communications. The Council apologised.

Analysis

28. Mr B complains of delay processing his license application, Mr B says the Council should have told him it would not accept him as a suitable person to hold a licence until after his criminal conviction expired when he put in his licence application in December 2018. There is no question delay occurred in this case given Mr B put in his application in December 2018 and the Council did not decide it until June 2019. The issue is whether fault by the Council led to that delay.
29. The Council says delays happened due to resource issues, Mr B’s failure to provide documentation and because it began an investigation into further unlicensed activity by Mr B which meant it put his license application on hold. However, I note when the Council decided the application it gave only one reason for refusing Mr B’s licence application. That reason was because the Council did not consider Mr B a suitable person to hold a licence as he had received a conviction for not having a valid scrap metal dealer licence. The Council knew of that information in December 2018 as it prosecuted Mr B. There is no evidence in the Council’s decision letter to suggest the Council also took into account the second investigation into Mr B’s activities. In those circumstances I see no reason a second enforcement investigation would have meant the Council needed to put the application on hold.
30. There is, however, the issue of the outstanding information the Council was waiting for to process the application. That included an up-to-date DBS check and details of Mr B’s business address. I will come onto the issue of the DBS check later in this statement. In relation to the business address, I set out in paragraphs 6 and 7 the requirements of the Act. Under the terms of the Act of the Council can ask for whatever supporting documentation it needs. That includes the business address for an application. I am satisfied the Council asked Mr B for that in December 2018. There is no evidence Mr B provided that address until April 2019. The application form is clear incomplete applications will not be processed. As I do not consider the application was complete until April 2019 I do not criticise the Council for failing to decide it before then. However, I see no reason why the Council could not have processed the application once Mr B provided details of his business address. By that point the Council had enough information for it to know it would not grant the licence. I therefore consider the Council at fault for not issuing a decision on Mr B’s application in April 2019.
31. Mr B suggests the Council should have told him in December 2018 it would not grant the licence because he had a criminal conviction. The Act is clear though that just because a person has a relevant criminal conviction does not necessarily mean the Council cannot grant a licence. So, the fact Mr B had a recent relevant criminal conviction would not automatically prevent the Council granting a licence. Nevertheless, the Council refused the licence solely on the basis of Mr B’s criminal conviction. I consider there was some confusion in the Council about whether a licence could be granted while an ongoing investigation took place. Given the level of contact from Mr B chasing what was happening with his licence application and the fact the Council knew of the criminal conviction it would have been good practice to take some advice from the Council’s legal team earlier. That may have enabled the Council to give Mr B a clear steer on whether it would likely grant him a licence in light of his criminal conviction. However, I cannot ignore the fact Mr B’s licence application was not complete until April 2019 when he provided details of his business address. On balance I therefore do not criticise the Council for any lack of information given to Mr B before April 2019 about the impact of his criminal conviction.
32. Mr B says as a result of the Council’s delay he has lost out on eight months of employment. I do not agree. That is because even if the Council had made the decision on the licence application earlier the outcome for Mr B would have been the same - the Council would have refused a licence application as it did in June 2019. I therefore consider Mr B’s injustice in relation to this part of the complaint relates to the time and trouble he had to go to pursuing the Council for a decision. I consider a suitable remedy would be for the Council to apologise to Mr B and pay him £100 to reflect the time and trouble he had to go to. The Council has agreed to that.
33. I am concerned about how the Council dealt with the DBS issue. The law, which I refer to in paragraph 8, provides for the Council to seek a DBS check when considering whether an applicant is a suitable person to hold a licence. So, I cannot criticise the Council for asking Mr B to provide a DBS check with his application. However, Mr B provided a DBS check with his licence application. The issue is therefore whether the Council was at fault for asking for further DBS checks. I am satisfied that in asking for further DBS checks the Council was seeking to verify whether Mr B had unspent criminal convictions. The Council now knows the DBS check would never have shown that unless Mr B received a prison sentence. Irrespective of that point though, the Council knew Mr B had an unspent conviction. The Council knew that because it had pursued a prosecution of Mr B for operating as a scrap metal collector without a licence. The Council had secured a conviction through the Magistrate’s Court for that. The Council therefore knew Mr B had an unspent conviction. I see no reason for the Council to verify that with a DBS check, even if that check had shown the conviction. I therefore consider the Council at fault for asking Mr B for a further DBS check. That caused Mr B to have to pay £50 for two additional DBS checks he did not need. I recommend the Council refund that £50 to Mr B, provided Mr B can provide evidence he had to pay for two additional DBS checks between 10 December 2018 and 17 June 2019. The Council has agreed to that.
34. I have recommended the Council refund two rather than the four DBS checks Mr B sought. That is because I cannot criticise the Council for asking for the first DBS check given the guidance is clear this is required as part of the application. Nor can I say fault by the Council led to Mr B having to get a further DBS check in June 2019. That is because Mr B secured that fourth DBS check after the Council had made its decision to refuse his application. It seems to me Mr B was also under the same impression as the Council in that because the DBS check did not show his November 2018 conviction he did not consider he had any unspent convictions. However, Mr B knew he had been convicted in November 2018. Convictions involving a fine, which is what Mr B received, are not spent until 12 months after the conviction.
35. Mr B says the Council delayed responding to his telephone calls and emails. At some points Mr B was making almost daily contact with the Council, which inevitably meant there were some communications that were not responded to as quickly as Mr B would have wanted. There is, however, some evidence of unacceptable delay responding to Mr B’s communications, particularly in January and May 2019. I consider the apology offered by the Council, plus the time and trouble remedy I refer to in paragraph 32 satisfactory remedy for this part of the complaint.

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Agreed action

36. Within one month of my decision the Council should:
• apologise to Mr B for the faults I have identified in this statement;
• refund £50 he paid for two DBS checks he should not have had to pay for; and
• pay him £100 to reflect the time and trouble he had to go to pursuing his complaint.

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Final decision

37. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman