Summary: Mrs X complained the Council failed to correctly apply its Housing Allocations Policy at her mother-in-law, Mrs M’s, block of flats. The Council was at fault when it failed to act in line with its Housing Allocations Policy. This caused Mrs M avoidable and prolonged distress, risk of harm and actual harm. The Council has agreed to apologise to Mrs M, make a financial payment to her and develop procedures for dealing effectively with prospective tenants for sensitive lettings.

The complaint

1. Mrs X complained the Council failed to:
1. correctly apply its allocations policy when it let a flat in her mother-in-law, Mrs M’s, building; and
2. take appropriate and timely action following the criminal conviction of a tenant, Ms T, for assaulting a police officer and harassment and anti-social behaviour (ASB) towards Mrs M and other tenants in 2016.

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What I have investigated

2. I have investigated complaint 1a) above. I have not investigated complaint 1b) and I explain why at the end of this decision statement.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. In this case, the Council’s housing services is run by an arms length management company (the ALMO). The Council remains responsible for the actions of the ALMO.
5. The Housing Ombudsman deals with complaints about a Council’s failure to take action over antisocial behaviour where the Council is acting as a social landlord. However, we can investigate the Council’s actions in relation to how it operates its Housing Allocations Policy.
6. 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)
7. 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

8. I spoke to Mrs X and considered what she told me.
9. I made enquiries of the Council and considered the information it provided. This included copies of Ms T’s housing application and associated documents, the anti-social behaviour (ASB) files about Ms T and the Council’s housing allocations policy.
10. I have written to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

11. The Housing Act 1996 states it is an offence to knowingly or recklessly make a false statement or withhold information that is reasonably required for the housing application.
12. The Council’s Housing Allocations Policy 2014 states that:

“Occasionally a property becomes available for letting that is particularly sensitive, for example the frailty and vulnerability of neighbours.

Where a sensitive letting is required, the tenancy will not be offered to the prospective tenant until it is confirmed that neither they nor any member of their household who will be living with them has a history of anti-social behaviour or nuisance [or] any history of relevant criminal behaviour”.

What happened

13. Mrs M is in her 90s and is blind. She lives alone in a small block of council flats. Other vulnerable tenants also live at the flats. Mrs M has lived there for over 30 years.
14. In 2015, the flat above Mrs M’s became vacant. The Council classified the flat as a ‘sensitive let’. The advertisement stated that allocation to the flat would not be based on the applicant with the highest number of points.
15. At that time, the Council was seeking suitable accommodation for Ms T, who was in her 40s. Ms T had completed a housing application form and was looking for council or social housing.
16. The Council considered supported accommodation was unsuitable because Ms T was too young. Therefore, it decided to consider alternative accommodation.
17. An internal email in August 2015 stated “I have looked at the assessment and do not feel she is suitable for sheltered as she is far too young… Would you consider her for semi-sheltered accommodation? I personally feel she would struggle to be honest”.
18. Another Officer replied the following day and said “I thought I would refer this one [Ms T] onto you. She may be a bit of a nightmare in semi-sheltered”.
19. A Council Officer visited Ms T and carried out an independent living assessment. This recorded Ms T had a prison/criminal history when she was jailed in 2012 for 18 months for drunk and disorderly behaviour related to her drug and alcohol abuse. The assessment stated Ms T had not disclosed this on her housing application form. The assessment stated her probation period following her prison sentence had recently ended. It also stated Ms T said she had been ‘clean’ for three years and was attending Alcoholics Anonymous (AA) sessions for support over this.
20. As a result, the Council considered Ms T for the sensitive let in the block of flats where Mrs M lived. The Council asked for two references from Ms T’s previous landlords. One reference from 1993 to 2011 stated it had not had any issues with ASB. The second reference, which was dated July 2014 said Ms T had been a tenant for four months and had not exhibited any ASB.
21. Ms T’s GP submitted other supporting information. This stated Ms T was not attending her AA meetings because she did not have the bus money to travel to them.
22. The Council offered Ms T a 12 month introductory tenancy which began in December 2015.
23. From December 2015 to September 2016, the ALMO received numerous reports of ASB incidents at the flats caused by Ms T. As a result of these and other breaches of her tenancy, the ALMO extended Ms T’s introductory tenancy period.
24. Between November 2016 and April 2017, Ms T was sentenced to 180 days in prison, suspended for two years. This was for harassment, which included harassment towards Mrs M, four breaches of her Anti-Social Behaviour Order and two counts of assaulting a police officer. Ms T was also ordered by the courts to pay £350 compensation and £115 victim surcharge to Mrs M.
25. Ms T was later sent to prison for further offences and was released in May 2017.
26. In August 2017, Ms T was offered a secure flexible tenancy until June 2020.
27. The ALMO continued to receive complaints about Ms T from the other tenants. It is currently taking action against her to evict her from her flat.

Response to Ombudsman enquiries

28. In its response to the Ombudsman, the Council said “In this case the client Ms T disclosed only a conviction for being drunk and disorderly in 2012. We are unable to request additional information concerning an individual’s criminal past unless we have sound reasoning for doing so, which relies upon what the client tells us. In other words if a client holds information back we have no reason to believe and therefore no reason to justify additional enquiries, which would otherwise be regarded as what is known as a fishing expedition.”
29. The Council also said that in the intervening years, improved investigative tools meant that there were now improved investigative techniques available to it when checking references.
30. In relation to making checks with the Police, the Council said it there was an insufficient public protection concern which would have precluded it from making a referral to the Police.

My findings of fault

31. Because of the age and vulnerability of the existing tenants, the Council classified the first floor flat as a ‘sensitive let’. The Council’s policy says that where a sensitive let is required the tenancy will not be offered “until it is confirmed” that any prospective tenant does not have a history of anti-social behaviour.
32. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. I consider the Council’s decision making was flawed in this case for the reasons below.
33. The two references did not provide a continuous record of Ms T’s housing tenancies. There is no evidence the Council considered these matters. The second reference also only covered a four month period in 2014. There is no evidence the Council received and considered Ms T’s most recent tenancies from July 2014 onwards.
34. Council records show it had concerns from the beginning about whether Ms T would be a suitable tenant. Her assessment form recorded she has served an 18 month prison service for drunk and disorderly behaviour and she had, or continued to have drug and alcohol related problems. The Council was, therefore, aware of at least some of Ms T’s past criminal history at the time she applied for a tenancy.
35. In its response to my enquiries, the Council stated it satisfied itself Ms T would be a suitable tenant because she told officers she was ‘clean’. However, the information provided to support Ms T’s application contained a letter from her GP which stated Ms T was not attending her AA sessions. There is no evidence the Council took steps to verify whether Ms T was no longer drinking or taking drugs.
36. The Council also said it would have been acting outside the law to make a ‘fishing expedition’ into Ms T’s police records. However, Ms T had a recent criminal record which had resulted in a prison sentence for drunk and disorderly behaviour. It would have proportionate on this occasion for the Council to consider a police referral.
37. As a consequence, the Council has not provided any evidence to demonstrate it sufficiently considered the individual facts of Ms T’s background when it made the decision to offer her an introductory tenancy. It failed to take appropriate steps to confirm whether Ms T was free of drugs and alcohol, instead relying on her word for it. It also failed to consider a referral to the Police to confirm whether Ms T had any further convictions. These actions would have been appropriate and proportionate steps for the Council to take under these particular circumstances. The Council failed in its duty of care towards Mrs M and the other vulnerable residents in the flat. All this is fault.

Injustice to Mrs M because of the Council’s fault

38. Because of the failures I have identified in the Council’s actions Mrs M was caused significant distress and was exposed to a risk of harm from the actions of Ms M for around four years, a considerable period of time. This was at a sufficient level for the courts to order Ms T to pay Mrs M victim compensation. This distress continues whilst the Council proceeds with its action against Ms T to have her evicted.

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Agreed actions

39. Within one month of the date of the final decision the Council has agreed to:
• apologise to Mrs M for the prolonged distress and risk of harm she has been exposed to by the faults identified in this decision statement; and
• pay Mrs M £1,000 to acknowledge the injustice it has caused her.
40. Within three months of the date of the final decision the Council has agreed to draw up, or provide, the Ombudsman with a copy of its guidance when dealing with sensitive lets to ensure there are effective procedures in place, including checks on references, for confirming any prospective tenant does not have a history of anti-social behaviour, in line with the Council’s Housing Allocations Policy. The Council should consider whether a referral to the Police for a disclosure of any criminal history is appropriate in each case.

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Final decision

41. There was fault leading to injustice. The Council has agreed to my remedies. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

42. I cannot investigate the actions of the Council once it offered Ms T an introductory tenancy. This is because the Housing Ombudsman has jurisdiction for complaints about a Council’s failure to take action over antisocial behaviour where the Council is acting as a social landlord.

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Investigator's decision on behalf of the Ombudsman