Summary: Mr X complains the Council unfairly excluded him from the housing register. He says this has caused him an injustice as he has been unable to bid for suitable properties to live in since the Council’s review. We find the Council was at fault. It has agreed to look at Mr X’s case again.

The complaint

1. Mr X complains that the Council unfairly excluded him from the housing register. He says this has caused him an injustice as he has been unable to bid for properties.

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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. I spoke with Mr X and reviewed the complaint file.
5. I made enquiries with the Council and read the relevant law and guidance.
6. I gave both the complainant and the Council the opportunity to read my draft and make comments. I took into account any observations made before issuing this final decision.

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What I found

Relevant law and guidance

Non-Molestation Orders

7. A non-molestation order is a civil order obtained by a victim of domestic abuse from a Judge, through the Family Court. The court can say that the abuser (a perpetrator of the abuse against a victim), is not to act in a threatening manner or use violence or abuse towards a victim or attend any property occupied by the victim. It is time-limited. However, a victim can ask for the order to be extended.

The Council’s Allocation Scheme 2017

8. Under the Council’s Allocation scheme, some people do not ‘normally’ qualify to join its housing register. Among these are people whose behaviour, either current or in the past, is deemed to be unacceptable and which continues to make them unsuitable to be a tenant.
9. Perpetrators of domestic violence who are subject to a non-molestation order are considered to fall into the above category of unacceptable behaviour.
10. In determining whether an applicant does not qualify because of unacceptable behaviour the Council says it will consider:

• Has the applicant been guilty of unacceptable behaviour?
• Was the unacceptable behaviour serious enough to deem the applicant unsuitable to be a tenant? And
• At the time of the application or allocation, is the applicant still unsuitable to be a tenant by reason of that behaviour, or the behaviour?

(4.3.1. Allocation Scheme 2017)

11. Where a person is deemed to be ineligible or not to qualify for an allocation of accommodation, they are entitled to request a review. Such reviews will consider if there is any evidence to support that the behaviour or circumstances upon which the decision was made have altered. (4.5. Allocation Scheme 2017)

Background

12. In late 2019 Mr X made an application to be added to the Council’s housing register. The records show the Council investigated Mr X’s past tenancy with the Council and was informed, in the course of those investigations, that the court had made a non-molestation order (“the Order”) against Mr X in November 2018.
13. On 11 December 2019 the Council wrote to Mr X to tell him that he had not qualified to join the housing register. It said this was because he or a member of his household was a perpetrator of domestic violence. He was told he could ask for a review.
14. Mr X applied for a review but was unsuccessful. On 4 February 2020, the Council wrote to him. It said it had considered a number of documents and considered his application under section 4.3.1 of the Allocation Scheme 2017. (see my para 7-10).
15. The documents the Council reviewed included information from the police confirming, in August 2019, that no further action would be taken against Mr X. I have seen the review records. There appears to have been some initial confusion over whether the Order had expired or not, but it was eventually confirmed that it had expired on 27 May 2019.
16. The Council said that having considered this information, it upheld the previous decision. It emphasised that the Council could deem behaviour unacceptable even if it was ‘in the past’.
17. The reviewer’s records show that the Council also considered that Mr X had former tenancy issues. It was noted that notice of possession proceedings had been commenced but that Mr X had voluntarily relinquished his tenancy prior to this being served.
18. The final sentence in the reviewer’s rationale was that the decision was upheld on the basis of previous behaviour.
19. In response to my enquiries, the Council said that while the previous tenancy was mentioned “in passing”, no findings had been made in that regard.
20. It says that this information would only have been relevant if a finding had been made against Mr X for a tenancy breach. That had not been the case.
21. It says that instead the Council refused access to Mr X to the housing register solely because of his past behaviour in respect of the Order.

Consideration of the expiration of the Order

22. The Council says it gave consideration to:
1. the length of time since the expiry of the Order
2. the lack of evidence to illustrate a material change in Mr X’s behaviour since the expiry of the Order, and
3. the severity of the behaviour resulting in the court granting the Order. (my lettering)

Analysis

23. I have concerns about the Council’s process in this case. I will deal with the points set out in paragraph 22 in turn.
24. The length of time since the expiry of the Order: There is no evidence in the reviewer’s notes that consideration was specifically given to the length of time that had expired since the expiry of the Order. In the record of the rationale for its decision, the officer merely notes that it has expired.
25. Lack of evidence to illustrate a material change: There are no records indicating what the Council’s consideration was in this regard. The rationale does not refer to a lack of evidence to illustrate a material change. It is also difficult to see how Mr X could prove a negative.
26. The officer had other information to hand, but it was not commented on or referred to in the rationale for the decision. He:

• was aware that the Order could have been extended but did not appear to draw any conclusions from the fact it had not been.
• was aware from police evidence that no further action would be taken against Mr X. But no notes are made about what, if any, conclusions the officer drew from this information.

27. Excluding someone from registering for housing is a serious matter. From the records I have seen I am unclear how the Council reached its decision. Its reasoning should be clear. This is fault.
28. Further, the Council’s letter to Mr X indicates the decision was made on the basis of Mr X’s behaviour in the past. Mr X should have been informed if the Council reached a decision based on other information about him. Sometimes there can be issues around disclosing some information. But if other information about Mr X formed part of the consideration that stopped him applying for council accommodation, it is fair that he should have the opportunity to respond.
29. The severity of the behaviour: With regards to c), the severity of the behaviour that led to the Order was not commented on in the notes recording the rationale of the reviewer’s decision.
30. The Council is entitled to consider that the Order, even if in the past, was relevant and enough, in and of itself to exclude Mr X from registering for housing. It says that it is possible for someone who has had an Order made against them to be considered again for housing. It does not operate a blanket exclusionary policy for those who have had Orders made against them in the past. But the reasons the Council has provided for upholding its decision to refuse Mr X the opportunity of applying for housing, do not align with the notes made by the reviewer. This means I cannot be sure the decision was made properly. This is fault.
31. I am concerned about the evidence of consideration given to Mr X’s past tenancy. As the Council says, this would only be a relevant consideration if Mr X had been found to have breached his tenancy. However, while the Council claims it was not a consideration, discussion of his former tenancy forms much of the recorded rationale for its decision.
32. If, as it appears, the details around Mr X’s past tenancy did inform the Council’s decision, the principles of natural justice would dictate that Mr X should have been given a chance to comment.
33. The principles of natural justice require that councils should make transparent decisions. The Council has not been transparent in its decision making. This is fault.
34. It appears the Council has considered factors it accepts are not relevant and then not informed Mr X that these considerations formed part of the rationale which led to its decision. This is fault.
35. I have made a recommendation to remedy the fault identified in this decision. I cannot yet say if the fault has caused Mr X the injustice of missing out on bidding for properties he would have been able to bid for if he had been allowed entry to the register. That will depend on the outcome of a future review.
36. But Mr X has been caused an injustice because his faith in the Council’s review system will have been damaged by this experience.

Recommended/ agreed action

37. Within a month of my final decision, the Council should:
1. Apologise to Mr X for the failings identified in this decision.
2. Offer Mr X the opportunity of another review. If Mr X is successful in a further review, the Council should:

• backdate any decision to add Mr X to the housing register to the date of the original review decision, and
• should consider if Mr X has had to stay in unsuitable accommodation as a consequence of its previous review decision. In that scenario it should consider providing a remedy to Mr X in line with the Ombudsman’s guidance on remedies. If Mr X is unhappy with any proposed remedy, he will be entitled to make a new complaint.
• provide evidence to the Ombudsman of any consideration given to a decision about any proposed remedy.

38. Within two months of my final decision, the Council should:

• Provide training to review officers about the necessity of keeping clear records of an officer’s decision-making rationale.

39. The Council should provide evidence to the Ombudsman that it has complied with the above.

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Final decision

40. I have found the Council at fault and suggested a remedy to address the injustice brought about by that fault. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman