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Swindon Borough Council (20 013 551)

Category : Housing > Allocations

Decision : Not upheld

Decision date : 14 Dec 2021

The Ombudsman's final decision:

Summary: There was no fault by the Council. We were satisfied officers gave Mr X appropriate advice about bidding on a vacant property based on its housing allocations policy.

The complaint

  1. Mr X complained Swindon Borough Council (the Council) refused to nominate or shortlist him for a housing association property in October 2020. He said this meant he was unfairly prevented from being rehoused.

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What I have investigated

  1. I have investigated Mr X’s complaint as set out above. I have not investigated other complaints about things which happened in 2010 and 2013 or about a penalty charge notice. My reasons are at the end of this statement.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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

  1. I considered Mr X’s complaint, the Council’s responses to his complaint and documents set out later in this statement. I also considered comments from Mr X and the Council on a first draft of this statement.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law, policy and guidance

  1. Most councils, including this one, operate a choice-based lettings system. Applicants for housing bid on vacant properties advertised on the Council’s website. Vacancies may be council or housing association properties. If an applicant is a successful bidder, the Council checks they are eligible for the property (for example, it is an appropriate size for them etc) and then shortlists them if the checks are ok. Once all checks are complete, the person is offered the property.
  2. The law says people have the right to request a review of categories of decision on their housing application including a decision concerning the facts of his or her case which are likely to be or have been taken into account in considering whether to allocate accommodation and be informed of the outcome of the review and the grounds/reasons for it. (Housing Act 1996, section 166(9)(b) and (c))
  3. The Council’s housing allocations policy says:
    • (3) Applicants who have been involved in anti-social behaviour are not accepted onto the housing register.
    • (11.7) Where applicants are accepted onto the housing register and are found to have an outstanding housing debt, they will not be successful for any bid placed and their application may be removed from the register unless they have an exceptional housing need. Permission to be housed with a debt must be given by a senior housing officer.
    • (12.1) Some areas or properties may have restrictions attached that allow these to be advertised in line with criteria agreed by the Council and/or a housing association.
    • (13.1 and 2) An applicant has the right to request a review of decisions made on their cases including: they are ineligible to join the housing register and about any decision made on the facts of their housing application. The review will be dealt with by a senior housing officer with no previous involvement. Reviews will be completed within 28 days, taking into account representations and any other relevant facts.

What happened

  1. Mr X is in temporary accommodation provided by the Council. He has been on the housing register for several years. Mr X told us the reason he had rent arrears on his current property was because the Council delayed in setting up a direct debt to pay his rent in October 2019.
  2. In October 2020, Mr X emailed a housing officer about a vacant flat he had seen on the Council’s website. He said he could not place a bid himself and asked her to bid for him. The housing officer did not reply as she was not at work on the day Mr X sent the email, although her out of office message was on. Mr X emailed the housing officer again a couple of days later saying he was having internet problems and could not bid. The housing officer replied to Mr X’s email on the same day saying the property he was interested in was a housing association one and they would not likely accept him because of rent arrears and anti-social behaviour. She suggested Mr X would be better bidding on council properties which were not ‘sensitive lets.’’ (Sensitive lets are properties which are advertised which have restrictions as to who can be put forward for them. Information on the Council’s website explains restrictions may include preventing bids from applicants with a history of anti-social behaviour. It does not prevent applicants from bidding on other properties.)
  3. The following day, Mr X sent the housing officer a series of inappropriate emails. Some of these emails contained comments about her being dishonest, not being competent at her job and threats to take legal action against her. He asked again for the housing officer to place a bid on the flat he had been looking at on the website.
  4. The housing officer emailed Mr X the following day asking him not to use inappropriate language. She suggested two vacant council properties that Mr X could bid on and asked him to contact her if he wanted to bid on them. Mr X responded with several emails containing veiled threats, said he was unhappy, had complained and wanted no further help from her with placing bids.
  5. The Council told me that there were no bids from Mr X.
  6. Mr X wrote to the Council’s Chief Executive in October, denying he had rent arrears and denying anti-social behaviour. The Chief Executive's office acknowledged his letter and said the Council would deal with the matter as a complaint. The Council’s first response to the complaint said his letter included historical issues and so it would not consider the complaint. Mr X asked to escalate his complaint. The Council’s final response in January 2021 said:
    • Housing associations did not accept tenants with rent arrears and/or a history of anti-social behaviour.
    • There were reports of historical anti-social behaviour towards professionals and a record of recent aggressive emails sent to council staff.
  7. I asked the Council to send the information it relied on in responding to Mr X’s complaint. The Council sent copies of emails between officers and Mr X and records of contact it had about Mr X. These included:
    • Notes from 2013 describing Mr X as ‘argumentative’ during appointments with the housing department and information from a third party who verbally said Mr X had been evicted from his accommodation and had been ‘arguing with other residents.’
    • An email from 2013 from a third-party organisation saying Mr X had been verbally abusive to an employee, had handed in abusive letters and the police had been contacted about him.
    • A note in 2016 saying council officers should not see Mr X alone.
    • An email from the housing officer asking Mr X not to use derogatory language or threats and a suggestion of two vacant properties Mr X could bid on.
    • An email from a manager to Mr X explaining he had rent arrears of £179 and needed to pay these off. The manager went on to say that the Council had not been in contact with Mr X since his current tenancy started, until recently. And the Council would review his tenancy at the end of December 2020 with regard to any complaints of anti-social behaviour and would be in touch if there were any suitable properties for him. The manager told Mr X about how to pay off the rent arrears.
  8. The Council told me that Mr X has a live active housing application which means he can bid on properties suitable for his needs. It also said that the housing officer’s advice on the vacancy in October 2020 (see paragraph 11) was based on the Council’s experience with the housing association. The Council went on to say that Mr X could bid on vacancies advertised as sensitive lets and if he was rejected, he had a right of review/appeal.
  9. Mr X’s position is he has no history of anti-social behaviour and that the rent arrears were not his fault but were due to the Council being late in setting up his direct debit.

Was there fault?

  1. There was no fault by the Council in advising Mr X any bids he placed would likely be unsuccessful due to rent arrears. This advice was in line with its housing allocations policy. Mr X said the reason for the arrears was due to a delay by the Council in setting up a direct debit. I have no way of determining whether there was fault by the Council as opposed to fault by the bank in delaying processing the direct debit. Whichever way the debt arose, there is still money owing to the Council and under its allocations policy, this will prevent Mr X from being rehoused. The Council has explained this to Mr X and there was no fault in refusing to place his bid or to nominate him to the housing association based on the rent arrears.
  2. The housing officer told Mr X about two other vacancies that were council properties that he could bid on. This was appropriate advice and I have no reason to criticise it. Housing associations are not required to accept an applicant nominated by the Council and it was appropriate for the housing officer to guide Mr X about maximising his chances of being successful at bidding.
  3. It is not for us to say whether or not Mr X has a history of anti-social behaviour, this is for the Council. Our role is to decide whether the Council acted with fault. Had a bid for the flat been placed in October 2020, it is likely it would have been refused on the grounds of Mr X’s rent arrears as explained above. The Council’s policy around anti-social behaviour may also have prevented Mr X from being successful at bidding. The Council’s complaint response noted Mr X’s recent aggressive emails to the housing officer. It confirmed it would review his tenancy in December 2020 with regard to any reports of anti-social behaviour. There was no fault in this action.

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Final decision

  1. I do not uphold Mr X’s complaints because the Council gave him appropriate advice based on its housing allocations policy.

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Parts of the complaint that I did not investigate

  1. Mr X complained about a range of other issues which I did not investigate because they are late complaints:
    • Corruption, incompetence and dishonesty by staff in 2010
    • What happened when he left his car in a council car park in 2012 and about not getting his belongings back straight away when he came out of prison in 2013
    • The Council’s failure to pay his housing benefit when he was recalled to prison in 2013
    • The failure to explain why one of his bids was unsuccessful in 2013.
  2. Mr X also complained about a penalty charge notice the Council issued in September 2020. I did not investigate that complaint because the traffic tribunal ruled in Mr X’s favour.

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Investigator's decision on behalf of the Ombudsman

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