Summary: Mr X complained about the Council’s decision to remove him from the housing register. We have found no fault in the Council’s decision making and we are satisfied it has already remedied the injustice arising from its delay.

The complaint

1. Mr X complains about the Council’s handling of and review of its decision to remove him from the housing register. He says his family remain in unsuitable accommodation and his mental health has suffered because of the Council’s actions.

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What I have investigated

2. I have investigated the complaint above. I have not investigated other matters arising for the reasons explained at the end of this decision.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether an organisation’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. (Local Government Act 1974, section 34(3), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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)
7. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
8. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained or any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6))
9. If we are satisfied with an organisation’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

10. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
11. I gave Mr X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Housing benefit

12. A person can appeal to the independent benefits tribunal if they dispute a council’s decision on an overpayment.

Housing allocations

13. Any decisions made about a housing application can be challenged by seeking a review with the council. However, there is no right to challenge review decisions in court except by Judicial Review.

Council policy

14. Relevant to this case, the Council’s housing allocations scheme says it will:
• carry out checks to verify an application before making a housing offer.
• disqualify applicants with a housing related debt over £100 unless and until they clear the debt.
• disqualify applications where it is found they have given false information.

Equality Act 2010

15. Councils are subject to the duties not to discriminate on any of the nine protected characteristics listed in the Equality Act 2010 and to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
16. The ‘protected characteristics’ referred to in the Act are:
• age,
• disability,
• gender reassignment,
• marriage and civil partnership,
• pregnancy and maternity,
• race,
• religion or belief,
• sex, and
• sexual orientation.
17. The Ombudsman cannot find that a body in jurisdiction has breached the Equality Act. However, we can find a body at fault for failing to take account of their duties under the Equality Act.

Direct discrimination

18. Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic.

What happened

19. Mr X, his wife and two children live in a two bedroom flat in a high rise building. One child, Y, has autism and one has dust allergies. His wife suffers from poor mental health and panic attacks.
20. Mr X joined the housing register in 2016 and received medical priority from 2019.
21. In May 2020 Mr X accepted an offer on a three bedroom house with garden. However, the Council’s housing allocations team said it could not make a formal offer as it was unable to verify his application pending further enquiries by its fraud team.
22. In August the Council’s fraud team tried to interview Mr X online but the internet connection was poor.
23. In October the Council’s fraud team held a face to face interview with Mr X. The Council asked where he was from which he considered discriminatory. He says it also questioned him about paperwork that he did not have time to review ahead of the interview.
24. The Council’s fraud team completed its investigation in October 2020.
25. On 26 October the housing allocations team wrote to Mr and Mrs X with its decision to remove them from the register. The Council said they failed to declare statements for all accounts held in May 2020, and it was not satisfied by the explanations for the credits into these accounts. It therefore concluded the application was fraudulent and so it closed this with immediate effect. They had a right to request a review of this decision. It would usually provide an outcome within 10 working days of a request. In exceptional cases, it may need more time in which case it would keep them updated.
26. On 13 November Mr X requested a review of this decision and disputed the outcome of the fraud investigation. He also provided further health information for consideration. This included a GP letter dated October 2020 which said a property with a garden would be very helpful with reference to the family’s health issues. And an NHS’ specialist letter dated November 2020 which said they supported the application to move to a house with a garden to allow for more space to reduce Y’s anxiety.
27. On 19 November the housing allocations team said it would review its decision once the appeal on the fraud investigation was complete and it had received feedback from this. It also asked Mr X for further information as requested by the fraud team.
28. In December Mr X sent further information regarding his fraud appeal. He said he did not disclose one account because it was for his children and he further explained payments into his accounts.
29. On 10 December the Council’s housing allocations team told Mr X that a housing benefit overpayment was also a reason for disqualification. On 29 December it asked him if he had spoken to the housing benefit team about this.
30. In February 2021 Mr X responded to a questionnaire from the fraud team.
31. On 28 April 2021 the Council’s fraud team confirmed it was taking no criminal action against Mr X for fraud. However, it had made recommendations to the Housing Department and the Housing Benefit Department that it had evidence to support any decision on the civil side – being proof on the balance of probability. It said the housing team now had to decide on his application considering why his finances differed to the statement he put forward and the health needs of his family. The housing benefit team also had to consider its decision on the overpayment. He would have a right to appeal to the courts on both outcomes.
32. The Council’s fraud team reported to the housing team that Mr X had not declared all accounts and income at the time of applying to the housing register. Mr X’s income exceeded that reported when considering the money going through the undeclared bank accounts as well as financial applications where both Mr and Mrs X declared they had higher incomes. On appeal Mr X could not account for the money passing through the undeclared bank account. However, the Council should consider the medical grounds for the move irrespective of the fraud and debt.
33. Mr X wrote to the Council’s housing allocations team asking it to review its decision as the fraud team concluded there was no fraud. He insisted it return him to the housing register or it would be acting against doctor’s recommendations that they be housed in a place with a garden for medical reasons.
34. On 21 May 2021 the housing allocations team said it would aim to respond to Mr X’s appeal within a month. It also asked what steps he had taken regarding the housing benefit overpayment.
35. Mr X told the Council he was still waiting to hear from the housing benefit team but he had made clear he was entitled to any monies claimed i.e there was no overpayment.
36. On 15 June Mr X chased the Council. The Council’s records show it told Mr X it needed the outcome of his housing benefit overpayment appeal as this was relevant.
37. Mr X says he spoke to the housing benefit team in August and found they had not received any update from the fraud team. Further they said he had to repay the overpayment or challenge this in court.
38. On 6 September 2021 the Council told Mr X it was awaiting the outcome of the housing benefit overpayment to proceed. It explained it could not reinstate him onto the register while the debt remained. It would then consider other factors.
39. Mr X then said he intended to provide further information about his family’s health needs for it to consider.
40. On 22 September the housing benefit team told the housing allocations team that Mr X had now cleared the overpayment. The allocations team clarified to the housing benefit team that the debt was relevant to its decision making.
41. On 5 October Mr X provided further evidence of his family’s health needs for review. This included a GP letter dated September 2021 that a property with a garden would be helpful and, a family services letter that the children would benefit from outside space.
42. On 7 October the Council told Mr X it could not give a timescale for its response.
43. Mr X says called the Council on 11, 12 and 13 October 2021. He has provided phone bills in support. He says on 12 October Council officer A slammed the phone down on him.
44. The Council has provided an internal email of 13 October which refers to Mr X speaking to Council officer B on that day, seeking an update, but the line disconnected.
45. On 26 October the Council told Mr X it still needed to review the information provided. Mr X asked for a timescale. On 11 November the Council said it could not give a timeframe due to staffing issues.
46. For clarity I have referred to the complaint correspondence first, and then the housing allocation review documents, below.

Complaint

47. On 30 November Mr X complained about the Council’s delays and queried if this was due to racism. On 2 December he made a formal complaint that Council officer A had delayed dealing with case, hung up on him on 12 October, was acting against doctor’s orders and was racist.
48. The Council’s stage 1 response of 10 December said:
• From November 2020 to April 2021 it awaited the outcome of the fraud investigation so it could take into account any new information. From April 2021 it further delayed its review to give Mr X time to clear the debt on his housing benefit account. This was because its policy is to disqualify anyone from the register with a debt over £100.
• In September 2021 Mr X cleared the debt but remained disqualified due to the fraudulent statements. In October Mr X gave further evidence for review.
• It did not unreasonably delay its review to October 2021.
• It accepted it had not progressed the review since October and apologised for this. This was because the team was short staffed due to the pandemic, sickness and leave. It would respond by 17 December.
• It held no record of him calling on 12 October. On 13 October the phone line disconnected but was not hung up and this was a different officer.
• There was no evidence Y was at immediate risk as he said but if he had evidence of this he should provide it.
• There was no evidence that any delay was due to his skin colour or country of origin.
• It would ask another senior officer to review his application.
49. Mr X escalated his complaint on 20 January. He said:
• He had phone records which showed he did call the Council on 12 October. Officer A hung up on him; delayed the case; refused to explain the delay or give a timeframe for completion and did not answer questions he raised. He believed this was due to racism.
• Officer A suggested there were lots of documents to review but they had information from the fraud team for many months and he had otherwise only provided updates on health.
• He enclosed letters dated December 2021 from the school, family services and a GP which included that Y’s safety was a real concern.
50. On 3 February Mr X added to the complaint he was unhappy the Council accused him of lobbying his MP against Council officers and it had mixed the complaint and review.
51. The Council’s stage 1 response of 14 February said:
• Officer A was not on duty on 11 and 12 October. It only had a record of one call with officer B on 13 October that disconnected. However, he had asked for a call back and it completed this the next day.
• It would not expect officer A to address his query about who would take responsibility for Y’s health.
• It was difficult to give a timeframe for the review decision due to complexity and the potential need for additional enquiries.
• There was no evidence of racism.
• It told his MP he made a complaint against the Council as it uses this term for any complaint. It also said at stage 1 it found the complaint unfounded, which it did. This was not misleading.
• It updated his MP on both the complaint and review.
• There was no delay except October to December. It now offered a £25 voucher for this.
• He could go to the Ombudsman.

Housing allocation review decision

52. The housing allocations team issued its decision to Mr X on 17 December. In summary it found:
• When Mr X applied to join the register he did not declare all his accounts and income. While he had since provided explanations for some of the income he had accounted for less than 10% of the total undeclared sums that passed through the account.
• The Council was satisfied on the balance of probabilities, Mr X made declarations that fell within the disqualification grounds of the Allocation Scheme.
• The Council was satisfied it correctly assessed his application in October 2020 and disqualified him on the basis of the evidence available.
• The Council was satisfied the outcome reached by the fraud team in April 2021 still gave grounds for disqualification because they obtained evidence he made false and misleading statements in his application for social housing.
• A senior manager can grant an exception to this disqualification for fraud on the basis there are exceptional or unforeseen circumstances.
• The Council carefully considered the declared medical conditions for the family. This included the declared health of all family members and the medical evidence submitted.
• It took account of the earlier decision to give him medical priority but did not consider that an exceptional or unforeseen circumstance that would supersede the false and misleading statements.
53. On 5 January Mr X applied for a stage 2 review. On 17 January he added it was unfair for the Council to rely on an undeclared account given the fraud team was not taking action on it. Mr X also provided further health information for consideration. He enclosed letters dated December 2021 from the school, family services and a GP which included that Y’s safety was a real concern.
54. The team issued its stage 2 review decision to Mr X on 4 February. It said:
• The failure to declare all accounts was a reason for disqualification due to fraud and failure to declare all income was another reason. That this did not lead to prosecution did not affect its decision to remove him from the register.
• In regards to income, there was money going through the undeclared bank account and additionally that both Mr X and Mrs X reported earnings in separate financial applications.
• It then considered health information with reference to the letters provided. It considered a move to another property would not solve Y’s health issues. As to the risk to child safety, it had made enquiries and found this could be addressed in their current property with practical action. It also considered other health needs but found these were not so exceptional as to override the disqualification for fraud and deception.
55. When I spoke to Mr X he said:
• He did not appeal the housing benefit overpayment because he wanted to resolve this quickly.
• His phone records showed he called the Council on 12 October despite the Council’s denial.
• The Council should have made an exception to its policy given Y’s health and the risk to Y’s safety.
• The Council was wrong to say moving to another property would not help Y’s health conditions because doctors were clear Y needed space to run around.
• The Council wrongly claimed Mrs X worked in a shop; it had no proof of this.
• The Council told his MP he had complained about racism at the Council but this was untrue as he complained about a member of staff.
56. In response to enquiries the Council provided a copy of its records. These show the fraud team had sight of an application for financial services, completed by Mrs X and reporting that she had earnings from employment. The Council referred to this in its stage 2 review though I cannot see the Council shared a copy of the information relied on with Mr X.
57. In comments on a draft decision Mr X said:
• He was unhappy with the Council’s handling of a call on 9 December 2021. He believes the Council tried to indirectly get him to drop his complaint of racism;
• He remains unhappy the Council denied the phone call of 12 October 2021;
• He still believes the Council misled his MP by saying he made a complaint against the Council rather than a specific officer;
• He explained all transactions to the fraud team; the Council is wrong to say he only accounted for 10%;
• He has still not received proof that Mrs X had a job;
• He has video proof of Y’s condition and his need for space to run around;
• The Council is punishing Y over his mistake.

Findings

58. Mr X’s complaint about the Council’s decision to remove him from the housing register has been ongoing since May 2020 for reasons beyond Mr X’s control. Further, I note the Council’s final decision was issued within 12 months of Mr X’s complaint to the Ombudsman. I therefore consider the entire complaint in time.
59. In May 2020 the housing team did not proceed with Mr X’s application pending checks by its fraud team. This was in line with its policy and it gave clear information to Mr X about this. I find no fault in this regard.
60. In October the housing team considered the outcome of the fraud investigation. It gave Mr X its decision and reasons for removing him from the register, with reference to its policy. I find no fault in its decision making.
61. In November the housing team told Mr X it would await the outcome of his appeal on the fraud investigation before reviewing its own decision. The Council’s policy allows it to take longer to respond if needed and the Council gave clear reasons for doing so. I find no fault in this regard.
62. The documents show from April 2021 the housing team waited for Mr X to clear his housing benefit overpayment before considering his application, because this was a reason for disqualification. The documents show the Council told Mr X the overpayment would disqualify him, asked him for updates and confirmed it would postpone its review until this was resolved or paid. The Council gave clear reasons for delaying its review. I find no fault in this regard.
63. Mr X cleared the overpayment on 22 September but said he had more information to provide which he sent on 5 October.
64. The Council accepts a delay in progressing the review from 5 October to 17 December. This is fault. Mr X waited longer for the outcome than necessary. This is injustice. The Council has already apologised and offered a £25.00 voucher by way of remedy. I am satisfied this adequately remedies the injustice suffered.
65. The documents show the Council took into account all information it held in reaching its review decisions at each stage. This included documents it held that Mrs X reported earnings and all health information provided. That the Council took the view outdoor space would not assist Y’s medical conditions does not mean it ignored the evidence. Rather it had a different view on the evidence to Mr X. There is nothing to suggest the Council took into account irrelevant information such as Mr X’s race or ethnicity in reaching its decisions. The Council decided in line with its policy and gave clear evidence based reasons for its decisions. I find no fault in its decision making process.
66. I will not investigate how the Council reached the view that Mr X did not account for 10% of transactions. This is because any fault would not affect its decision. I say this because the Council had other reasons for disqualification; namely that Mr X did not declare all accounts or all income.
67. My role is to investigate complaints against the Council as a corporate body. I can consider whether the “Council” treated Mr X less favourably because of his race. This includes the actions of its officers and employees. I have not seen any evidence the Council treated Mr X poorly due to race. While I accept Mr X called the Council on 12 October, there is a lack of evidence to prove an officer intentionally hung up on him.
68. On review of the documents I am satisfied the Council fully and adequately addressed Mr X’s complaints, including in respect of the call on 12 October. The Council accepts there is a difference between its own call logs and those recorded by Mr X and it cannot explain this difference. This does not mean the Council is at fault.
69. In its complaint response the Council explained why it referred to Mr X’s complaint of racism as being made against the Council rather than an individual. This is the approach we would expect the Council to take and this is similar to the Ombudsman’s approach; we refer to the corporate body. I therefore do not find fault.
70. I will not investigate the Council’s handling of a phone call on 9 December because any injustice is not significant enough to justify our involvement.
71. Mr X may ask the Council for a copy of the documents relied on regarding Mrs X’s employment. The Council has not yet had chance to respond to such a request and so I cannot investigate or find any fault.

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Final decision

72. I have completed my investigation. This is because I find no fault in the Council’s decision making and I am satisfied it has already remedied the injustice arising from its delay.

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Parts of the complaint that I did not investigate

73. I did not investigate any dispute about the Council’s decision on Mr X’s housing benefit overpayment as he had a right to appeal to the Tribunal.
74. I did not investigate Mr X’s complaint about the actions of the Council’s fraud team, arising in October 2020. This is because any complaint to the Ombudsman is out of time and there is no good reason to exercise discretion to investigate.

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Investigator's decision on behalf of the Ombudsman