Summary: We shall not investigate this complaint the Council breached its equality duties with Mr X’s housing application. This is chiefly because the evidence suggests there was no fault, in the circumstances, in the Council not inviting Mr X to view a property.

The complaint

1. Ms Y complains on behalf of Mr X that the Council failed to consider its Public Sector Equality Duty and Mr X’s unique circumstances when it did not offer him a viewing of a property (‘Property 1’). Ms Y states this will prevent Mr X practising his religion as he wishes, will affect his mental health, and has caused stress.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. 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))
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)

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How I considered this complaint

6. I considered information provided by Ms Y and copy correspondence from the Council. I considered the Ombudsman’s Assessment Code.
7. I shared my draft decision with Ms Y and considered her comments on it.

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My assessment

The Public Sector Equality Duty

8. The Public Sector Equality Duty (PSED) requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
1. Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010.
2. Advance equality of opportunity between people who share a protected characteristic and those who do not.
3. Foster good relations between people who share a protected characteristic and those who do not. (Equality Act 2010, section 149)
9. The broad purpose of the public sector equality duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
10. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them, insofar as that was relevant to the events complained of. Ms Y’s comments on my draft decision suggested it would not be reasonable to expect Mr X to take court action. She did not give any reasons. Anyway, as I have explained, the Ombudsman cannot decide if the Council has acted unlawfully. Only the courts can do that.

Mr X’s unsuccessful bid for Property 1

11. Mr X has disabilities. The Council gave him Band A priority on its housing list for a two-bedroom property. Mr X needs garden space for an activity a doctor states is necessary for his mental health. Mr X attends a place of worship that is his only social activity, which Ms Y reports is also essential to his mental health.
12. Property 1 was the relevant size for Mr X. Ms Y says Property 1’s garden arrangement made it particularly suitable for the activity necessary to Mr X’s mental health. It is around 700 metres from Mr X’s place of worship. The Council did not invite Mr X to view Property 1 and instead offered it to someone else.
13. Ms Y is unhappy the Council says it prioritises two-bedroom properties with gardens for applicants with children aged under 10 (which Mr X does not have). However, the evidence suggests that was not the reason the Council offered Property 1 to another bidder. The Council says it did so not because of anything to do with children but because it offered the property to someone with emergency housing status. That is higher priority than Mr X’s Band A priority. There is no fault, in general terms, in the Council offering this property to someone it judged to have more priority than Mr X, even if property’s size, garden and location made the property particularly desirable for Mr X.
14. I am aware that, despite the above, a Council having regard to the PSED and its general Equality Act duties might consider whether the type of property someone needs, especially in relation to disability, is so specific that it might justify offering the property outside the normal prioritisation system. However, I note Mr X’s housing application chose areas elsewhere in the Council’s district, notably farther from this place of worship. Mr X has bid for two other properties. Both were much farther from the same place of worship. Therefore the information the Council had suggested that, while Property 1 might have been particularly desirable in the way it would meet Mr X’s needs, a property of that type at least as close to the place of worship as Property 1 was not the only property Mr X might consider suitable. The Council was not obliged to offer Mr X an ideal property, just to consider him for reasonably suitable properties, and that could take account of preferences Mr X had expressed for other areas and properties. In that context, I do not fault the Council for offering Property 1 to a bidder with higher priority, regardless of how well that property might have suited Mr X.

Ms Y’s response to my draft decision

15. Commenting on my draft decision, Ms Y said Mr X’s bid for one of the other two properties (‘Property 2,’ mentioned further below) was impulsive, because of mental health problems. She says Property 2 was not suitable for reasons including the distance from the place of worship.
16. The information the Council had included evidence Mr X would consider various areas and his bids for two properties a considerable distance from this place of worship. I do not see the Council was told expressly that Mr X had bid for Property 2 mistakenly or wholly inappropriately, or that he wanted to withdraw that bid. Indeed, Ms Y told the Council it would be unfair to take away the opportunity for Mr X to make a reasonable decision about Property 2. Rather, Ms Y argued Property 1 would be better for various reasons. So, the information the Council had at the relevant time, in the round, supported the view Mr X would prefer Property 1, but not that Property 1 was uniquely suitable and that properties farther from the place of worship would necessarily be unsuitable on Equality Act grounds. So I have not changed my finding on this point.

The successful bidder having emergency housing status

17. Ms Y disputes whether the Council genuinely offered Property 1 to someone with emergency housing status. She says emergency status is for people ‘where remaining in their current accommodation may cause risk of death or serious injury’. Property 1 has been undergoing building works for some months, so was not ready for the successful bidder to move in for some months. Ms Y doubts the Council would have left someone at risk of death or serious injury so long if they genuinely had emergency status.
18. However, emergency status is not just for people such as Ms Y describes. The Council’s policy says emergency status is for applicants:

“…where remaining in their current accommodation may cause risk of death or serious injury, where an applicant has been assessed as having multiple needs that fall within Band A, where an applicant is terminally ill, is already in Band A and, in the opinion of a qualified medical practitioner, is likely to have less than 12 months to live, or where the applicant’s home is to be demolished under one of the council’s or partner organisation’s redevelopment schemes.”

19. Applicants in some of those circumstances could wait before moving. The fact the property was not immediately available for occupation does not make the Council at fault for saying it offered the property to someone with emergency status.

Ms Y’s response to my draft decision

20. Ms Y cited some emails from elected councillors saying the Council would prioritise Property 1 for a family with children aged under 10. Ms Y argues this shows the Council did not properly consider the Equality Act.
21. Saying a property would be prioritised for a particular type of applicant did not mean it would always inevitably go to such an applicant. Here, the balance of evidence satisfies me the Council gave the property to an applicant with emergency status. Therefore the Council did not get as far as considering whether the property should go to a family with children or to Mr X. In that context, I need not consider the hypothetical situation of whether, had the Council prioritised such a family above Mr X, that might have amounted to a failure to have due regard to the Equality Act.
22. Ms Y’s response to my draft decision also referred to the Council’s position on a property Mr X bid for more recently. If the Council were to offer such a property to someone else and if Mr X were to consider there was fault in such decision-making, that would be a new matter. Mr X should complain about that to the Council first. Meanwhile, it is not the Ombudsman’s role to intervene in new developments or to oversee the Council’s activities generally.

Financial impact on Mr X

23. Ms Y says the Council, in refusing to consider offering Property 1 to Mr X, did not consider the financial problems she states Mr X will have if he is housed farther from his place of worship, as his disabilities prevent him walking far or using public transport. As I have noted, the Council had information Mr X would consider areas beyond easy walking distance to the place of worship. So I do not fault the Council for not regarding this point as decisive, in the context of the information it had at the time.

Withdrawal of the offer to view another property

24. Around the time of his unsuccessful bid for Property 1, Mr X received an offer from the Council to view another property he had bid for, Property 2. Mr X and Ms Y were in communication with the Council about Mr X’s preference for Property 1. The Council eventually withdrew the offer of Property 2. Ms Y says that was less than 48 hours after she and Mr X knew the Council’s final position on Property 1, due to some delay by the Council in forwarding an email. However, the evidence suggests that throughout the intervening period the Council had been reasonably clear it did not intend to offer Mr X Property 1.
25. The Council need not keep offers open indefinitely. In the absence of evidence Mr X had genuine reason to believe the Council intended to let him view Property 1, I do not fault the Council for withdrawing the offer to view of Property 2 when it did.
26. Ms Y says the Council’s senior decision-makers (including senior managers and the councillor who holds the relevant portfolio) are not inclusive as she says none of them shares Mr X’s religion. Insofar as this relates to the appointment and characteristics of officers, it is a personnel matter that the law prevents the Ombudsman considering. Regarding the elected councillor, it is not appropriate for the Ombudsman to speculate or comment on the characteristics of someone elected to the Council.

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Investigator's decision on behalf of the Ombudsman