Summary: Mr X complained the Council wrongly refused to include two of his children on his housing register application and failed to consider exercising its discretion to do so. There is no evidence the Council considered whether to exercise discretion to include the two children. An apology to Mr X, further consideration of his case and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Mr X, complained the Council:
• wrongly refused to include two of his children on his housing register application when it had included them on the previous application; and
• failed to consider whether to exercise its discretion to include the two children on his application.
2. Mr X says the Council’s actions have caused significant stress and anxiety and it is impacting on the mental health of his children.

Back to top

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. 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)

Back to top

How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and Mr X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

The Council's allocations policy

7. The Council’s allocations policy sets out the size of property housing register applicants can bid on. Section 6.7 of the allocations policy relates to parents with 'staying access' to dependent children or shared residency orders. It says:
• Applicants with a shared residence order or staying access for children are not automatically entitled to bedrooms for their children. The general principle is that a child needs one home of an adequate size, and that the POs will not accept responsibility for providing a second home for children.

House of Lords case

8. The House of Lords appeal case for Holmes-Moorhouse .v. Richmond upon Thames considered the Council’s responsibility when considering homeless applications from those with shared care arrangements. The judgement included the following comments:
• I think it will be only in exceptional circumstances that it would be reasonable to expect a child who has a home with one parent to be provided under Part VII (homeless duties) with another so that he can reside with the other parent as well. It seems to me likely that the needs of the children will have to be exceptional before a housing authority will decide that it is reasonable to expect an applicant to be provided with accommodation for them which will stand empty for at least half of the time. I do not say that there may not be such a case; for example, if there is a child suffering from a disability which makes it imperative for care to be shared between separated parents. But such cases, in which that child (but not necessarily any sibling) might reasonably be expected to reside with both parents, will be unusual.

What happened

9. Mr X was previously living with his partner in a social housing tenancy in his ex-partner’s name. When securing that tenancy the Council included on the housing register application Mr X’s two eldest children from a previous relationship. The Council registered them for a three-bedroom property but subsequently realised this was in error as Mr X did not have child benefit for the two eldest children. The Council decided not to pursue that matter further given the passage of time.
10. In 2024 Mr X split from his partner and now had responsibility for their recently born daughter. Mr X moved into a three-bedroom privately rented property which he secured with some financial help.
11. When it became clear the landlord for that property intended to sell Mr X applied for housing with the Council in September 2024. Mr X explained in his application he had sole care of his baby daughter. Mr X also said his two older children from a previous relationship, a boy and a girl aged over 10, stayed with him 50% of the week but he did not have child benefit for them. Mr X said stability was important for his eldest daughter’s mental health as she had issues with anxiety and self-harm.
12. The Council placed Mr X in band E as adequately housed and said he could bid on two-bedroom properties.
13. Mr X asked the Council to review his banding as he would be made homeless in March 2025. Mr X also said his eldest children lived with him at least 50% of the time and the Council had included them on his previous application. Mr X asked the Council to include them on this application. Mr X said if the Council did not do that his son might have to move schools. Mr X also raised concerns about the impact on his children of not being able to live with him anymore.
14. Following a review the Council wrote to Mr X to tell him it had not made any changes to his banding or bedroom entitlement. The Council referred to paragraph 6.7 of its allocations policy. The Council said although it had made an error on his previous application it did not have an obligation to allow him to bid on three-bedroom properties for his current application.
15. Mr X appealed. In accordance with its review procedure the Council passed the request to another local authority to consider. That local authority did not make any changes to the decision. The Council wrote to Mr X on 3 December to tell him that.
16. Mr X raised concerns about the Council’s decision in January 2025 when he reiterated his concerns about the impact on his two eldest children. In response the Council referred him to the legal case I refer to in paragraph 8. The Council explained it did not have an obligation to provide additional housing to a parent where a child is already housed with the other parent.
17. Mr X made further representations and the Council contacted the local authority where the mother of the two eldest children lived. That local authority confirmed the mother had child benefit for the two children and it had accepted the main duty to house her and her children.
18. Mr X has now moved into a two-bedroom property.

Analysis

19. Mr X says the Council wrongly refused to include two of his children on his housing register application and failed to consider whether to exercise discretion to do so.
20. The first point to make here is that the Ombudsman is not a route of appeal. It is therefore not my role to decide whether Mr X should be registered for a two-bedroom or three-bedroom property. Instead, my role is to consider whether the Council, in reaching its decisions, did so after taking everything into account.
21. It is clear from the Council’s response to my enquiry it is largely relying on paragraph 6.7 of its allocations policy in refusing to allow Mr X to bid on three-bedroom properties. I refer to that section of the allocations policy in paragraph 7. As the Council’s allocations policy notes, a person with a shared residence order or staying access for children are not automatically entitled to bedrooms for their children. The Council says it has applied its policy properly.
22. I am satisfied though the Council’s policy allows for the Council to exercise discretion if it considers it appropriate. That is clear from the use of the word ‘automatically’. The same applies to the legal case the Council has quoted. That legal case also makes clear in exceptional circumstances it may be reasonable to expect a child who has a home with one parent to be provided with another so he or she can reside with the other parent as well. The issue for me to consider is therefore whether the Council has considered whether to exercise discretion in Mr X’s case.
23. The evidence I have seen satisfies me Mr X has put forward various reasons in support of his application for the Council to exercise discretion. That includes his contention that the family have set down roots in the area because of the Council wrongly registering the family for a three-bedroom property when he was with his previous partner. It also includes his concerns about the impact on the mental health of the two children of not being able to stay with him any more as well as concerns about his son having to move schools.
24. I am satisfied the Council has carried out two reviews. The Council’s choice based lettings team manager conducted the first review in November 2024. Having considered the letter following that review I note the officer decided Mr X should remain registered for a two-bedroom property, referring to paragraph 6.7 of the Council’s allocations policy. That decision recorded the officer’s view that just because the Council had made an error on the previous application it did not follow the Council had an obligation to award a three-bedroom property.
25. Given the content of that letter I am not satisfied the officer considered whether it was appropriate to exercise discretion in Mr X’s case. The only discretion that letter refers to is the discretion to register Mr X for a two-bedroom property because he was seeking permanent custody of his youngest daughter through the courts. There is no reference in that letter to any consideration the officer gave to the various arguments Mr X put forward for the Council to exercise discretion to allow him to bid on three-bedroom properties. Referring only to the Council’s policy and not considering whether to exercise discretion amounts to a fettering of the Council’s discretion and is fault.
26. I recognise Mr X’s review application was also considered by another local authority on the Council’s behalf. I have considered the notes from that review. Those satisfy me the reviewing officer refused to change the number of bedrooms Mr X was registered for largely on the same basis as the previous review. The notes from the review record what paragraph 6.7 of the Council’s allocations policy said, the incorrect assessment of a previous application and the fact the Council did not have an obligation to award a three-bedroom property. That review decision again did not refer to whether the reviewing officer had considered whether to exercise discretion in Mr X’s case or why it was not appropriate to exercise discretion to allow Mr X to bid on three-bedroom properties. Nor did the letter following that review decision explain the reasons for the decision. I am therefore not satisfied the Council has considered whether it should exercise discretion to allow Mr X to bid on three-bedroom properties. That is fault.
27. I am satisfied because of the Council’s fault Mr X is left with some frustration that his circumstances have not been considered properly. As remedy for that I recommended the Council apologise to Mr X and that it reconsider his case to decide whether to exercise discretion to allow him to bid on three-bedroom properties, taking into account the representations he has made. The Council should ensure it properly records the reasons for any decision it reaches and communicates those reasons to Mr X.
28. I also recommended the Council remind officers assessing housing register applications of the need to ensure when decisions are made the Council also considers whether to exercise discretion, rather than simply quoting the allocations policy. The Council has agreed to my recommendations.

Back to top

Action

29. Within one month of my decision the Council should:
• apologise to Mr X for the distress he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• consider whether to exercise discretion to allow Mr X to bid on three-bedroom properties, taking into account his representations, and write to him to confirm and explain its decision; and
• send a reminder to officers dealing with housing register applications about the discretionary powers the Council has and the need to ensure when decisions are made on housing register applications the Council does not fetter that discretion.
30. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

31. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

Back to top

Investigator's decision on behalf of the Ombudsman