Summary: The Ombudsman found fault by the Council on Ms L’s complaint about its nationality checking service. It failed to identify she had the wrong document before submitting her application for citizenship to the Home Office who then refused to refund her most of the £1,282 fee. It also failed to consider exercising discretion to investigate her formal complaint. The agreed action remedies the injustice caused.

The complaint

1. Ms L complains the Council’s nationality checking service failed to properly check her naturalisation application in 2018 which meant the Home Office refused it; as a result, she lost most of the £1,282 fee paid to the Home Office which it refused to refund and she had to go to the time, trouble, and expense of applying for it again.

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The Ombudsman’s role and powers

2. 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)
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. 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)

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How I considered this complaint

5. I considered all the information Ms L provided, as well as the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Ms L and the Council. I considered their responses.

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What I found

6. Ms L, a German national, applied for permanent residency in the UK in 2016. In 2018, she decided to apply to become a naturalised British citizen. She chose to use the Council’s nationality checking service it provided at the time to do so. This was a service offered by councils in partnership with the Home Office to check applications for British citizenship. The aim was to increase applications it could complete without further enquiries and it allowed applicants to keep original documents rather than sending them off with the application.
7. Ms L made an appointment to visit the Council’s office for it to check the documents she wanted to send to the Home Office in support of her application.
8. During her appointment, an officer took copies of her documents which included her residency document, degree certificates, P60s, and payslips. She paid the Council £56 for this service and the Council sent her application to the Home Office. Ms L also attached payment of the Home Office fee of £1,282.
9. Shortly afterwards, the Home Office rejected her application. It refunded only £80 of the fee she paid it and retained the remaining £1,202. When she consulted a solicitor, she discovered she sent a wrong document to the Home Office. She sent it the registration certificate instead of the permanent residence card. Ms L did not have a permanent residence card. Ms L argued the Council should have identified the error. Had it done so, she would have obtained the correct document and not lost £1,258 (£1,202 the Home Office refused to refund and the £56 Council fee).
10. The Council stopped providing this service because all nationality checking from 1 January 2019 was done by the UK Visa and Citizenship Application Service rather than local councils.
11. In January, Ms L made a second application to the Home Office. She had to pay its fee again. This application succeeded. She is unhappy she had the go through the expensive procedure again.
12. In response to my enquiries, the Council explained:

• It has no copies of the documents officers inspected during Ms L’s visit;
• It has no copies of any guidance given to officers as these are no longer available;
• It could not contact the Home Office team it communicated with for support when it provided this service as it was disbanded;
• Officers would have copied her documents, stamped them to show they were not fraudulent, and sent certified copies to the Home Office;
• Officers could not give immigration advice to applicants. Nor could they advise what documents applicants should send with their application. This was because officers were not there to check the application, only go through the screening questions, do fraud checks, and securely submit the application;
• Officers’ roles did not include looking at Ms L’s answers or documents in detail; and
• Ms L gave the incorrect answer to some of the screening questions. Had she not done so, officers would have identified the wrong document. The Council provided no evidence to support the basis on which this claim is made. Indeed, I note the Council said officers took no copies of documents and was unable to provide a copy of Ms L’s application.

13. When Ms L complained, the Council replied saying that as she complained about a matter taking place more than 12 months before, it could not investigate it. The only exception was if this was because of delays by the Council.

Analysis

14. While Ms L had a contractual relationship with the Council for the provision of this service, I am not satisfied it is reasonable to expect her to take it to court for breach of contract. This is because of the relatively small sum she paid the Council for the service, the claimed loss of the Home Office fee, and the delay with her application.
15. The service the Council provided was regulated by the Office of the Immigration Services Commissioner which had its own complaints procedure about service provision. It’s website sets out what it cannot help with which includes complainants wanting ‘refunds and compensation’. A refund is the remedy Ms L seeks. I am satisfied the Ombudsman is better placed to remedy any claimed injustice than the Office of the Immigration Services Commissioner.
16. The Home Office issued guidance to councils providing this service (‘Nationality Checking Service: Local Authority Guidance’). This guidance sets out the criteria for making an application and evidence required in support. This included: passport to cover 5 years of the qualifying period (the period where an applicant was not subject to immigration restrictions); confirmation of immigration status; if no passport, alternative evidence of residence to cover the outstanding qualifying period; and evidence of the ‘Life and Language’ test.
17. The guidance states:

• There was a need for council officers to satisfy themselves the person presenting the application was the person named on it;
• There was a need to confirm the applicant’s age, ensure details on documents provided match those on the form, ensure the declaration was complete, confirm the completion of all sections of the form, and confirm the applicant was present in the UK at the start of the qualifying period;
• Documents needed photocopying and certifying;
• Applicants needed to supply passports covering the entire qualifying period. Where this was not possible, they must produce evidence of residence in the UK. It set out alternative evidence of residence. If in doubt, the council could contact a Home Office helpdesk;
• For all applications from European Union nationals, alternative evidence of residence was required, along with passports to cover the qualifying period. It then listed categories of nationals and details of evidence they should submit;
• The need to check the date the country concerned joined the European Communities as nationals;
• Those who had been outside the UK for 6 months or more in any one of the 5 years residence period will have ‘broken’ their residence. It listed 4 circumstances where this did not apply, such as absence not more than 12 months for an important reason, such as child birth for example; and
• The applicant having passed the knowledge of ‘Life and Language’ by passing a test or having an acceptable qualification. Those from specified English speaking countries were exempt.

18. In the ‘Frequently Asked Questions’ section of the guide, it stated when an applicant visited a council for this service, staff would check the application form was completed properly, that the fee enclosed was correct, and that ‘all necessary accompanying documents have been enclosed’.
19. The Council provided a screenshot of a page from its now removed website about the nationality checking service. This said it:

• could not give immigration advice or help completing the application form;
• would make sure the application form was correctly completed and officers would go through a series of screening questions;
• would copy and certify documents;
• was the applicant’s responsibility to ensure the correct documents were submitted and if necessary, they should contact the Home Office for further advice before making an appointment; and
• warned if they failed to bring any of the relevant documents, they would need to book and pay for another appointment. They were told to check with the Home Office if they were unsure what documents were needed.

20. On balance, I found fault on this complaint. In reaching this conclusion, I note the following:
1. The problem for Ms L was she failed to take a permanent residence card. Instead, she took a registration certificate. The guidance referred to the documents needed to show proof of residency. If officers had any doubts, they could telephone the Home Office for guidance. The Council officer failed to identify the registration certificate was not proof of residency.
2. If the Council had checked the documents properly, it would have identified the necessary document was not included. Ms L would have then lost the Council appointment fee but, would not have paid, and lost, most of the Home Office fee.
3. I was not persuaded by the Council’s argument about its limited role when providing this service. The Home Office guidance inferred the service involved a little more than just checking documents, photocopying them, and passing them on to the Home Office. For example, when dealing with passports, it listed alternative evidence an applicant could provide. It went on to say where there was any doubt, officers could call a helpdesk. The guidance referred to the need, in certain circumstances, to check the date the country joined the European Union; and
4. The ‘Frequently asked Questions’ section referred to the need to check all ‘necessary’ documents were enclosed. The inference was the officer had knowledge, or could seek guidance about, what documents were necessary when carrying out the check.
21. The officer should have alerted Ms L to the fact she had failed to produce the correct document which would have avoided her incurring the Home Office fee. The failure to do so was fault. I am satisfied the fault caused Ms L an avoidable injustice. The injustice was the loss of most of the Home Office fee.
22. I also considered the Council’s response to her formal complaint. I found fault on this complaint for the following reasons:
1. The Council would not investigate her complaint because the matter she complained about took place more than 12 months before. The only exception to this was if this was due to delays by the Council; and
2. Placing this time restriction on the investigation of complaints, and making delays by the Council the only exception, fettered the Council’s discretion. There may be valid reasons why a complainant could not submit a complaint within 12 months. A complainant might have been unwell during this period and/or been undergoing a course of medical treatment, for example. A complainant may have suffered a bereavement, a loss of a job or home, or was in some other way incapacitated. The Council failed to explore and consider whether there were circumstances justifying the need to exercise discretion.
23. I consider this failure caused avoidable injustice to Ms L. This caused her distress as there was a lost opportunity to have the Council investigate and consider her complaint. It also caused her some inconvenience and frustration. I also consider it put her to some time and trouble by its refusal to consider her complaint. The injustice caused was partly remedied by this investigation.

Agreed action

24. I considered our guidance on remedies.
25. I also considered Ms L’s own actions as she could have contacted the Home Office before her appointment with the Council to check whether the registration certificate was the correct document she needed for the application. I also noted she did not have the document she needed to send which meant there would have been some delay while she contacted the Home Office to get it.
26. The Council will, within 4 weeks of the final decision on this complaint, carry out the following:
1. Send Ms L a written apology for the failure to identify the incorrect document when inspecting and submitting her documents and for its failure to consider whether it needed to exercise discretion to investigate her formal complaint;
2. Pay Ms L the sum of £1,202 (the Home Office non-refunded fee less the £80 refund it gave her); and
3. Review its complaints procedure and the need to consider exercising wider discretion to investigate late complaints. In addition, it should clarify, and offer guidance, about when the 12-month period starts. It should complete this review within 6 weeks of starting it and notify the Ombudsman of the outcome.
27. When carrying out the review of its complaints procedure, the Council may wish to consider the section on our website guidance on jurisdiction which looks at the issue of whether a complaint is received in time or not. It deals with when the 12-month period runs from, for example, and when we might exercise discretion to investigate a complaint made outside the 12-month period.

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Final decision

28. The Ombudsman found fault on Ms L’s complaint against the Council. The agreed action remedies the injustice this caused.

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Investigator's decision on behalf of the Ombudsman