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Challenging a misleading question on a Council housing reference form

We were contacted recently by an individual who was concerned about the criminal record question being asked on a Council’s housing reference form and the fact that the Council were asking applicants to give authorisation to the Council to carry out a police check.

The question relating to criminal records asked:

“Have you been convicted of a criminal offence?”

The ‘Authorisation for police check’ form stated:

“To request/receive from the police information of any incidents, convictions, cautions or any other disposal/s or charges regarding myself, in connection with my application for housing. (Subject to the provisions of the Rehabilitation of Offenders Act 1974”

The question relating to criminal records did not make it clear that applicants were only required to disclose unspent convictions and the request for a police check was not an appropriate way of checking an individual’s criminal record.

We contacted the Council to raise the following concerns:

  1. Criminal record question – The criminal record question was misleading as housing applicants are only legally required to disclose unspent convictions. There was a risk that applicants could disclose spent convictions, resulting in the Council taking into account information they are not legally allowed to consider.
  2. Police check form – The Council would be entitled to request a basic DBS check which would disclose any unspent convictions. However, carrying out a police check is likely to be excessive and could potentially disclose more information than was necessary.

As we received no response from the Council, we had no option but to forward our concerns to the Information Commissioners Office (ICO) as we believed the Council could potentially be in breach of the Data Protection Act 2018 by processing and storing data unlawfully.

The ICO encouraged the Council to engage with us to assist them in amending their housing reference form. They were advised by the ICO that a police check would not be necessary and could be deemed excessive and they have removed this request from their application process.

The amended question relating to criminal records now reads:

“Do you have any unspent convictions?”

The amended question is clear and concise and applicants are now aware that they don’t need to disclose spent convictions.


This case demonstrates how Councils can often ask misleading questions on housing application forms. However, the ICO are very clear that under data protection legislation organisations can only process and store data that they are legally entitled to have access to.

Notes about this case study

This case study relates to our work with other organisations.

Names and details have been changed to protect the identity of those involved.

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