Summary: Ms X complained about the way the Council assessed her housing benefit and council tax support. She said this caused her stress and financial loss. There was fault in the Council’s actions when it failed to review Ms X’s claim for a discretionary housing payment. Ms X has since qualified for full housing benefit and has no outstanding injustice because of this. Ms X had a right of appeal about her housing benefit and appealed the Council’s decision regarding council tax support to tribunal, the Ombudsman will not investigate this part of her complaint. There was fault in the Council’s actions when it did not offer Ms X appeal rights after it rejected her claim for discretionary council tax support. The Council has agreed to make a payment of £150 to Ms X and has reminded its staff to ensure they make applicants aware of their right of appeal.

The complaint

1. Ms X complained the Council failed to calculate her housing benefit correctly, stopped her council tax support and wrongly placed a time limit on her request for for a discretionary housing payment.
2. Ms X said this caused her stress and financial loss.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’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)
4. 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)
5. The Social Entitlement Chamber (also known as the Social Security Appeal Tribunal) is a tribunal that considers housing benefit appeals. (The Social Entitlement Chamber of the First Tier Tribunal). The Valuation Tribunal deals with appeals against decisions on council tax liability and council tax support or reduction.
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). I have considered Ms X’s complaint from 2019 and the events related to this. If Ms X had concerns about how her benefits were handled in previous years it was open to her to come to us with those concerns at that time.
7. 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)

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How I considered this complaint

8. I spoke with Ms X and discussed her view of the complaint.
9. I considered some initial information I received from the Council. This included Ms X’s complaint form and correspondence sent to the Council.
10. I wrote to Ms X and the Council and considered their comments before I made a final decision.

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What I found

Council Tax Support and Discretionary Council Tax Support

11. In April 2013, the council tax benefit scheme was replaced by a locally determined council tax reduction scheme (also known as council tax support).
12. Residents on low incomes can apply to receive a reduction to their council tax payments. Certain claimants are protected from changes which could adversely affect the amount of support they receive. This includes where a claimant or their dependant receives certain disability benefits.
13. In April 2017, the Council amended its council tax support scheme in relation to those who are self-employed. For those who have been self-employed for over 12 months it uses a minimum income level based on the national living wage to calculate the level of council tax support it will award. The Council also has a discretionary council tax support scheme where it can award payments to claimants if their council tax support award is less than their council tax bill.

Working tax credit and Universal credit

14. Working tax credits are benefits designed to help people on low incomes with their living costs.
15. From July 2019, the government began transferring people on working tax credits to universal credit.

Housing benefit and Discretionary Housing payment

16. If a resident is on a low income and/or cannot afford their rent, they can apply for housing benefit.
17. How much support a resident receives depends on a range of factors including their income and savings.
18. If a resident’s rent is not fully covered by housing benefit, they can apply for a discretionary housing payment. It is for the Council to decide the amount and period of payment. Councils must have an internal review process for decisions on discretionary housing payments.

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What happened

19. Ms X is self-employed and has received working tax credits, housing benefit and council tax support for several years.
20. Ms X has had concerns about the Council either stopping or reducing her benefits since 2016. This investigation is concerned with her most recent complaint,
    which she made in early 2019.
21. Up until June 2018 Ms X’s claim for council tax support was protected from changes which adversely affected her benefit as her child received certain disability benefits. In June 2018 Ms X’s child turned 18. The Council recalculated Ms X’s council tax support and decided she was no longer entitled to receive it. Ms X applied for discretionary council tax support in February 2019. A Council employee contacted Ms X to discuss her benefits, but Ms X did not want to discuss the matter as she had already received benefits advice.
22. Soon after, the Council rejected Ms X’s claim for discretionary council tax support. The Council also sent Ms X a court summons in March 2019 for unpaid council tax. Ms X appealed the Council’s decision not to award council tax support to the Valuation Tribunal.
23. Ms X complained to the Council in May 2019 about its decision. She was also unhappy the Council stopped her housing benefit between October 2018 and January 2019 and ignored her appeal. She said the Council discriminated against her on racial grounds.
24. The Council responded to Ms X in June 2019 maintaining its assessment of Ms X’s council tax support and housing benefit. It confirmed Ms X ceased to be protected from changes that had taken place to its council tax support scheme in June 2018 when her child stopped receiving child benefits (and so was no longer a dependant). It had recalculated her claim using a notional income level as she was self-employed.
25. With regards to Ms X’s housing benefit, the Council explained it had updated her benefits in line with her income and later reviewed this when she had provided up to date details of her earnings. The Council confirmed it refused Ms X’s claim for discretionary council tax support because she had no underlying entitlement to council tax support, she did not accept the offer to discuss her income and benefits and it was awaiting the outcome of Ms X’s appeal to the Valuation Tribunal before deciding whether it was necessary to review her claim.
26. Ms X was unhappy with the Council’s response and escalated her complaint to Stage 2 of its complaints process in June 2019. She repeated her complaint points and raised the issue of racial discrimination again.
27. The Council responded to Ms X, reiterating it had calculated her benefits entitlement correctly. The Council noted Ms X’s views regarding the discrimination she felt she experienced but did not uncover evidence of this.
28. Soon after this, Ms X made a claim to the Council for a discretionary housing payment. The Council awarded Ms X a 13-week discretionary housing payment in November 2019 but confirmed this would be her final award unless her circumstances changed. The Council’s letter invited her to respond if she disagreed with the decision and it would look at her application again.
29. In December 2019, Ms X handed in a further complaint to the Council regarding its decision to only award the discretionary housing payment for 13 weeks. Ms X said when she tried to hand in her complaint letter in person, the Council told her she could not appeal its decision.
30. Ms X opted to refer her complaint to the Ombudsman as she remained unhappy with the Council’s response to her complaint.
31. During the investigation, the Council confirmed the Tribunal hearing took place in February 2020 and upheld the Council’s decision regarding Ms X’s council tax support.
32. Ms X has provided me with a copy of the Tribunal’s decision. It was noted by the Tribunal that the Council had not advised Ms X of her right of appeal for discretionary council tax support, so Ms X had not appealed it and the Tribunal had not considered it.
33. Following the Tribunal, in March 2020, Ms X wrote to the Council requesting discretionary council tax support. The Council has yet to reach a decision on the application. However, it says it has paid Ms X full council tax support for 2020/21 in line with its hardship fund and suspended recovery action pending the decision on the discretionary council tax support application.
34. Ms X informed the Council in March 2020 that her child was living with her permanently. At this point Ms X became eligible for full housing benefit. The Council has confirmed it did not review Ms X’s application for a discretionary housing payment as it intended to discuss this with Ms X at the tribunal hearing. However, as Ms X is no longer entitled to a discretionary housing payment,
    the Council has not taken further action.

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My findings

35. Ms X referred her complaint regarding council tax support to the Valuation Tribunal. We cannot investigate complaints which have been referred to the Tribunal. The Tribunal decided the Council calculated her council tax entitlement correctly, therefore the Council is not required to look at her application again.
36. However, the Tribunal commented the Council failed to make Ms X aware of her appeal rights for discretionary council tax support. This is fault. If not for the fault, Ms X could have submitted her appeal several months earlier and would not have experienced this avoidable delay. This has caused Ms X time and trouble and frustration.
37. If a complainant has right of appeal regarding a decision a council has made, we would expect the complainant to exercise that right. Ms X has complained the Council stopped her housing benefit incorrectly and did not respond to her appeal. The Council reviewed Ms X’s claim when she provided additional information. If Ms X remained unhappy with the Council’s decision on her housing benefit entitlement it was open to her to appeal the Council’s decision. The Council does not appear to have received an appeal from Ms X on this part of the complaint.
38. The Council advised Ms X to contact it if she disagreed with its decision to award her a 13-week discretionary housing payment. Ms X said she attempted to appeal the Council’s decision but was advised she could not do so. There is no formal right of appeal to a tribunal for decisions on discretionary housing payments. However, councils should have a review process in place and the Council’s letter invited Ms X to write to the Council if she disagreed with its decision. The Council has confirmed it intended to review Ms X’s application for a discretionary housing payment but ultimately did not do so before Ms X’s circumstances changed. This is fault. However, there is no outstanding injustice to Ms X as she is now in receipt of full housing benefit.
39. Ms X has advised she feels the Council has racially discriminated against her. She has not described in detail or provided evidence of the discrimination. Based on the evidence provided by both the Council and Ms X, there is no evidence that the Council has racially discriminated against her. I cannot comment or make a finding on this aspect of the complaint without further information or evidence.

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Agreed Actions

40. Within one month of the date of my final decision, the Council has agreed to pay Ms X £150 to acknowledge the time and trouble she experienced. It is open to the Council to use this amount to offset any arrears left on Ms X’s council tax account.
41. Within one month of the date of my final decision the Council has also agreed to remind its staff of the importance of ensuring benefit and council tax support applicants, including applicants for council tax discretionary support, are made aware of their appeal rights. It should provide evidence to the Ombudsman to show it has done this.

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Final decision

42. The Council was at fault when it failed to make Ms X aware of her appeal rights for discretionary council tax support and failed to review her claim for discretionary housing payment. This caused Ms X time and trouble and frustration. The Council has agreed to my recommendations to remedy this. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman