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Westminster City Council (19 018 945)

Category : Benefits and tax > Council tax support

Decision : Upheld

Decision date : 13 Apr 2021

The Ombudsman's final decision:

Summary: Miss X complained about the Council’s handling of her correspondence about its use of marked envelopes, which caused stress. The Council admitted it made mistakes writing to Miss X. It apologised and offered Miss X a £300 good faith payment. We found the Council’s actions satisfactory, but it should provide a further apology for its poorly worded final letter to Miss X that suggested it agreed use of marked envelopes was unacceptable. The Council agreed to the further apology, but Miss X did not want an apology.

The complaint

  1. Miss X complained about the Council’s handling of her concerns about its use of distinctive envelopes when sending out letters about benefit entitlements because it:
  • delayed replying to her correspondence and failed to respond to her subsequent complaint;
  • gave inconsistent, contradictory, and inadequate responses to her correspondence; and
  • upheld her complaint about the envelopes being humiliating and unfair to those receiving them but made no proposal to put this right although it offered £300 in recognition of its communication failures.
  1. Miss X said the Council's actions continued to cause much stress; and worry and anxiety about possibly losing her home. Miss X wanted the Council to stop using the distinctive envelopes or, at least, stop delivering them to her home.

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What I have investigated

  1. Miss X’s complaint about her correspondence with the Council and its use of marked envelopes raised many points, including about the Royal Mail. I have not investigated that part of Miss X’s complaint about the Royal Mail for the reasons given in paragraphs 32 and 33 of this statement.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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

  1. I have:
  • considered Miss X’s written complaint and supporting papers;
  • asked for and considered the Council’s comments and supporting papers about the complaint;
  • shared the Council’s comments and supporting papers with Miss X; and
  • shared a draft of this statement with Miss X and the Council and considered their responses.

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What I found

A brief summary of what happened

  1. Miss X contacted the Council about receiving letters in distinctively marked envelopes. Miss X said the markings on the envelopes allowed people to see her right to benefits. Miss X asked the Council to stop using the marked envelopes or, if possible, to always contact her by email. Miss X said she was concerned her landlord might act against her as a tenant with a right to benefits.
  2. A month later, having received a further letter in a marked envelope, Miss X wrote again to the Council asking it not to use such envelopes. The next day the Council replied saying it had marked Miss X’s case record to show email should be used for notices and letters. About two weeks later, Miss X wrote to the Council saying the note on her case record was not working as she had received another marked envelope.
  3. Miss X then received two separate and differently worded letters, with the same date, in marked envelopes from the Council. Essentially, both letters said the Council could send most but not all correspondence about Miss X’s benefit rights by email. And Miss X could provide a third-party address or ‘PO Box’ for it to use when it had to send information by post.
  4. Miss X replied saying the extra post in marked envelopes was adding to her distress and she now wished to complain. Miss X gave reasons for not using a third-party postal address or a PO Box and put counter suggestions to the Council aimed at stopping receipt of the marked envelopes. Two weeks later, Miss X chased the Council for a response.
  5. Several weeks later, Miss X contacted the Ombudsman. The Ombudsman asked the Council to respond to Miss X’s complaint.
  6. The Council wrote to Miss X saying it had not identified her last two letters as a complaint. It accepted it could have emailed its recent letters about marked envelopes rather than posting them in marked envelopes. The Council also recognised its earlier letters had not properly explained its position, or given correct information, about using post and email for correspondence about benefit rights. The Council confirmed it could not send all such correspondence by email. It said the marked envelopes ensured the Royal Mail did not forward letters if the addressee had moved home but returned them to the Council. The Council recognised Miss X’s points about using a third-party address or PO Box but gave its reasons for not agreeing her counter suggestions. The Council offered its sincere apologies to Miss X for any inconvenience and distress caused by both its communication and complaint handling failures and delay. The Council also offered Miss X a ‘good faith’ payment of £300 in recognition of the avoidable distress its errors had caused. (Miss X said the Council’s financial offer was unacceptable as it was conditional on her not further complaining about the marked envelopes.)
  7. Miss X was not satisfied with the Council’s response and continued to write to the Council. Miss X questioned the Council’s interpretation of her complaint. She said it was about the Council’s poor communication and she had not, yet, complained about use of the marked envelopes. Miss X also raised many points and sought more information about why the Council’s failures had taken place. And throughout the correspondence, Miss X continued to question the Council’s use of marked envelopes when posting information about her benefit rights. Miss X said the Council’s approach assumed addressees might display criminal behaviour, which was unreasonable. Miss X also said she could not agree any complaint settlement when the Council admitted it could not guarantee never to make mistakes in the future.
  8. The Council’s position, in summary was to confirm it had made errors and that it had sought to explain why those errors might have taken place. It considered use of the marked envelopes was a significant part of Miss X’s correspondence and so had addressed the issue in its responses. The Council repeated that use of marked envelopes ensured the Royal Main returned the post if people had moved, which aimed to reduce benefit overpayments. The Council said the marked envelopes did not show what information they contained. And it did not consider use of the envelopes characterised the addressee as a criminal or infringed privacy. People could choose to use a third-party address or PO Box if they had concerns about the envelopes. The Council said it had an automated benefits service. It had placed a ‘direction note’ on Miss X’s case record, but this needed every officer with access to the case to act on the direction. Its officers were trained and received reminders, and it had spoken to the officers that had sent letters to Miss X. So, while it was confident it would not in future use post when it could email Miss X, a guarantee to never make a future error was unrealistic.
  9. In coming to the Ombudsman, Miss X remained dissatisfied with the Council’s handling of her correspondence. Miss X said the Council ignored what she wrote and, while it ‘felt’ it had answered all matters in detail, it had not responded to all her questions.
  10. Miss X also pointed to the Council’s final response, which signposted her to the Ombudsman. The Council’s letter said the crux of the complaint was use of marked envelopes showed the correspondence was about benefit rights and Miss X felt this was unfair and humiliating for claimants. The letter then said the complaint was “upheld”, but the Council had not offered compensation or any other means for addressing the matter. (Miss X also said she had not used the words ‘unfair’ or ‘humiliating’ when referring to the marked envelopes in her letters to the Council.)

Consideration

Introduction

  1. I recognised the time and attention Miss X had given to her correspondence with the Council and in bringing her complaint to the Ombudsman. I carefully considered all the information provided by Miss X (and the Council). And yet, I did not find it necessary to secure answers to every question, or resolve every point, raised in the complaint and the party’s correspondence. I focused my investigation on two underlying issues: the standard of the Council’s communications; and its use of marked envelopes. In considering these issues, my role was to decide whether the Council acted with fault. And, if there was evidence of fault, to then consider whether that fault caused injustice to Miss X that I should recommend the Council put right.

Communication

  1. Miss X started communicating with the Council to ask it to stop sending marked envelopes to her home. Over the next two months, the Council sent Miss X three letters about marked envelopes. These letters gave inconsistent information. And, after receiving two of the letters in marked envelopes, Miss X asked to start its complaints procedure. The Council failed to act on Miss X’s request: it neither started its complaints procedure nor sent any response to that letter. However, after Miss X contacted the Ombudsman, the Council considered Miss X’s complaint.
  2. In the Council’s, much delayed, response to Miss X, it admitted its failure to reply to and or consider her complaint. It also accepted it had not been clear and consistent in the three letters it had sent Miss X about use of marked envelopes. And it accepted it had not needed to send two of those letters in marked envelopes. There was fault here by the Council, which it had recognised.
  3. The Council also recognised its admitted failures (see paragraph 20) would have caused Miss X inconvenience and stress. I agree. So, there was injustice here, which the Council had recognised. To address the injustice arising from those faults, the Council apologised and confirmed its position on using marked envelopes. It also offered Miss X a ‘good faith’ payment of £300 in full and final settlement of her complaint. I recognised Miss X’s reasons for viewing the Council’s offer as unacceptable. And yet, I found the Council’s steps were proportionate, reasonable, and suitably addressed the injustice caused Miss X.
  4. However, the Council’s delayed response did not conclude matters. Miss X and the Council continued their correspondence. The Council ended that correspondence believing it had answered in detail the issues raised by Miss X. Miss X did not share that view (see paragraph 16). I therefore considered whether the Council’s responses to Miss X did meet acceptable administrative standards or failed to do so, which would be fault.
  5. That Miss X may have expected more from the Council, and or that it might have acted and responded differently, does not necessarily mean there was fault in what it did. Having carefully read and considered the complaint correspondence, I found the Council’s responses to Miss X were, subject to paragraphs 28 and 29 below, appropriate, proportionate, and met acceptable administrative standards. So, while I recognised Miss X’s continued dissatisfaction with the Council’s responses, I found no fault here.
  6. There was, however, a lack of clarity in the Council’s final letter to Miss X. I address this point at paragraphs 28 and 29 in dealing with the other underlying issue in Miss X’s complaint: The Council’s use of marked envelopes.

Marked envelopes

  1. The law allows councils to ask the Royal Mail to ‘return to sender’ their post about benefit matters that it would otherwise redirect. To be returned, that post must be ‘marked’ as approved by the Royal Mail. The Royal Mail’s ‘mailing user guide’ sets out its specification for council ‘do not redirect’ envelopes. The DWP pays the Royal Mail to provide the service and invites councils to use it as an anti-fraud measure. Each council bears its own costs in using the service, for example, the cost of the marked envelopes. The evidence therefore showed the Council could use the marked envelopes when writing to residents, including Miss X, about benefit matters.
  2. The relevant law does not say councils “must” use the ‘do not redirect’ service: they have a discretion to do so. The Council has decided to exercise that discretion and sends some, but not all, its benefit correspondence in marked envelopes. I had no good grounds or reason to question the Council’s decision to use the ‘do not redirect’ service, which required use of marked envelopes as shown in the Royal Mail’s user guide. That was a matter of policy and practice for the Council to decide.
  3. Miss X explained to the Council why she did not want marked envelopes delivered to her home. The Council, and later, Miss X, suggested alternative measures to avoid the delivery of those envelopes to her home. However, there was no agreement between Miss X and the Council, and it was not for me to resolve that impasse. My role was to consider whether the Council acted, and continued to act, with fault in using marked envelopes for some of its correspondence with Miss X. As the law allowed the use marked envelopes and the evidence showed the Council considered and responded to Miss X’s concerns about their use, I found no fault here by the Council.
  4. However, the Council’s final letter to Miss X referred to unfairness and humiliation caused by receiving marked envelopes and upheld her complaint. Miss X’s dissatisfaction with the Council then failing to provide redress for such unfairness and humiliation was understandable. And yet, in responding to the Ombudsman, the Council said it did not view the use, and receipt, of the marked envelopes as ‘unfair and humiliating’. Rather, it used those words in its letter to describe Miss X’s view. And the rest of its letter set out the matters it accepted had gone wrong, while repeating it would continue to send some correspondence in the marked envelopes. (Miss X said the Council’s response to the Ombudsman was a retraction and complete reversal of its former position. Miss X also said no reasonable person could interpret the letter in line with the Council’s explanation to the Ombudsman.)
  5. The Council’s letter suggested a complaint about using marked envelopes being unfair and humiliating had been upheld. And yet, that was not consistent with other statements in the letter that, read as a whole, I found cast doubt on whether that complaint was upheld. Overall, having considered Miss X’s comments about the letter, I found it was poorly drafted and fell below acceptable administrative standards. That poor drafting was of concern as the Council’s earlier unclear communications had led to Miss X’s complaint. The Council’s final letter also led Miss X to look for redress from the Council for the unacceptable use of marked envelopes. And yet, despite the wording of the letter, the Council’s position remained that it would continue to use the marked envelopes. And use of those marked envelopes was in line with the law and the Royal Mail’s user guide. I therefore found the Council at fault in how it worded and laid out its letter, which fault caused Miss X injustice.

Agreed action

  1. The Council had apologised to Miss X and offered her a £300 ‘good faith’ payment. The Council also agreed to make a further apology to Miss X for its poorly drafted final letter that led her to look for redress for its use of marked envelopes. However, Miss X set out why she did not want to receive such a letter of apology from the Council. The Council should not therefore now send that further apology to Miss X.

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Final decision

  1. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendation at paragraph 30 of this statement. However, the Council should not now comply with that recommendation.

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Parts of the complaint that I did not investigate

  1. Miss X said the Council had not responded to her questions about the Royal Mail, which delivered the marked envelopes. Miss X said the Council should investigate to ensure Royal Mail staff did not pass peoples’ sensitive information to third parties.
  2. The Council, like any other person and body, is entitled to use the services of the Royal Mail. The Royal Mail, as an employer, is responsible for managing its services, including the conduct of its employees at work. I did not therefore investigate this part of Miss X’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman

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