Summary: We will not investigate this complaint about an excess award of council tax reduction. This is because the complainant could have used her review and appeal rights.

The complaint

1. The complainant, whom I refer to as Ms X, says the Council should waive a demand for £426 of extra council tax. Ms X says the Council has repeated a mistake it made in 2018.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. 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)
5. The Valuation Tribunal deals with appeals against decisions on council tax liability and council tax reduction.

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How I considered this complaint

6. I read the complaint and the Council’s responses. I considered the benefit overpayment decision letters and the information included with those letters which explains appeal rights. I invited Ms X to comment on a draft of this decision.

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What I found

Housing benefit overpayments

7. If a council pays too much housing benefit to someone it will usually ask them to repay it. The law says an overpayment is recoverable unless it was caused by an official error and it was not reasonable to expect the person to realise they were receiving too much benefit. If someone disagrees with a decision that they must repay an overpayment they can appeal to the tribunal. The law says people should appeal within one month of the date of the decision they think is wrong. The tribunal can accept a late appeal up to 13 months from the date of the decision.
8. There are similar rules for council tax reduction (CTR). The notes included with the CTR decision explained Ms X could ask for a Council appeal and then appeal to the Valuation Tribunal. The notes say Ms X had two months to ask for an appeal.

What happened

9. In 2018 the Council asked Ms X to repay an overpayment. The Council subsequently decided there had been an official error and it told Ms X she did not need to repay the money.
10. In January 2021 Ms X completed review forms for her housing benefit (HB) and CTR. She said her childcare costs had stopped in March 2020. The Council adjusted both benefits and said she had received too much HB and CTR from March 2020 because she had stopped paying for childcare. It asked her to repay the HB overpayment and added £426 to her council tax.
11. Ms X did not ask for a review or appeal but she made a complaint. She said she had called the Council in March 2020 to report the end of the childcare costs. She said the Council had repeated the error it made in 2018 and she would go to her MP. In response the Council said it had no record of her reporting the end of the childcare. It said it received two calls from Ms X at that time, both querying the date of the next benefit payment. It invited Ms X to provide evidence she had reported the change. It said there was no official error, as happened in 2018. It also said that Ms X should have been aware she was being overpaid because the benefit should have fallen when the childcare stopped – but it continued at the same rate.

Assessment

12. I will not start at investigation because Ms X could have used her review and appeal rights. It is reasonable to expect Ms X to have done that because the review/appeals system is the system established by parliament to deal with benefit disputes. In addition, the Council explained those rights to Ms X. It would have been for the tribunal to decide whether the overpayments arose from an official error and whether it is reasonable to expect Ms X to have been aware she was receiving too much benefit. The Council made an error in 2018 but that does not mean the 2021 overpayments are also a result of an error. We do not make benefit decisions – that is the job of the Council and the tribunal.
13. Ms X could ask for a late appeal. It would be for each tribunal to decide whether to accept a late appeal.

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Final decision

14. I will not start an investigation because Ms X could have used her review and appeal rights.

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Investigator's decision on behalf of the Ombudsman