Summary: The Ombudsman found fault on Mr Y’s complaint about the Council delaying sending his appeal requests to the tribunal service. The Council delayed reconsidering its assessment decisions by up to 8 months and delayed sending his appeals to the Tribunal Service. The agreed action remedies the injustice caused. The Ombudsman found no fault on his complaint of it failing to promptly assess his benefit claims.

The complaint

1. Mr Y complains the Council failed to:
1. Send his requests for an appeal to the Tribunal Service since January 2019 about rent and overpayments despite repeated requests;
2. Respond to his reports of disrepair;
3. Stop charging him rent and council tax for his uninhabitable accommodation when he had moved out and started sleeping in his car for 2 months even though it stopped his benefits;
4. Properly assess his partner’s claims for benefit; and
5. Promptly assess claims for benefits.
2. As a result, he has suffered financially and lost the opportunity for the tribunal to consider his appeals sooner.

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What I have investigated

3. The paragraph at the end of this statement explains why I did not investigate complaints b), c) and d). Of the remaining complaints, it also explains why I only investigated the Council’s actions from August 2018. References given before that date are by way of background information only.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. 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)

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How I considered this complaint

8. I considered all the information Mr Y sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr Y and the Council. I considered their responses.

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What I found

9. Mr Y says he moved out of the family rented home in October 2018. This was because of its impact on his health as he suffers from asthma and the property was damp. He moved out for 2 months and complains while the Council stopped his housing benefit for that time, it continued to charge him full rent and council tax. When his partner tried to claim housing benefit in her own name, the Council did not process it for 4 months. When it did, it joined his claim to hers. It included his name on her benefit award and took account of his salary.
10. In January 2019, the Council took more than £440 from his salary for unpaid council tax for this property and court costs. Part of this covered the period he was not living in it.
11. In February, Mr Y received a letter from the Council’s agent demanding payment of £2,753.56 rent arrears for his previous accommodation. The Council also told him it had overpaid him council tax relief up to April and housing benefit from 2018. When he appealed the decisions, he says the Council refused to pass them to the Tribunal Service. He also complains his rent includes a charge for water which is above the national average.
12. The Council confirmed Mr Y and his partner currently receive housing benefit but not council tax support. This is because their combined income means they are ineligible for council tax support.

Appeal requests

13. The Council’s records show Mr Y claimed housing benefit from 2004 but, his level of entitlement changed as his income changed which in turn affected his child tax credits. Such changes can cause under, or over, payments. This led to Mr Y asking the Council to appeal its decisions as he considered it failed to properly assess his earnings.
14. The Council provided evidence of the following:

2017

• December: Mr Y responded to its decision made the previous month (decision 1). This told him the amounts it took in to account as ‘earned income’ in his housing benefit claim. He requested a review by tribunal. In its response, the Council said he needed to ask for an ‘appeal’ for it to go to the Tribunal Service. His email referred to ‘review’ which it treated as a request for an internal reconsideration. The Council would look again at its calculation for August if he provided a pay slip for that month. It explained it could not disregard the court order amount taken from his earnings as it was legally required to consider it.

2018

• February: Mr Y asked to appeal decision 1 to a tribunal. The same month he made a formal complaint.
• March: An officer asked the appeals’ team to look at his request for an appeal urgently. The same month, the Council gave his rent account a credit dating back from 2017. It decided to claw most of this back against an overpayment he owed but, waited to do so until the tribunal decided the appeal. The Council sent his appeal to the Tribunal Service and told Mr Y.
• April: Information from the tax office showed Mr Y’s income had risen again in November 2017 leading to a further overpayment.
• June: Mr Y lost his appeal to the tribunal.
• July: An officer actioned the change of circumstances form Mr Y sent in April which advised about his salary increasing. The officer created an overpayment because of the income increase from March. As a result of this investigation, the Council decided to make the £895 overpayment unrecoverable. This was because the delay processing the form contributed to his overpayment.
• October: The Council received another change of circumstances form saying Mr Y moved out of the property at the start of the month. The unsigned form gave income as zero. The Council cancelled his housing benefit claim and invited his partner to put in her own claim. It created an overpayment Mr Y had to pay (decision 2). The Council discovered Mr Y was sleeping in the car at the front of the property and decided he was still living as part of the household. The Council reinstated the claim after receiving further information.
• November: The Council issued a fresh decision (decision 3) after revising the October decision. Mr Y wrote challenging decision 2.
• December: Mr Y and his family moved to another property.

2019

• January: The Council responded to his appeal request against decision 2. It explained it revised the decision which led to it issuing decision 3. This meant his appeal rights attached to the October decision 2 lapsed. It explained he had new appeal rights against decision 3. It also reached another decision on his entitlement after a reassessment (decision 4).
• February: Mr Y asked to appeal decision 4.
• March: The Council reassessed Mr Y’s entitlement to housing benefit (decision 5). The Council explained this was because of information from the tax office about a change in his tax credit.
• April: Mr Y complained.
• May: Mr Y challenged decision 5 and asked for it to go to the tribunal. He did not want the Council to reconsider his entitlement. The Council did another assessment following information from the tax office about a change in his tax credit.
• July: The Council wrote to Mr Y asking whether his children are in education.
• October: The Council wrote in response to Mr Y’s request it received in February. It refused to amend decision 4. He had to write and ask for the decision to be considered by the tribunal. The Council accepted it delayed telling him it was waiting for its final submission for the appeal. It had not yet sent this to the Tribunal Service as it found it had not made a process error. It accepted it failed to send him all the correct invoices and letters it should have done. An officer is working on doing this and then the Council will prepare its submission to the tribunal service. It remains satisfied it properly calculated his income throughout.

15. In response to my enquiries, the Council accepted it received many requests from Mr Y to go to tribunal over the years. His most recent requests have not gone to it because the Council is considering its own powers to reconsider and reassess his entitlement on the evidence sent. Many changes to his housing benefit are applied automatically.
16. The Council also accepted it had a backlog of appeals. It explained it tried to recruit temporary staff due to staff sickness and staff shortages. This proved unsuccessful. The Council decided to advertise for a member of staff to prepare appeal submissions who it could send on a training course. An officer was appointed in September 2019, but the first available training course was not until November.
17. The Council explained it takes 14 months to refer a case to a tribunal. The tribunal is taking 3-4 months to respond. Its processing time for appeals has reduced from 7 appeals a month in 2017/2018 to 4 appeals a month the following period. It accepted it has a lot of work still to do to bring this part of its service back to the standard it should be. It has a 3-month plan which involves training more officers to do appeal submissions. It is reviewing its policies and practices to see if it can improve processes and performance to reduce waiting times.
18. The Council confirmed it had no control over the amounts deducted from Mr Y’s salary by his employer.

Analysis

19. I make the following findings on this complaint:
1. The Council was slow to respond to his challenge against decision 2. Mr Y sent this to the Council in November 2018, and the Council responded in January 2019. I consider this is fault.
2. The Council was also slow to respond to his challenge to decision 4. He made his request for this to go to the tribunal in February 2019, but the Council did not reconsider its decision until October. The 8-month delay is fault.
3. It was not fault for the Council to reconsider its decisions before sending them on to the tribunal service. This is normal procedure.
4. The Council has not yet sent his appeal request to the Tribunal Service against decision 4. The tribunal rules say a council should make a referral, ‘as soon as reasonably practicable’. The Ombudsman takes the view this is usually no more than 4 weeks. This is fault.
5. There is no evidence the Council kept Mr Y updated about progress on what was happening with his appeal requests.
6. I have seen no evidence of the Council acting on his appeal request against decision 5. This is fault.
7. The Council accepted it had not sent Mr Y the correct invoices and letters it should have done. This is fault.
8. I am satisfied Mr Y suffered an injustice because of these faults. The Council delayed actioning his requests and failed to keep him updated about what it was doing and any reason for the ongoing delay. In addition, there will be further delay because the Council is preparing its own appeal submissions for the tribunal. This may add another 14 months to the process before it is able to send them to the Tribunal Service. This caused, and is causing, Mr Y frustration, stress, and inconvenience.
9. I found no fault on his complaint about the employer’s deductions from his salary. This is because the amount deducted is not for the Council to decide. The amount deducted is calculated based on a percentage of the net pay.

Benefit assessments

20. Mr Y said he never claimed housing benefit, the Council just started paying it.
21. Mr Y’s housing benefit is currently suspended for failing to provide information about his non-dependants it asked for in July 2019. There may be further overpayments if one of his children is no longer in education.

Analysis

22. I found no fault on this complaint. The Council reacted to information received from the tax office, for example, which meant it had to reassess his entitlement to benefits when told of the changes. If Mr Y was unhappy with any of its assessments, including those deciding he was still a member of the family household despite sleeping in the car outside, he had the right to challenge it to the Tribunal Service.

Agreed action

23. I took account of:

• our guidance on remedies;
• the Council’s offer for a senior officer to meet Mr Y to go through his claim and the evidence it considered. The aim would be to identify any other areas of concern he may have. It wants to resolve Mr Y’s situation and accepts it contributed towards his confusion and the delay; and
• the action the Council has already taken to improve its response times.

24. The Council will, within 4 weeks of the final decision on this complaint, send Mr Y a written apology for the failures to: respond promptly to his challenges; provide him with updates; promptly reconsider its decisions when challenged; promptly refer his appeal request to the tribunal service; provide correct invoices and letters.
25. The Council confirmed it:
1. paid Mr Y £150 for the distress the fault caused;
2. will start a review of its procedures within 8 weeks of the final decision on this complaint to ensure it reconsiders requests within 4 weeks of receiving them;
3. will, within 8 weeks of the final decision on this case, consider what additional steps it needs to take to ensure its appeal submissions and appeal requests are sent to the tribunal service without delay; and
4. sent Mr Y’s appeal to the tribunal in April 2020.

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Final decision

26. The Ombudsman found fault causing injustice on Mr Y’s complaint against the Council. The agreed action remedies the injustice caused.

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Parts of the complaint that I did not investigate

27. I did not investigate the following complaints:

• Complaint b): This is because it is not within our jurisdiction. Complaints about disrepairs and the condition of a property are within the jurisdiction of the Housing Ombudsman;
• Complaint c): This is because it is not within our jurisdiction. Complaints about rent and its components, such as water charges, are within the jurisdiction of the Housing Ombudsman;
• Complaint d): If Mr Y’s partner considers her claim was wrongly calculated, she needs to challenge it with the Council and make a separate complaint to us about it; and
• Any complaint Mr Y had about the Council’s actions taking place before August 2018. This is because any earlier complaint is ‘late’ as he only complained to the Ombudsman in August 2019.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman