Summary: The Ombudsman will not investigate this complaint about a housing benefit overpayment which arose in 2012. This is because it is a late complaint, the complainant could have used her appeal rights and because there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, whom I refer to as Ms X, wants the Council to write off a housing benefit overpayment. She says the Council does not have a liability order and recovery is statute barred. Ms X says the Council has bullied and harassed her.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
3. 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)
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)

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How I considered this complaint

6. I read the complaint and the Council’s complaint replies from 2016 and 2019. I invited Ms X to comment on a draft of this decision.

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What I found

Housing benefit overpayments

7. If someone disagrees with a housing benefit decision they can ask for a review or appeal to the tribunal. If they have a review, and are unhappy with the decision, 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. There is an absolute time limit of 13 months to appeal to the tribunal.
8. A council can recover an overpayment by making a payment plan or by arranging deductions from wages or benefits. There is no time limit on recovery action unless the Council wants to recover through the courts. Liability orders do not apply to housing benefit overpayments.

What happened

9. In 2012 the Council asked Ms X to repay a housing benefit overpayment of £1350. The decision letter explained Ms X’s appeal rights. Ms X did not appeal but she repaid £590 between August 2012 to May 2013.
10. In 2016 the Council chased recovery of the outstanding £760. Ms X complained and tried to appeal. In response the Council explained how and why the overpayment arose and that it was too late to appeal. Ms X agreed to pay £10 a month but she did not make any payments. The Council made further unsuccessful attempts to recover the debt in 2017.
11. The Council tried to recover the overpayment early in 2019. Ms X explained she was pregnant and had other debts. The Council paused the recovery process. Since then the Council asked Ms X to pay £20 a month which Ms X said was unaffordable. The Council asked her to complete an income and expenditure form and said it was willing to wait for Ms X to get debt advice and to make a repayment proposal. The Council explained there is no time limit for collecting the debt from her benefits. It said that if it applied for deductions from her Universal Credit the amount would be £11 a week. The Council would prefer to agree a payment plan. Ms X currently owes £760.
12. Ms X says the debt is statute barred and the Council has bullied and harassed her. She says the Council does not have a liability order so cannot collect the debt.

Assessment

13. I will not start an investigation for the following reasons.
14. This is a late complaint. Ms X has known about the overpayment since 2012 but did not complain to the Ombudsman until 2019. This is significantly longer than 12 months and I have not seen any good reason to accept a complaint which is seven years old.
15. Ms X could have used her appeal rights if she wanted to dispute the overpayment. It is reasonable to expect her to have appealed because the tribunal is the appropriate body to decide if someone has to repay an overpayment. The tribunal would have decided if Ms X had received too much benefit and if she had to repay it.
16. There is insufficient evidence of fault by the Council. Ms X is correct to say the Council does not have a liability order. This is not fault because liability orders do not apply to housing benefit overpayments. Ms X says the debt is too old for the Council to collect (statute barred). However, this would only apply if the Council were trying to collect the debt through the courts. The Council is not taking action through the courts.
17. Ms X says the Council has bullied and harassed her. However, the Council has, at times, put recovery of the debt on hold due to Ms X’s circumstances and to allow her time to get debt advice. It has accepted low repayment offers and explained it would prefer to agree a payment plan as deductions from her Universal Credit would be at a higher rate. I have read the letters and emails and there is no evidence of bullying, aggression or harassment.

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Final decision

18. I will not start an investigation because this is a late complaint, Ms X could have used her appeal rights in 2012 and there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman