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Hertsmere Borough Council (17 012 453)

Category : Benefits and tax > Housing benefit and council tax benefit

Decision : Upheld

Decision date : 15 Mar 2018

The Ombudsman's final decision:

Summary: Mr X complains the Council has delayed in passing his appeal to the Tribunal, causing him stress and uncertainty. The Ombudsman finds the Council at fault and recommends the Council provides an apology, pays compensation and takes action.

The complaint

  1. Mr X complains the Council has failed to pass his appeal to the Social Entitlement Chamber of the First-Tier Tribunal (the “Tribunal”). The appeal concerns his housing benefit entitlement and Mr X says he has suffered stress while awaiting the outcome.

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The Ombudsman’s role and powers

  1. 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’. 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)
  2. 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)
  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 spoke to Mr X and I reviewed documents provided by Mr X and the Council. I gave Mr X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

  1. Where the council receives an appeal they can reconsider the decision before passing it to the Tribunal. If the decision remains unchanged they must pass the matter to the Tribunal “as soon as reasonably practicable”. (Rule 24(1A) of The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008)

What happened

  1. In 2016 the Ombudsman investigated a complaint made by Mr X about the Council’s failure to properly administer his housing benefit. The Ombudsman did not look at part of this complaint; a dispute about the level of housing benefit paid to Mr X, as Mr X had the right to appeal to tribunal and was reasonably expected to use that right.
  2. In December 2016 the Council told the Ombudsman Mr X would need to make a fresh appeal on this remaining matter.
  3. Mr X made a fresh appeal against the Council’s decision on his housing benefit entitlement in December 2016.
  4. In February 2017 Mr X contacted the Ombudsman as he had not heard further about his appeal. Mr X provided evidence to show the Council received his appeal on 29 December 2016.
  5. The Ombudsman asked the Council for an update and the Council said it was gathering information for a submission to be sent to the Tribunal.
  6. In March 2017 Mr X contacted the Ombudsman again as his case had still not gone to appeal. The Ombudsman contacted the Council and it said it would check on the matter and contact Mr X.
  7. Mr X did not hear anything further and his case was not passed to appeal. In November 2017 Mr X contacted the Ombudsman again.
  8. In response to my enquiries the Council says the delay was mainly due to its need to request archived data from a third party. It says it now has some of the details it needs, but it is still awaiting further information.
  9. The Council says it may reassess Mr X’s entitlement, depending on the information it receives. If not, it will send a submission to the First Tier Tribunal before 1 April 2018.

My findings

  1. In August 2017 the Ombudsman issued a report on a complaint against the Council. At this time the Council identified it had 519 appeals waiting to be referred to the Tribunal. The oldest dated from 2015. It agreed to pass the remaining backlog to the Tribunal by April 2018.
  2. The Tribunal rules say the Council should make a referral “as soon as reasonably practicable” once a council’s decision is no longer subject to change. The Ombudsman’s view is that this should usually take no longer than four weeks.
  3. I do not consider it was practicable for the Council to wait up to a year to gain access to data. Mr X asked the Council to refer his appeal to the Tribunal in December 2016 and it failed to do so.
  4. The Tribunal rules say its “overriding objective” is to deal with cases fairly and justly, including avoiding delays. The rules require the Council to help the Tribunal achieve this objective. Mr X’s appeal started when he sent his appeal to the Council. The Council has failed to comply with its duty to help the Tribunal achieve its overriding objective.
  5. Mr X has been put to time and trouble in pursuing the matter for over a year and he has suffered stress due to the uncertainty of the appeal outcome.

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Agreed action

  1. To remedy the injustice to Mr X I recommend the Council carry out the following actions:
    • Provide Mr X with a written apology for its delay and;
    • Pay Mr X compensation of £100 for stress, time and trouble within one month of the date of this decision.
    • Issue a new decision or pass the matter to Tribunal no later than 1 April 2018.
  2. The Council should also provide the Ombudsman with evidence to show it has carried out the above actions.
  3. The Council has agreed to my recommendations.

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Final decision

  1. I have found the Council delayed in its handling of Mr X’s appeal. The Council has accepted my recommendations and therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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