Summary: The complainant says the Council failed to properly consider and refer her appeal against a housing benefit decision to the tribunal. The complainant says the delay in dealing with the matter has caused hardship and inconvenience. The Council says it set out its reasons for its decision and invited the complainant to send in a formal appeal, but it did not receive one and so did not refer the matter to the tribunal. The Ombudsman finds the Council acted with fault and recommends the Council decides if it can reinstate housing benefit or refer the complainant’s appeal to the Tribunal.

The complaint

1. The complainant, whom I shall refer to as Miss X, says the Council has mismanaged her housing benefit claims even after the Ombudsman upheld an earlier complaint. Miss X says the Council has failed to properly consider an appeal against its decision to end payments of housing benefit in June 2017. Miss X wants the Council to review its decision and refer her case to the appeals service for adjudication.
2. Miss X says without benefit she cannot afford to pay her rent. Miss X says an officer behaved inappropriately and the Council failed to properly investigate her concerns.

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The Ombudsman’s role and powers

3. 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)
4. If 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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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

7. In considering this complaint I have:
• Contacted Miss X and reviewed the information presented with the complaint;
• Put enquiries to the Council and studied its response;
• Researched the law, guidance and policy;
• Shared a draft of my decision with Miss X and the Council and reflected on any comments received.

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What I found

8. The Council passed Miss X’s appeal against an earlier decision on housing benefit bedroom tax to the Tribunal. The Tribunal ruled on 31 May 2017 that Miss X should be treated as liable for the rent with a 14% reduction under the occupancy subsidy removal scheme.
9. Miss X wrote to the Council on 15 June 2017 with a late appeal against the decision to stop her housing benefit payments in August 2016.
10. Miss X’s letter opens by saying “This is a formal late appeal…appealing the Council’s decision to suspend then cancel my claim to Housing Benefit and Council Tax support.”
11. The letter continues with an explanation of why Miss X believes the bedroom tax did not apply. She says the information sought by the Council in its letter of 26 July 2016 it already had and therefore did not need to ask for it again.
12. The Council replied in a letter dated 17 July 2017 saying Miss X would have to appeal the Tribunal decision on whether her brother was temporarily absent from the property direct to the Tribunal.
13. The letter then moves on to the second issue of the housing benefit decision of 3 October 2016. The Council says it suspended Miss X’s housing benefit claim on 27 July 2016. It did so because it appeared Miss X might not be the liable person for the rent on the property (Housing Benefit Regulations 2006, Regulation 8(1)9c). In support of this view the letter says Miss X’s brother the original tenant of the property continued to pay some rent. The letter says the Council wrote to Miss X in July 2016 asking for information to address these issues.
14. The Council says rather than refer Miss X’s letter as an appeal to the Tribunal it set out in its five-page letter of 17 July 2017 a statement of reasons for the Council’s view. This, it says, gave Miss X the opportunity to explain herself and appeal further. The letter says:

“In order for [the Council’s officer] to consider whether you were liable from the outset of your claim, I require you to confirm that this is the decision that you are appealing so that I can ensure that I have included all the evidence that we hold, as to why your Housing Benefit shall be refused. I will then progress the matter to the Tribunal for adjudication.

“I also require you to confirm why you have not responded to all of the questions raised and also why you have made an appeal outside of the 1- month time limit

“It is also noted that your letter of appeal has not been signed by you, as the signature appears to be different to previous correspondences that you had sent to us. Please ensure that your letter of appeal is signed by you and not a third party.”

15. The letter ends by saying any failure to sign a letter of appeal will render it not a letter of appeal and says:

“If you do not reply by [insert last date here] your appeal will be sent to the tribunal to decide if it can go ahead”

16. Miss X says first the Council failed to insert a date in the square brackets and failed to pass the appeal to the Tribunal as the letter said it would.
17. The Council says it decided to uphold ending the housing benefit because:
• Miss X had not responded to the letter of 27 July 2016;
• Miss X’s brother made two rental payments in November 2016 and February 2017 towards his rental liability.
18. The Council says it never received a signed response to its letter or statement of reasons dated 17 July 2017 or a formal appeal form. Therefore, it could not review whether it was reasonable to continue paying housing benefit and it did not send the matter on to the Tribunal for consideration.
19. Miss X has not received housing benefit since August 2016. The Council can only pay discretionary housing payments to people receiving housing benefit or universal credit housing costs. Therefore, the Council told Miss X unless she qualified for housing benefit it could not award her discretionary housing payments.
20. Miss X says it is clear from her letters she is appealing the decision to end her housing benefit claim. In a letter in February 2018 following enquiries made by the Ombudsman the Council says:

“The [Council] have not closed off your right of appeal but the team do not yet have full information from you about which point you wish to appeal. If you provide us with this information Lambeth will refer your claim to the tribunal service. If you would like us to do this without any further clarification over the point you wish to appeal, please let us know and we will prepare a submission…”

21. Miss X says she expected the Council to refer her appeal to the tribunal service, but it did not do so.
22. Miss X says an officer behaved inappropriately towards her. The Ombudsman cannot investigate complaints about officer discipline. The Council investigated the incident, spoke with the officer concerned and explained what it discovered to Miss X.
23. Miss X complained to the Council in September 2018 and received a response to her complaint from the Council on 14 January 2019 which she says took too long. Miss X says the Council has still not dealt her appeal against the housing benefit.

Analysis – has there been fault leading to injustice?

24. It is not my role to adjudicate on eligibility for housing benefit but to consider if the Council has properly responded to applications for benefit and appeals.
25. I cannot rule on the issue of inappropriate behaviour by a council officer other than to ensure the Council referred the matter to its disciplinary procedure and examined the concerns raised. It did therefore I cannot comment further.
26. I have concentrated on the only issue within my jurisdiction: how the Council managed Miss X’s appeal against its decision to suspend and then end her housing benefit claim.
27. Miss X’s letter of 15 June 2017 is clear. It states it is an appeal against the decision to suspend then cancel Miss X’s housing benefit claim. In response the Council set out in its letter of 17 July 2017 what Miss X needed to do to appeal the Tribunal decision and the Council’s reasons for cancelling her housing benefit claim. It invited Miss X to respond by sending a signed letter of appeal. Miss X did not send in any further information or appeal document.
28. However, the Council confused matters by keeping what I suspect is a standard sentence about responding within a certain date or the Council would send the appeal to the Tribunal. The Council failed to insert the date causing confusion. I find the Council at fault for keeping the sentence and adding to the confusion which arose.
29. The Council is willing to consider any further information Miss X wishes to put forward as part of any late appeal. The time taken to deal with the complaint means that appeal is later still. I find the Council at fault for the time taken. However, until the Council or Tribunal decides the appeal, I cannot say but for the faults Miss X would have received housing benefit earlier. If Miss X successfully appeals the decision on her housing benefit, she may make a further complaint asking the Ombudsman to decide if any further remedy is necessary.
30. I have noted Miss X did not send a signed appeal document following the Council’s letter believing her original letter enough for the appeal. I must consider this lack of a signed appeal when deciding if there should be any further remedy.

Recommended and agreed action

31. I recommend and the Council agrees to within four weeks of my final decision:
• Invite Miss X to present any further evidence in support of her appeal against the suspension and cancellation of her benefit claim and;
• within four weeks of receiving that information decide whether to reinstate housing benefit or refer the appeal to the tribunal service.

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Final decision

32. In completing my investigation, I find the Council acted with fault causing confusion and delay.

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Investigator's decision on behalf of the Ombudsman