Summary: Ms X complained the Council incorrectly calculated her housing benefit. She said this caused her stress and financial loss. The Council was at fault for failing to pass Ms X’s request for appeal to the benefits tribunal. It has now agreed to do so.

The complaint

1. Ms X complained the Council failed to take her self-employed status into account when calculating her housing benefit. This resulted in the Council giving her an £1800 overpayment, which it later requested she pay back.
2. Ms X said this has caused her stress and financial loss because she depends on the housing benefit to pay her rent.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
6. 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

7. I contacted Ms X to discuss her view of the complaint and considered all the information she provided.
8. I made enquiries of the Council and considered the information it provided.
   This included email correspondence shared between Ms X and the Council and letters concerning Ms X’s housing benefit.
9. I wrote to Ms X and the Council and considered their comments before I made a final decision.

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What I found

Legislation and council policy

10. Housing benefit helps people to pay their rent. It is a means tested benefit, taking into account both capital and income.
11. Housing benefit claimants must make a claim to the relevant council. If a council reviews a claim and decides it has paid too much benefit, this is an overpayment. Some overpayments are recoverable. A council has discretion to not recover any overpayment. Councils can recover an overpayment from the claimant or the person to whom it made the overpayment, for example the claimant’s landlord if a council has made a direct payment. The person from whom the council decides to recover an overpayment can appeal.
12. Councils must make decisions in writing.  If it decides a claimant does not qualify for benefit, the council must give reasons for this. Most housing benefit decisions have appeal rights. The claimant can first ask the council to 'reconsider' (internally review) its decision. There is then a right of appeal to the independent benefits tribunal.
13. Before asking the council to reconsider its decision, the claimant can ask for a written statement of reasons for the decision. A claimant must ask for a reconsideration and/or appeal within one month of the date of the decision.
    This is extended if the claimant has asked for a statement of reasons.
14. Councils can accept a late reconsideration, up to an absolute deadline of 13 months. A Tribunal Service Judge (not a council) considers late appeal requests.

What happened

15. Ms X complained to the Council in October 2018 because she believed it had incorrectly assessed her housing benefit entitlement for the 2017/2018 tax year.
16. Ms X told the Council she was self-employed for the 2017/2018 tax year but took a permanent role in May 2018. Ms X said the Council did not take this into account when it calculated her housing benefit. She was also unhappy the Council told her it intended to collect an overpayment it had given her in the 2017/2018 tax year.
17. In October 2018, the Council told Ms X it used the information she provided about her 2017/2018 earnings to calculate her housing benefit. The Council also said it contacted Her Majesty’s Revenue and Customs (HMRC) for information about Ms X’s earnings and was satisfied her housing benefit was correct. The Council told Ms X if she was unhappy, she could ask for her complaint to be investigated at the final stage of the Council’s complaints procedure.
18. Ms X continued to complain to the Council and asked it to recalculate her benefit entitlement. She said the Council had used estimated earnings to calculate her benefit. The Council disagreed, telling her it had used her actual earnings.
19. Ms X said the Council did not respond to her complaint, so she contacted the Council again in November 2018. The Council told Ms X it assessed her claim on 18 October 2018 and was satisfied it was correct. The Council asked Ms X to provide pay slips if she believed the Council had worked out her housing benefit incorrectly.
20. Ms X sent the Council her payslips in February 2019. The Council maintained it had calculated her benefit correctly and referred Ms X to seek independent legal advice or to contact her local citizen’s advice bureau if she remained unhappy with the Council’s assessment of her claim.
21. On 23 February 2019, the Council sent Ms X a letter with its calculation of her housing benefit. The letter told Ms X she could appeal the decision within one month if she did not agree with it.
22. Ms X responded on 27 February 2019, saying she was unhappy with the Council’s assessment of her housing benefit. The Council replied with its reconsideration of her housing benefit. This upheld its original decision. The Council told Ms X she could provide further evidence within one month if she still disagreed with the decision.
23. The Council sent Ms X a letter on 7 March 2019, after she provided evidence showing her employment had changed. It re-assessed her housing benefit and increased her benefit from £206.09 per week to £254.95 per week. The Council told Ms X she had a right of appeal if she was unhappy with the decision.
24. Ms X complained again on 8 May 2019 and 2 September 2019, raising further issues with the Council’s assessment of her housing benefit. The Council again responded with its explanation of her housing benefit.
25. Ms X referred her complaint to the Ombudsman as she remained unhappy with the Council’s response.

My findings

26. It is not the Ombudsman’s role to assess whether the Council has worked out Ms X’s housing benefit correctly. Ms X has a right of appeal to the Tribunal against the Council’s decisions on her benefit entitlement. The Tribunal is an expert impartial body set up to deal with benefit appeals so that is the correct way to challenge the Council’s decision.
27. Over several months, Ms X repeatedly complained to the Council about the way it had calculated her housing benefit from 2017/18. The Council responded to this by attempting to explain its assessment of her housing benefit and by reconsidering her entitlement to housing benefit. Initially, it was not fault to do this. When the Council recalculated her benefit entitlement, the notification referred to her appeal rights.
28. However, Ms X continued to email the Council in October, November and December 2018 disputing the way it had calculated her earnings. The Council responded to the emails setting out its reasoning but did not refer Ms X to her right of appeal. In February 2019 the Council advised Ms X that if she was unhappy with the assessment of her claim, she may want to seek independent legal advice or contact the citizen’s advice bureau. This is fault. The Council should have referred Ms X to her right of appeal again and did not do so.
29. Ms X has continued to dispute the way the Council has calculated her past housing benefit. The Council has not passed Ms X’s complaint to the independent tribunal to appeal its decision. This is fault.

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Agreed actions

30. Within one month of the final decision, the Council has agreed to apologise to
    Ms X and pass her dispute to the benefits tribunal.
31. Within two months of the final decision, the Council agreed it will review its procedures to ensure where it has reviewed a benefit decision and the claimant continues to dispute this, it reminds the claimant of their right of appeal and passes the claim to the tribunal.

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Final decision

32. The Council was at fault when it failed to pass Ms X’s complaint for appeal.
    The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman