Summary: Mrs D complains the Council delayed reviewing its decision on her housing benefit claim. The Ombudsman has found fault causing injustice. The Council will apologise, make a payment and forward Mrs D’s case to the Social Security Appeal Tribunal.

The complaint

1. Mrs D complains:
1. the Council delayed reviewing its decision on her housing benefit claim since October 2017
2. wrongly calculated her entitlement in 2017

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What I have investigated

2. I have investigated part a) of Mrs D’s complaint. I explain at the end of this statement why I have not investigated part b).

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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 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)
5. 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)
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council/body of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
7. 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

8. I spoke to Mrs D about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Housing Benefit Regulations 2006 (“the Regulations”)
• The Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001
9. Mrs D did not complete the Council’s complaints procedure, but we have exercised our discretion to investigate. This is because the delay in the Council considering the housing benefit appeal meant it was not reasonable to ask Mrs D to wait for a further period whilst going through the complaints process.
10. I gave Mrs D and the Council an opportunity to comment on my draft decision.

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What I found

11. Housing benefit is a means tested benefit payable to people on a low income to help them pay their rent. The Regulations say councils can ask claimants to provide information they reasonably need to work out the claimant’s entitlement to benefit. Once a council has received all the necessary information, it must make a decision within 14 days ‘so far as practicable’. Councils must explain their decisions in writing. (Housing Benefit Regulations 2006 86(1))
12. When the person’s circumstances change, the amount of housing benefit may need to be re-calculated. If a council reviews a claim and decides it has paid too much benefit, this is referred to as an “overpayment”, which it can usually seek to recover from the claimant.

Housing Benefit Appeals

13. If a claimant disagrees with a council’s decision about how much housing benefit they are awarded, they can ask the council to reconsider it. A claimant must ask for a reconsideration within one month of the date of the decision. Councils can accept a late reconsideration, up to an absolute deadline of 13 months. The council must then review the decision. (Housing Benefit Regulations 2006)
14. If a claimant remains unhappy, they can appeal to the First Tier Tribunal. They can also appeal to the tribunal against the council’s decision that it can recover an overpayment. However, the tribunal cannot consider the time taken by a council to reach a decision.
15. Where the claimant asks to appeal to the tribunal, the council can treat this as a request for a reconsideration. The council must then send a decision notice saying whether it has altered its decision and setting out the claimant’s rights of appeal. The claimant can make a fresh appeal if they think the council’s decision is still wrong. The council should send the claimant’s appeal and its response to the tribunal as soon as is reasonably practicable. (Rule 24(1A) of The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008) The Ombudsman considers four weeks to be a practicable timeframe.
16. If the council delays in processing the appeal, the claimant can apply to the tribunal directly for a direction to require the council to respond or list the appeal for hearing.

What happened

17. Mrs D and her husband are self employed and receive housing benefit. In September 2017, the Council asked Mrs D to provide information about her savings, income, and student status for her daughter. She did so.
18. The Council calculated Mrs D’s housing benefit entitlement and issued a decision letter on 20 October 2017. The decision was to reduce the benefit from £116.98 per week to £42.98 per week from April 2017. This meant there had been an overpayment of £2,075.09 for the period 10 April 2017 to 22 October 2017. The Council started to recover this overpayment at £16.10 per week.
19. Mrs D wrote to the Council on 02 November 2017 asking it to reconsider its decision. She said the Council’s calculation of her and her husband’s income was wrong. There is no evidence any action was taken on this, despite chasing from Mrs D, until March 2018, when it issued calculation letters confirming the amounts.
20. In April 2018 Mrs D asked the Council to pass her case to the tribunal. The Council did not do so. Instead, it reviewed the decision and wrote to Mrs D on 25 May 2018, it upheld its original decision about the level of benefit Mrs D was entitled to.
21. Mr D appealed the Council’s May 2018 decision on 21 June 2018. The Council again treated this as a reconsideration request. In November 2018 it asked Mrs D for more information and suspended her benefit. Mrs D approached the Ombudsman.
22. The Council issued a revised decision in January 2019. This was that the Council had used an incorrect income figure for Mrs D. There had therefore been an underpayment of benefit of £1,239.01 from 10 April 2017 to 22 October 2017, and of £2,743.55 from 23 October 2017 to 30 December 2018. This totalled £3,982.56. The Council used some of this to clear the outstanding overpayment debt of £1,076.89 from April 2017 to October 2017.
23. Mrs D again challenged the decision. She said the original overpayment had been caused by the Council’s mistake about her income and she therefore did not owe it. The Council confirmed its decision on 22 January 2019.

My findings

24. Mrs D requested a reconsideration of the October 2017 decision in November 2017. This review was not completed until May 2018. This is fault.
25. In response to my enquiries, the Council said it had a large amount of work and it prioritised work to prevent evictions and minimise overpayments above reconsiderations. Whilst the regulations do not set a timescale for completion of reconsiderations and I accept the Council must prioritise its work, the Ombudsman would expect the Council to process an appeal request within one month. It failed to do so. The Ombudsman would also expect the Council to keep Mrs D up to date with the reason for any delay and I have seen no evidence it did so. That again is fault.
26. When Mrs D appealed in June 2018, the Council treated this as a further request for a reconsideration, rather than passing it on to the tribunal. I do not criticise the Council for this because it was entitled to do so and I am satisfied the Council reviewed the calculation and issued a new decision. However, it took six months to do so. This delay was fault.
27. Mrs D disputes the Council’s January 2019 decision about the overpayment from April 2017 to October 2017. I have not investigated this, as it would be reasonable for Mrs D to appeal to the tribunal.

Did the fault cause injustice?

28. In May 2018 the Council upheld its original decision on Mrs D’s benefit entitlement. I therefore consider Mrs D’s injustice is limited to the delay in considering her case from November 2017 to May 2018. That led to her having to go to time and trouble to pursue the review and caused avoidable distress and worry.
29. The delay from June 2018 to January 2019 caused further injustice, as during that period Mrs D was receiving an incorrect amount of housing benefit. Mrs D has not told me about any specific financial issues she suffered from as a result during this time, but I consider she was caused avoidable stress.
30. Following an earlier Ombudsman decision about delay by the Council in dealing with reconsiderations of housing benefit, the Council reviewed how it prioritises its work. The Council says it has now amended its processes to prevent reconsiderations taking too long. I welcome this.

Agreed action

31. The Council has agreed to, within a month of my final decision:
1. Apologise to Mrs D for the delays in reviewing her housing benefit;
2. Pay her £100 to recognise the unnecessary distress she was caused
3. Pass her appeal to the tribunal to consider the 2017 overpayment

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Final decision

32. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Parts of the complaint that I did not investigate

33. I have not investigated whether the Council correctly calculated Mrs D’s entitlement to housing benefit. This is because many decisions taken by a council about a housing benefit claim can be appealed to the Social Entitlement Chamber tribunal.
34. 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)

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Investigator's decision on behalf of the Ombudsman