Summary: Mrs B complained about the Council saying she had received too much benefit. The Council was at fault for taking too long to refer Mrs B’s appeal to the Tribunal. That caused Mrs B unnecessarily prolonged uncertainty. To put matters right, the Council agreed to apologise, pay £100, complete an audit to identify similar cases and improve its practices. We do not criticise the Council for not changing some of its decisions about Mrs B’s benefits sooner.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complains the Council did not deal properly with her about benefits matters. Mrs B argues this caused her avoidable inconvenience and she accrued debt while the Council was not paying her housing benefit in full.

Back to top

What I have investigated

2. I investigated points that were in the Ombudsman’s jurisdiction and that I considered might have affected Mrs B significantly. The final section of this statement contains my reasons for not investigating the rest of the complaint.

Back to top

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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
8. 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)

Back to top

How I considered this complaint

9. I considered the information Mrs B provided. I made written enquiries of the Council and considered its response. I also considered the relevant law and the Ombudsman’s general position on how councils should handle benefits appeals. I shared my draft decision with Mrs B and the Council and considered their comments on it.

Back to top

What I found

10. Mrs B received housing benefit (HB), council tax benefit (CTB) and its replacement, council tax support (CTS) from the Council. In January 2017, the Council decided it had overpaid Mrs B by over £20,000 because it believed:
1. Mrs B had not told the Council she was living with a partner, and
2. Mrs B had too much money to be eligible for benefits.
11. Point b) related to money that had been in Mrs B’s bank account. The Council treated that money as belonging to Mrs B until August 2018, when it decided the money belonged to Mrs B’s mother. The Council then decided it had not overpaid Mrs B in respect of point b).
12. Meanwhile, the Council had taken back some of Mrs B’s continuing HB and had sought repayment of the CTB and CTS. Mrs B argues this caused financial difficulty and the Council could have resolved the matter sooner.

Mrs B being charged with criminal offences

13. Mrs B was charged with offences related to various benefits administered by central government and the Council. She admitted some charges. Other charges did not go to trial, including one about the matter in paragraph 10 b) above. Mrs B is unhappy she was charged over that matter and that the charge was not discontinued sooner.
14. This part of the complaint relates to the commencement and conduct of court proceedings. So, for the reasons given in paragraph 5, I cannot consider this.

The Council changing its position on whether it had overpaid some benefits

15. The Council believed Mrs B had too much money to be eligible for benefits because of £30,015 credited to her bank account. It told Mrs B this in January 2017 and said it would recover the benefits it believed Mrs B had not been entitled to.
16. There were some errors in the Council’s decision letter: it said Mrs B had paid another person (Mr C) £28,000 and Mr C had later paid the same amount to her. In fact, the two payments were for different amounts and the bank statements the Council had seen did not show who the payments were to and from. The Council says such errors did not affect its decision overall because the important point was that Mrs B’s account contained more money than the limit for receiving benefits. The Council also points out its review decision in April 2017 corrected the error about the amounts.
17. I do not consider those points significant overall. Additionally, as Mrs B had, and used, the right of review, I consider it would be disproportionate for me to revisit the January 2017 decision.
18. From an early stage, Mrs B said the money she had received was her mother’s money, not hers, and was spent on premium bonds for her mother. The Council says its starting point was that money in Mrs B’s account belonged to her unless there was evidence to the contrary and Mrs B did not produce such evidence until June 2018, after which the Council accepted her version.
19. There was no fault in the Council treating money in Mrs B’s account as hers unless she provided evidence, not just assertion, to the contrary. The Council’s initial view that Mrs B appeared to control the money is understandable in the absence of evidence to the contrary.
20. I have therefore considered what information the Council received about the money after then and whether the Council was at fault for not changing its position sooner.

Information provided in Mrs B’s review request

21. In February 2017, Mrs B asked the Council to review its decision. She stated: she had already explained the money was her mother’s; it was used to buy premium bonds in the hope of winning some money to help with her mother’s residential care costs; three sets of premium bonds had been bought (some in Mrs B’s mother’s name, some in Mr C’s name and some in Mrs B’s daughter’s name); and the Council had already seen her bank statements showing the money in question was only in her account briefly.
22. On 20 April 2017, the Council replied that: it had looked at Mrs B’s interview transcripts and bank statements; the onus is on an account holder to provide evidence that money in their account is not theirs, otherwise it will be treated as their money; the money was not just in Mrs B’s account for a short time, £30,015 was there for over two months, £2,015 of that remained in the account and Mrs B later received £29,000 that stayed in her account for a month; and Mrs B received the £30,015 payment about a month after her mother’s house was sold for a sum that would have paid for a significant period of care without the need to invest in premium bonds. The Council concluded, ‘Overall the situation with the money is not entirely clear…’ but it believed Mrs B had enough control over the money to distribute it to others so the Council was still treating it as her money.
23. This letter also set out details of bank accounts the Council considered relevant and for which it had seen statements. Those were Mrs B’s own accounts plus one she operated as her late mother’s executor. So the review decision did not give Mrs B reason to believe the Council had already seen bank statements from all the accounts she later sent it in 2018.
24. In April 2017, the Council had no new evidence for Mrs B’s assertion that the money was her mother’s. So I see no fault in the Council not changing its position then. That decision was properly reached.
25. Mrs B knew in April 2017 the Council would need evidence for what she was saying. The onus was therefore on Mrs B to produce evidence, not on the Council to keep asking for it. This was especially so when Mrs B knew the Council was seeking repayment of benefits and there had been a fraud investigation resulting in some charges.

Information provided in Mrs B’s appeal letter

26. In May 2017 Mrs B sent an appeal letter, broadly reiterating and amplifying what she had already said. Mrs B offered no new supporting evidence. I see no fault in the Council not changing its position in response to this.

Information Mrs B provided in May and June 2018

27. In May 2018 Mrs B wrote to the Council referring to recent court action and continuing to argue the money at issue was not hers. It appears Mrs B gave the Council some more bank statements with this letter but it is unclear which ones. On 20 June 2018 Mrs B gave the Council more bank statements.
28. The Council now had statements from the accounts of Mrs B, her mother, her daughter and Mr C. I have seen no evidence the Council had seen the latter two people’s bank statements before. Taken together, those statements showed money moving between the various parties, some evidence of premium bond purchase, then the money going to Mrs B’s mother’s account after her death.
29. The Council considered this corroborated Mrs B’s claim that the money she had received was not her own. It therefore changed its benefits decision.
30. The Council’s changed position was based on the overall picture resulting from all the bank statements it had seen by then. As I have explained, the evidence suggests the Council had not seen all that evidence before. So I do not criticise the Council for not changing its position sooner. It follows that I do not consider the Council responsible for any difficulties Mrs B experienced before she provided all the evidence.
31. The Council changed its decision in mid-August 2018. As I can only be confident the Council had all the necessary information by 20 June, it took eight weeks to act on it. As this was a complicated case, I do not consider that timescale was fault in the circumstances.
32. The Council then reinstated the relevant HB, CTB and CTS. Mrs B is unhappy the Council credited the CTB and CTS back to her council tax account rather than paying her. However, as she owed council tax, I see no fault in that.

Mrs B’s appeal

33. A claimant who disagrees with a council's HB and CTB decisions can ask the council to reconsider them. Mrs B did that. The Council sent a review decision on 20 April 2017 explaining it was not persuaded to change its position.
34. A claimant who remains unhappy after a review can ask the council to pass their appeal to the Social Entitlement Chamber of the First-Tier Tribunal (the Tribunal).
35. Where a council receives an appeal, if its decision remains unchanged the council must pass the appeal to the Tribunal ‘as soon as reasonably practicable.’ (Rule 24(1A) of The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008)
36. The Tribunal’s ‘overriding objective’ is to deal with cases fairly and justly, including avoiding delays. (Rules 2(1) and 2(2)(e) of The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008) The Council must help the Tribunal further that objective. (Rule 2(4)(a) of The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008)
37. In February 2004 we issued a special report offering advice and guidance to councils on arrangements for forwarding housing benefit appeals to tribunals. We recommended that no more than four weeks should usually be needed before forwarding an appeal. We have maintained that position since then.
38. The Council received Mrs B’s appeal request on 8 May 2017. It did not forward the appeal papers to the Tribunal until 17 September 2018, 16 months later.
39. By then, the Council had changed its position on the matter in paragraph 10 b) above. The Council did not change its decisions that Mrs B should repay benefits relating to paragraph 10 a) above. I understand the Tribunal will consider the appeal about that. The restriction in paragraph 6 therefore applies to decisions that have been appealed to the Tribunal. So I cannot consider those decisions. It is for the Tribunal to decide whether those decisions should stand.
40. However, I can consider the time the Council took to forward the appeal to the Tribunal. The Council took around 15 months longer than we would usually consider acceptable. It says this was a complex case and it took 109 working hours to prepare the appeal documents. However, even allowing the Council six to eight weeks rather than the four weeks we normally expect, there were still 14 months’ undue delay here. That was fault.
41. I have considered how that fault affected Mrs B. Challenging any benefit decisions necessarily involves some uncertainty without that being the Council’s fault. Nevertheless, the Council’s delay unnecessarily prolonged Mrs B’s uncertainty about the appeal and caused her avoidable frustration.
42. However, it is unclear whether, if the Council had forwarded the appeal significantly sooner, Mrs B would have produced the evidence she ultimately gave the Council showing the money was not hers. Also, on the other point that I understand was going to appeal (described in paragraph 10 a) above), I note Mrs B had pleaded guilty to the charge. So there was arguably less uncertainty on that point. I consider these points somewhat mitigate the injustice the Council’s delay caused, without removing that injustice.
43. I asked the Council what it has done to avoid repeating such delays. The Council says it has concentrated on improving its decision-making so fewer cases go to appeal. That is understandable but does not excuse long delays in those cases that do go to appeal.
44. The Council also said:

‘Given the resources allocated to the task there is currently limited scope for changes to procedures to reduce processing times; and the Council believes that each case deserves to have the appropriate time given to reconsiderations and appeals.’

45. I agree each case should receive ‘appropriate’ time. Our view is that four weeks is normally ‘appropriate.’ The Council sets itself a target of sending 90 per cent of benefit appeals to the Tribunal within 60 days of receipt. It is not clear if the Council meets its target. Anyway, 60 days is considerably longer than the four weeks the Ombudsman would normally consider acceptable. The Council suggests it cannot reduce the times because of the resources allocated to this. However, the Council itself decides what resources to give to handling appeals.
46. I see no reason to depart from the Ombudsman’s expectation that the Council should normally forward appeals within four weeks, allowing for a little longer in especially complex cases such as this one. So I do not consider the Council has done enough to prevent undue delay.

The Council’s handling of Mrs B’s correspondence

47. The Council accepts it delayed replying to some of Mrs B’s letters. It reports it has reviewed its processes to prevent a recurrence. There was some fault here though I do not consider the delays were excessive (apart from the handling of Mrs B’s appeal, which I have dealt with separately) or disadvantaged Mrs B significantly.
48. Mrs B was dissatisfied some letters she sent in July and August 2018 were not treated as complaints. The Council instead treated them as part of the appeal-related communications. In the circumstances, I do not consider that was fault or that it caused Mrs B significant injustice.

Agreed action

49. At my recommendation, the Council has agreed to:
1. Apologise to Mrs B for the injustice caused by the fault I have identified;
2. Pay Mrs B £100 to recognise that injustice;
3. Change its practices to ensure the Council normally forwards appeals to the tribunal within four weeks; and
4. Carry out an audit of appeals received since April 2017 to establish if the Council delayed beyond four weeks forwarding any others to the Tribunal. I make this recommendation under the power described in paragraph 7. If there were other such appeals, the Council should forward them to the Tribunal promptly if this has not already happened. The Council should also offer a suitable remedy to any appellants affected by such delay.
50. The Council should complete points a) and b) within one month of today and points c) and d) within three months of today.

Back to top

Final decision

51. I have completed my investigation as the Council’s agreement to the actions above will resolve the injustice its fault caused, as far as possible.

Back to top

Parts of the complaint that I did not investigate

52. I did not investigate Mrs B’s points about which officer or which section of the Council replied, or should have replied, to her letters or whether an officer was rude in a letter. I do not consider those points are likely to have caused Mrs B a significant enough injustice to warrant the Ombudsman devoting time and public money to investigating them.

Back to top

Investigator's decision on behalf of the Ombudsman