Summary: The Council delayed and failed to act on information from a housing benefit claimant. It gave wrong information, took money when it should not have and did not advise the claimant of his appeal rights. The Council caused the claimant and his son significant time and trouble. It caused the claimant distress. To put this right the Council will apologise, pay back money it should not have taken and pay him for the time, trouble and distress it caused. It will also provide evidence it has correctly assessed the claim.

The complaint

1. Mr X complains the Council has not paid him £120.95 housing benefit it owes him and gave wrong information in complaint responses.
2. Mr X’s son, Mr Y, represents Mr X. He says Mr X borrowed money from his student loan to help with bills. Mr Y says the Council put both him and his father to unreasonable time and trouble and caused Mr X distress affecting his mental health.

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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 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. 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

6. I considered the complaint and supporting information from Mr Y. I asked the Council for comments and considered what it said.
7. Mr X had the right to appeal to a tribunal about the Council’s decisions it had overpaid him housing benefit. I have exercised discretion to consider the complaint as the Council’s actions meant it was not reasonable to expect Mr X to use his right of appeal.
8. I wrote to Mr Y and the Council with a draft of my decision and gave them an opportunity to comment.

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What I found

What should happen

9. When a person claiming housing benefit moves to another property in the same council area, the council treats this as a change of circumstances. The person does not need to make a new claim.
10. A council calculates housing benefit by comparing the claimant’s income to the money the Government says the claimant needs to live on. This includes a “premium” for any dependent children a claimant has.
11. When a council calculates an overpayment of housing benefit, it first decides the dates between which it overpaid the claimant. It then must calculate the benefit it paid for those dates. The council must then consider if the claimant was due housing benefit during the overpayment payment. If the claimant was due some benefit the Council must then deduct this from the overpayment.
12. A council can recover an overpayment unless it made an error and the claimant could not have realised this.
13. When a council notifies a claimant of an overpayment, it must provide certain information, including the right to ask for a statement of reasons and the right to appeal to a tribunal.
14. If a claimant asks for a statement of reasons, the council should provide this, where possible, within 14 days.
15. A council will impose a “non-dependent deduction” if there are other adults in the household as well as the claimant and their partner. This means it will deduct a set amount from the claim, even if the household member does not contribute to the rent. However, a council cannot make a non-dependent deduction if the claimant or partner gets a daily living component of personal independence payment. It cannot make a deduction for a household member who is a full-time student or under 25 and receiving benefits.

What happened

16. In August 2018 Mr X had to move from property A, his Council owned home (managed by Tower Hamlets Homes) because of a regeneration scheme. Mr X received £120.95 a week housing benefit for property A. He was originally due to move on 13 August. Mr X’s tenancy for his new home, property B, a Housing Association property, began on 13 August. He told the benefits department about his new address on 9 August and gave it a copy of his tenancy agreement.
17. The rent for property B is more expensive and the Council calculated his new entitlement as £153.79. It decided Mr X’s entitlement to housing benefit at property B began on 13 August.
18. Mr X has a disability and his wife was pregnant. Mr X says he could not get the money together to hire a removal van by 13 August. He moved with the help of family and friends on 20 August. That day he handed the keys back to Tower Hamlets Homes and told the housing benefit department in writing the date he left property A.
19. Mr X asked Tower Hamlets Homes to refund a credit on his rent account for property A. On 28 August Tower Hamlets Homes contacted the benefits department to ask if it had paid too much housing benefit. Tower Hamlets Homes said its records said the tenancy at property A ended on 5 August, but the Council had paid housing benefit up to 12 August.
20. The Council replied on 25 September. It asked Tower Hamlets Homes to say where Mr X had lived after 6 August. Tower Hamlets Homes checked its records and said Mr X had ended his tenancy at property A on 20 August. The Council changed the end date for Mr X’s tenancy at property A to 20 August 2018.
21. Tower Hamlets Homes wrote to Mr X to refund his rent credit. It said it was less than Mr X expected as the Council had not paid housing benefit for 13 to 19 August.
22. The Council suspended Mr X’s housing benefit claim. It wrote to Mr X to say it had received information that he moved from property A on 5 August.
23. On 11 October Mr X handed in a letter to say he gave back the keys for property A on 20 August. He said on the same date he filled in a change of address form for housing benefit and council tax reduction. He said he could not move into property B on 13 August and explained why. He said he thought his housing benefit would transfer to property B on 13 August and he would need to pay the last week’s rent for property A.
24. The Council reinstated Mr X’s housing benefit. On 15 October 2018 it sent Mr X several decision notices about his housing benefit and council tax reduction. Mr X found it difficult to understand what was happening to his claim.
25. One of the 15 October letters was a decision the Council had overpaid Mr X housing benefit. The Council said it had cancelled his claim for property B from 13 to 19 August. It said it had reinstated his claim for property A for the same dates and would credit £120.95 to the rent account for property A. It said it had overpaid Mr X £153.79 for property B for 13 to 19 August as he did not live there. It said it would recover the money by taking £21.10 a week from his ongoing housing benefit.
26. On 19 October Mr X sent an email to the Council asking it to explain its decisions on both his claim for housing benefit and council tax reduction. He gave information about Mr Y’s student status. He said his wife had given birth in October and attached a copy of the birth certificate. He said what school his other child attended. He wanted to know what had happened to the £120.95. He also asked if the Council would send him the £120.95 as the Council had closed his rent account for property A. Alternatively, Mr X suggested the Council could keep the £120.95 towards the overpayment of £153.79.
27. The Council acknowledged the email and said Mr X could expect a reply within ten working days.
28. On 22 October the Council paid Mr X’s housing benefit for September and October. It deducted £34.95 from the payment.
29. On 12 November the Council paid Mr X’s housing benefit but kept £84.40 of this.
30. Mr X and Mr Y sent further emails to the Council asking for a response. Mr X asked for a copy of the Council’s complaints procedure. On 13 November he made a complaint about the Council’s failure to reply.
31. The Council responded on 16 November but only provided information about the change to Mr X’s council tax reduction. It did not say what had happened to the £120.95 or provide reasons for its housing benefit decisions.
32. On 19 November Mr X sent another email to ask his questions again. The Council acknowledged Mr X had told it of his new child and Mr Y’s change in circumstances. It said it needed confirmation of Mr Y’s student status before it could carry out the changes to Mr X’s housing benefit. The Council apologised for the delay in responding to Mr X’s issues.
33. On 22 November the Council wrote to Mr X to say it had updated Mr Y’s student status. It said it had overpaid Mr X £139.48 housing benefit and £39.55 council tax reduction from 17 September to 18 November. It said this was because Mr X no longer got a child premium for Mr Y. The Council did not include Mr X’s right to appeal the decision in its letter.
34. The Council said it had now paid £120.95 into Mr X’s rent account for property A because Mr X lived there between 13 and 19 August. The Council said its previous decision to withdraw housing benefit for property A from 13 to 19 August was wrong.
35. The Council also responded to Mr X’s complaint. It apologised for the delay. It said it had already explained it had paid housing benefit of £120.95 for 13 to 19 August to his rent account. It said it should not have stopped housing benefit for property A before 19 August. It said Mr X contributed to the error as on 7 August he provided a tenancy agreement for property B starting 13 August.
36. On 28 November Mr X asked to take his complaint further as he still did not know what had happened to the £120.95.
37. On 10 December the Council paid Mr X housing benefit and kept £84.40 of this.
38. On 14 December the Council added Mr X’s youngest child to the claim and backdated this to October 2018.
39. The Council replied to Mr X on 18 December. It apologised for the delay in dealing with the complaint. It said a senior officer had investigated the complaint, reviewed correspondence and interviewed officers.
40. The Council said it made a £208.87 overpayment of housing benefit to Mr X when Mr Y started college in September. It said this was because Mr Y changed from a dependent to a non-dependent. It said it correctly paid the £120.95 to Mr X’s former rent account. It said the balance of the overpayments remained the same. It said it would now recover the money by taking £21.10 a week from Mr X’s ongoing housing benefit.
41. On 11 January 2019 Mr X checked again with Tower Hamlets Homes and it confirmed it had not received housing benefit for 13 to 19 August from the Council. Mr X then emailed the Council to ask if it stood by its statement it had paid the £120.95.
42. The Council responded and said it had explained what had happened in its complaint responses. However, it went on to give a different explanation. It said it had paid the housing benefit for property A from 13 to 19 August in error and had now taken it back and paid it for the same week for property B. Mr X asked why this response was different and who had made the error.
43. The Council replied it had not made an error, it made the changes because Mr X told it he moved to property B on 20 August.
44. Mr X contacted Tower Hamlets Homes again. It said in October 2018 the Council had assessed his claim for property A for 13 to 19 August and paid £0. It said: “This is nearly always due to that fact that you had no entitlement for this period”. Tower Hamlets Homes suggested this could have happened if Mr X’s tenancy at property B started on 13 August and the Council paid him for that address instead. Tower Hamlets Homes provided a screenshot of Mr X’s rent account to confirm what it said. It suggested Mr X contact the Council and ask it to consider paying benefit on two homes.
45. Mr Y says as well as emails he and his father made numerous telephone calls to the Council to try to resolve the problem.
46. Mr X has provided a copy of his rent account for property B to show the Council started taking £21.10 from his housing benefit payments in October 2018. He believes he finished paying back the £153.79 by mid-December 2018.
47. Mr X complained to us and we told the Council of the complaint. The Council sent us and Mr X a new explanation for the £120.95. It says when it changed the tenancy dates it had overpaid Mr X £153.79 for property B for 13 to 19 August but owed him £120.95 for property A for the same week. It says it used the £120.95 to partly repay the £153.79 Mr X owed it and so did not pay anything to Tower Hamlets Homes. It says it recovered the balance from Mr X’s ongoing payments for property B.
48. The Council said Mr X’s current landlord had adjusted his tenancy start date for property B in September 2018 and he was only liable for rent for property B from 20 August 2018. It said because of this it could not pay Mr X benefit on two homes as he had no overlapping rent liability.
49. The Council now says it only assumed the landlord changed the tenancy start date. It says even if Mr X had a rent liability for two homes for one week, it cannot pay him benefit on both. It says this is because he stayed at property A. It can only pay him for both if he moved to property B but could not get out of his rent liability for property A.
50. The Council says the crucial point is no-one told it about the change in the tenancy start date for property B until October 2018.
51. The Council says it recovered £34.95 from Mr X’s housing benefit on 22 October 2018 for the overpayment due to the change of tenancy. It says it kept money from Mr X’s November and December payments because of the overpayment due to the change in Mr Y’s circumstances.

Fault

52. The Council says problems arose because Mr X did not tell it about the change in the tenancy date for property B until October 2018. I do not accept this. In August 2018 Mr X gave the Council two correct pieces of information. He gave it a copy of his new tenancy agreement starting 13 August. He then told the Council he had not moved until 20 August. It was the Council that failed to act on this second piece of information until October 2018.
53. The tenancy date for property B has not changed and no-one has ever told the Council this.
54. The overpayment notice the Council sent Mr X on 15 October was wrong. The Council said it had put £120.95 into his rent account for property A. It said it would recover the £153.70 from Mr X’s ongoing benefit. The Council did not put money into the rent account. It recovered the overpayment by keeping the £120.95 and taking £34.95 from its 22 October payment to Mr X. This cleared the overpayment.
55. The Council continued to insist it had paid the money to Tower Hamlets Homes, throughout the complaints procedure. No-one checked this. This is fault. It caused Mr X injustice as he went to unnecessary time and trouble contacting the Council and Tower Hamlets Homes trying to find out what had happened to the money.
56. Mr X asked the Council for an explanation of its decision on 19 October. The Council did not provide this until 22 November and again gave wrong information.
57. On 19 October Mr X provided the birth certificate for his new child and told the Council about Mr Y’s student status. The Council did not deal with Mr Y’s student status until 19 November when it asked Mr X for information.
58. On 22 November sent another overpayment notice to Mr X. This notice did not tell Mr X about his appeal rights. This is fault. As the Council denied Mr X his appeal rights, I have considered what the decision letter says and find it flawed.
59. The Council must consider if the overpayment arose because of officer error and if the claimant could have reasonably known about the overpayment. Part of the overpayment arose because of officer error. Mr X gave the Council information about Mr Y’s student status which it did not act on for a month. Mr X could not have known the Council was overpaying him.
60. The Council did not overpay Mr X from 22 October. The Council says it overpaid Mr X because he lost the child premium for Mr Y in September. However, Mr X had another child in October. The Council did not add his baby to the claim until December 2018, after it had calculated the overpayment. The Council should have added a second child premium before it calculated the overpayment.
61. The Council did not notify Mr X about the overpayment until 22 November. However, on 12 November it took £84.40 from his benefit towards this overpayment. This is fault. As the Council told Mr X it would recover the previous overpayment of £153.79 from his ongoing benefit, he did not question this. However, he did question what the Council had done with the £120.95 it owed him. The Council’s actions gave Mr X the clear impression it had not paid the £120.95 and was recovering the whole £153.79 from his ongoing benefit.
62. The information in the Council’s second complaint response of 18 December is so inaccurate, it is difficult to understand what investigation the Council did.
63. The Council again wrongly said it had paid £120.95 to the rent account for property A.
64. It said Mr X owed £208.87 for the second overpayment, when it notified Mr X he owed £139.48.
65. It said the balance remained the same when it had already recovered £168.80 for the second overpayment; £29.32 more than the Council said Mr X owed.
66. It gave a different reason for the second overpayment. It now said it was because Mr Y changed from a dependent to a non-dependent when he became a student. Mr Y does not count as a non-dependent for housing benefit purposes as he is a full-time student. Mr Y receives a personal independence payment, so it is possible the housing benefit rules for non-dependents do not apply to his claim.
67. In January 2019, the Council gave another wrong explanation for what had happened. It said it had paid the money for property A for 13 to 19 August but then reclaimed it and paid it for property B instead.

Injustice

68. The Council has put Mr X and Mr Y to significant, unnecessary time and trouble. It has given wrong information, denied appeal rights, taken money from housing benefit payments without notice, and taken more than it says Mr X owed. I accept the problems caused Mr X distress. The Council also failed to properly consider if it should fully recover the second overpayment.
69. We publish guidance on remedies. We usually suggest payment of between £100 and £300 for unnecessary time and trouble. We also recommend a payment of between £100 and £300 for distress. I consider the time, trouble and distress the Council caused Mr X is at the top of our scale of our scales.

Agreed action

70. To put matters right for Mr X within one month of my final decision the Council will:-

• Apologise to Mr X and Mr Y.
• Pay Mr X £600 for his distress, time and trouble.
• Pay Mr Y £150 for his time and trouble.
• Repay Mr X the money it reclaimed from him for the overpayment between 19 October and 18 November 2018.
• Pay Mr X the £29.32 extra payment it took from his housing benefit.

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Final decision

71. I have found fault by the Council causing injustice to Mr X and Mr Y. The Council has agreed to provide a remedy for this. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman