Summary: Mr X complains about the way the Council handled a housing benefit overpayment. He says this caused him financial hardship and stress. The Ombudsman is not able to investigate complaints where there is a right to appeal to a tribunal. However, we can investigate how a council administers the process. The Ombudsman finds the Council at fault for giving Mr X incorrect information about the reason it decided there had been an overpayment. This caused Mr X injustice. The Council has issued a fresh decision notice meaning Mr X has fresh appeal rights. The Council has also apologised to Mr X. The Ombudsman is satisfied that this remedies the injustice to Mr X.

The complaint

1. The complainant, who I refer to here as Mr X, complains that the Council deducted money from his wages because of a housing benefit overpayment that he says was paid directly to his landlord, who was the Council. He disputes the dates the Council says he lived at the address, and the amount the Council has deducted from his wages.
2. Mr X says the deductions began in December causing him financial hardship so close to Christmas. He says he had to borrow money for essentials, and has overdraft and credit card fees because of it. He says this has caused him stress.

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What I have investigated

3. As I have said below (paragraph 18), the Ombudsman cannot look directly at issues such as overpayments of housing benefit. However, he can look at a council’s actions and how it administered the process.
4. For this reason, I have investigated how the Council administered the process of reclaiming Mr X’s overpaid housing benefit.
5. As I have said below (paragraph 10), the Ombudsman cannot usually investigate complaints that are over 12 months old. In this case, the Council made its decision in 2009. However, Mr X did not know about the Council’s decision until 2018. Because of this, Mr X’s complaint is not out of time.

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The Ombudsman’s role and powers

6. 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)
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)
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. 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)
10. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

11. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.

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What I found

What should have happened

12. Councils are responsible for administering housing benefits. Councils must tell people about their decisions in writing. If a council decides a claimant does not qualify for a certain benefit, the council’s written notice must give reasons for this. The notice must also tell claimants of their rights to ask for more information and to appeal.
13. People have a right to appeal most housing benefit decisions. The claimant can first ask the council to reconsider or review its decision. This is not the same as the benefits that are administered by the Department for Work and Pensions (DWP), where the claimant must first give the DWP the chance to reconsider its decision.
14. After a council has reviewed its decision there is then a right of appeal to the independent benefits tribunal called the ‘First-Tier Tribunal’. There is a further right of appeal of the First Tier Tribunal’s decision (on a point of law) to the Upper Tribunal.
15. Before asking a 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.
16. 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.
17. Appealable decisions include all decisions on the amount of benefit and its calculation, treatment of income and capital, overpayments, and decisions about who to pay. Landlords can dispute decisions where they are the “affected person”. These are mainly decisions about direct payments to them.
18. The Ombudsman cannot look directly at issues such as overpayment of housing benefit or recalculations of housing benefit. These can only be done by a tribunal.

What happened

19. In 2009, Mr X was awarded housing benefit which was paid directly to his landlord. Mr X moved out of the property in 2009. The Council determined that he had been overpaid housing benefit.
20. In November 2009, the Council sent Mr X a decision notice which said there had been an overpayment. This decision notice told Mr X of his rights to appeal the decision and the time limit for doing so.
21. In December 2009, this notice was returned to the Council marked ‘gone away’.
22. In November 2018, the Council set up an attachment order to Mr X’s earnings to recover the overpayment.
23. In January 2019, Mr X complained to the Council. He disputed owing the Council any money and said housing benefit was not paid to him, it was paid to his landlord.
24. The Council replied to Mr X’s complaint. It said the overpayment happened because he moved out of the address in June 2009 and did not tell the Council he had changed address. It said housing benefits were paid until September 2009.
25. The Council said it was the claimant’s, not the landlord’s, responsibility to tell the Council of any changes. It said when Mr X called the Council in November, he refused to make a voluntary arrangement to repay so it made an attachment of earnings order.
26. The Council said it would review its decision if Mr X provided evidence to prove when he left the property and therefore when his tenancy ended.
27. Mr X was not happy with this response and asked the Council to deal with his complaint at the second stage of its complaints procedure.
28. At the end of January, the Council sent its stage two response to Mr X’s complaint. It said Mr X did not provide the evidence it asked for. It said again that it is the claimant’s responsibility to inform the Council of any changes.
29. The Council acknowledged that the timing of the attachment of earnings order was “less than ideal”, but was not deliberate. It noted that the matter had been outstanding for a long time, and that it tried to engage him with a voluntary repayment arrangement.

Analysis

30. The Council says it told Mr X of his right to appeal its decision in the decision notice it sent to Mr X at his address in November 2009. This letter was returned to the Council marked ‘gone away’. The Council says it did not have another address for Mr X.
31. The law says councils must tell people about decisions and appeal rights in writing. The Council did this. For this reason, I do not find the Council at fault.
32. The Council’s responses to Mr X’s complaint both say the overpayment happened because he moved out of the property. However, the Council has told the Ombudsman that this was wrong. It now says the reason for the overpayment was because Mr X was no longer receiving Job Seekers Allowance, and he did not tell the Council what his new income was.
33. I find the Council is at fault for giving Mr X incorrect information about what it based its decision on. This meant that Mr X did not know why the Council was seeking money for an overpayment.
34. This caused Mr X injustice, because it caused confusion and because he was not able to provide relevant information to challenge the Council’s decision.
35. The Council has now issued a fresh decision notice. This means that Mr X now has fresh rights to appeal the Council’s decision. So, Mr X can now provide the Council relevant information to challenge the Council’s decision if he so wishes. Mr X can then appeal to the tribunal if he still disagrees with how the Council calculated the overpayment. This is not something the Ombudsman can decide.
36. The Council has written to Mr X and apologised for giving him incorrect information as to why it decided he had been overpaid. I consider this an appropriate remedy for the injustice caused to Mr X.

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Final decision

37. I have completed my investigation. I find fault with the Council which has caused Mr X injustice. The Council has taken action to remedy the injustice, and I am satisfied with this action.

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Parts of the complaint that I did not investigate

38. As I have said above (paragraph 18), the Ombudsman cannot look directly at issues such as overpayments of housing benefit. This is because Mr X can appeal the Council’s decision through the tribunal. I do not consider there are any good reasons why it would be unreasonable to expect Mr X to appeal.
39. For this reason, I have not investigated the main part of Mr X’s complaint about the Council’s decision that housing benefit was overpaid.

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Investigator's decision on behalf of the Ombudsman