Summary: Mr X complained about the Council’s handling of his application for discretionary housing payments. The Council did not properly decide Mr X’s and some other people’s applications. This caused Mr X a missed opportunity, uncertainty and frustration. The Council agreed to put right the resulting injustice, including by reconsidering Mr X’s and the other affected applications and paying £150.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council acted wrongly in refusing his application for discretionary housing payments to cover the shortfall between his Local Housing Allowance and his rent. Mr X states as a result he is having to avoid other essential expenditure in order to pay his rent and he fears homelessness.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
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 information Mr X provided. I made written enquiries of the Council and considered its response. I took account of the relevant law and guidance on discretionary housing payments. I shared my draft decision with Mr X and the Council and considered their comments on it.

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What I found

7. The Council can award discretionary housing payments (DHPs) to cover some or all of someone’s housing-related costs, including where other benefits are not meeting such costs. Housing benefit or local housing allowance (LHA) does not necessarily take account of the full cost of someone’s rent. Benefit will only cover, at most, rent up to the maximum LHA level for the area.
8. Mr X is a private tenant. His weekly rent is £7.19 more than the maximum LHA for the area. So, although he receives full housing benefit, there is a weekly shortfall between the benefit and the rent. Mr X applied for DHPs to cover the shortfall.

The Council’s refusal of Mr X’s application for DHPs

9. The Council’s finance and policy committee is responsible for the policy framework under which the Council decides DHP applications. The Council refused Mr X’s application, repeatedly saying it would not give DHPs to anyone whose rent exceeded the maximum LHA. However, the DHP Framework the committee had approved did not mention that point. So, in effect, Council staff were operating a practice without the approval of the relevant decision-making committee. That was fault. It undermined the Council’s decisions on any applications where this was a decision reason, including Mr X’s application.
10. During my investigation, the Council acknowledged this fault and established that 75 applications were affected. It is now reconsidering all the affected applications. The Council proposes to complete this within the next three months. It will also ask the committee to consider a revised proposed DHP Framework containing the point about rent exceeding the maximum LHA.
11. The Ombudsman has consistently said it is fault if a council fetters its discretion in any matter the Ombudsman can investigate. This means councils’ policies and procedures should not be applied rigidly or in a ‘blanket’ way and should contain scope for considering individual circumstances and making exceptions. I therefore expressed concern about whether the Council’s practice here fettered its discretion.
12. The Council cites government advice about DHPs, which encourages consistency. The relevant government advice states:

‘In particular, LAs [local authorities] have a duty to act fairly, reasonably and consistently. Each case must be decided on its own merits, and your decision-making should be consistent throughout the year.’ (Department for Work and Pensions, Discretionary Housing Payments Guidance Manual and Local Authority Good Practice Guide, March 2018, paragraph 1.9)

13. ‘Consistent’ does not necessarily mean ‘identical.’ Deciding each case on its merits means a council should not apply a blanket policy. So the Council’s approach could still comply with the government’s advice if it contained scope for departing from its usual practice based on individual circumstances.
14. The only reason the Council gave Mr X for declining to give him DHPs was that his rent exceeded the maximum LHA. Also, the Council’s DHP Framework says DHP decisions are made weekly by a panel of staff. The Council says Mr X’s application did not go to the panel as it ‘was screened out owing to him already being in receipt of the LHA maximum award.’
15. None of the evidence I have seen suggests the Council considered whether to make an exception and made a reasoned decision against doing so. I also note the Council told Mr X it had consistently, for some time, refused all DHP applications where the rent exceeded the maximum LHA.
16. The Council now says this was only one reason for its refusing Mr X’s application. It says it regrets its correspondence with Mr X did not explain the other reasons. The Council’s response to me has not been explicit about other reasons although it implies one other reason was that it believed Mr X could afford to pay the shortfall himself.
17. I note what the Council says. However, it has not provided contemporaneous evidence that there were other reasons for its decision. Also, its DHP Framework is clear that the panel should decide applications. As the panel did not even consider Mr X’s application, I do not give significant weight to what the Council says now might have been additional reasons for deciding not to award DHPs.
18. Overall, the evidence suggests that even if the rent exceeding the maximum LHA might not have been the only factor the Council considered, it was at least the factor the Council gave most weight. So, on balance, the available evidence suggests the Council fettered its discretion in Mr X’s case and probably the other cases where it refused DHPs for the same reason. That was fault.
19. The Council should note that, even had its approved DHP Framework said the Council should not award DHPs where the rent exceeded the maximum LHA, it would still be fault to operate a blanket restriction without properly considering individual circumstances in each case. Irrespective of what the Council might put in its DHP Framework, fettering discretion is fault, especially in a system such as DHPs which inherently involves discretionary decision-making. So when the Council reviews the DHP Framework, it should ensure there is sufficient scope to avoid fettering discretion in individual cases.
20. Mr X reports he has a chronic medical condition. The Council’s response to a draft of this decision stated Mr X’s DHP application did not provide details or evidence of a chronic medical condition. Mr X suggests the Council’s refusal to pay DHPs where rent exceeds the maximum LHA means people whose ill-health prevents them improving their financial circumstances by getting work are at greater risk of homelessness than people without such health problems. Mr X suggests this could breach the Council’s duty to seek to prevent homelessness and its duties under the Equality Act 2010.
21. As the Council is revisiting both its decision in Mr X’s case and its overall DHP Framework, I do not consider it necessary to make a finding on this point now. The Council’s reconsideration should consider all Mr X’s (and any other applicants’) circumstances. As with any Council decision-making, the Council should ensure its DHP Framework, and how it applies that Framework in individual cases, do not wrongly disadvantage members of any relevant groups.

How the Council’s fault affected Mr X

22. Mr X says as he did not receive DHPs, he did not pay his water charges and council tax in full while trying unsuccessfully to meet his rent shortfall and he decided to end his tenancy and move somewhere cheaper. He now has some rent arrears and anticipates his landlord will not return all of his bond. Mr X is on a social housing waiting list for a property suited to his disability. He fears that starting a new private sector tenancy will prevent him accepting any social housing he might be offered during the new tenancy’s fixed term.
23. The faults affecting Mr X’s DHP application were that the Council applied a practice that it had not properly authorised and that it fettered its discretion. We do not know what the decision on Mr X’s application would have been but for those faults. Some applications are approved and some, even from people in difficult circumstances, are refused. Mr X’s response to a draft of this decision argued if the Council had considered his application without fault, it would have awarded DHPs. I am not persuaded. I cannot say with confidence if a properly reached decision would have approved or rejected Mr X’s request for DHPs.
24. So I do not consider the financial and other difficulties Mr X described resulted directly from the Council’s fault. Rather the Council’s fault caused Mr X a lost opportunity to have a properly reached decision in December 2018 and consequent uncertainty and frustration. The Council reconsidering Mr X’s application will go most of the way to resolving that injustice although I shall also recommend some other actions below.

The Council’s communications with Mr X

25. The Council accepts its letters to Mr X did not adequately explain its reasoning. I agree that was fault. It caused Mr X some avoidable confusion. The Council has told staff letters need to be clearer, which I welcome. Of course, this point about how the Council explained its decision does not detract from the faults in the decision-making identified above.
26. One of the Council’s letters to Mr X said the Council had not paid DHPs where the rent exceeded the maximum LHA since the Council began offering DHPs, which would have been since 2001. In fact, it had only been the case since April 2018. The Council accepts this statement was inaccurate. That was fault although I do not consider this inaccuracy in itself disadvantaged Mr X significantly.
27. Mr X is dissatisfed with the time the Council took to deal with his formal complaint. He complained on 27 December 2018. The Council’s website says the Council will acknowledge complaints and give the complainant the investigating officer’s name within five working days. The Council did not acknowledge the complaint until 17 January 2019 after Mr X chased progress. That was fault although I do not consider it caused Mr X an injustice significant enough to warrant my considering it further.
28. The Council’s website says the Council should complete a complaint investigation within 20 working days of receiving the complaint. The Council’s offices closed between Christmas and New Year. The Council replied on 30 January 2019, which, counting 2 January as the first working day, was the 20th working day. So I do not find fault here.
29. Mr X suggested the length of time the Council took prevented him seeking judicial review of the Council’s decision in the High Court. Mr X could have started the pre-action protocol for judicial review at any point. The time limit for applying to the court for judicial review is three months. In the case of the refusal of Mr X’s DHP application, that limit would have been 13 March 2019, which was after the Council’s final response on 30 January 2019. So I do not consider the Council wrongly prevented Mr X seeking judicial review.

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Agreed actions

30. At my recommendation, the Council has agreed to:
1. Apologise to Mr X for the injustice its faults caused.
2. Pay Mr X £150 to recognise that injustice. I have considered Mr X’s argument that this is inadequate but I remain satisfied it is an appropriate recognition of the injustice I have found the Council’s faults caused. The Council proposes to offset the payment against money it states Mr X owes it. I do not object to the principle of the Council doing that if it wishes, as long as the Council gives Mr X a written explanation of the debt against which it is offsetting the payment.
3. Reconsider the DHP applications of Mr X and others similarly affected and give them the result of its reconsiderations and information about how to dispute the new decisions.
4. If the reconsideration of Mr X’s application, or anyone else’s application, results in the Council awarding DHPs where it previously refused an application, or increasing the amount of DHPs it awarded, the Council should consider backdating the award as appropriate and also offer a suitable remedy for any injustice applicants have suffered in the meantime.
5. Revise its DHP Framework so it properly sets out relevant factors and does not fetter the Council’s discretion in individual cases.
31. I rely on the power described in paragraph 4 above insofar as recommendations c) and d) above relate to people who have not complained to the Ombudsman.
32. The Council should complete recommendations a) and b) within one month of today. With recommendation c), the Council should reach a new decision on Mr X’s application within one month of today and decide any other applications within three months of today. This difference is because it is Mr X who brought the matter to the Ombudsman. On recommendation d), the Council should make any decisions about backdating and remedies at the same time it makes the new decision on the person’s DHP application. The Council should complete recommendation e) within three months of today.

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Final decision

33. I have completed my investigation as the Council’s agreement to my recommendations above is a satisfactory remedy for the injustice I have found its faults caused.

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Investigator's decision on behalf of the Ombudsman