Summary: Mrs J complains about the Council suspending her housing benefit claim and then paying it at a reduced rate. She complains it took three months to get the matter resolved. She had to give the Council information it already had. The Ombudsman does not uphold the complaint.

The complaint

1. The complainant, whom I shall describe as Mrs J, complains about the Council’s actions when it suspended her housing benefit and then paid it at a reduced rate. She complains:
• In a telephone conversation an officer accused her of considering fraudulent action.
• The Council did not provide reasons for the decision.
• The Council did not accept her telling it she could easily get her tenancy changed back. This led to a need to provide more evidence and a delay in getting her housing benefit back in payment at the correct rate.
• The Council did not accept the new tenancy was not a legal document, as her daughter did not have the mental capacity to sign it.
• The Council sent her daughter forms and information, despite knowing she would not be able to deal with these communications.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. 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

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs J;
• made enquiries of the Council and considered its response;
• spoken to Mrs J;
• sent my provisional view to Mrs J and the Council and considered the responses I received.

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What I found

5. Housing benefit is a means tested benefit payable to people on a low income to help them pay their rent. The Housing Benefit Regulations say councils can ask claimants to provide any document or information that it reasonably needs to work out the claimant’s entitlement to benefit. (Housing Benefit Regulations, regulation 86(1)) This will usually include income and capital details.
6. Councils can suspend benefit while waiting for information, if there is a chance the information might mean a claim changes or ends.
7. The housing benefit rules say councils should treat someone as not liable to pay rent (and so not eligible for benefit) if they have entered into an agreement to ‘take advantage of the housing benefit scheme’. Caselaw says that sometimes an agreement can sometimes count as ‘taking advantage of the housing benefit scheme’, even if a tenant entered into it for the best of motives. (R (Mackay) v Barking and Dagenham Housing Benefit Review Board [2001] EWHC Admin 234)

What happened

Background

8. Mrs J lives with her adult non-dependent daughter (Ms K). Mrs J says Ms K lacks the mental capacity to make decisions for herself. She receives a package of care from the County Council. Mrs J is her carer and receives benefits from the Department of Work and Pensions because she is a carer.
9. In February 2018 the County Council reviewed Ms K’s income and expenditure when considering how much she would need to contribute towards her care costs. Mrs J says, during that assessment, a question arose around whether the County Council could include rent in Ms K’s expenditure. It advised that the only way it could do that was if she was in fact liable for part of the rent (as at that time Mrs J was the sole tenant).
10. Mrs J says for this reason she changed the tenancy agreement, to add Ms K as a joint tenant. The joint tenancy started on 2 October.

Mrs J’s housing benefit claim

11. Mrs J had been receiving housing benefit to cover her rent. The Council says it last reviewed details of Mrs J’s capital in October 2016. In October 2018 it wrote to her asking her to provide documents to allow it to carry out a review of her claim.
12. Mrs J supplied documents to the Council. One of these was the new tenancy agreement. Because this new tenancy agreement showed Mrs J was no longer fully liable for all the rent on her property, on 9 November housing benefit suspended her claim. It wrote to Mrs J seeking information about whether she had been jointly liable before. It also sought details it needed about Mrs J’s capital.
13. On 12 November Mrs J spoke to an officer in the Council’s benefits’ team (Officer 1). Officer 1’s record of that conversation says she advised Mrs J the reason the Council had suspended her housing benefit claim was because she was now splitting her rent with her daughter. Mrs J advised she would ask the landlord to change the tenancy back. Officer 1 records says she: “Advised this may cause more questions – such as has this been done to take advantage of the benefits system”.
14. On 13 November Mrs J wrote to Officer 1. She requested housing benefit did not send further letters to Ms K, as she did not have the mental capacity to understand them and letters sent were causing her distress. She noted the new tenancy agreement. She said she was upset at suggestions she was fraudulently trying to claim benefits.
15. On 20 November the Council lifted its suspension and reviewed its decision from 2 October, the date the new tenancy agreement started. Mrs J’s revised award paid her housing benefit to meet half her rent. The letter advised Mrs J of her appeal rights.
16. Mrs J complained. The Council’s responses advised:
• It had carried out a routine review of her housing benefit clam. That had led to questions about the tenancy agreement.
• It had suspended Mrs J’s housing benefit to make sure it did not make an overpayment.
• It apologised if she had interpreted the telephone advice of the officer as an accusation of fraud.
17. In January 2019 Mrs J advised the Council she had removed Ms K from the tenancy. She asked for it to reinstate her housing benefit award at the old rate. The Council responded asking for a copy of the new tenancy agreement. The Council’s records say Mrs J provided it with the new tenancy agreement on 21 January.
18. On 30 January the Council wrote to Mrs J advising it had revised her housing benefit. It had amended the award from the start date of the new tenancy agreement she had provided.

Was there fault by the Council?

19. I understand and empathise with Mrs J’s comments that she was acting in good faith when she changed the tenancy agreement on her home. She did this while considering Ms K’s funding for her care package. There is no suggestion she did this to any way claim something she was not entitled to.
20. But that this does not change the fact the Council had no discretion but to award housing benefit according to the rules. It is not for the Ombudsman to adjudicate if the Council had understood the rules correctly, as Mrs J had appeal rights for that question. But I can say the Council was correct to suspend (not close) Mrs J’s claim while it investigated the new information (the change of tenancy agreement) Mrs J sent it.
21. The reasons for the changes are relevant considerations in decisions about payments to benefits. So my view is Officer 1 was correct to warn Mrs J that this might be a factor the Council needed to consider if Mrs J wanted to change her tenancy again. Caselaw is clear that somebody can have a claim refused even if their reasons for a change were for the best of motives (see paragraph 7). So I cannot agree that Officer 1 accused Mrs J of considering fraudulent activity.
22. In response to my draft decision Mrs J challenged Officer 1’s record and said she was sure she had accused her of fraud. I do not have the evidence to resolve that conflict of evidence. So I cannot uphold that part of the complaint.
23. My view is the Council did tell Mrs J the reason for the change in the rate it paid was because of the change in the tenancy agreement. And it was right for it to want to see a copy of the new tenancy agreement before it changed the award again. It did revise the award again suitably soon after receiving the new agreement. I do not agree with Mrs J the Council could have accepted her telling it about the new agreement. It needed to see a copy of the document.
24. I do not follow the logic of Mrs J’s complaint about whether the tenancy agreement including her daughter was valid. Clearly Mrs J intended it to be a valid document, because there would be no reason for her to ask her landlord for the change otherwise. So I cannot criticise the Council for treating this document at face value.
25. I have not seen evidence the Council sent letters to Ms K after Mrs J told it not to. So my view is there is unlikely to be enough injustice to warrant further investigation of this part of the complaint.

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Final decision

26. I do not uphold the complaint as I see no evidence of fault. I have completed my investigation.

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Parts of the complaint that I did not investigate

27. I have not investigated the housing benefit decisions themselves. They carried appeal rights which in my view it was reasonable for Mrs J to have used if she disagreed with what the Council decided.

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Investigator's decision on behalf of the Ombudsman