Summary: Miss E complains about the information the Council asked her to provide for her housing benefit claim. She says it amounted to discrimination. The Ombudsman upholds the complaint because of a delay in making a decision. But we do not view the information the Council asked to see as unusual for people in Miss E’s circumstances, as a self-employed claimant. Other parts of Miss E’s complaint are outside our jurisdiction.

The complaint

1. The complainant, whom I shall describe as Miss E, complains:
• The Council’s Benefits Service is discriminating against her in how it has treated some of her income and expenses. It has used wrong income and capital details.
• The Council has delayed responding to her; both when it suspended benefit and in dealing with her complaint.
• When she told the Council of a change of circumstances, it ignored her.
• During a telephone call, the Council did not use an interpreter.

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The Ombudsman’s role and powers

2. The Ombudsman investigates 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))
3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss E;
• made enquiries of the Council and considered its response;
• spoken to Miss E;
• sent my draft decision to Miss E and the Council and considered their responses.

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What I found

Legal and administrative background

Housing benefit

6. 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.
7. Councils can suspend benefit while waiting for the information; if there is a chance the information might mean a claim changes or ends. Suspension decisions affect only payment, not entitlement, to benefit.

Council tax and council tax support

8. Council Tax is a tax made on domestic properties. Councils issue one bill to each household. Residents of dwellings, including tenants, are usually liable for Council Tax from the date they moved into the property.
9. Council tax support is a payment made by the Council to those on a low income, to help them pay their council tax. The support is means tested, so depends on a claimant’s income and capital.

Appeal rights

10. The Social Entitlement Chamber (also known as the Social Security Appeal Tribunal) is a tribunal that considers housing benefit appeals. (The Social Entitlement Chamber of the First Tier Tribunal)
11. The Valuation Tribunal deals with appeals against decisions on council tax liability and council tax support.

What happened

The request for information

12. Miss E is a self-employed European national. She receives housing benefit and council tax support from the Council, because of her low income. She lives in a home managed by the Council.
13. On 14 May 2018 the Council suspended Miss E’s housing benefit and council tax support claims. Its records show this was after she returned a form about her self-employment. It wrote to her, asking for her full income and capital details.
14. Miss E emailed the Council on 25 June noting she had given the Council the information it sought on 16 and 18 May. She advised she was building up debts. The Council responded, advising it would update her in two to five weeks.
15. On 3 August Miss E asked to complain about the delay. The Council responded on 13 August. It advised:

“…there have been a number of queries in respect of your claim hence the reason it was suspended from May 2018. I can confirm that an officer will be re-calculating your entitlement based on the information you have supplied this week and you will be notified of their decision thereafter.”

16. On 23 August the Council sent Miss E three letters:
• A decision letter on her housing benefit claim.
• A decision letter on her council tax support claim.
• A decision letter advising it had overpaid her a small amount of housing benefit. But it had decided this was not recoverable. This letter also asked Miss E for more information, listing specific documents it needed to see. It warned her it might have to suspend her claim again if it did not receive the documents.
17. The Council has also provided me with a detailed contemporaneous analysis of the income, capital and business-related expenses information Miss E provided it.
18. The Council says it spoke to Miss E on 28 August, when she reported another change of circumstances. She provided further information in early September. Miss E says this call was made without an interpreter. This was despite her request on her claim form for contact in writing because English was her second language.
19. On 31 October the Council made new decisions on Miss E’s housing benefit and council tax support claims. Miss E appealed both these decisions.
20. After this date Miss E was in contact with the following Council sections:
• Council tax about repayment of debts.
• The Council’s complaints’ team.
• The Council’s benefits team about both her appeals.
21. After completing the Council’s complaints procedure, Miss E complained to the Ombudsman. The Council took some time to provide a full response to my enquiries. Its responses advised:
• It accepted a delay in considering Miss E’s information: “[t]he reason for this being due to the backlog of work within the Benefits team”.
• “…at no time has Miss [E] indicated during contact with the service a language barrier. She has communicated both in writing and telephone calls with us and I am unable to locate any instance where she has mentioned any issues due to language.”
22. Miss E’s appeals against the decisions are ongoing. At least one of the Tribunals was adjourned, to allow Miss E time to prepare professionally audited accounts.

Was there fault by the Council?

23. When assessing a claim, a council can ask to see any evidence it reasonably needs to decide the claim. They need to see original documents. The requirement for documents can be particularly burdensome to those with a changing income, such as self-employed claimants. So I see nothing unusual in the Council seeking the information it did.
24. I can see a detailed analysis of the information Miss E provided in the Council’s records. The Ombudsman cannot consider the merits of the Council’s calculation of Miss E’s income, as she is using her appeal rights, making those issues outside our jurisdiction.
25. Miss E complains the actions the Council has taken amount to discrimination, based on her ethnicity. Decisions on whether there has been discrimination usually involve deciding on contested questions of fact and law. This needs the more rigorous and structured procedures of civil litigation for their proper determination. So, I cannot say whether there has been the discrimination Miss E claims.
26. Miss E says the Council telephoned her without an interpreter. The Council says Miss E has not told it she needed an interpreter. And she had responded to letters it had sent her that were not translated. I accept that Miss E might have made a request for written contact only on her claim form. I would ask the Council to meet Miss E’s request in the future. But my view is that this call, alone, did not lead to an injustice that warrant the public expense of further investigation by the Ombudsman.
27. However, my view is the Council did delay in considering the information Miss E provided. The Council has not disputed Miss E’s claim she provided information on 16 and 18 May. It made a decision on the claims on 23 August. The Council cites a backlog of work, as the reasons for the delay.
28. We know authorities are working under an enormous amount of pressure and financial challenge to deliver services. But the Ombudsman’s view is, despite this, when it comes to service delivery, we cannot make concessions for these pressures in the findings/recommendations we make. We would normally expect a council to consider information sent within four weeks. So this means the Council delayed by around 10 weeks in considering the information Miss E gave it.
29. I know the issues remain unresolved and Miss E is awaiting hearings from two Tribunals. But I cannot link that continuing delay to the fault I have identified. It seems there may be a delay in arranging hearings. But this is not the Council’s fault. And I see that one Tribunal adjourned, as its view was Miss E needed to provide more information. Again, this was not because of fault by the Council.

Agreed action

30. I recommended the Council, within a month of my final decision, pay Miss E £100 in recognition of the avoidable stress and frustration caused by the delay in acting on the information she provided. The Council has agreed to this request.

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Final decision

31. I uphold the complaint. The Council has agreed to my recommendations. So I have completed my investigation.

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Parts of the complaint that I did not investigate

32. I have not investigated the decisions themselves, as Miss E has appealed to Tribunals, meaning they are outside the Ombudsman’s jurisdiction.
33. Only a court can decide whether there has been the discrimination Miss E claims. But I can say it was not unusual for the Council to request detailed information about Miss E’s income and expenses.

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Investigator's decision on behalf of the Ombudsman