Summary: The Ombudsman cannot investigate Mr B’s complaint about a housing benefit overpayment and should not investigate about his subject access request. This is because Mr B has used his right of appeal against the Council’s housing benefit decision and we would expect him to refer his subject access request problem to the Information Commissioner’s Office.

The complaint

1. The complainant, whom I shall call Mr B, complained that the Council failed to tell him previously that he owed some overpaid housing benefit and it has failed to respond to his subject access request. Mr B told us the Council’s actions have added to the stress he is suffering.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I have considered the information Mr B and the Council provided and Mr B’s comments on my draft decision.

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What I found

8. Mr B told us he contacted the Council to say he was moving abroad and no longer needed housing benefit. Mr B says after his recent return to the UK, the Council told him it had overpaid about £120 housing benefit to him in 2013. Mr B disputes he owes the Council this money and he questions why the Council did not contact him about it much sooner.
9. Mr B also complains that he has made a subject access request for a document but the Council has failed to produce any information.
10. We do not normally consider complaints about a council’s calculation of housing benefit or a decision that an overpayment is recoverable. That is because the law provides a specific right of appeal against Council decisions on housing benefit awards and overpayments. The First Tier Tribunal is the body with the specific expertise and powers to consider housing benefit appeals. For those reasons it was reasonable to expect Mr B to appeal in writing when he received the Council’s recent decision that a housing benefit overpayment was recoverable from him. The First Tier Tribunal will consider late appeals in some circumstances.
11. The Council has told us Mr B appealed against its overpayment decision and it submitted his appeal to the Tribunal Service in March 2019. We cannot investigate Mr B’s complaint about the Council’s overpayment decision because he has used his right of appeal
12. The Information Commissioner’s Office is the appropriate body to consider subject access request issues. That is because its role is to deal specifically with information rights.

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Final decision

13. The Ombudsman cannot investigate the housing benefit part of this complaint. This is because Mr B to has used his right of appeal. We would expect Mr B to refer his subject access request problem to the Information Commissioner’s Office.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman