Summary: Ms B complains the Council invoiced her for overpayment of housing benefit. Ms B says the Council has charged her for money it did not pay her and has not properly explained why. She says the Council took enforcement action and did not place the matter on hold after she complained. The Ombudsman finds fault in how the Council has responded to Ms B.

The complaint

1. The complainant, who I refer to as Ms B, complains about how the Council has managed the recovery of overpayments. The Council has readjusted Ms B’s housing benefit several times. Ms B says she is confused by the Council’s explanations for why it offset underpayments against existing overpayments.
2. Ms B says the Council has now invoiced her for a recent overpayment. However, the amount is more than it paid her. Ms B says the Council has not properly responded to her or set out the reasons for charging her this amount. She says the Council said it would put enforcement action on hold but then she received another letter from an enforcement agent.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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

7. I considered the information Ms B provided and spoke to her about her complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Ms B and the Council for their comments.

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What I found

Appeals and Revisions

8. The Council’s appeals policy sets out how it deals with challenges to its decisions on housing benefits.

The policy sets out that the term appeal can cover both a request for the Council to reconsider the decision (a revision) or a request to have the appeal heard by a tribunal. It says the Council should focus on trying to resolve disputes at the local level, through revisions, before it offers people an appeal to the tribunal.

Background

9. In August 2018 Ms B provided the Council with updated information about her income. The Council recalculated her housing benefit and found it had overpaid her by more than £550. It sent Ms B a notification letter.
10. Ms B asked to appeal the Council’s findings. The Council treated Ms B’s appeal as a revision. It reassessed her housing benefit and found it should reduce her overpayment to around £475.
11. In October 2018 the Council started to take around £13 from Ms B’s weekly housing benefit payments. Ms B received a portion of her housing benefit entitlement, and the other £13 was put towards paying of the overpayment.
12. Ms B appealed the Council’s decision again and provided more information about her income. The Council treated this as a revision and found Ms B was entitled to more housing benefit over several previous weeks. It calculated that it had underpaid Ms B by more than £600. It said this reduced the original overpayment to just under £200.
13. Ms B wrote to the Council again as she did not understand why she still had an overpayment, if she had been underpaid £600. She asked the Council to explain how it had reached this position. Ms B also told the Council has had started full time employment from mid-November 2019 and asked it to stop her housing benefit.
14. The Council responded, setting out how it had reached its calculations. However, it missed Ms B’s request to stop her housing benefit payments. It continued to pay Ms B her housing benefit until February 2019. Throughout this time the Council paid Ms B around £24 per week and put around £13 per week toward paying off her existing overpayment.
15. In February 2019, Ms B contacted the Council again to tell them to stop her housing benefit payments and that it should have done so in November. The Council suspended her payments then sent her an invoice for what it had overpaid her between November 2018 and February 2019. This totalled around £375. The Council’s letter indicated that Ms B should contact the Council within a month if she wished to appeal the decision.
16. Ms B emailed the Council to challenge its decision. She said the Council had only paid her around £250, not £375. The Council did not respond to Ms B’s letter, so she telephoned to chase in March 2019. The Council recorded the call but did not bring it to the attention of the relevant team. The Council sent further invoices to Ms B.
17. In early April 2019 Ms B sent a letter to the Council asking for it to respond to her points urgently. The Council sent a letter of response to Ms B in mid-June 2019. The response set out that the Council had invoiced Ms B for £375 as this was the full amount of her entitlement. However, the Council treated Ms B’s correspondence as an enquiry, not as an appeal, and did not set out that she could still appeal. Ms B then submitted her complaint to the Ombudsman.
18. In August 2019, Ms B received a letter from an enforcement agent instructed by the Council. She contacted the Council and said she had complained to the Ombudsman. She asked the Council to place enforcement action on hold while our investigation was ongoing as she still disputed the amounts. The Council agreed but Ms B then received another letter from the enforcement agent.
19. The Council contacted the enforcement agent again to place the matter on hold. The Council also sent a complaint response to Ms B in October 2019.

Findings

Original Overpayment

20. We will not normally investigate when someone has a right of appeal to a tribunal. In this case, Ms B appealed the original overpayment and the Council conducted two revisions. I have not investigated the outcomes of those revisions.
21. I understand Ms B was confused as to why she still owed the Council for an existing overpayment, when it had calculated that it underpaid her £620. I have looked through all the figures and sympathise with why this caused Ms B frustration. The revisions cover overlapping but different timeframes. The effect this has on the amounts the Council paid Ms B, as opposed to what it should have paid, is complex. However, it does appear the Council has, in the end, paid Ms B the correct amount of housing benefit in line with what it should have paid, following its revisions.
22. I do not find fault with how the Council communicated its decisions. I agree the explanations are difficult to understand but this is more due to the complexity caused by multiple revisions. I cannot say in what way the Council could make its explanations clearer.

November 2018 to February 2019 overpayment

23. The latest overpayment took place because the Council did not pick up on Ms B’s request to stop her overpayments. I note the main substance of Mrs B’s email was to query the previous overpayment. However, it is still something the Council should have seen. It should have stopped the payments in November 2018. It is fault that the Council continued to pay Ms B until February 2018.
24. Ms B continues to dispute the Council invoicing her for £375 when it only paid her £250. My understanding of the Council’s position is as follows.
25. The Council did, in effect, pay Ms B her full entitlement of £375. It paid £250 to Ms B and the remainder towards the existing overpayment. If the Council stopped Ms B’s housing benefit in November 2018, it would not have paid that portion towards the overpayment. The overpayment would therefore have been outstanding, and Ms B would still be liable for this.
26. It is not my place to decide whether the Council’s decision is correct. This is because Ms B could appeal the decision. For the reasons outlined in the following paragraphs, the Council says that if Ms B wishes to appeal now, it will treat her appeal as if it were in time.
27. I find fault in how the Council communicated with Ms B from February 2019 onwards. Ms B clearly challenged the Council’s decision in her email responding to the overpayment. The Council did not respond to this until June 2019, four months later, despite Ms B chasing.
28. The Council’s letter to Ms B in June 2019 is short. It provides an explanation as to why there is a £375 overpayment. However, it does not acknowledge that Ms B is challenging this decision or set out that she can still appeal to the tribunal if she wishes to do so. The Council accepts this is fault.

Enforcement Agent

29. The Council says it did not delay in placing the enforcement matter on hold. However, due to a technical error this did not appear to work at first and so it sent another hold request to the enforcement agent a week later. Mrs B, on the other hand, says the Council told her one of its officers made a mistake in forgetting to place the matter on hold.
30. Whatever the error was, it led to the agent sending another enforcement letter to Ms B and this is fault. The Council is the body in jurisdiction and is responsible for any errors by its officers or its enforcement agents.

Consideration of Remedy

31. I have found fault in the following areas:
• The Council continued to pay Mrs B’s housing benefit when it should not have done, leading to an overpayment
• A four-month delay in the Council responding to Ms B’s email of February 2019
• Not further advising Ms B of her appeal rights in June 2019
• Sending a further enforcement letter to Ms B when her case was meant to be on hold
32. I recommend the Council apologise to Ms B for the fault identified.
33. I accept the Council’s offer that it will treat Ms B’s appeal as in time if she writes to the Council again asking it to look at the overpayment as an appeal.
34. However, I also consider the fault caused an injustice to Ms B in the sense of uncertainty and time and trouble. In the four months the Council did not respond to Ms B she would not have known what was happening or whether the Council would review her case. That uncertainty would have caused distress to Ms B. In addition to this, Ms B spent time and trouble chasing the Council for a response.
35. The letter in June 2019 did not fully resolve the uncertainty as it did not provide any further information about how Ms B could appeal. The later error in the enforcement action would have added to Ms B’s distress.
36. I recommend the Council make a payment to Ms B of £100 to recognise the distress and time and trouble caused by the fault.

Agreed action

37. The Council has agreed to, within a month of this decision:
• Apologise to Ms B for the delay in responding to her correspondence, for not advising her further of her appeal rights and for the error that led to her receiving another enforcement letter
• Pay Ms B £100 to recognise the distress and time and trouble this caused
• If Ms B writes to the Council asking to appeal its decision, process that appeal request as if it were in time.

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Final decision

38. The Council is at fault in how it responded to Ms B’s challenge to its decision about a housing benefit overpayment. It is also at fault for an error that led to its enforcement agent sending a letter of enforcement to Ms B when the case was on hold.

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Investigator's decision on behalf of the Ombudsman