Summary: The Ombudsman will not investigate Mr K’s complaint the Council has caused him frustration, time and trouble from pursuing his dispute about the Council breaking what he considers to be a ‘contract’ for repayment of an housing benefit overpayment. This is because: we cannot investigate matters which have been decided by a tribunal; we will not investigate matters which it would be reasonable for Mr K to take to court; and we cannot order the Council to take the action Mr K thinks it should so we cannot achieve what he wants from his complaint.

The complaint

1. Mr K complains the Council has caused him frustration, time and trouble from pursuing his complaint about the Council breaking what he considers to be a ‘contract’ for repayment of an housing benefit overpayment. He is unhappy the Council has refused to meet with him to discuss the matter or consider mediation.

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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. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. We investigate complaints about ‘maladministration’ and ‘service failure’ which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants.,

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I considered what Mr K said in his complaint and gave him an opportunity to comment on a draft before reaching a final decision.

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What I found

7. The Council decided it had overpaid Mr K housing benefit and the overpayment was recoverable. Mr K used his right to appeal to a tribunal about those decisions, so the Ombudsman cannot investigate what happened.
8. Mr K says he agreed with the Council a payment plan which he considers amounts to a contract. Housing benefit regulations set out the legal basis for a council to recover overpaid benefit but they contain nothing to suggest the creation of any kind of contract where a council accepts repayment over time by instalments.
9. If Mr K believes he has a contract the Council is in breach of, the proper route for him to pursue his dispute is through the courts. It is for the courts alone to decide matters of contract law, including whether a contract exists. The Council does not need to meet with or enter mediation with Mr K, and the Ombudsman cannot order it to do so as Mr K thinks.
10. It is also open to the Council to pursue recovery of an unpaid housing benefit debt through the courts just like any other debt. If Mr K disputes its right to do so or any payment the Council demands, it would be open to him to defend any court action against him, and allow the court to decide the matter. The Ombudsman, however, cannot rule on debt liability.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because:
• we cannot investigate matters which have been decided by a tribunal
• we will not investigate matters which it would be reasonable for Mr K to take to court, and
• we cannot order the Council to take the action Mr K thinks it should so we cannot achieve what he wants from his complaint.

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Investigator's decision on behalf of the Ombudsman