Summary: Miss X complained the Council refused to award discretionary housing payment or properly considered her tenancy. We will not investigate the Council’s discretionary housing payment decision as this happened too long ago. There is no good reason to exercise discretion. It made a mistake in calculating her housing benefit, has apologised and made the correct payment, appropriately remedying injustice. It has tried to respond to her concerns about her tenancy agreement which are for the Housing Ombudsman

The complaint

1. Miss X complains the Council has failed to deal with the impact of changes to her housing benefit resulting from the introduction of the bedroom tax. She says it refused to award a discretionary housing payment to cover the impact this had on her in 2013.
2. She wants it to change that decision. She says it has not properly considered the impact of what she considers is a loophole in her tenancy agreement. As a result, she has struggled to make payments.

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What I have investigated

3. I have investigated Miss X’s complaint about discretionary housing payment and housing benefit and how the Council has handled her complaint. I have not investigated her complaint about the tenancy agreement, or her complaint about the Council’s decisions taken in 2013 for the reasons set out in paragraphs 29 and 34.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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). 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)
8. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
9. 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

10. I spoke to Miss X about her complaint.
11. I asked the Council questions and considered correspondence it provided about the complaint.
12. I gave the Council and Miss X the opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Housing benefit and discretionary housing payment

13. Housing benefit helps people on low incomes pay their rent. It is a means tested benefit, paid by councils that is based on how much savings and income the person has.
14. Since 2013 councils can cut someone’s housing benefit if they live in a property that is larger than they consider the person needs. This is called the spare-room subsidy, often referred to as the bedroom tax. Councils can reduce the maximum rent covered by the person’s housing benefit if it considers the person has spare bedrooms.
15. The rules mean the person can claim for one bedroom for each adult (and partner if a couple) and each person aged 16 years or over.
16. If someone disagrees with a council’s decision to reduce housing benefit in this way they can appeal to the tribunal. Because of this we will not normally investigate council decisions about applying the bedroom tax. We do not make housing benefit decisions and cannot tell councils to remove the deduction.
17. Councils can make Discretionary Housing Payments (DHPs) to help people pay their rent. DHPs should not be used to provide long term support. People should instead take action, in the long-term, to deal with any reduction to housing benefit, for example because of the bedroom tax.

Background to the matter investigated

18. Miss X lives in property now managed by a housing association. The Council says it was built before its creation and it does not have records about what role, if any, it played in the development. The Council says it also has no records of any agreement between it and the housing association about setting ongoing rent levels.
19. The Council says Miss X applied to the Council for DHPs several years ago because she was struggling to pay the rent. It did not award her a payment. It has not kept records that show the basis for this decision but points out DHPs are not meant as permanent solution to unaffordable rents.
20. The Council then records Miss X contacting it again about difficulty paying rent because of the bedroom tax. As a result of contact from the Council, the housing association offered her a different property not subject to the bedroom tax. She did not accept this. The Council said it would not help her further as the offer had been made and DHPs would, in any case, only be a temporary solution to affordability.
21. In 2018 the Council gave the housing association money so it could reduce rents to the locally ‘affordable rent’, backdated to August 2017. The housing association wrote to tenants in February 2018 and told them that if they had been getting housing benefit for this period, some would need to be paid back to the Council.

Miss X’s complaint to the Council

22. Miss X complained to the Council in April 2019. She asked it to explain and help with her tenancy agreement with her housing association. She said the housing association had not been able to help. She said she was struggling to pay the rent and had gone into debt.
23. She said no one at the housing association understood her tenancy agreement. She was now in arrears. She had applied to the Council for DHPs several years ago, but it had decided not to make payments.
24. She was uncertain about how the bedroom tax applied to her circumstances. She thought that, based on research of other properties, she was paying too much rent. She raised other matters about the condition of her property and about payments she had made in 2009.
25. The Council replied in May 2019 to say:
• The spare room subsidy meant that until her child Z reached 16 years old, she was only entitled for housing benefit based on three bedrooms, rather than the four she had.
• It had failed to automatically review Miss X’s housing benefit when Z reached 16. Because of this fault it had wrongly paid her housing benefit based on a 3 bedroom rather than 4 bedroom entitlement. It apologised, and sent her clarification of her housing benefit. It paid the shortfall direct to her housing association.
• Miss X had complained about other matters which were for the housing association to deal with.
26. Following further contact from Miss Z the Council explained the housing association was responsible for charging rent. She had referred to a ‘loophole’ in housing benefit rules. It explained this did not apply to Miss Z because of the length of time she had lived there. It directed Miss Z to other sources of advice about this.
27. Miss Z and the Council continued to correspond. In July 2019 the Council said it had answered the part of her complaint, about housing benefit, that it was responsible for. Other parts of her complaint were for the housing association to deal with. It suggested she speak to the citizen’s advice bureau.
28. Miss Z was concerned because the housing association told her to contact the Council about the problem and it, in turn had referred her to the housing association. Miss Z complained to us and has also complained to the Housing Ombudsman about her tenancy. She says it is investigating.

My findings

29. The application for DHPs Miss X complains about was decided several years ago. We normally expect people to complain to us up to one year after they become aware of a problem. DHPs are not meant as a long term solution to affordability. There is no good reason for me to investigate this further.
30. The Council has explained its decisions about housing benefit eligibility. It was at fault for not calculating benefit entitlement on the basis Z had reached 16 years old. It apologised and recalculated her benefit and corrected the underpayment made. This remedies injustice caused by the fault.
31. The Council is not aware of any agreement between it and Miss X’s housing association about the level of rent for tenants, or any conditions attached. This is, in any case, a matter for the Housing Ombudsman to consider.
32. The Council has responded appropriately to Miss X’s questions, signposting her to the housing association and citizens advice bureaux. There is no fault in how it has responded to her complaint.

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Final decision

33. I have completed my investigation. The Council was at fault in calculating housing benefit entitlement and has already remedied injustice arising from this.

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Parts of the complaint that I did not investigate

34. I have not investigated Mis X’s complaint about her tenancy agreement as this is for the Housing Ombudsman.

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Investigator's decision on behalf of the Ombudsman