London Borough of Havering (19 008 338)

Category : Benefits and tax > Housing benefit and council tax benefit

Decision : Upheld

Decision date : 06 Jan 2020

The Ombudsman's final decision:

Summary: Mr X complained the Council reduced his Housing Benefit and then refused on several occasions to pass his case to the Tribunal when he appealed. Mr X said this caused him and his family frustration and distress. The Council was at fault and has agreed to apologise to Mr X, make him a financial payment and review its procedures.

The complaint

  1. Mr X complained that the Council reduced his Housing Benefit and when he appealed its decision, it continually refused to send his case to the Tribunal.
  2. Mr X says that as a result, he and his family have experienced unnecessary distress and he has fallen into arrears.

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The Ombudsman’s role and powers

  1. 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)
  2. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  3. 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)
  4. 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)
  5. 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)

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How I considered this complaint

  1. I spoke to Mr X and considered his view of his complaint.
  2. I considered the information the Council provided. This included copies of Mr X’s appeal requests and the Council’s responses and complaints communications.
  3. I wrote to Mr X and the Council with my draft decision and considered their comments before I make my final decision.

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What I found

The law

  1. Councils are responsible for administering Housing Benefits. Councils must tell people about their decisions in writing. If a council decides a person does not qualify for a certain benefit, the council’s written notice must give reasons for this. The notice must also tell the person of their rights to ask for more information and to appeal.
  2. People have a right to appeal most Housing Benefit decisions. The person can first ask the council to reconsider or review its decision. However, they can also ask the Council to send the appeal directly to the Tribunal.
  3. If a person asks for an appeal the Council can reconsider its decision. If it decides not to change its decision or its revised decision is not to the person’s advantage, the Council should send the appeal to the Tribunal “as soon as is reasonably practicable”. (Rule 24(1A) of the Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008)
  4. When a person submits an incomplete appeal form to the council, the council can return the form and ask the person to provide more information. If the person does not reply, the council should send the appeal to the Tribunal so that the judge can decide whether there is enough information for the appeal to be heard.
  5. The Ombudsman cannot look directly at decisions about entitlement to benefit. This includes issues such as overpayment of Housing Benefit or recalculations of Housing Benefit. This can only be done by a Tribunal. However, the Ombudsman can look at a council’s actions and how it administered the process.

What happened

  1. Mr X has been in receipt of Housing Benefit for a number of years. He says that in 2017 he received the full Housing Benefit amount, but the Council reconsidered his application and reduced the amount.
  2. On 14 March 2018, Mr X sent the Council an appeal form about the Housing Benefit he received in 2017/18. He said the Council had incorrectly calculated his and his wife’s incomes.
  3. The Council replied on 29 March 2018 and requested information relating to Mrs X’s earnings. Mr X provided this.
  4. On 14 May 2018, the Council sent Mr X a notification letter which said it had reviewed his Housing Benefit for the period January to May 2018. The Council said it had overpaid Mr X in this period and there was an overpayment of about £618 which it would recover from his ongoing entitlement. The Council provided Mr X with information about how to appeal this decision to the Tribunal.
  5. On 14 June 2018, Mr X appealed the decision. He said Mrs X’s income which the Council had used to calculate their Housing Benefit was incorrect. Mr X said he wanted the Council to send his case to the Tribunal for appeal.
  6. The Council wrote to Mr X on 24 July 2018 and requested information about Mrs X’s income and all bank accounts Mr and Mrs X had. Mr X did not provide this information.
  7. The Council wrote to Mr X on 28 August 2018. It said “I am satisfied that the decision is correct and I have therefore upheld the decision made on 14.05.2018 as you have still not provided evidence that was requested on 24.07.2018 to support your claim”. The letter said that if Mr X disagreed with the decision, he should complete an appeal form.
  8. On 2 February 2019, Mr X submitted a general enquiry form asking for an update on his appeal.
  9. The Council sent Mr X a notification letter on 13 March 2019 informing him of his Housing Benefit award for 2019/20.
  10. Mr X had, at that time, arrears for non-payment of Council Tax, rent and a previous overpayment of Housing Benefit. Therefore, the Council began proceedings to evict Mr and Mrs X and their family from their property.
  11. Mr X contacted his MP who raised a query with the Council.
  12. On 1 April 2019, the Court suspended the eviction notice for 42 days.
  13. The Council wrote to Mr X on 10 May 2019. It said that in light of his last enquiry and submission of Mrs X’s P60 form it had amended Mrs X’s income for 2017/18. This had resulted in an under-payment for that year of around £1,300 in Housing Benefit. The Council said it had used this to reduce the outstanding debts Mr X had because of previous overpayments of Housing Benefit. It told Mr X if he was dissatisfied he could appeal the decision.
  14. The Council wrote to the MP on 13 May 2019. This reiterated the comments in its letter to Mr X and also stated that as it had revised Mr X’s appeal claim, there was nothing left to appeal. The letter said that if Mr X still wanted to appeal, he should contact the Council about this.
  15. On 28 May 2019, Mr X complained and asked the Council to recalculate his Housing Benefit for the years 2017/18, 2018/19 and 2019/20. The Council said Mr X had not provided any information to support this request.
  16. In relation to Mr X’s request that the Council send his appeal to the Tribunal, it asked him to provide details of what he considered was wrong and evidence to support this. The Council said it would not halt eviction proceedings because of the amount in rent Mr X owed.
  17. Mr X sent the Council a form asking for an appeal to the Tribunal on 24 June 2019.
  18. He did not receive a response and so sent a second appeal form on 24 July 2019.
  19. The Council responded on 6 August 2019 and said with reference to the information Mr X had provided with his July 2019 appeal form, it had amended Mr X’s Housing Benefit for the period 2 April 2018 onwards. As a result, the Council had underpaid Mr X by £2,766 for the period April 2018 to July 2019. The Council said that from July 2019 onwards, Mr X did not qualify for Housing Benefit.
  20. The Council said that if Mr X wished to appeal the Council’s decision he must do so by 6 September 2019.
  21. Mr X sent in an appeal form on 5 September 2019 saying the Council had used his two highest weekly earnings to calculate his Housing Benefit for the year 2019/20. Mr X said his income was variable and the Council had not taken this into account.
  22. The Council replied on 8 October 2019. It explained the process it had used to calculate Mr X’s income and said if he submitted his weekly wage slips, it would amend the claim. The Council did not inform Mr X of his appeal rights to the Tribunal.
  23. Also on 8 October 2019, the Court granted an order to evict Mr and Mrs X.
  24. Mr X remained unhappy and complained to the Ombudsman.

My findings

  1. If a council reconsiders a case after a person has appealed, it should send it to the Tribunal if it either does not change its decision or it changes it to the person’s disadvantage. A council is allowed to request information if an appeal is incomplete but must pass the case to the Tribunal if the person fails to provide the information.
  2. The Council failed to send Mr X’s case to the Tribunal on the following occasions:
    • May 2018 when it reconsidered his Housing Benefit for 2017/18 and made a decision that was not to Mr X’s advantage;
    • August 2018 when it closed Mr X’s case in relation to 2017/18 because he did not provide the information it requested. The Council should have sent Mr X’s case to the Tribunal for a judge to make a finding on whether the appeal was made; and
    • October 2019 when it informed Mr X it would not change its decision for 2019/20 after Mr X appealed it.
  3. The Council therefore acted with fault.
  4. When we identify fault, we must then consider whether the person complaining was caused a significant personal injustice.
  5. In relation to the year 2017/18, the Council revised its decision to Mr X’s advantage in May 2019, around a year after it should have passed his case to the Tribunal. Because the May 2019 decision was in Mr X’s favour, his appeal, if it had not already been heard, would have been stopped at this point.
  6. It is likely that if the Council had passed Mr X’s case to the Tribunal in May 2018, a decision would have been made earlier. The statistics available for the period in question indicate cases took seven months on average to be heard. Therefore, Mr X experienced a delay of around five months. This caused him unnecessary frustration.
  7. However, I cannot state with any certainty that Mr X experienced any further injustice. This is because I cannot know, and should not speculate, on what decision the Tribunal would have made. This would have depended on many factors, including the information submitted by Mr X and the case submitted by the Council. I appreciate the Council ultimately revised its decision in Mr X’s favour, but this was dependant on information Mr X provided in May 2019.
  8. I also cannot comment on the amount of Housing Benefit the Council awarded Mr X. Therefore, I cannot consider matters such as the overpayments, any debts incurred or the subsequent actions by the Council to start eviction proceedings.
  9. Mr X has appealed the Council’s decision for 2019/20. The Council has not revised its decision. It should therefore pass Mr X’s case to the Tribunal.
  10. On the evidence I have seen, I have concerns that the Council is closing appeal cases as incomplete when a person does not provide the information it has requested. I would expect to see the Council passing these to the Tribunal. I am also concerned that the Council is not passing cases to the Tribunal where it makes decisions which are to the applicant’s disadvantage. Therefore, I consider it is in the public's interest for the Council to carry out an audit to determine whether it has acted with the same fault in other cases.

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Agreed actions

  1. Within one month of the date of the final decision, the Council has agreed to:
    • apologise for not passing Mr X’s appeals to the Tribunal;
    • pay him £100 as a token acknowledgement of the frustration this caused him. The Council can use this to reduce any outstanding debt Mr X owes it; and
    • pass Mr X’s appeal over his 2019/20 Housing Benefit award to the Tribunal.
  2. Within three months of the date of the final decision, the Council has agreed to review its procedures to ensure that:
    • it does not close appeal cases because of insufficient information but passes these to the Tribunal;
    • where it reconsiders a case and does not change its decision or changes it to the person’s disadvantage, it passes the case to the Tribunal; and
    • it carries out an audit of 15% of appeals received over the last six months to identify whether any of these cases should have been sent to Tribunal on the basis of the findings of this investigation.
  3. The Council has agreed to provide evidence it has carried out these recommendations.

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Final decision

  1. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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