Summary: Mrs X complained the large bill from an overpayment of benefits was unreasonable and the Council should have allowed her case to go to a late appeal. The Council advised Mrs X of her appeal rights at the outset giving her a chance to make an appeal against the calculation of the overpayment. However, when Mrs X wanted to make a late appeal the Council did not clearly explain what action it would take. It has agreed to pass a late appeal to a Tribunal if Mrs X provides clear and specific reasons for her concerns about the calculation of the overpayments. This resolves any injustice from this element of the complaint.

The complaint

1. Miss X was told in January 2018 that she had been overpaid housing benefits. Due to very difficult personal circumstances Miss X did not challenge the overpayments. The Council began recovering the debt through deductions from ongoing housing benefits. Miss X challenged the overpayments in 2019 when she was moved to Universal Credit and she was asked to repay the outstanding amount in one go. She complains the large bill is unreasonable and the Council should have allowed her concerns about the validity of the overpayments to be heard as a late appeal.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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)

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How I considered this complaint

4. We considered Mrs X’s complaint and the information she provided. We asked the Council for information and considered its response to the complaint. We issued a draft decision to Mrs X and to the Council to enable them to comment. We considered the comments we received before reaching a final decision.

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What I found

Housing benefit decisions

5. If a council pays too much housing benefit to someone it will usually ask them to repay it. The law says an overpayment is recoverable unless it was caused by an official error and it was not reasonable to expect the person to realise they were receiving too much benefit. If someone disagrees with a decision that they must repay an overpayment, they can appeal to the tribunal. The law says people should appeal within one month of the date of the decision they think is wrong. The tribunal can accept a late appeal up to 13 months from the date of the decision.

What happened

6. In January 2018 the Council told Mrs X that she had been overpaid Housing Benefit between 2014 and 2018. The Council stated the last time Mrs X provided it with information about her income was 2014. The Council explained that the Department for Work and Pensions (DWP) sent them information that showed Mrs X’s income had been higher than she declared since 2014, so it recalculated her benefit based on the information the DWP provided.
7. Mrs X explained for very difficult personal reasons, she did not challenge the overpayment decision in 2018. The Council began recovering the overpaid amount by making deductions of £11 per month from her ongoing Housing Benefit entitlement.
8. However, in January 2019 she was transferred to Universal Credit. As a result, she was told the Council could no longer continue to take deductions from her benefits to repay the overpayment.
9. The Council sent reminders for all the outstanding invoices in February 2019. Mrs X says she was expected to repay £1400 as a lump sum, which she could not do.
10. Mrs X wrote to the Council in February 2019. She completed a form to request a mandatory reconsideration of the overpayments. She explained her circumstances and asked the Council to write off the debt. The Council explained it could not write the debt off, but it agreed to accept payments of £20 per month to repay the outstanding amount.
11. In March Mrs X questioned the amount of the arrears and whether the deductions had been taken into account. She also questioned why some of the debt went back to 2014. She felt the oldest invoices should be written off as she knew nothing about the problem until January 2018. Mrs X stated she had never knowingly withheld information from the Council about her circumstances and believed the overpayment may be the Council’s error rather than her own.
12. The Council clarified the amount owed and confirmed the deductions had been applied to the debt. It explained a more recent invoice from February 2019 was included in the overall amount. The Council explained the form she completed was not correct. But, in any event, the Council told Mrs X that appeals had to be made within a month of the decisions in 2018. It stated as Mrs X had not submitted an appeal, it had no obligation to look at the matter now. The Council noted the more recent final invoice from February 2019 could still be appealed within 10 days and re-iterated the offer to accept payments towards the debt.
13. In correspondence with Mrs X in April the Council told her she was out of time for an appeal. Mrs X stated she was not at fault for the overpayments. She also believed her challenge had been in time for a late appeal.
14. The Council used proof if income that Mrs X provided to check if the right amount of benefit was paid between March and December 2018 and whether its invoices were correct. It decided both had been correct.
15. In June Mrs X stated she had contacted DWP and checked their figures against her proof of wages. She stated they tallied, so she believed the Council’s error had led to the overpayment rather than any failure to communicate her income.
16. In August 2019 the Council stated it had not been at fault. It explained that Mrs X’s correct income was only established after the DWP provided information. It acknowledged that wage slips Mrs X recently provided matched the DWP information. However, Mrs X had not given this information to the Council when benefits were being paid so it could not have paid benefits correctly at the time.
17. The Council asked Mrs X to come back to the Council with specific reasons why she felt the calculations were incorrect. It stated she did not do this.
18. When considering Mrs X’s complaint we asked the Council if it would forward Mrs X’s case to the Tribunal as a late appeal. It stated a late appeal must be received within an absolute time limit of 12 months after the last day for appealing. It stated an Authority may grant a late appeal if it was in the interests of justice to do so. If it did not consider it should grant the late appeal, it recognised that it must forward the case to tribunal to consider. The Council stated a first-tier tribunal may grant a late appeal in the context of dealing with cases fairly and justly, but it must not extend the maximum time limit. In Mrs X’s case the Council stated it would not grant a late appeal. It stated if it sent it to tribunal they could not consider it as they could not extend the maximum time limit.

Analysis

19. There is no dispute that the Council advised Mrs X of her appeal rights in 2018 when it first reached the decision she had been overpaid. Generally, we would consider it is reasonable to expect someone to have used their appeal rights, because the tribunal is the appropriate body to consider benefit disputes. Although I understand Mrs X’s circumstances were difficult at the time, there was no fault by the Council at this stage of the process.
20. Mrs X felt the Council should write off the overpayment. There is no law or regulation which says a Council must write off an overpayment which has not been repaid within a certain period of time. Although the invoices sent to Mrs X in 2019 set out the full amount due, the Council agreed to accept a payment plan to allow Mrs X to continue to make monthly payments towards the debt. So, the Council did not insist on full payment of the arrears at once. I found no fault in this respect.
21. However, I found the Council could have explained its position regarding late appeals more clearly. In August 2019, the Council asked Mrs X for specific reasons why she believed the overpayment calculations were wrong. However, its letter did not make clear that if she provided specific reasons why she wished to appeal against the January 2018 decisions, it would send the case to the Tribunal. In correspondence with us the Council initially indicated that it would not send the case to Tribunal because it considered the Tribunal could not decide it.
22. If the Council thinks a complaint has been outside the absolute time-limit they must refer to the tribunal immediately. The tribunal decides whether an appeal has been made in time, not the Council. It should have made the position clearer to Mrs X. The failure to make this clear was fault.
23. Although the Council’s position could have been set out more clearly, the Council has confirmed that if Mrs X provides it with specific reasons why she considers the calculation of the overpayments are wrong, it will agree to send her case to Tribunal. The Tribunal will then confirm if the late appeal can or cannot be considered further. The clarity provided and the agreement to do this resolves any injustice caused to Mrs X.

Agreed action

24. Mrs X should provide the Council with any specific reasons she has for challenging the calculation of the January 2018 overpayments within four weeks of my final decision. The Council should consider these are send the case to Tribunal within four weeks of receiving them from Mrs X.

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Final decision

25. There was some fault by the Council which it has already agreed reasonable action to remedy. Subject to further comments by Mrs X and the Council, I intend to complete my investigation and close my file.

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Investigator's decision on behalf of the Ombudsman