Summary: Mr X complains about the Council’s decision on overpayment of housing benefit and its handling of his account. The Ombudsman will not investigate the overpayment because there is a right to appeal to the Tribunal. The Ombudsman will not investigate matters that arose more than 12 months ago, as Mr X could have complained sooner. The Ombudsman finds fault in the Council’s record keeping and is satisfied with its proposed action to prevent recurrence.

The complaint

1. Mr X complains about the Council’s decision that it overpaid him housing benefit and he is unhappy with its handling of his account. Mr X says he has suffered distress and been put to time and trouble.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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. 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)
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 spoke to Mr X and I reviewed documents provided by Mr X and the Council. I gave Mr X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

Housing Benefit

8. Housing benefit is a means tested benefit, taking into account both capital and income.
9. If a council reviews a claim and decides it has paid too much benefit, this is called an overpayment.
10. Council must make decisions in writing advising claimants of their rights to ask for more information and to appeal.
11. The claimant can first ask the council to reconsider, or internally review, its decision. There is then a right of appeal to the independent benefits tribunal (the First-Tier Tribunal) administered by the Ministry of Justice, through its HM Courts and Tribunal Service.  
12. A claimant must ask for a reconsideration and/or appeal within one month of the date of the decision.
13. Councils can accept a late reconsideration, up to an absolute deadline of 13 months.
14. A Tribunal Service Judge considers late appeal requests.

Recovery of overpayments

15. A council may recover an overpayment using various methods including by deduction from ongoing housing benefit or by a Direct Earnings Attachment (“DEA”).
16. A DEA allows for recovery of overpaid benefit directly from a debtor’s earnings without having to apply via the court system.
17. It is good practice to send an initial “Letter Before Action” to the debtor prior to any action being taken to initiate a DEA. This gives the debtor the opportunity to make payment arrangements outside of a DEA before the DEA is started.

What happened

18. Mr X received housing benefit at Address A. He says he left Address A in September 2015.
19. The Council’s records show Mr X provided his new address, Address B, by phone on 27 October 2015.
20. The Council has provided a copy of decision notices sent to Mr X at Address B in December 2015. This includes overpayment decision notices which say he should contact the Council within one month if he thinks its decision is wrong, to ask it to reconsider its decision or to appeal.
21. The Council’s records show it sent two invoices to Address A in December 2015; these were returned undelivered.
22. The Council says it resent an invoice to Address B in January 2016. And that it sent a final demand for the outstanding debt in April 2016.
23. Mr X says he left Address B in May 2016 and told the Council he had moved to Address C.
24. Mr X says in July 2019 his employer told him they had received an attachment of earnings order from the Council.
25. On 3 July 2019 Mr X contacted the Council regarding the debt and complained its decision on the overpayment was incorrect. He also provided his current address.
26. On 3 July the Council sent Mr X a statement of means form to his current address to allow him to arrange a payment plan to clear the debt rather than recovery through the DEA.
27. The Council responded to Mr X’s complaint on 10 July. It explained how the overpayment arose and where it had sent notices. It said it sent an invoice to Address A in error in December 2015 but this was resent to Address B in January 2016. It had first recovered overpayments from Mr X’s housing benefit and when this ended it sent an invoice and final demand to Address B in early 2016. It found no error in its assessment of his housing benefit claim and no evidence he had previously asked it to review its decision. It notes it also sent a final demand on 11 June 2019 to the wrong address and apologised for this.
28. In correspondence of 26 July Mr X said he had always updated the Council with his address yet did not receive any letters or demands for payment. He first knew about this when his employer told him about the attachment of earnings order. He disputed the overpayment and said he had evidence he had told the Council his new address. He sought a full review into his housing benefit account.
29. The Council told Mr X it would provide a statement of reasons, explaining the overpayment.
30. On 19 August Mr X told the Council he wanted a full investigation and a record of his contacts with the Council.
31. The Council told Mr X it would not review its decision on the overpayment as he did not request a review within one month. It provided a chronology of contacts and apologised for its delay in doing so. Of relevance, I note the chronology says:
• Mr X called the Council on 27 October 2015 to say he had moved to Address B
• On 10 and 11 December 2015 the Council sent a letter about overpayments to Address B
• On 11 December 2015 the Council sent a letter that Mr X’s housing benefit claim had ended to Address B
• Two invoices sent to Address A were returned to the Council as undelivered at the end of December 2015
• In January 2016 the Council made an internal request for an invoice to be sent to Address B
• On 11 June 2019 the Council sent a debtor’s statement and statement of means to Address D
• On 3 July the Council sent a statement of means to Mr X’s current address
• Mr X has since agreed to repay the debt under a payment plan
• It explained the overpayment in its letter of 24 July 2019
32. When I spoke to Mr X he explained the Council interviewed him regarding the overpayment in 2015 and led him to believe he had to accept its decision. It did not provide any clear advice or guidance and he was unaware he could appeal to the Tribunal. Mr X says more recently he has learned that he has grounds to challenge the overpayment decision. He disagrees with how the Council has calculated the overpayment.
33. In comments on my draft decision the Council explained it issued an invoice to the wrong address in December 2015 as it had not updated Mr X’s address on its debtors’ system. It said this was human error and it would issue reminders to all staff to ensure that all relevant areas of its database have contact addresses updated as appropriate.  
34. The Council further explained it sent a second invoice in June 2016 to the last known address held for Mr X. It says it checked against the Department for Work and Pensions database and through tracing agents, before doing so.

Findings

35. Mr X’s complaint is about the Council’s actions and decision on its overpayment in 2015. The complaint is more than 12 months old, however I will consider if I should exercise my discretion to investigate.
36. Mr X could have appealed to the Tribunal about the Council’s decision on overpayments in 2015 or, he could now ask the Tribunal to consider a late appeal. I will not investigate Mr X’s complaint about the overpayment because the Tribunal is the appropriate body to consider such disputes and it is reasonable to expect Mr X to appeal to the Tribunal if he wishes.
37. I will not investigate Mr X’s complaint about the advice the Council gave him in 2015 because that arose more than 12 months ago, Mr X could have sought third party advice and contacted the Ombudsman sooner and, because there is no ongoing injustice. Mr X says the lack of suitable advice meant he accepted the overpayment, however he remains able to ask the Tribunal to consider a late appeal.
38. Upon Mr X’s recent complaint to the Council, it investigated and outlined its contacts with Mr X.
39. The Council’s records show it sent documents to Address A after Mr X had moved, in error. This is fault. However, I note the Council also sent the same documents to the correct address held on file, and so this fault did not cause Mr X injustice. I am satisfied with the Council’s explanation and action to prevent recurrence.
40. In correspondence to Mr X the Council accepted it sent a document to Address D in June 2019 in error. However, I have not seen any evidence the Council was made aware of Mr X’s correct current address by that date. I therefore cannot find the Council at fault.
41. The Council told Mr X it would not review its overpayment decision because he did not ask for a review within the one month deadline. This is in line with the law and so I find no fault by the Council in this regard.

Final decision

42. I find the Council at fault in its record keeping though this did not cause Mr X injustice. I am satisfied with the Council’s proposed actions to prevent recurrence.

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Investigator's decision on behalf of the Ombudsman