Summary: The Ombudsman will not investigate this complaint about housing benefit overpayments. This is because it is a late complaint, the matters have been considered in court and because the complainant could have appealed to the tribunal.

The complaint

1. The complainant, whom I refer to as Mr X, has many complaints about the Council’s handling of a housing benefit overpayment. However, the key issue is that he does not think he owes the amount claimed by the Council.

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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 about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
4. 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)
5. 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)
6. 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

7. I read the complaint and additional information provided by Mr X and the Council. I considered comments Mr X made in reply to a draft of this decision.

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What I found

Housing benefit overpayments

8. If someone wishes to dispute any part of a housing benefit overpayment decision (recoverability or the amount) they can appeal to the tribunal. The law says they should appeal within one month of the date of the disputed decision. There is an absolute time limit of 13 months to appeal.
9. A council can offer an administrative penalty as an alternative to prosecuting someone for benefit fraud. If the person accepts the penalty they must repay the overpayment and an additional penalty. If the person accepts an administrative penalty the Council agrees not to prosecute for fraud.

What happened

10. In 2014 the Council asked Mr X to repay a housing benefit overpayment of £9211. In 2015 Mr X signed an administrative penalty and agreed to pay the overpayment and a fine of £2000.
11. Mr X has incurred further overpayments since 2015. I have seen an overpayment demand for £864 which the Council notified to Mr X in January 2019.
12. In July 2019 the Council re-calculated the overpayment for the pre-2015 period. The Council said it had not removed tax credits from the calculation. The Council issued a revised invoice for £7973. Over the years there have been many under and overpayments.
13. The Council took Mr X to court for recovery of the overpayment (this was not a prosecution for fraud). In November 2019 the court agreed the Council could question Mr X about his ability to repay a total housing benefit debt of £8542.
14. Mr X has made some payments towards the debt and says he agreed a regular payment plan in October. He says he was penalised in 2015 because the Council made an error in 2014. Mr X disputes the amount of the overpayment and the invoice issued in 2019.

Assessment

15. I will not start an investigation for the following reasons.
16. The bulk of the outstanding overpayment arose in 2014 and the Council asked Mr X to repay it in 2014. Mr X did not complain to the Ombudsman until 2019 so this is a late complaint. Mr X says he is complaining about the invoice issued in 2019 so argues the complaint is not late. However, most of the invoice relates to the historic overpayment.
17. Mr X could have appealed to the tribunal about any of the overpayment decisions. He could have appealed in 2014 and for any of the subsequent decisions. He could have appealed if he did not think he had been overpaid, he did not think he should have to repay it or if he wished to dispute the amount. It is reasonable to expect Mr X to have appealed because the tribunal is the appropriate body to consider disputes about overpayments. The Council says it would consider a late appeal regarding the decision from January 2019 but it is too late to appeal about the older decisions.
18. The overpayment has been considered in court. The law says the Ombudsman cannot investigate any matter that has been the subject of legal proceedings. Mr X says he was not told of the court action in November. Mr X would need to address this through legal processes as I have no power to intervene.
19. Mr X says one overpayment decision is wrong due to an error by HMRC. The Council has told him it will re-consider this overpayment if he provides the information from HMRC. It is not my role to reassess overpayments or calculate entitlement to housing benefit. In addition, Mr X disputes the overpayment figures. However, it is not my role to check or recalculate his housing benefit and he had appeal rights for every decision.
20. In 2019 the Council recalculated the 2014 overpayment which resulted in the pre-2015 debt being reduced. However, the re-calculation did not remove all the overpayment and Mr X still owed a significant sum. On this basis I cannot say the Council would not have issued the administrative penalty even if the overpayment had originally been issued for the lower amount.
21. Mr X has expressed dissatisfaction with the Council’s handling of his complaint. However, where we are unable to investigate the main issue we will not investigate the complaint handling as an isolated issue.

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Final decision

22. I will not start an investigation because this is a late complaint, the matter has been considered in court and because Mr X could have used his appeal rights.

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Investigator's decision on behalf of the Ombudsman