Summary: it was reasonable to expect Ms X to have appealed to an independent tribunal to challenge the Council’s decisions that she was overpaid Housing Benefit and Council Tax Support and the overpayments were recoverable. The Council was not at fault for writing to Ms X each time it reassessed her benefit award to reflect changes in her partner’s earnings.

The complaint

1. Ms X complains that the Council sent excessive correspondence about benefit reassessments and overpayments which left her confused about what was happening with her claim. She believes some of the overpayment decisions were wrong. She says this happened between November 2017 and June 2019.
2. Ms X was notified of overpayments amounting to £600 in total for Housing Benefit and £400 for Council Tax Support. The Council recovered the Housing Benefit overpayments by reducing ongoing Housing Benefit. The reduction in benefit caused Ms X to get into arrears with the rent. The adjustment to Council Tax Support created a Council Tax debt for which Ms X received a summons.
3. Ms X says this caused significant financial hardship and distress. She decided to return to full-time work earlier than planned so she could stop claiming benefits and prevent further overpayments. She suffers from severe anxiety and says the stress caused by getting into debt and receiving so much correspondence adversely affected her mental health.

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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. 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)
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)
7. The Valuation Tribunal deals with appeals against decisions on council tax liability and council tax support or reduction.
8. We cannot investigate late complaints unless we decide there are good reasons to do so. A complaint is late 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)
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 have considered all the information Ms X sent us.
11. I made enquiries to the Council and considered relevant documents from its records.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The background to this complaint

13. Ms X is a Council tenant. She moved to her current home in November 2017 and claimed Housing Benefit and Council Tax Support until June 2019. Her entitlement to Council Tax Support ended on 24 June 2019 when the household’s earnings exceeded the maximum income band.
14. During this period, Ms X’s partner was working and his earnings fluctuated. Ms X was not working as she was caring for her young children. She returned to work in June 2019 and Mrs X and her partner then stopped claiming these benefits.
15. Ms X complained to the Ombudsman on 1 October 2019. We can consider what happened in the preceding 12 months. But it is too late to investigate the way the Council handled her benefit claims before 1 October 2018. This part of the complaint was made late and there is no good reason for the Ombudsman to exercise discretion to investigate it now.

Benefit reassessments

16. Housing Benefit and Council Tax Support are both means-tested. The amount of benefit awarded is based on an assessment of the household’s income from earnings, benefits, tax credits and other sources.
17. People who claim Housing Benefit and Council Tax Support must inform the Benefits Service of any change of circumstances which they could reasonably be expected to know might affect their entitlement to benefit. This includes a change in their earnings. When the applicant or his or her partner’s earnings fluctuate, the Benefits Service must reassess benefit entitlement regularly. For each reassessment, it must send the claimant a written decision for the new benefit award. If that results in an overpayment of benefit, which was not caused by an official error, the Council may recover the overpayment from the claimant.
18. Ms X sent me photographs of stacks of letters she received from the Benefits Service. She says she received about fifty in total, some of which ran to 56 pages. She sometimes received several letters on the same day or in the same week. The letters were long and included details of the amount of benefit awarded from the start of the claim in 2017, rather than just the latest benefit reassessment. Ms X says she could not understand or keep track of all this correspondence.

Housing Benefit overpayments

19. Most Housing Benefit decisions, including a decision that benefit has been overpaid and should be recovered from the claimant, can be challenged by making an appeal to the Social Entitlement Chamber of the First Tier Tribunal.
20. Since June 2018 the Council recovered a series of historic Housing Benefit overpayments from Ms X’s ongoing Housing Benefit payments. The oldest overpayment was created in 2012. We are not investigating old overpayments which arose before October 2018.
21. In the period covered by this investigation – 1 October 2018 onwards - the Council created three new overpayments of Housing Benefit:
• £91 on 16 April 2019 (for the period 31/12/2018 to 13/04/2019);
• £142.50 on 21 May 2019 (for the period 15/04/2019 to 16/05/2019); and
• £51.80 on 5 July 2019 (for the period 1/07/2019 to 19/07/2019)
22. There were no corresponding overpayments (excess benefit) of Council Tax Support for the May and July 2019 overpayments.
23. I have seen the letters the Benefits Service sent to notify Ms X of each overpayment decision. They explain the overpayments occurred because the Benefits Service had not been informed at the time of a change in household income. They gave a breakdown of each overpayment and the period they covered. They said the Council had decided to recover the overpayments by deducting £16.10 per week from Ms X’s future Housing Benefit payments. It would not start recovery until earlier overpayments were cleared.
24. All three letters explained Ms X’s right to contact the Benefits Service within one month to request:
• a further explanation and statement to explain how each overpayment decision had been made;

Or if she disagreed with the amount of the overpayment, or the Council’s decision to recover it, she could request:

• a reconsideration of the decision; or
• an appeal – if the Benefits Service did not then change the decision in her favour, the appeal would be passed on to the Tribunals Service.
2. Ms X did not contact the Benefits Service to request an appeal or a reconsideration of these overpayment decisions within one month of the date she received these decision letters.
3. On 29 July the Benefits Service sent Ms X an invoice for a Housing Benefit payment of £158.27. This covered an overpayment of benefit for the period 1 April 2019 to 7 July 2019. As Ms X was no longer receiving Housing Benefit by then, the Council could not recover it by making deductions from future benefit payments. So it asked Ms X to repay the full amount within 30 days.

Ms X complains to the Benefits Service

27. After getting this invoice, Ms X made a complaint to the Benefits Service in early August.
28. She said she had always sent the Benefits Service her partner’s payslips when asked to do so. She said she received several benefit award notices every week. She felt the Benefits Service had bombarded her with letters and this increased her anxiety and stress. She did not understand why the Council said it had overpaid benefit when she had always provided evidence of her partner’s earnings. She objected to the overpayment and asked the Council not to recover it. She wanted the Council to clear the rent and Council Tax arrears. She asked it to compensate her for stress and her time and trouble in getting independent advice and making the complaint.
29. Ms X sent a further email to the Benefits Service on 14 August. She had previously sent evidence of childcare costs and payslips from her new job. The Benefits Service had reviewed her benefit award to take account of this change in circumstances from June 2019.
30. On 23 August a manager in the Benefits Service replied at Stage One of the complaints procedure. She explained the claim had to be reassessed to take account of changes in Ms X’s partner’s earnings. Due to an issue with the IT system, each time the award was reassessed it generated letters with details of Housing Benefit awards going back to the start of Ms X’s claim. This was an issue with the IT system which she had reported for further investigation. She apologised to Ms X for any inconvenience and distress this had caused.
31. Ms X contacted the Benefits Service on the same day to say she was not satisfied with the Stage One reply. She asked for a review at the second stage of the complaints procedure. She said an apology was not enough and she wanted the Council to clear the arrears and compensate her for distress.
32. On 26 September the Head of Service replied to the Stage Two complaint. He explained that the Council received daily updates from HMRC’s Verify Earnings and Pensions Service (VEP). Based on these updates, and the payslips Ms X provided, it had adjusted Housing Benefit to take account of changes in her partner’s earnings. This created the first two overpayments in April and May 2019. The third overpayment was created when Ms X informed the Benefits Service on 3 July that she had started a new job on 17 June. The Council asked her to provide payslips and evidence of childcare costs and established that Ms X was not entitled to Housing Benefit from 24 June.
33. The Council received two further alerts from the VEP service in July and August 2019 which showed Ms X’s partner’s earnings had decreased. This led to further adjustments to the benefit award for an earlier period which resulted in two underpayments of benefit. These underpayments were offset against the overpayments to clear them.
34. The Head of Service did not uphold Ms X’s complaint. He apologised for the distress and confusion caused by the volume and length of the letters. He explained that the Benefits Service had to send a letter every time the case was reassessed to take account of changes in earnings or to notify an overpayment.

Analysis

Benefit reassessments

35. The Council had to reassess Ms X’s entitlement to Housing Benefit and Council Tax Support to take account of variations in her partner’s earnings, and her earnings when she started work in June 2019. Each reassessment generated a new benefit notification letter.
36. I appreciate Ms X felt overwhelmed by the volume of correspondence about her benefit claim. Some letters ran to several pages because they included unnecessary information about benefit awards from the start of the claim. This made the letters much more complicated and difficult to understand. The Benefits Service recognised it should investigate this issue and apologised for any stress or confusion this caused.
37. However the Benefits Service had a legal duty to write to Ms X each time it reassessed her claim to notify her of the new benefit award. As her partner’s earnings fluctuated, this caused the benefit award to change frequently, and inevitably this generated a lot of correspondence. Although Ms X found it stressful to receive so many letters, it was not fault on the Council’s part to send them to her when it had a legal duty to do so. When it replied to Ms X’s complaint, the Council apologised for the impact this had on her.

Overpayments

38. The Ombudsman generally expects someone to appeal to an independent tribunal if they disagree with a council’s decision that they were overpaid benefit and it should be recovered from them.
39. I considered the letters the Benefits Service sent to notify Ms X of the three overpayments created in April, May and July 2019. Each letter explained her right to request a reconsideration, or appeal, within one month if she disagreed with the decision. Ms X did not appeal. Instead she complained to the Benefits Service in early August after receiving the 29 July invoice for repayment.
40. As the Council properly informed Ms X of her appeal rights, I consider it is reasonable to expect her to have appealed to the tribunal if she disagreed with the overpayments and the Council’s decision to recover them.
41. For this reason, I consider the Ombudsman should stop investigating this part of the complaint.

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Final decision

42. It was not fault for the Council to write to Ms X each time it reassessed her benefit award because it had a legal duty to do so.
43. Ms X could have appealed to an independent tribunal to challenge the overpayment decisions and it is reasonable to expect her to have done so.

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Investigator's decision on behalf of the Ombudsman