Summary: The Ombudsman will not investigate this complaint about a housing benefit overpayment. This is because the complainant could have used his appeal rights and because it is a late complaint.

The complaint

1. The complainant, whom I refer to as Mr X, complains about a housing benefit overpayment. He says the Council approved the claim and then waited seven years to ask him to repay it. Mr X says he did nothing wrong and he wants the Council to write off the overpayment.

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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 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. 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

6. I read the complaint and the Council’s response. I considered the letters the Council has sent to Mr X, since 2016, about the overpayment. I invited Mr X to comment on a draft of this decision.

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What I found

Housing benefit decisions

7. 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

8. Mr X became unwell and was unable to work. He claimed Employment and Support Allowance (ESA). In 2012 the Council awarded housing benefit based on the ESA award. The ESA ended and the Council based the claim on Mr X’s statement that he had nil income and was being supported by a relative.
9. In April 2016 a university told the Council that Mr X had been a full-time student from September 2012 to January 2015. The law says full-time students cannot claim housing benefit. This meant Mr X had received benefit he was not entitled to. In May 2016 the Council asked Mr X to repay an overpayment of £3635 in respect of the benefit he received from September 2012 to November 2013. The letter explained his appeal rights. Mr X did not appeal.
10. Mr X reapplied for housing benefit in 2017. The Council wrote to him about the overpayment. The Council also sent reminders and explanations in 2018 and 2019. The Council invited him to make a payment plan. Mr X has not repaid any of the overpayment. The debt is currently with a collection agency.
11. Mr X says he told the Council he was a student and the Council approved the claim. He says he did nothing wrong and the Council took seven years to ask for repayment. Mr X says he cannot afford to repay any money.

Assessment

12. I will not start an investigation for the following reasons.
13. Mr X could have used his appeal rights, in 2016, if he did not think he had been overpaid or if he did not think the Council should recover the money. It is reasonable to expect him to have appealed because the tribunal is the appropriate body to consider disputes about overpayments. The tribunal would have decided if Mr X had to repay any money to the Council.
14. I also will not start an investigation because this is a late complaint. Mr X has been aware of the overpayment since 2016 and received letters about it in 2017 and 2018. But, he did not complain to the Ombudsman until October 2019. I have not seen any good reason to investigate such a late complaint, especially as this was a matter for the tribunal.

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Final decision

15. I will not start an investigation because Mr X could have used his appeal rights and because this is a late complaint.

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Investigator's decision on behalf of the Ombudsman