Summary: Mr X complained about the way the Council handled housing benefit payments for the tenancy of a property where his mother lived before she moved into a care home. He considered the failings meant there was an overpayment of benefit. There was fault by the Council which caused injustice to Mr X. It will apologise to him and make a payment.

The complaint

1. I call the complainant Mr X. He complained about the way the Council handled housing benefit payments for the tenancy of a property where his mother lived before she moved into a care home. He considered the failings meant there was an overpayment of benefit.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We cannot investigate a complaint if someone has already appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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

6. I considered the complaint and documents provided by Mr X and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr X and the Council and considered their comments.

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What I found

7. Mr X’s mother, Mrs Y, moved into residential care in 2015. Mr X was Mrs Y’s deputy and he did not consider that she needed to go into residential care. So the decision was made by an order of the Court of Protection. Mrs Y had a tenancy of a flat. That remained the case until she died in May 2020.
8. Mrs Y was liable for the assessed costs of the residential care but also for the rent on the tenancy of the flat.
9. In September 2019 the Council wrote to Mr X to tell him it considered that housing benefit for the flat had been overpaid and would need to be recovered. The overpayment was over £26,000. Mr X appealed against the decision. The Council maintained its position and in December said it would pass the matter to the tribunal service for further consideration.
10. I do not know what happened next. But in August 2020 the Council wrote to Mr X. It said it had decided that some of the payment was as a result of official error. This meant that it wrote off over half of the overpayment. It also decided it would award benefit for a year because Mrs Y had intended to return home. This reduced the overpayment to just over £7,000. Mr X asked to appeal against this decision shortly afterwards. In January 2021 the Council wrote to Mr X asking for further information so it could forward the case to the tribunal service.

Analysis

11. If someone disagrees with a housing benefit decision they can ask for a review or appeal to the tribunal. If they have a review, and are unhappy with the decision, they can then appeal to the tribunal. The law says people should appeal within one month of the date of the decision they think is wrong.
12. Mr X challenged the Council’s decisions about the recovery of overpaid housing benefit by asking the Council to reconsider its decision and by then referring it to the tribunal. That is the proper way to consider the matter and I have not, therefore, considered it.
13. Based on the information the Council provided it delayed in dealing with this matter. In December 2019 the Council said it would pass it to the tribunal service. That did not happened but the Council did reconsider. I cannot be certain but that have been in response to further comments by Mr X. It revised its decision in his favour in August. He again requested an appeal but the Council only acted on that in January.
14. There was delay in dealing with this which will have increased the worry and stress for Mr X. There was no reason why the Council should not have reached the decision it did in August 2020 in late 2019. This, combined with the delay in dealing with the appeal in August 2020, meant delay of over a year. The Council will pay Mr X £200 to recognise the impact that has had on him.
15. If the outcome of the tribunal is in Mr X’s favour then it may be that a further remedy would be appropriate. I will leave this between Mr X and the Council. But if Mr X is not happy at the end of the process then he can come back to us.

Agreed action

16. Within a month of the final decision, the Council will apologise to Mr X for the delay and pay him £200.

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Final decision

17. There was fault by the Council which caused injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman