Summary: The Ombudsman should not pursue this complaint about the Council’s decision to recover overpaid benefits. Miss B had the right to appeal to a tribunal. The complaint is also late.

The complaint

1. Miss B complains the Council acted wrongly in deciding to recover housing benefit it had paid to her when she was abroad. This resulted in Miss B having to repay over £5,000 over several years and making the repayments reminded Miss B of the bereavement that was her reason for being out of the country.

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

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How I considered this complaint

6. I considered the information Miss B provided. I obtained some details of the benefit overpayment decisions from the Council. I gave Miss B the opportunity to comment on my draft decision.

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What I found

7. Miss B received housing benefit. Miss B accompanied her child abroad when her child was very ill. Sadly, Miss B’s child died abroad in 2011. Miss B remained abroad for a period.
8. I understand in 2014 and 2015 the Council told Miss B she should repay housing benefit it had paid her while she was abroad. The Council states Miss B appealed and it reduced the amount it had calculated Miss B should repay to £4,996.67.
9. Miss B states she was unaware in advance of the housing benefit implications of being outside the country. She has depression and PTSD and had another child to look after as well as dealing with the death of her child.
10. Anyone who disagrees with a council’s decision that they should repay benefit has the right to appeal to an independent tribunal. If they use that right, we have no power to consider a complaint about the matter, as paragraph 4 explained. If they do not use their appeal right, the law still says the Ombudsman should not normally investigate but we have some discretion as paragraph 3 explained.
11. Here, it appears Miss B appealed against the overpayment so we cannot consider the complaint about the Council recovering the money.
12. Even if Miss B did not appeal to the tribunal (for example, if the ‘appeal’ the Council refers to was actually a request to the council for an internal review), the information I currently have does not persuade me the Ombudsman should investigate. Miss B would have had the right to appeal to the tribunal in 2014 and 2015. The tribunal exists to decide such matters and has considerable expertise. If the tribunal upheld such an appeal, it could have ordered the Council not to recover the money. The Ombudsman cannot make such an order and can only make recommendations.
13. I do appreciate that the impact of the tragic death of Miss B’s child could affect her ability to pursue matters, including appealing. However, it appears the overpayment decisions were several years later and Miss B was able at least to challenge the decisions and have the debt recalculated and reduced.
14. On balance, I consider that if Miss B did not appeal to the tribunal in 2014-2015, it would have been reasonable to expect her to do so in the circumstances.
15. Miss B complained to the Ombudsman in November 2019, four to five years after the overpayment decisions. So the restriction described in paragraph 5 above also applies. I appreciate Miss B’s bereavement and the health problems and family responsibilities she describes could affect how promptly she was able to pursue matters. Nevertheless, I note Miss B was able to challenge the Council some years ago about the overpayment. In the circumstances, I do not consider there are strong enough reasons to investigate the complaint now. Also, the length of time since the overpayment decisions and the events those decisions related to could make it difficult to reach a clear enough view now.
16. For the reasons given above, on the information I currently have, I shall not pursue Miss B’s complaint further.

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Final decision

17. The Ombudsman should not investigate this complaint. This is because of Miss B’s appeal right and because the complaint is late.

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Investigator's decision on behalf of the Ombudsman