London Borough of Newham (19 014 134)

Category : Benefits and tax > Housing benefit and council tax benefit

Decision : Upheld

Decision date : 05 Oct 2020

The Ombudsman's final decision:

Summary: Mrs X complained about the affordability of her temporary accommodation and the Council’s decisions regarding her housing benefit and a discretionary housing payment applications. The Council was at fault. It failed to consider Mrs X’s housing benefit appeal request and failed to advise Mrs X that it had awarded her a discretionary housing payment. The Council has since written to Mrs X to advise her of the award and has reconsidered her housing benefit application so there is no outstanding injustice to Mrs X. It remains open to Mrs X to appeal the housing benefit decision if she disagrees with it.

The complaint

  1. Mrs X complains the Council made her accept temporary accommodation which she cannot afford. She said the Council had failed to award her sufficient housing benefit and had refused her application for a discretionary housing payment. This has put their accommodation at risk.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)
  3. 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

  1. I considered the information provided by Mrs X and discussed the complaint with her on the phone.
  2. I have considered the Council’s response to my enquiries.
  3. I gave Mrs X and the Council the opportunity to comment on a draft of this decision and considered their comments in reaching my final decision.

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What I found

Relevant law and guidance

  1. Housing benefit helps people on low incomes to pay their rent. It is a means tested benefit, taking both capital and income into account. Claimants are responsible for ensuring they update the council with any changes in their circumstances. Failure to do so can affect the housing benefit paid.
  2. The council must make a decision about housing benefit in writing. The decision notice must also advise claimants of their rights to ask for more information and to appeal. If a claimant disagrees with a decision they can ask the council to reconsider it. The council must then review the decision again. (Housing Benefit Regulations 2006)
  3. Where an appeal has been reconsidered by the Council and they have decided not to review the decision advantageously to the appellant, the appellant has the right to make further representations to the Council for up to a month following the review. If the decision is not reviewed again advantageously, the appeal must be passed to the tribunal. (The Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001)
  4. If the decision remains unchanged they must pass the matter to the Tribunal “as soon as reasonably practicable”. (Rule 24(1A) of The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008)
  5. Councils administer a scheme for Discretionary Housing Payments (DHP). They may award a DHP to someone who is entitled to Housing Benefit or Universal Credit to help pay their rent. A DHP may be a regular payment or can be awarded for a one-off cost such as removal expenses. Each Council has a limited annual budget for DHPs. There is no legal entitlement to a payment – it is paid at the Council’s discretion.

What happened

  1. In September 2018 Mrs X and her family were evicted from their home, following a court order. Mrs X continues to have a legal interest in the property but is unable to occupy it following the court judgement. In addition, the responsibility for selling the property lies with a third party.
  2. In July 2019, the Council provided Mrs X and her family with interim accommodation, firstly in hotels and then in August 2019, in a private rented property, while it reached a decision on her homeless application. It has since confirmed the accommodation is now temporary accommodation.
  3. In August 2019 Mrs X applied for housing benefit. The Council awarded Mrs X housing benefit later that month but it was not sufficient to cover Mrs X’s rent liability. The decision notice set out Mrs X’s appeal rights.
  4. Mrs X contacted the Council to raise concerns about the affordability of the accommodation. She met with the Council and following this applied, in September 2019, for a discretionary housing payment to make up the shortfall. In her application Mrs X explained she was committed to making mortgage payments for her previous property even though she could not live there and so she could not afford the rent. Mrs X also had rent arrears owed from the previous hotel accommodation.
  5. Later that month Mrs X wrote to the Council to appeal its decision regarding her housing benefit and to raise her continued concerns about the affordability of the property. The Council treated Mrs X’s letter as a complaint and responded in November 2019. It did not uphold the complaint. It said it understood her housing benefit had been assessed but was well below the level of the weekly rent of the property. It said that Mrs X’s application for a DHP was being assessed and it appeared her housing benefit was assessed correctly. It referred her to its money advice service due to her financial difficulties.
  6. The Council wrote to Mrs X in February 2020 with its decision on her application for a discretionary housing payment. It decided not to award Mrs X a DHP as it considered she had sufficient income to pay the shortfall in the rent. It advised Mrs X to contact its money advice service. Mrs X requested a review of the Council’s decision. She explained she was forced to honour her mortgage commitment and so did not have sufficient income to cover the rent.
  7. The Council’s records show it awarded Mrs X a DHP of £4768 at the end of March 2020. The Council, in its response to the Ombudsman’s enquiries, acknowledged it has no record of advising Mrs X of this. It therefore wrote to Mrs X in July 2020.
  8. The letter set out that it had checked its records and noted it had already reviewed its decision regarding her DHP. It had awarded her a one-off payment towards rent arrears and apologised it had not advised her of this. It said this took into account her unique personal circumstances, her housing needs and ability to move. In the letter it explained it would not normally take into account mortgage expenses which was why its calculation showed her income was greater than her expenses. It did recognise she had mortgage payments which was why it referred her for money advice.
  9. The Council, in responding to our enquiries, acknowledged it had not responded to Mrs X’s request to appeal the decision on her housing benefit. It reconsidered the decision on her housing benefit and wrote to her in July 2020. It did not change its view. The letter set out Mrs X’s right to appeal the decision.

Findings

  1. The Ombudsman cannot investigate a complaint about any matter which was appealed, or could have been appealed, to a tribunal. The Ombudsman can, however, investigate the appeal process itself. The Council’s housing benefit decision notice properly advised Mrs X of her right of appeal and Mrs X appealed the Council’s decision on her housing benefit. The Council was at fault because it treated Mrs X’s appeal as a complaint and failed to reconsider Mrs X’s housing benefit claim or pass it to Tribunal. The Council has now reconsidered Mrs X’s housing benefit application but remains of the view her entitlement is correct. If Mrs X wishes to proceed to a Tribunal it is now open to her to request this. This is an appropriate remedy.
  2. The Council refused Mrs X’s application for DHP. The Ombudsman is not an appeal body and it is for the Council, not the Ombudsman, to decide whether someone should receive a DHP. However, the Council’s decision letter was confusing. It set out that she had sufficient income to pay the shortfall in rent yet acknowledged she had financial difficulties. It made no reference to Mrs X’s circumstances or what consideration it gave to her mortgage payments. This is fault.
  3. Later, in March 2020, the Council awarded Mrs X a one-off DHP payment. However, it failed to write to Mrs X to advise her of this. This is fault. The Council has since written to Mrs X to explain that it had reviewed the decision and awarded the DHP. As Mrs X has now received the DHP and explanation, there is no outstanding injustice.
  4. DHPs are time limited awards. If Mrs X continues to have difficulties in paying her rent it is open to her to reapply for a DHP.

Agreed action

  1. The Council has agreed, within one month of the date of the final decision, to remind relevant staff of the importance of:
    • confirming decisions about DHP in writing to the applicant; and
    • ensuring that appeals against housing benefit decisions are treated as an appeal and not as a complaint.

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Final decision

  1. I have completed my investigation. The Council was at fault but there is no outstanding injustice to Mrs X. I have recommended some service improvements, which the Council has agreed to, to prevent a recurrence of the fault..

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Investigator's decision on behalf of the Ombudsman

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