Summary: The Ombudsman cannot investigate this complaint about a housing benefit overpayment because the matter has been considered by the tribunal.

The complaint

1. The complainant, whom I refer to as Mr X, says he appealed to the Council about a housing benefit overpayment in 2013 and the Council did not pass it to the tribunal until 2018. The tribunal then said the appeal was late and would not hear the appeal.

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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 a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), 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)

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How I considered this complaint

5. I read the complaint and the Council’s responses. I read the tribunal decisions and correspondence between Mr X and the Council. I considered comments Mr X made in reply to a draft of this decision.

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What I found

Housing benefit decisions

6. 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 appeal to the tribunal. The law says people should appeal within one month of the date of the decision they think is wrong.
7. People are not entitled to housing benefit if they have capital of more than £16,000.

What happened

8. Before 2013 Mr X was receiving housing benefit based on his entitlement to means tested benefits administered by the Department for Work and Pensions (DWP). The DWP decided Mr X had capital he had not disclosed. It asked him to repay some benefit. Mr X appealed to the tribunal in 2013 about the DWP decision. The tribunal dismissed the appeal and confirmed Mr X must repay the money to the DWP. The 2013 tribunal found Mr X had more than £100,000 in capital.
9. In 2013 the Council asked Mr X to repay a housing benefit overpayment of £6991. Mr X appealed to the Council in August 2013.
10. In 2014 the Council reviewed the housing benefit decision that Mr X had challenged in August 2013. The Council reviewed the 2013 decision and confirmed that Mr X had to repay £6991. The Council referred to the DWP investigation that had found Mr X had excess capital. The Council, in October 2014, told Mr X he had one month to appeal to the tribunal about the housing benefit overpayment decision.
11. In 2016 Mr X was convicted of dishonesty by the courts.
12. In 2018 Mr X told the Council he wanted to appeal about the housing benefit overpayment that had been notified in 2014. He also said he was going to challenge the 2013 tribunal decision about the DWP overpayment. He asked the Council to send all the information to the tribunal about the housing benefit overpayment.
13. Mr X sent an appeal to the tribunal. He said “I request the tribunal to overturn the decision of the first-tier tribunal and to make all the overpayments, including DWP, housing and council tax unrecoverable.”
14. The tribunal issued directions in 2019. This said that one part of Mr X’s appeal was whether the tribunal should accept a late appeal about the housing benefit decision. The tribunal sent directions to the Council. In response the Council sent information about the housing benefit overpayment to the tribunal.
15. In 2019 the tribunal also considered Mr X’s request for the tribunal decision of 2013 to be set-aside. The Council and the DWP are named as respondents. The tribunal dismissed Mr X’s appeal. The judge said that any delay was due to Mr X’s actions.
16. Mr X wants the Council to direct the tribunal to accept his appeal, stop recovery action and pay him compensation. He says the Council failed to pass his 2013 to the tribunal. He says the Council was only at the 2019 tribunal as a witness and the tribunal never considered the housing benefit overpayment.

Assessment

17. I cannot start an investigation because Mr X has appealed to the tribunal about the housing benefit overpayment decision. The law says the Ombudsman cannot investigate any matter that has been considered by the tribunal. The tribunal considered Mr X's complaint of delay and said that any delay was due to the action, or inaction, of Mr X. There is no part of the complaint that I can investigate.
18. Mr X says the tribunal did not consider the housing benefit overpayment. But, the key point is that I cannot investigate anything that has been lodged with the tribunal. The housing benefit overpayment formed part of Mr X’s appeal which is why the tribunal issued directions to the Council to which the Council responded to. In addition, the Council is named as a respondent, not as a witness. The tribunal may not have specifically commented on the housing benefit overpayment but this is because it decided it was late. In addition, as the 2019 tribunal did not set-aside the 2013 tribunal decision, the decision stands that Mr X had capital of more than £16000 and was not entitled to housing benefit.
19. Mr X says the Council did not pass his 2013 appeal to the tribunal. This is correct. But, the Council reviewed the 2013 decision in 2014 and gave fresh appeal rights to Mr X. Mr X appealed against the 2014 decision in 2018.

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Final decision

20. I cannot investigate this complaint because Mr X appealed to the tribunal.

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Investigator's decision on behalf of the Ombudsman