Oxford City Council (19 015 569)

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

Decision : Upheld

Decision date : 26 Nov 2020

The Ombudsman's final decision:

Summary: Mr Y complained the Council delayed dealing with his housing benefit appeal. The Council was at fault for the delay in passing the appeal to tribunal. It was not at fault for reconsidering the appeal but was at fault for not passing the appeal to tribunal after the reconsideration. Mr Y has now had his appeal. The Council has agreed to review its procedures to prevent recurrence of the fault and to pay Mr Y £150 to acknowledge the uncertainty, distress and financial difficulties caused by the delay.

The complaint

  1. Mr X complained on behalf of Mr Y that the Council
    • Unreasonably delayed dealing with his housing benefit appeal
    • Failed to respond to a direction issued by a tribunal judge and
    • Introduced an extra statutory requirement into the appeal procedure.
  2. This delayed Mr Y’s opportunity to have his appeal considered at a tribunal causing him uncertainty and financial difficulties.

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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 have considered the information provided by Mr Y’s representative and have spoken to him on the telephone. I have considered the Council’s response to my enquiries and have spoken to the Council’s Benefits Manager on the telephone. I have considered the relevant law and guidance.
  2. I gave Mr Y’s representative and the Council the opportunity to comment on a draft of this decision. I considered the comments I received in reaching my final decision.

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What I found

  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 review it. The council must then review the decision again. (Housing Benefit Regulations 2006)
  3. Where an appeal has been reviewed 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. In January 2020 we published a focus report on housing benefits. This sets out that regulations do not specify how long councils should take to reply to housing benefit appeals. But they must do so as soon as is reasonably practicable. Our principles of good administrative practice encourage councils to make timely decisions and proactively explain the reasons for any delays. As a benchmark we consider councils should aim to process appeals within four weeks.

What happened

  1. In late 2017, the Council decided it had overpaid Mr Y housing benefit of nearly £40,000 and commenced a fraud investigation into Mr X’s housing benefit claim. The Council advised Mr Y of his right of appeal. Mr Y appealed against the decision in November 2018. The Council placed recovery action on hold. The Council also refused Mr Y’s new claim for housing benefit in November 2018. Mr Y appealed against this refusal that same month.
  2. The Council wrote to Mr Y in late December 2018 advising him that it had treated his appeal request as a “reconsideration” and decided not to alter their original decision. It asked Mr Y if he wished to appeal further to a tribunal.
  3. Mr X wrote to the Council on Mr Y’s behalf in January 2019 questioning the need for reconsideration and asked that the appeal be forwarded to the tribunal.
  4. Mr X did not receive a response and so he asked a tribunal judge to issue a direction to the Council to forward the appeal to the tribunal. It issued this in March 2019. The Council wrote to the tribunal in May 2019. The Council says Mr Y’s overpayment related to a fraud investigation. It waited for information from the court following the conclusion of criminal proceedings as this was crucial to its argument regarding Mr Y’s benefit entitlement.
  5. The Council submitted its response to the tribunal in July 2019, but it failed to include a relevant form. The tribunal service confirmed it had received and registered the appeal in August 2019.
  6. In August 2019 Mr X complained to the Council, on Mr Y’s behalf, about the delay in passing his appeal to the tribunal. In its response of November 2019, the Council said ‘the appeal staff have now caught up with outstanding workload which is where the delay was in providing submission documents’. It said the Council was entitled in law to ensure it had exhausted all opportunities to resolve the matter before an appeal hearing was required.
  7. The Council also accepted it had submitted an incorrect form to the Tribunal in error. It said it had rectified this within the service and issued instructions to staff to use the latest form.
  8. The tribunal heard the appeal in January 2020. Mr Y’s appeal was successful and in February 2020 the Council wrote off the housing benefit overpayment and paid Mr X around £2000 in underpaid housing benefit.
  9. The Council said that it employed an external reviewer to review appeal requests and this has assisted the appeals process. The Council accepts that an incorrect form was used when submitting the appeal to the tribunal service and says that this has now been corrected.

Analysis

  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.
  2. The Council was allowed in law to review the appeal made by Mr Y and ask the appellant whether they wished to make any further comments. This process could take up to a month. If the review was not in Mr Y’s favour, he was not obliged to ask that the appeal be forwarded to the tribunal; this should have been done without further consideration by the Council. The Ombudsman considers that this should have been done reasonably within four weeks.
  3. Whilst the law provides that the Council could seek further comments from Mr Y following the reconsideration, the Council did not need to ask Mr Y if he wished to make a further appeal. This may have added to the delay.
  4. This delay of over seven months in passing the appeal to tribunal is fault. The Council did not seek to recover the overpayment during this period. However, Mr X received a reduced amount of housing benefit which caused him financial difficulties. The Council has since paid Mr Y the underpayment of benefit, however this does not acknowledge the distress and uncertainty caused to Mr Y by the Council’s delay.
  5. The Council also submitted an incorrect document to the Tribunal. This was fault. The Council confirmed in its complaint response to Mr X that this was an old form used in error and it had taken action to correct this. This was appropriate.
  6. The Ombudsman does not consider it fault for the Council to employ an external reviewer or that an appeal is reconsidered before the appeal is passed to the tribunal.

Agreed action

  1. Within one month of the final decision the Council has agreed to pay Mr Y £150 to acknowledge the distress and uncertainty caused by the Council’s delay.
  2. Within two months of the final decision the Council has agreed to review its appeals process to ensure that no unreasonable delays are caused by asking appellants to unnecessarily request a further appeal.

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Final decision

  1. I have completed my investigation. The Council was at fault. The Council has agreed to a remedy to acknowledge the injustice caused and to take action to prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman

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