Summary: The Ombudsman will not investigate this complaint about a housing benefit overpayment. This is because the complainant could have used her appeal rights and because it is a late complaint.

The complaint

1. The complainant, whom I refer to as Ms X, complains about a housing benefit overpayment which the Council asked her to repay in 2016.

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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)
4. 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)
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 read the complaint and letters the Council sent to Ms X about the overpayment. I considered comments Ms X made in reply to a draft of this decision.

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What I found

Housing benefit decisions

7. If a council pays too much housing benefit to someone it will usually ask them to repay it. The law says an overpayment is recoverable unless it was caused by an official error and it was not reasonable to expect the person to realise they were receiving too much benefit. If someone disagrees with a decision that they must repay an overpayment they can appeal to the tribunal.

What happened

8. In 2016 the Council asked Ms X to repay some housing benefit. Ms X challenged the overpayment decision. In January 2017 the Council altered the amount of the overpayment. It agreed that Ms X did not have to repay some of the overpayment because it had been caused by a Council error. In January 2017 the Council told Ms X she still needed to repay some housing benefit because that part of the overpayment had not been caused by Council error. It told Ms X she had one month to appeal to the tribunal if she disagreed with the revised decision.
9. The Council responded to a complaint from Ms X in February 2017. It signposted her to the Ombudsman and gave her another month to appeal to the tribunal if she still disputed the overpayment.
10. The Council says Ms X did not appeal to the tribunal. Ms X owes £911 for the overpayment.
11. Ms X says she complained to the Ombudsman in 2017. We have no record of Ms X making a complaint to us in 2017. Ms X sent this complaint to the Ombudsman in January 2020. She disputes the overpayment and says it was caused by an error by the Council. She wants the Council to write off the overpayment.

Assessment

12. I will not start an investigation for the following reasons.
13. This is a late complaint. Ms X has known about the overpayment since 2016 and she was signposted to the Ombudsman three years ago. But, she did not register a complaint with the Ombudsman until 2020. I have not seen any good reason to accept such a late complaint especially as the Council gave Ms X clear information about escalating her complaint to the Ombudsman. In addition, while Ms X says she complained to us in 2017 we have no record of receiving a complaint and she waited about two years before trying again. And, if we had received a complaint in 2017 it is unlikely we would have started an investigation because Ms X had appeal rights.
14. Ms X could have appealed to the tribunal, in 2017, if she disagreed with the overpayment decision of January 2017. It is reasonable to expect Ms X to have appealed because the tribunal is the appropriate body to consider housing benefit disputes. The tribunal would have decided if Ms X had to repay the overpayment. The Council explained Ms X’s appeal rights and gave her at least two chances to appeal. In addition, the Ombudsman does not make housing benefit decisions, or assess overpayment decisions. That is the job of the Council or the tribunal.
15. Ms X says she was not well enough to appeal. However, she could have sought advice and she could have had a paper appeal which would not have required her to attend the appeal.

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Final decision

16. I will not start an investigation because this is a late complaint and because Ms X could have appealed to the tribunal.

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Investigator's decision on behalf of the Ombudsman