Summary: Mr X complains about the Council’s decision to cancel his housing benefit. The Ombudsman has found fault by the Council causing Mr X injustice. It has agreed to remedy this by apologising, refunding cost courts of £446 and paying Mr X £250 to reflect the avoidable upset, time and trouble its faults caused him.

The complaint

1. The complainant, who I am calling Mr X, complains the Council wrongly cancelled his housing benefit. Because of this, his rent was not paid and action taken to evict him from his home. This was only stopped at the last minute when he paid the arrears and court costs as required by the Council.

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The Ombudsman’s role and powers

2. 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)
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

4. I have spoken to Mr X’s representative and read the information they have provided about his complaint, together with the information from the Council.
5. I invited Mr X and the Council to comment on a draft version of this decision. I considered their comments before making my final decision.

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What I found

Employment Support Allowance

6. Employment Support Allowance (ESA) is a benefit for people who have a disability or health condition that affects how much they can work. Claims and payments are administered by the Department for Work and Pensions (DWP).
7. An applicant for housing benefit is automatically treated as having nil income and capital for the purposes of the means test if they are entitled to ESA. This is under the passporting rules in the Housing Benefit Regulations 2006.
8. The DWP provides notifications directly to councils about ESA claims where housing benefit is being paid under the passporting rules.

What happened

9. Mr X was receiving ESA from the DWP, and housing benefit from the Council under the passporting rules. I understand, as Mr X was a tenant of the Council, it paid housing benefit directly to his rent account.
10. Mr X had fallen into arrears with his rent some years ago. In 2016 the Council brought proceedings and obtained a possession order suspended on terms requiring Mr X to pay the monthly rent and an amount towards the arrears.
11. In July and August 2018 there was an issue with Mr X’s ESA claim. The Council’s systems show the following notes:

• 28 August - claim closed in error to be re-opened from 5 July
• 30 August - Atlas notice from DWP, ESA terminated from 4 July because of failure to attend PCA
• 3 September - “ESA not stopped for date of change 22.8.18”
• 28 September - ESA stopped being paid on 4 July and started again on 22 August.

12. The Council has told us when an Atlas termination notice is received, its computer system automatically suspends housing benefit and generates a notification letter to the claimant asking for proof of income. The system generated such a letter to Mr X on 30 August.
13. One of the Council’s assessors checked the records for Mr X on 28 September. They referred to the note on 28 September of a five week break in the ESA claim from 4 July to 22 August and that there had been no response to the letter of 30 August. The assessor cancelled Mr X’s housing benefit claim and sent him a cancellation letter.
14. Payments to Mr X’s rent account with the Council stopped when it suspended and then cancelled his housing benefit.
15. The Council has told us it tried, in its role as Mr X’s landlord, to contact him about the rent arrears on the following occasions:

• 26 November – called his mobile phone which was not receiving calls, and then sent a text.
• 17 December – called his mobile phone, received no reply, then sent a text.
• 7 January – called his mobile phone but could not be connected
• 22 January – made an unannounced visit to Mr X’s home. The Council says he declined to communicate and it left its contact details.
• 28 January – requested factual information otherwise it would apply for a possession warrant.

16. On 31 January, at the Council’s request, the Court issued a warrant for possession of Mr X’s home for execution by court bailiffs on 21 February. The Council wrote to Mr X on 6 February confirming the eviction date.
17. Mr X’s representatives, Citizens Advice Southampton, have told us when he came to see them in February, he had been suffering from depression and anxiety for a number of months. His children were paying his bills, he had stopped opening his mail and had a whole room piled up with letters. It was only with the help of a friend, that he had recently been able to start opening the backlog of letters. It was at that point he found out his housing benefit had been cancelled and an eviction appointment arranged.
18. Mr X went to the Council’s offices on 18 February. A member of the Council’s benefits team checked the position and made the following note on 19 February:

“CIS notes (this is DWP system) states claim closed in error and is reopened from 5.7.18. Note on CIS dated 28.8.18 TO MED SER.CLAIM CLOSED IN ERROR -TO BE OPENED FROM 5/7/18** the assessor used CIS to check for reinstatement, the note would have been on notes page at that time”

19. The Council reinstated and backdated Mr X’s housing benefit claim. In a call with Mr X’s representatives on 20 February the Council said it would stop the eviction if Mr X paid the rent arrears of £2,734.05 and court costs of £446. Mr X’s representatives asked the Council to confirm this in writing. The Council’s record of the call says:

“I advised him this is not something that we do but assured him if the rent and arrears have been paid we would not pursue the eviction. Mr …suggested we should give them the letter because Mr (X) was very nervous about the eviction, didn’t believe we would stop it when it was paid…..”

20. Mr X paid the total amount of £3,180.05 at the Council’s offices at 11.03 on 20 February, as confirmed by the payment receipt. The Council sent an email to the court at 14.50 cancelling the eviction on 21 February and asking them not to attend. But the bailiffs attended the eviction appointment. Mr X’s representatives say that while Mr X and the bailiffs were discussing the position, the bailiffs received communication halting the eviction.
21. Mr X’s representatives complained on his behalf about the Council’s actions. The Council issued a final response to the complaint. It did not accept there was any fault on its part in deciding to stop Mr X’s housing benefit in August 2018. It said it was Mr X’s responsibility to contact the Council if he disagreed with its decision.
22. Mr X’s representatives referred his complaint to us on 21 January 2020.

Analysis – was there fault by the Council causing injustice

23. Although the Council received notification of termination of Mr X’s ESA on 30 August, the other information available in the Council’s records as at 28 September indicated the termination was an error, Mr X’s ESA payments had started again and his claim should be reopened.
24. This was clear to the Council’s benefits team when they looked into the position on 19 February. Their note indicates had the assessor checked the records properly on 28 September, Mr X’s housing benefit would have been reinstated, not cancelled. It therefore appears the Council was wrong to cancel Mr X’s housing benefit on 28 September and this is fault.
25. The cancellation of Mr X’s housing benefit led directly to his rent arrears and the Council, as landlords, taking eviction action. When considering the effect of the Council’s error on Mr X, and the injustice this caused him, I have noted:

• Mr X’s claim for ESA was reinstated by DWP. His housing benefit was being paid direct to his rent account and we have been told his children were paying his bills. He would not have known there was an issue with his housing benefit claim and his rent was not being paid without contact with the Council.
• Mr X was eligible for ESA as a person with a disability or health condition affecting his ability to work. His representatives have told us in the months leading up to events in February, Mr X had been suffering with anxiety and depression and his condition had reached a point where he was unable to open his post.
• The Council sent Mr X a system generated letter about his housing benefit claim on 30 August and a cancellation letter on 28 September. And in its role as landlord, it tried to contact him about the rent arrears by phone and by calling at his home on a number of occasions. Had Mr X responded to the contact, he would have been aware of the issues sooner.
• Based on the information seen so far, Mr X was extremely vulnerable during this period. His anxiety and depression had deteriorated to the extent he was not able to respond to outside contact or communications. He only found out about the arrears and eviction when a friend helped him open his backlog of post. He then took urgent action to stop this.

26. In my view, Mr X’s extremely vulnerable condition at the time prevented him from engaging with the Council’s efforts to communicate with him. I appreciate that this was not the Council’s fault, but it was not Mr X’s fault either. As the Council was responsible for the error which caused the rent arrears, I consider the Council should bear the responsibility for the injustice caused to Mr X by the eviction action.
27. I also think the Council’s complaint handling was poor. Its final response letter of 13 June 2019 included a lot of irrelevant background information about housing benefit and the tenancy agreement, but made no reference to the evidence in the Council’s own records about how Mr X’s housing benefit came to be cancelled.

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Agreed action

28. To remedy the injustice caused by the above faults the Council will, within four weeks from the date of our final decision:

• Apologise to Mr X for the distress caused by its error in cancelling his housing benefit
• Refund Mr X’s payment of £446 for the court costs which he incurred as result of this fault.
• Pay Mr X £250 to reflect the time, trouble and upset caused to him by the eviction action and poor complaint handling, which stemmed from the wrongful cancellation of his housing benefit.

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Final decision

29. I have found fault by the Council causing Mr X injustice. I have completed my investigation on the basis the Council will take the above action as a suitable way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman