Summary: Mr X complained on behalf of Ms Y, the Council delayed dealing with her housing benefit appeal. The Council was at fault as it delayed passing the appeal to Tribunal. It was not at fault for reconsidering the appeal before doing so but it should have passed the appeal to tribunal when it upheld its decision after the reconsideration. This did not cause Ms Y a significant injustice as the Council did not take recovery action during the time of the appeal and Ms Y has now had her appeal. The Council should review its procedures to prevent recurrence of the fault.

The complaint

1. Mr X complains on behalf of Ms Y that the Council
• Unreasonably delayed dealing with her 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 Ms Y’s opportunity to have her appeal considered at a tribunal causing her frustration.

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The Ombudsman’s role and powers

3. 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)
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) 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. 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

6. I have considered the information provided by Mr X and have spoken to him on the telephone. I have considered the Council’s complaint response, its response to my enquiries and the relevant law and guidance.
7. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I have considered their comments in reaching a final decision.

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What I found

8. 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.
9. 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)
10. 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)
11. If the decision remains unchanged the council 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)
12. 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

13. The Council decided in November 2018 that Ms Y had been overpaid housing benefit of around £10,000. The Council advised Ms Y of her right of appeal. Ms Y requested a statement of reasons for the Council’s decision. The Council failed to respond. Mr X submitted an appeal to the Council, on Ms Y’s behalf, in January 2019. The Council suspended recovery action.
14. The Council wrote to Ms Y in late January 2019 advising her that her appeal request was being reconsidered and it requested further information from her.
15. Mr X wrote to the Council in late January 2019 asking it to confirm that the appeal would be passed to the tribunal. The Council wrote to the tribunal to apologise for the delay in the submission and to explain it was requesting additional information from Ms Y. The tribunal considered the application to tribunal was premature.
16. The Council wrote to Ms Y again in April 2019 requesting further information.
17. As nothing further was heard from the Council, Mr X asked a tribunal judge to issue a direction to the Council to forward the appeal to the tribunal. The tribunal service confirmed on 29 July that the appeal had been received.
18. In August 2019 Mr X complained to the Council, on Ms 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 a hearing was required. The Council said that it employed an external reviewer to review appeal requests and this has assisted the appeals process.
19. The tribunal heard the case in January 2020. Ms Y’s appeal was upheld.

Findings

20. 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.
21. The Council did not respond to Ms Y’s request for a statement of reasons. This is fault.
22. The Council was allowed in law to review the appeal made by Ms 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 Ms Y’s favour, she 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 could have been done reasonably within four weeks.
23. Whilst the law provides that the Council could seek further comments from Ms Y following the reconsideration, the Council did not need to ask Ms Y if she wished to make a further appeal. This may have added to the delay.
24. Allowing for this still means there was a delay of approximately four months in passing the appeal to tribunal. This delay is fault. Ms Y was appealing against an overpayment of housing benefit. The delay did not cause Ms Y a significant injustice as the Council suspended recover action when Miss Y appealed and it did not take recovery action during this time.
25. 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

26. 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

27. I have completed my investigation. The Council was at fault although this did not cause a significant injustice. The Council has agreed to take action to prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman