Summary: The Ombudsman will not investigate this complaint about a housing benefit overpayment. This is because the complainant could have appealed to the tribunal and because there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, whom I refer to as Ms X, complains about a housing benefit overpayment and how the Council has treated her.

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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’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
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)

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How I considered this complaint

5. I read the complaint and the correspondence between Ms X and the Council about the overpayment and her complaint. I read the housing benefit decision letters and considered comments Ms 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. The law says people should appeal within one month of the date of the decision they think is wrong. People can apply for a late appeal, up to 13 months from the date of the decision, but it is up to the tribunal to decide whether to accept a late appeal.
7. A council can recover a housing benefit overpayment by asking the person’s employer to make deductions from their pay. This is called a Direct Earnings Attachment (DEA). The amount of a DEA is fixed in the regulations.

What happened

8. In March 2019 the Council received information from the HMRC which said that, since 2018, Ms X’s income was higher than the amount the Council had recorded for Ms X’s housing benefit claim. The Council ended Ms X housing benefit from June 2018, because her income was too high, and it asked her to repay £3525. The Council explained Ms X’s appeal rights.
9. Ms X sent emails disputing the overpayment. The Council treated this as a review request and asked her to provide wage slips and information about travel costs. It put recovery action on hold. In May it sent an email saying that if it did not receive the evidence by 6 June it would not continue with the review.
10. The Council lifted the hold on recovery action on 23 July because it had not received the information it had asked for. Ms X had sent emails and complaints but I have not seen anything to suggest she provided the specific information the Council had asked for.
11. The Council asked Ms X’s employer for a DEA on 7 October. Ms X complained and said the case was meant to be put on hold. The Council withdrew the DEA on 17 October and explained that it had lifted the hold because Ms X had not provided the information. It also said it had sent letters giving deadlines to pay or make an arrangement. On 17 October the Council signposted Ms X to the tribunal.
12. Ms X made further complaints but she did not appeal to the tribunal. In response to her complaint the Council said it had handled the claim correctly and that benefit disputes are matters for the tribunal.
13. In December the Council re-issued the DEA notice to Ms X’s employer. Ms X is having deductions from her pay for the overpayment.
14. Ms X disputes the overpayment. She says the Council has ignored the impact on her health, did not give her a chance to make a payment plan and has delayed replying. She says she cannot afford the amount of the deduction.

Assessment

15. I will not start an investigation because Ms X could have appealed to the tribunal. It is reasonable to expect her to have appealed because the tribunal is the appropriate body to consider disputes about overpayments. In addition the Council told Ms X about her appeal rights. The tribunal would have decided if Ms X had been overpaid and if she had to repay any benefit. These are not decisions that I can make. Ms X says the Council signposted her to the Ombudsman. This is correct. Bu the Council also told Ms X that the complaints system was not the right way to challenge a benefit decision and all councils provide our contact details regardless of whether it is a complaint that we can or should investigate.
16. I also will not start an investigation because there is insufficient evidence of fault by the Council. Ms X has made many complaints about the way the Council handled her claim but I have not seen anything to suggest I need to start an investigation. It answered her emails and explained why it thought there was a recoverable overpayment. It explained that benefit disputes are matters for the tribunal and put the case on hold while it waited for Ms X to provide evidence. It also withdrew the DEA when Ms X said that recovery action should be on hold and it waited another two months before re-issuing it. I appreciate Ms X has found the experience stressful but any benefit dispute, especially involving a large overpayment, is likely to cause some distress. In addition, Ms X would not have had to spend so much time contacting the Council if she had appealed to the tribunal.

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Final decision

17. I will not start an investigation because Ms X could have used her appeal rights and because there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman