Summary: The Ombudsman will not investigate Mr X’s complaint that the Council underpaid him housing benefit in 2016-17. This is because it is reasonable to expect Mr X to have appealed to the tribunal and the complaint is late and there are no good reasons to consider it now.

The complaint

1. Mr X complains the Council underpaid him housing benefit in 2016-17. He says he told the Council about his fall in income when it happened, but the Council only changed the calculation from a later date. He says the Council should have backdated his housing benefit to when his income fell, not just to the date it says it was told about the change. He also says the Council delayed paying him the amount it agreed it should.

Back to top

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)

Back to top

How I considered this complaint

6. I considered the information provided by Mr X in his complaint and information provided by the Council.
7. I sent a copy of my draft decision to Mr X. I considered his comments before making a final decision.

Back to top

What I found

Background

8. Mr X stopped self-employment in September 2016. He says he told the Council about his change in circumstances at the time. However, the Council says it did not receive this information until February 2017.
9. In August 2017, the Council decided that it had underpaid housing benefit from the date it received the information until May 2017, but not back to September 2016. It agreed to pay Mr X for the period it decided it had underpaid him.
10. Mr X says he phoned the Council each month to chase the refund until May 2018 when he complained to the Council. Mr X told the Council he had not received the refund and he still wanted the challenge its decision not to backdate the underpayment to September 2016.
11. The Council reissued the cheque to Mr X and told Mr X again that he would need to provide his reasons for seeking a review in writing. Mr X did this in October 2018.
12. The Council accepted Mr X’s late review request and reviewed its decision in October 2018 but did not change it. It wrote to Mr X and told him he would need to submit an appeal in writing within one month if he wanted to challenge the decision further. The Council says it did not receive anything further from Mr X. Mr X says he did respond, requesting an appeal.
13. Mr X sent a copy of his May 2018 complaint to the Ombudsman around the same time he sent it to the Council. However, because the Council was still considering his complaint, the Ombudsman told Mr X we could not consider the complaint further at that time.
14. Mr X complained to the Ombudsman again in July 2020.

Analysis

15. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. We have discretion to set aside this rule where we decide there are good reasons. I have decided not to exercise discretion in this case because:
• Mr X could have appealed the Council’s decision to the Social Entitlement Chamber;
• The Council told Mr X he could appeal in October 2018;
• I have seen no evidence that Mr X sent a formal appeal; and
• Mr X has not provided any good reasons why he could not appeal to the tribunal.
16. The law also says that complaints must be made to the Ombudsman within 12 months of when the complainant became aware of the matter. The issues Mr X complains about were known to him in 2018. We have discretion to set aside this rule where we decide there are good reasons. I have decided not to exercise discretion in this case because:
• It is reasonable to expect Mr X to have told us sooner that the Council had not resolved his complaint;
• Although Mr X has given several reasons, I do not consider these reasons are enough to justify a continuous two-year delay in contacting the Ombudsman again; and
• Given the time that has elapsed, we would be unlikely to be able to establish the facts through an investigation.

Back to top

Final decision

17. The Ombudsman should not investigate this complaint. This is because it is reasonable to expect Mr X to have appealed to the tribunal and the complaint is late and there are no good reasons to consider it now.

Back to top

Investigator's decision on behalf of the Ombudsman