Summary: The Ombudsman will not investigate this complaint about a housing benefit overpayment. This is because the complainant could have appealed to the tribunal.

The complaint

1. The complainant, whom I refer to as Mr X, says he should not have to repay a housing benefit overpayment because it was caused by Council error.

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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)

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How I considered this complaint

5. I read the complaint and the housing benefit overpayment decision letter and review letter. I considered comments Mr X made in reply to a draft of this decision.

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What I found

Housing benefit overpayments

6. 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. The law says people should appeal within one month of the date of the decision they think is wrong. The tribunal can accept a late appeal up to 13 months from the date of the decision.

What happened

7. In April the Council asked Mr X to repay a housing benefit overpayment of £1372. The Council paid too much benefit to Mr X because it used the wrong amount for his rent. The overpayment decision letter explained his appeal rights.
8. Mr X asked the Council to review the decision. In response the Council gave more detail about how the overpayment occurred. It accepted the overpayment was caused by an official error. But, it said it was reasonable to expect Mr X to have realised he was being overpaid because the housing benefit was more than his rent and because his rent account would have been increasing. The Council asked Mr X to get in touch within one month if he still disagreed with the decision.
9. Mr X remains of the view that he should not have to repay the money because the overpayment arose from a Council error which he had reported.

Assessment

10. I will not start an investigation because Mr X could have appealed to the tribunal. It is reasonable to expect Mr X to appeal because the tribunal is free to use and is the appropriate body to consider housing benefit disputes. The tribunal would have decided whether it was reasonable to expect Mr X to have realised he was being overpaid and whether he had to repay the overpayment.
11. Mr X could ask for a late appeal. He would need to explain why the appeal is late. It would be for the tribunal to decide whether to accept a late appeal.

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Final decision

12. I will not start an investigation because Mr X could have appealed to the tribunal.

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Investigator's decision on behalf of the Ombudsman