Summary: Mr B complained about the Council’s handling of his claim for housing benefit and the recovery of overpayments. There was fault that caused injustice to Mr B. The Council will apologise and make a payment.

The complaint

1. I call the complainant Mr B. He complained about the Council’s handling of his and his wife’s claim for housing benefit. He considered:
• the Council wrongly changed the way it was recovering an overpayment of benefit;
• there were errors in the calculation of their entitlement to benefit;
• the Council did not respond properly to his concerns and complaints.

He said that as a result they accrued arrears of rent and suffered stress and worry.

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What I have investigated

2. I investigated the first and third bullet points.

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The Ombudsman’s role and powers

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. 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)
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 considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.

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What I found

Summary of the relevant law and guidance

7. 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.

Summary of events

8. Mr and Mrs B were receiving housing benefit. There was an overpayment of benefit which the Council notified them of in 2015. They did not request a review of the decision. There were changes in how the overpayment was recovered depending on whether Mr and Mrs B were entitled to housing benefit. Up to August 2019 the Council was recovering the overpayment from ongoing benefit. But their entitlement to benefit then stopped so the Council agreed with Mr and Mrs B that it would collect the overpayment through a direct debit of £20 a month. But before the Council did that Mr and Mrs B became entitled to benefit again. The Council therefore started to collect the overpayment through the ongoing benefit payments by a deduction of £16 a week, rather than via the direct debit of £20 a month.
9. Mr and Mrs B had rent arrears and their landlord was considering taking action. Mr B met with Council officers in October 2019. The officers agreed to make a payment to the landlords from the money collected to reduce the overpayment. The Council said that was because of the risk to Mr and Mrs B’s tenancy because of the rent arrears.
10. Mr B said that at this meeting he told the officers of changes to his employment – that he was leaving one job and starting a new one. The officers said they recall Mr B saying about leaving work but not about starting a new job.
11. In March 2020 the Council were informed from the DWP that Mr B was in employment. This meant the entitlement to housing benefit was recalculated and this resulted in a further overpayment of just over £1800. This prompted Mr B to complain to the Council.
12. The Council responded to the complaint with a final response in August.
13. When we received the complaint and decided to investigate we asked the Council whether it considered it should have taken Mr B’s complaint in March as a request for a review of the overpayment decision.
14. The Council responded that Mr B had not used the word ‘appeal’ but it could be considered as a challenge. However it considered that as part of its consideration of the complaint it had effectively reviewed the claim and it was not going to make any further changes. It would, therefore, forward the matter to the tribunal for consideration. The Council wrote to Mr B telling him of that decision in October.

Analysis

15. Mr B considered it was wrong in August 2019 that the Council recovered the overpayment from his ongoing benefit when it had agreed to do so by direct debit. The Council wrote to Mrs B in early September with a notification of a change on overpayment recovery. The notification said “X has been recovered against ongoing entitlement at £16.10”. And the second page that X amount was the current outstanding amount. This was not clear. It did not say that the amount would be collected at a rate of £16.10 but that it had been. The key point here was that it was notifying what would happen whereas it read as a notification of what had happened.
16. Although the notification was unclear l do not consider any further action is needed. The deduction from ongoing benefit reduced the amount going to the landlord and so increased the arrears. But as the Council made a payment to the landlord following the meeting with Mr B that was a satisfactorily resolved.
17. There was a dispute between Mr B and the Council officers about what happened at the meeting in October. The key point being that he considered he had told them that he was starting a new job. Both the officers have provided statements saying he did not say this. I cannot come to a view on this. The consequence of this was that the benefit entitlement was based on Mr B not being in employment. That meant there was an overpayment. Whether that was right will now be considered by the tribunal which is the proper way to decide whether the overpayment was recoverable.
18. The Council accepted it should have dealt with Mr B’s correspondence in March 2020 as a request for review of the decision on the recovery of the overpayment. It could have still considered whether there were aspects it should consider under its complaint process but this key point should not have been missed and was fault.
19. The failure to deal with the appeal did not have any practical consequences for Mr B. The Council was recovering the original overpayment but committed not to take any action in respect of the second overpayment until it was considered by the tribunal.
20. As well as the Council not treating Mr B’s correspondence as a request for a review there was also delay in dealing with it as a complaint. Mr B wrote at the end of March but the response was not sent until early June. The Council explained in its stage 2 response that it was because of the changes to working practices because of COVID-19. There was then further protracted correspondence but this was, in part, because the Council had not recognised the need to treat this as a request for a review of the decision.
21. In response to the draft of this decision the Council said it had issued guidance and emphasis to staff to reduce the risk of a appeals being overlooked and the wording in the letter template had been revised.

Agreed action

22. The Council will, within a month of the final decision, apologise to Mr B for the lack of clarity in the decision letter and the failure to take his correspondence as a request for a review. It will also pay him £100 to acknowledge the time and trouble he was put to in pursuing his complaint.

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Final decision

23. There was fault that caused some injustice to Mr B. The Council will apologise and make a payment.

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Parts of the complaint that I did not investigate

24. I did not investigate whether Mr and Mrs B’s entitlement to benefit was correct. The proper way to challenge that was through a review request and then appeal to the tribunal.

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Investigator's decision on behalf of the Ombudsman