Summary: Mrs X complained the Council issued her with an invoice for overpayment of housing benefit, nearly two years after she stopped receiving housing benefit. Mrs X disputed the overpayment amount of £3266 which was accrued between 2013 and 2016. The Council was at fault for the delay in issuing the final invoice. It has already apologised for this which is a suitable remedy for the distress it caused. Mrs X’s complaint about the Council’s general administration of the overpayments between 2013 and 2016 is late and it was reasonable for Mrs X to have used her right of appeal to the tribunal at the time.

The complaint

1. Mrs X complained about an invoice for overpayment of housing benefit which the Council issued two years after she stopped receiving housing benefit. Mrs X disputes the overpayment amount of £3266 which was accrued between 2013 and 2016.
2. Mrs X said the matter has caused her distress and time and trouble and she wants the Council to write the debt off.

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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. 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)
5. 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)
6. 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)
7. 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

8. I spoke to Mrs X about her complaint.
9. I considered the Council’s response to my enquiry letter.
10. Mrs X and the Council had an opportunity to comment on my draft decision.

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What I found

Housing benefit overpayments

11. Councils are responsible for administering housing benefits. People have a right to appeal most housing benefit decisions. The claimant can first ask the council to reconsider or review its decision. After a council has reviewed its decision there is then a right of appeal to the independent benefits tribunal called the ‘First-Tier Tribunal’.
12. A claimant must ask for a reconsideration and/or appeal within one month of the date of the decision. Councils can accept a late reconsideration, up to an absolute deadline of 13 months. A Tribunal Service Judge (not a council) considers late appeal requests. Late appeals may be accepted in special exceptional circumstances. However, applications outside the absolute time limit of 13 months from the date of notification of the decision cannot be allowed. The First-Tier Tribunal has no power to extend this time limit.
13. Appealable decisions include all decisions on the amount of benefit and its calculation, treatment of income and capital, overpayments, and decisions about who to pay.
14. The Ombudsman cannot look directly at issues such as overpayment of housing benefit or recalculations of housing benefit. These can only be done by a tribunal. However, the Ombudsman can look at a council’s actions surrounding the issue complained about.
15. The Housing Benefit Regulations 2006 (‘the Regulations’) say that housing benefit overpayments are recoverable unless they were caused by official error and it was not reasonable for the claimant to have known they were being overpaid. A claimant can request a reconsideration of a decision at any time if they believe there has been an official error.

What happened

16. In 2013 Mr and Mrs X claimed housing benefit. In August 2013 the Council sent a benefit decision notice to Mr X. The notice told Mr X he had been overpaid £3823.39 in housing benefit between January and July 2013. This was because Mr and Mrs X had informed the Council of a reduction in their childcare costs. The decision notice included information about how Mr X could ask for an explanation or appeal against the decision if he believed it was wrong. Records show the Council began recovering the overpayment from Mr and Mrs X’s housing benefit entitlement at £15.80 per week.
17. In September 2013 the Council wrote to Mr X with a further benefit decision notice informing him that he had been overpaid £458.48 in housing benefit between April and August 2013. This was due to an amendment after Mr and Mrs X had informed the Council that their childcare costs had ended. The decision notice included information about Mr X’s appeal rights.
18. In June 2014 the Council write to Mr X with another benefit decision notice. The notice informed Mr X he had been overpaid £561.99 in housing benefit between April 2013 and September 2013 and a further £1019.90 overpayment between September 2013 and May 2014. These overpayments were because Mr X had told the Council about a change in his self-employed earnings. The notice included information about Mr X’s appeal rights. Records show the Council continued to recover the arrears at £15.80 per week from Mr and Mrs X’s ongoing housing benefit entitlement.
19. Records show that the Council continued to recover the overpayment arrears weekly. As of September 2014, Mr X’s total housing benefit overpayment arrears stood at £4978.96.
20. In October 2014 the Council wrote to Mr X with a further benefit decision notice. The notice told Mr X he had been overpaid £419.98 in housing benefit between July 2014 and September 2014. The overpayment was due to another increase in Mr X’s self-employed earnings. The notice included information about how Mr X could appeal the decision.
21. In February 2015 the Council wrote to Mr X with another benefit decision notice. The notice informed Mr X he had been overpaid £561.94 in housing benefit between January and February 2015. This was because of another increase in Mr X’s self-employed earnings. The notice included the information about how Mr X could appeal the decision.
22. Records show the Council continued to recover Mr X’s arrears at £15.95 per week from Mr and Mrs X’s housing benefit entitlement. The total outstanding by February 2015 was £5641.
23. By January 2016 Mr X’s outstanding arrears had reduced to £4928.69 due to the ongoing recovery from Mr and Mrs X’s housing benefit entitlement. The Council wrote to Mr X in January 2016 with another benefit decision note. The notice informed Mr X he was overpaid £166.21 in housing benefit between October and December 2015. This was due to another change in Mr X’s self-employed earnings.
24. Mrs X wrote to the Council in February 2016 about the Council’s benefit decision note from January 2016 and asked the Council to reconsider its decision. Mrs X said she could not understand why they owed any overpayment. The Council responded to Mrs X and explained the revision was because of an increase in Mr X’s earnings. It said it would not change its decision. The Council included Mr and Mrs X’s appeal right to the tribunal.
25. In December 2017 Mr and Mrs X wrote to the Council and cancelled their housing benefit claim due to the increase in earnings.
26. The Council wrote to Mr X with a benefit decision notice in January 2018 informing he had been overpaid £403.26 in housing benefit between December 2017 and January 2018. This overpayment occurred due to Mr and Mrs X’s housing benefit cancellation request. Records show Mrs X paid the amount of £403.26 in full.
27. As of January 2018, records show Mr and Mrs X’s overpayment arrears stood at £3266.74.
28. In October 2019 the Council sent Mr and Mrs X an invoice for £3266.74. The invoice explained this amount was for housing benefit overpayments for the period April 2013 to February 2015. Mrs X said she called the Council for an explanation. Mrs X said she was unaware of the overpayment and thought any arrears were cleared when she paid the £403.26 overpayment in January 2018. Mrs X asked why the Council had sent an invoice nearly two years after their housing benefit claims had ended. Mrs X asked for a breakdown of the overpayment arrears. She said she had not received any of the benefit decision notices the Council had sent between 2013 and 2017.
29. Mrs X did not receive an adequate response from the Council so, in November 2019 she complained to it. The Council responded at stage one. It gave Mrs X a breakdown of the various overpayments Mr X accrued between 2013 and 2018. It said it could no longer collect the overpayment via housing benefit entitlement as Mr and Mrs X had cancelled their claim.
30. Mrs X was unhappy with the Council’s response and asked to escalate her complaint to stage two. Mrs X said she remembered receiving letters about a large overpayment and asked for assistance about it using the Council’s online system but did not receive a response. Mrs X asked for a full breakdown of the overpayment accrued in 2013. Mrs X said she believed this overpayment was because of an officer error by the Council. Mrs X said she had checked her bank statements and the housing benefit remained exactly the same between 2012 and 2013. Therefore, she was unaware of any overpayments. She said it was not their fault that the Council calculated and paid incorrect housing benefit during 2013.
31. The Council responded at stage two with a comprehensive breakdown of all Mr and Mrs X’s overpayments between 2013 and 2018. The Council explained Mr and Mrs X’s housing benefit remained the same by coincidence between 2012 and 2013. It said however that Mr and Mrs X had received childcare costs of £297 per week when the actual cost of the childcare was just £37.13. The Council said therefore it was not an official error because it was reasonable to assume that Mr and Mrs X was aware the overpayment was occurring. The Council told Mr and Mrs X it could not accept an appeal or reconsideration because the absolute time limit of 13 months had expired on all the overpayment decisions.
32. Mrs X asked the Council to escalate her complaint to stage three in February 2020 and reiterated much of her earlier concerns. She said she had now received a further debt collection invoice for the outstanding arrears. Mrs X said nobody had explained why it took two years to send the overpayment invoice. Mrs X said the Council told her there was no other arrears when she paid the £403.26 overpayment in January 2018.
33. The Council responded at stage three in July 2020. It apologised for not escalating her complaint earlier. It also apologised for sending a duplicate invoice which was due to a clerical error. It said it had already cancelled the invoice. The Council said it was satisfied the previous complaint response fully explained how the overpayments occurred and that they were not as a result of official error. The Council apologised further for the time it took to issue the invoice when Mrs X cancelled the benefit claim. The Council said the invoice stood and Mrs X should contact it if she was having trouble paying it.
34. Mrs X remained unhappy and complained to us.

My findings

35. Records show the Council wrote to Mr and Mrs X with benefit decision notices between 2013 and 2018 outlining where overpayments had occurred and why. Each of the letters included information about how Mr and Mrs X could appeal these decisions and how they could ask the Council to reconsider its decisions which Mrs X did following the decision notice in 2016. There is no evidence which shows Mr and Mrs X did not receive these decision notices. So, it was reasonable for Mr and Mrs X to have appealed those decision at the time.
36. Section 26b of the Local Government Act 1974 says the permitted period to complain to the Ombudsman is 12 months beginning on the day on which the person affected first had notice of the matter. We may disapply this requirement if we have good reasons to do so. The Council’s overpayment decisions Mrs X complained about were made between 2013 and 2016. There is no good reason why Mr and Mrs X could not have either complained to us or sought advice much earlier about the overpayment decisions. We do not make decisions about how much housing benefit someone receives or whether overpayment calculations are correct. That is a decision for the tribunal, and the law allows 13 months for a late appeal to the tribunal. The administration of Mr and Mrs X’s overpayments and is out of time and therefore I will not look at those matters any further.
37. Mrs X said the overpayment in 2013 was due to an official error because she was unaware the Council was overpaying her. Mrs X has not provided evidence she received overpayments of childcare expenses due to a mistake or official error by the Council. Records show Mr and Mrs X were receiving £297 in childcare expenses when the true cost was just £37. However, it is not an official error or the Council’s fault that Mr and Mrs X did not realise this. It is for a tribunal to decide whether an overpayment arose from an official error. Mr and Mrs X could ask for a late appeal and it would be for the tribunal to decide whether to accept it.
38. Mr and Mrs X cancelled their housing benefit in January 2018 however the Council failed to send the final invoice until November 2019. The delay in sending the invoice was fault and it caused Mr and Mrs X distress. The Council has already apologised for this which is a suitable remedy.

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Final decision

39. I have completed my investigation. I found fault however the Council has already provided a suitable remedy for the injustice the fault caused.

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Investigator's decision on behalf of the Ombudsman