Summary: Mrs Y complained the Council wrongly told her to claim housing benefit. The Ombudsman has found fault by the Council causing injustice. The Council has agreed to remedy this by making an apology and payment to Mrs Y for the financial loss caused and avoidable time and trouble, and service improvements.

The complaint

1. The complainant, who I am calling Mrs Y, complained the Council wrongly told her to claim housing benefit. She says it should have known from the information available to it at the outset, she was not eligible for housing benefit and advised her to claim universal credit instead.
2. Because of the Council’s error, her claim for universal credit was delayed until she was correctly advised she was not eligible for housing benefit.

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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. 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

5. I have spoken to Mrs Y, made enquiries of the Council, and considered all the information Mrs Y and the Council have provided about the complaint.
6. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

What I found

The legal and administrative background

7. Housing benefit is administered by local authorities to help people on low incomes with their rent payments.
8. Universal credit was introduced in 2013 as a replacement for certain means-tested benefits and is administered by the Department of Work and Pensions (DWP). It was phased in, with claims accepted from wider groups, on an area-by -area basis. When this process was complete an area became a full-service area.
9. Under the Universal Credit (Transitional Provisions) Regulations 2014, from March 2018, new claims for housing benefit in the Council’s area were limited to claimants who had three or more children, or living in supported accommodation or of pension age. Any person not within these categories had to claim the housing cost element of universal credit.
10. The Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019 (UC Amendment Regulations 2019) came into force on 16 January 2019. These regulations restricted claims for universal credit by claimants entitled to an award of a benefit that included a severe disability premium (SDP) and allowed them to claim housing benefit instead.
11. From 27 January 2021, Regulation 7 of the Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019 came into effect, revoking the restriction on claims for universal credit by persons entitled to SDP. No new claims for housing benefit may be taken for claimants receiving SDP from this date.

What happened

12. Mrs Y has a disability. She receives Employment Support Allowance (ESA) and lives in private rented accommodation. She contacted the Council about help with her housing costs in October 2018 and March 2019. On both occasions she was told she was not eligible for housing benefit and should apply for universal credit. Mrs Y has told us, following the Council’s advice, she checked her eligibility for universal credit by completing the online calculator. This confirmed she was not eligible for universal credit, so she did not make a claim.
13. Mrs Y says a friend told her, in 2020, she was entitled to claim housing benefit. She called the Council on 9 July 2020 and spoke to an officer in the Council’s Benefits Service. He asked about her benefits. She read out her ESA award letter. He told her she should claim housing benefit, not universal credit. He also said she had been wrongly advised she could not claim housing benefit in 2018 and 2019.
14. Mrs Y went through the online application with the officer over the phone. She completed and submitted her application that day.
15. The Council responded to the application on 15 July. It requested further information. It did not ask about Mrs Y’s entitlement to SDP. She provided the information on 16 July, including a copy of her ESA award letter.
16. Mrs Y was concerned about the accuracy of the advice the Council had given her in 2018 and 2019. She raised this with the Council, and also her MP, who referred her to a welfare rights adviser. This adviser told her on 20 August she was not entitled to housing benefit because she did not receive SDP. She was advised to claim universal credit, which she did the same day, and was awarded housing costs of £87.64 from 20 August.
17. Mrs Y complained to the Council. She said its officer had wrongly advised her to claim housing benefit on 9 July. The Council’s error had delayed her claim for universal credit, causing the loss of housing costs of £87.64 a week from 9 July to 20 August 2020. She asked the Council to reimburse her for these missed payments.
18. The Council did not uphold Mrs Y’s complaint. She was not satisfied with its response and brought her complaint to us in October 2020.

The Council’s response to Mrs Y’s complaint

19. The Council said:

• The Benefits Service noted the reference in Mrs Y’s ESA award to “extra money because she was severely disabled”. It considered the UC Amendment Regulations 2019 might apply.
• It began its assessment of her claim for housing benefit in the belief she was in receipt of SDP. The Benefits Service does not receive any in-depth training from DWP about the benefits it administers and did not know ESA cannot include SDP.
• It has a duty to consider any application for housing benefit. It was not negligent for it to make enquiries about Mrs Y’s possible entitlement based on the information submitted with her application.
• The recording of Mrs Y’s call with its officer on 9 July was no longer available. Its system automatically deletes call recordings after three months.
• The Benefits Service provides training for new staff and refresher training. This included training about the changes to entitlement for housing benefit from January 2019. It issued guidance by email to all staff. The changes would also have been discussed in a team meeting.

Information available to the Benefits Service as at July 2020

20. The Council’s customer information system (CIS). Claimant social security information shared by DWP is stored on this system. The Council may use this for the purposes of administering housing benefit. This included the following information about Mrs Y:

• Working Age/Non-Passported/Severe Disability
• She was in receipt of ESA, Personal Independence Payment (PIP) Daily Living Component and PIP Mobility Component

21. A powerpoint training slide for its staff which said:

• Tameside is a full-service universal credit area. All new claims for housing costs must be referred to universal credit unless the claimant falls into one of the specified categories. The exceptions included claimants entitled to SDP.
• From January 2019 claimants entitled to an award of an existing benefit that included SDP would continue to receive housing benefit.

22. An internal email sent to its staff on 15 January 2019, which said:

• There were some very important changes to universal credit.
• From 16 January 2019 where a claimant makes a claim for housing benefit the Council needs to ensure they meet one or more of the specified criteria, which included entitlement to SDP.
• SDP was an amount paid to severely disabled people as part of the following legacy benefits:
1. Job Seekers Allowance (income based)
2. ESA (income related)
3. Income Support
4. Housing Benefit

23. An internal email sent to its staff on 22 May 2019 which said:

• It was a reminder to look at new claims to see if they may be entitled to SDP.
• If they had any new claims where claimants state they are disabled, staff should check CIS.
• Staff were referred to the original email of 15 January.

24. Mrs Y’s ESA award letter of 12 February 2020 which said:

• The payment of ESA was based on Mrs Y’s National Insurance contributions and any additional amounts she needed to live on.
• Extra money was added to her living expenses calculation because she was severely disabled.
• She was entitled to contribution-based ESA.

25. Mrs Y’s application, which confirmed:

• She was not receiving ESA (income related).
• She was receiving a contributory benefit – ESA (contribution based).

Analysis – was there fault by the Council causing injustice?

26. The Council has said its Benefits Service officers do not receive in-depth training about DWP benefits. But the information from the Council shows its officers were provided with guidance about the changes in regulations in 2019. This guidance confirms, as at July 2020, Mrs Y would only have been entitled to housing benefit if she received SDP. And SDP was only paid as part of Job Seekers Allowance, Income Support, Housing Benefit or Income Related Employment Support Allowance.
27. I consider the information Mrs Y has told us she provided to the officer during the phone call on 9 July 2020, and her answers in the application form, confirm she was not receiving any of these benefits. Her ESA award letter confirmed she received contribution-based ESA not income related ESA. This meant she was not in receipt of SDP and was not entitled to housing benefit. If the officer was unsure about the reference in her ESA award to severe disability this should have been checked before advising Mrs Y to claim housing benefit. In my view it was fault by the Council to advise Mrs Y on 9 July to claim housing benefit. It should have told her to claim universal credit.
28. Mrs Y has told us she did not make a claim for universal credit in 2018 or 2019 because the checks she made using the online calculator confirmed she was not eligible at that time. Her position in 2020 was different because she was now eligible for universal credit.
29. My view is, had the Council told Mrs Y in July 2020 she was not eligible for housing benefit and should claim universal credit, it is likely she would again have checked the position either online as she had done before, or in some other way, and established that she was now eligible to claim universal credit.
30. I consider the Council’s fault has caused Mrs Y injustice. Its wrong advice delayed Mrs Y’s claim for universal credit. It also caused her the avoidable inconvenience of spending time completing and providing information for the housing benefit claim.

Agreed action

31. To remedy the injustice caused by the above faults, and within four weeks from the date of our final decision, the Council has agreed to:

• Apologise to Mrs Y for the incorrect advice given in July 2020.
• Pay Mrs Y £527 for the loss of housing costs from 9 July to 20 August (42 days @ £87.84 a week)
• Pay Mrs Y £100 for avoidable time and trouble.

32. Use this complaint to improve services for others, and within three months of the date of our final decision, to:

• Review and update its guidance to Benefits Service officers about eligibility for housing benefit and provide us with a copy of the revised guidance.

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Final decision

33. I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will take the above action as a suitable way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman