Summary: Ms Y complains about the way the Council dealt with her housing benefit applications and requests for an appeal. We found fault by the Council as it failed to progress Ms Y’s housing benefit appeals to the Tribunals Services. The Council also failed to clearly advise Ms Y of its decision to write off an overpayment of housing benefit and action it . We have recommended a suitable remedy so have completed our investigation.

The complaint

1. Ms X complains for Ms Y about the way the Council dealt with Ms Y’s housing benefit application. Ms X says Ms Y requested an appeal against the Council’s decision she needed to pay back an overpayment of housing benefit. Ms X says the Council has not responded to Ms X’s correspondence and its actions have caused Ms Y distress and financial difficulties.

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The Ombudsman’s role and powers

2. 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)
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). 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)
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 read the papers submitted by Ms X and discussed the complaint with Ms Y. I considered the Council’s comments about the complaint and the supporting documents it provided. I have spoken to a Council officer about Ms Y’s housing benefit applications.
6. Ms X, Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

7. Housing benefit helps people on low incomes to pay their rent. It is a means tested benefit, taking both capital and income into account. Claimants are responsible for ensuring they update the council with any changes in their circumstances. Failure to do so can affect the housing benefit paid.
8. The council must make a decision about housing benefit in writing. The decision notice must also advise claimants of their rights to ask for more information and to appeal. If a claimant disagrees with a decision, they can ask the council to reconsider it. The council must then review the decision again. (Housing Benefit Regulations 2006)
9. Where an appeal has been reconsidered by the Council and they have decided not to review the decision advantageously to the appellant, the appellant has the right to make further representations to the Council for up to a month following the review. If the decision is not reviewed again advantageously, the appeal must be passed to the tribunal. (The Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001)
10. If the decision remains unchanged, they must pass the matter to the Tribunal “as soon as reasonably practicable”. (Rule 24(1A) of The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008)
11. In January 2020 we published a focus report on housing benefits. This set out that regulations do not specify how long councils should take to reply to housing benefit appeals. But they must do so as soon as is reasonably practicable. Our principles of good administrative practice encourage councils to make timely decisions and proactively explain the reasons for any delays. As a benchmark we consider councils should aim to process appeals within four weeks.
12. If a person is on a low income, they can apply to the Council for help towards paying their council tax through Council Tax Reduction (CTR).

Key events and decisions leading to the complaint

13. Ms Y lives in a rented property with her partner and child. In August 2018 Ms Y applied for housing benefit and CTR from the Council. The Council awarded her housing benefit and CTR from 18 August 2018. The Council issued Ms Y with a notification letter of its decision and explained her review rights.
14. In March 2019 Ms Y sent financial information to the Council as she had set up a business. The Council asked Ms Y to complete a self-employed form with more information. Ms Y sent the information, and the Council amended her housing benefit entitlement due to her self-employed status. The Council issued Ms Y with a notification letter of its decision and explained her review rights.
15. In May 2019, the Department for Work and Pensions (DWP) told the Council Ms Y applied for Universal Credit in April 2019. This is a benefit administered by the DWP. The Council stopped Ms Y’s housing benefit claim from 05 May 2019 and said it had overpaid her housing benefit as a result. The Council says its decision was according to Universal Credit rules as Ms Y had made a claim for Universal Credit so could not claim housing benefit at the same time. The Council sent Ms Y a notification letter of its decision and explained her review rights.
16. Ms Y disagreed with the Council’s decision and sent a reconsideration request to the Council. Ms Y said she applied for Universal Credit, the DWP did not award it so closed her claim. Ms Y confirmed she had received no payments. The Council considered Ms Y’s request in June 2019. It told Ms Y while the DWP had not awarded her Universal Credit, the fact was she had claimed it. So, on that basis it considered the decision correct and could not change it. The Council told Ms Y of her rights of review. It advised she could appeal against the decision if she disagreed with it by requesting it online or writing to the Council . Ms Y needed to do this within one calendar month of the date of the decision letter.
17. The Council’s records show Ms Y did not request an appeal within the month. Ms Y sent the Council information she was challenging the DWP’s decision on the Universal Credit claim to support her CTR claim. Ms Y then provided information showing the DWP did not change its decision on Universal Credit saying she did not have a right to reside and was not habitually resident in the UK.
18. Ms Y wrote to the Council on 20 January 2020 asking it to recalculate her housing benefit from the date she applied for Universal Credit and the Council stopped her housing benefit (05 May 2019). Ms Y provided information about a recent appeal for Child Benefit at the HM Courts and Tribunals service. The Council says it wrongly entered information about this document into its system and did not respond to Ms Y’s letter. It accepts it could have clarified with Ms Y whether she was submitting an out of time appeal against its decision on her housing benefit in May 2019. And if so, ask her for more information.
19. In May 2020 Ms Y contacted the Council about her housing benefit claim saying it had not responded to her recalculation request. Ms Y said a Tribunal agreed she had a full right to reside in the UK and receive benefit based on her self-employed status. The Council responded on 20 May 2020 it considered she was no longer eligible to claim housing benefit following information from the DWP she applied for Universal Credit. It advised Ms Y to make a claim for Universal Credit for her housing costs. The Council accepts it could have clarified again with Ms Y whether she was appealing against the May 2019 decision. And if so, send her appeal to the Tribunal service to consider as it had not changed its decision.
20. On 9 June 2020, the Council made a second decision on Ms Y’s housing benefit. The Council told Ms Y she was not entitled to make a claim for housing benefit and CTR, so her claim made in August 2018 was ineligible. The Council explained it was because she was not in employment before saying she was self-employed, and her self-employed income was low. Based on this the Council considered the evidence provided about her employment was not genuine and effective. It also considered Ms Y could not claim housing benefit as she failed the habitual residence test (that the UK was her main home).
21. The Council issued a decision notice to Ms Y on 10 June 2020 explaining it had cancelled her housing benefit claim from August 2018. This created an overpayment of housing benefit to Ms Y of £1568.73 for 20 August 2018 to 05 May 2019. The Council decided to write off the overpayment as it considered Ms Y probably would have been unaware she was not entitled to housing benefit. The decision was sent to a benefits officer to action. The Council issued a second decision letter on 10 June 2020 advising Ms Y of its decision about the overpayment. The Council explained Ms Y’s rights of review.
22. Ms Y wrote to the Council on 23 June 2020 disagreeing with its June 2020 decision she was ineligible for housing benefit from 2018. Ms Y provided proof the Home Office granted her a residence card. Ms Y said she had a right to work, be self-employed and live in the UK.
23. An appeal officer looked at Ms Y’s claims in July 2020. The officer requested the Council should not recover the CTR overpayment caused by the claim cancellation. As the Council already agreed to write off the housing benefit overpayment the officer asked to be told when both adjustments were made so he could write to advise Ms Y. The Council says it completed the write off requests on 14 August 2020. But the information was not passed to the appeals officer and so he did not write to Ms Y in response to her letter in May 2020. The Council accepts it had an opportunity to clearly advise Ms Y of its decisions to write off her housing benefit and CTR overpayment but did not do so then.
24. The Council issued Ms Y with a debtor’s invoice for £1568.73 on 11 August 2020. Ms Y wrote to the Council on 14 August 2020 requesting a reconsideration of the decision about her housing benefit and CTR on 11 August 2020. Ms Y claimed it was based on the wrong information. The appeals officer wrote to Ms Y on 18 August 2020 explaining about the decision on her housing benefit and CTR claim. The officer advised Ms Y the Council would not be recovering the overpayments to her. The Council then sent Ms Y two letters on 27 August 2020 to claim for CTR online and to do an online self-employed earnings form.
25. The Council issued Ms Y with another debtor’s invoice for £1568.73 on 15 September 2020. Ms Y responded with a letter on 24 September 2020. Ms Y provided proof she had sent a previous reconsideration request.
26. The Council wrote to Ms Y on 1 October 2020 asking her to respond to the letter of 27 August 2020. This asked her to claim CTR and complete an online self-employed form. The Council asked Ms Y to respond by 15 October 2020 otherwise it would refuse her claim for CTR. Ms Y did not respond so the CTR claim remained closed. The Council also closed Ms Y’s housing benefit reconsideration request and took no further action.

The Council’s response to the complaint

27. The Council considers there are two separate decisions about Ms Y’s housing benefit. The first is whether the Council can recover the housing benefit overpayment created when it closed Ms Y’s claim in 2019. The second decision is whether the Council ended her claim correctly in 2019 and/or whether she is now entitled to housing benefit.

Housing benefit overpayment

28. The Council confirms it decided on 9 June 2020 not to recover the overpayment created when it ended Ms Y’s claim back to August 2018. The decision not to recover was sent to a benefits manager to process. The Council says it has not yet actioned the write off request. This is because of lack of resources due to the COVID-19 pandemic and other priorities. The Council accepts it should have identified it had not actioned the write off sooner than it did.
29. The Council has looked again the overpayment decision and established it should only write off the first part of the overpayment amount from August 2018 to February 2019. The Council says this is because it correctly terminated the claim as Ms Y was not entitled to receive housing benefit as a person from abroad who was not eligible to receive it. The Council decided not to recover the overpayment this created as it was a local authority error.
30. The Council says it can reinstate Ms Y’s housing benefit from February 2019, when Ms Y advised she was self-employed, to May 2019. However, the Council confirms it will be writing this part of the overpayment off and has now sent a request for this to be processed. The Council considers once this has been done there is no need for Ms Y to pursue an appeal against its decision to recover the overpayment. This is because should Ms Y be successful, she has already received the amount of housing benefit she may be entitled to as the Council is not recovering the overpayment from her for the housing benefit and CTR it awarded her from 2018.

Terminating Ms Y’s housing benefit claim in May 2019

31. The Council confirmed it received notification from the DWP on 2 May 2019 Ms Y was claiming Universal Credit from April 2019. This ends a person’s entitlement to housing benefit under the Universal Credit regulations. The Council accepts Ms Y queried the Council’s decision to terminate her claim in May 2019 in January and May 2020. But her letters were unclear, and it did not take any action about the letter. The Council accepts it should have clarified the matter with Ms Y.
32. The Council also accepts Ms Y’s letters in June, August and September 2020 should have been considered as a request to reconsider the June 2020 decision (to terminate her claim from August 2018). The Council acknowledges it did not do so.
33. The Council accepts it wrongly added Ms Y’s housing benefit reconsideration request to its action in asking Ms Y for more information to support her CTR claim. So, it issued the letter to Ms Y on 1 October 2020 advising it would close the CTR claim if she did not send the information.
34. The Council says it did not respond to Ms Y’s letters of June, August, and September 2020 as Ms Y was sending letters and reconsideration requests when she received a debtor’s invoice. Although it was a Council decision it could not be appealed under the appeal process. The Council accepts it should have written to advise Ms Y of this and it should have then sent her appeal to the Tribunal if it could not change its decision. As the Council had included Ms Y’s reconsideration request to her CTR claim, it closed the request and CTR claim when it did not receive a response from her. The Council accepts this was incorrect action for it to take with her reconsideration request for the housing benefit claim.
35. The Council confirms it sent Ms Y’s housing benefit appeal to the Tribunal in February 2021 and notified Ms Y of its actions. The Tribunal will consider whether the decision to end Ms Y’s claim in June 2020 was correct and whether Ms Y should be entitled to housing benefit from 6 May 2019. The Council confirms it has reconsidered Ms Y’s CTR application.

My assessment

36. We cannot investigate a complaint about any matter which was appealed or could have been appealed to a tribunal. So, we cannot consider whether Ms Y should be entitled to housing benefit or whether the Council was correct to seek recovery of an overpayment from her. But we can investigate the appeal process itself.
37. The Council accepts it failed to follow up and consider Ms Y’s letters of January and May 2020 as a late reconsideration request for the May 2019 decision to terminate her housing benefit claim. The Council accepts it also failed to action Ms Y’s request for a reconsideration of the June 2020 decision she was not eligible for housing benefit. This was following her letters of June, August, and September 2020. The Council is required to send appeals to the Tribunal when it cannot change the decision it makes. I consider the Council’s failure to action Ms Y’s reconsideration requests are fault by the Council. This has resulted in a lost opportunity for Ms Y have her appeals heard by the Tribunal service to see if the Council’s decisions are correct.
38. The Council has now sent Ms Y’s appeal to the Tribunal service which is suitable action for it to take. But its failure to do so before now has also caused injustice to Ms Y due to her resulting distress and her time and trouble in pursuing requests for reconsideration. To remedy this, I consider the Council should apologise to Ms Y for its failure to progress her appeals to the Tribunals service. It should also pay her £150 in recognition of her lost opportunity, distress and time and trouble in pursuing the matter.
39. The Council missed several missed opportunities to establish whether Ms Y was appealing a decision on her housing benefit claim. I consider the Council should remind officers to carefully consider correspondence from housing benefit and CTR applicants and clarify where necessary if they are submitting an out of time reconsideration request or appeal.
40. The Council’s second decision on Ms Y’s housing benefit claim in June 2020 she was ineligible to claim the benefit created the overpayment which the Council decided to write off. So, Ms Y was not required to repay it. The Council accepts it missed the opportunity to clearly advise her of this in August 2020. The Council then failed to action the write off resulting in it wrongly sending invoices to Ms Y for the overpayment. The Council failed to respond to Ms Y’s letters from August 2020 onwards about the invoices and reconsideration request.
41. The Council further compounded matters by dealing with Ms Y’s housing benefit reconsideration requests as part of its action to seek information for her CTR claim. Because of this the Council wrongly closed Ms Y’s appeal when she did not respond about the CTR. I consider the Council’s actions are fault. These failures have caused an injustice to Ms Y by creating confusion over the write off and distress she was being pursued for a debt. Ms Y has also been put to time and trouble in trying to resolve matters. To remedy the injustice caused to Ms Y I consider the Council should apologise to Ms Y for the confusion and distress caused to her. It should also pay her £150 in recognition of her confusion, distress and time and trouble in pursuing the matter.

Agreed action

42. To remedy the injustice caused to Ms Y the Council has agreed, within one month of the date of my final decision, to:
• Send a written apology to Ms Y for its failure to progress her appeals to the Tribunals service. It will also pay her £150 in recognition of her lost opportunity, distress and time and trouble in pursuing the matter.
• Send a written apology to Ms Y for the confusion and distress caused to her from its failure to clearly advise her about the housing benefit overpayment write off and action it. It will also pay her £150 in recognition of her confusion, distress and time and trouble in pursuing the matter.
• Remind officers to carefully consider correspondence from housing benefit and CTR applicants and clarify where necessary if they are submitting an out of time reconsideration request or appeal.

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Final decision

43. I am completing my investigation. I have found fault by the Council as it failed to progress Ms Y’s housing benefit appeals to the Tribunals Services. The Council also failed to clearly advise Ms Y of an overpayment write off and action it . I have recommended a suitable remedy in this case.

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Investigator's decision on behalf of the Ombudsman