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

The complaint

1. The complainant, whom I refer to as Mrs X, says she should not have to repay a housing benefit overpayment because the Council failed to process information she provided in 2017. Mrs X also says the Council failed to respond to the appeal she made in March.

Back to top

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)

Back to top

How I considered this complaint

5. I read the complaint and the Council’s responses to Mrs X’s appeal. I spoke to Mrs X after she received a draft of this decision.

Back to top

What I found

Housing benefit overpayment

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. The person must show they have a good reason for making a late appeal.

What happened

7. The Council asked Mrs X to repay a housing benefit overpayment of £8707. Mrs X challenged the decision and explained she reported changes in the family’s circumstances in December 2017.
8. The Council reviewed the overpayment decision in March, April and May 2020. On two occasions the review led to the Council reducing the overpayment. The April review decision said the Council had reduced the overpayment to £7799. The May review did not reduce the overpayment further. All the review decisions, including the one from 22 May 2020, invited Mrs X to appeal to the tribunal and said she had one month to appeal.
9. Mrs X did not appeal to the tribunal. She says she did not know how to appeal and did not understand what the tribunal was. She thought she had done enough by appealing to the Council.
10. Mrs X says the Council did not respond to her appeal of March. She says she heard nothing until she received a letter from the debt recovery team in October.

Assessment

11. I will not start an investigation because Mrs X could have appealed to the tribunal. I have seen the emails the Council sent to Mrs X which show it considered her challenge and notified her of her appeal rights to the tribunal. I have also seen an email Mrs X sent to the Council disputing the April review decision which shows she received the Council’s reply and was aware of her right to appeal to the tribunal. In addition, although Mrs X says she did not know what the tribunal was, the Council’s emails clearly showed she could escalate her review/appeal.
12. It is reasonable to expect Mrs X to have appealed because the tribunal is the appropriate body to consider disputes about housing benefit overpayments. The tribunal would have decided if Mrs X had been overpaid and whether she had to repay any money to the Council. The tribunal is free to use and made up of experts in housing benefit law.
13. Mrs X could apply for a late appeal. The tribunal would decide whether to accept a late appeal. Mrs X would need to submit good reasons for making a late appeal. Mrs X told me she will ask the tribunal for a late appeal.

Back to top

Final decision

14. I will not start an investigation because Mrs X could have appealed to the tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman