Summary: We will not investigate this complaint about a housing benefit overpayment which the Council notified to the complainant in 2012. This is because it is a late complaint and because the complainant could have appealed to the tribunal.

The complaint

1. The complainant, whom I refer to as Mr X, disagrees that he should have to repay a housing benefit overpayment and says it is wrong that the tribunal has not considered his case. He wants the Council to waive the overpayment.

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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. 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)
4. 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)
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)

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How I considered this complaint

6. I read the complaint and letters the Council sent to Mr X about the overpayment. I considered comments Mr X made in reply to a draft of this decision.

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What I found

Housing benefit overpayments

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.

What happened

8. In 2009 the Council processed Mr X’s housing benefit claim and incorrectly recorded his date of birth. This meant the Council wrongly treated Mr X as reaching pensionable age in 2010. The Council increased his benefit from £50 to £92 a week. The increase was because the Council awarded a pensioner premium in error.
9. The Council realised its error in 2012 and corrected the date of birth. This meant Mr X’s housing benefit decreased and he had received too much benefit since 2010. In October 2012 the Council asked Mr X to repay £6490. The letter told Mr X he had one month to appeal to the tribunal. Mr X did not appeal but he asked the Council to reconsider the case. Despite an initial recommendation to waive the overpayment, the Council decided not to waive it because it was reasonable to expect Mr X to have realised he was getting too much benefit. The Council made this decision on 9 January 2013. On 23 January 2013 the Council confirmed the overpayment and said Mr X could appeal to the tribunal.
10. Mr X did not appeal. However, he called the Council in 2015 to say he was going to appeal. The Council heard nothing further from Mr X until 2019 when he challenged the overpayment. The Council told him it was too late to appeal. In March 2020 the Council invited Mr X to make a late appeal to the tribunal. It said the tribunal would decide whether to accept a late appeal. It said the appeal must include a handwritten signature. Mr X says he sent an email to the tribunal in February but a Council officer responded and blocked his appeal. The Council says it has not received a late appeal from Mr X as invited in March 2020.
11. Mr X continues to dispute the overpayment and disagrees it is too late to appeal. He says the memo from 2013 proves the Council blocked his appeal. He says there are no time limits on appealing when there has been an official error. He also says he could not appeal on time because it took a long time to get all the documents.

Assessment

12. I will not start an investigation because this is a late complaint. Mr X has known about the overpayment since 2012 but he did not complain to the Ombudsman until 2020. This is significantly longer than one year and I have not seen any good reason to accept a complaint that is eight years old. Mr X could have complained in 2013 if he thought the Council had blocked his appeal or failed to process his appeal.
13. I also will not start an investigation because Mr X could have appealed to the tribunal. It is reasonable to expect Mr X to have appealed because the tribunal is the appropriate body to consider benefit disputes. The tribunal would have decided if it was reasonable to expect Mr X to have realised he was being overpaid and whether he has to repay the money. In addition, the Council clearly notified Mr X of his appeal rights and the memo, which Mr X says shows the Council blocked his appeal, was written before the Council wrote to Mr X inviting him to appeal to the tribunal. Mr X could have appealed to the tribunal after the letter of 23 January 2013 and he could have complained, in 2013, if he thought the Council had failed to process his appeal.
14. Mr X disagrees it is too late for him to appeal. But, the Council invited him to make a late appeal to the tribunal. If Mr X had submitted a late appeal, the tribunal would have made a decision about whether the appeal was late. Mr X says he sent an email to the tribunal in February 2020 which was not processed. But, the Council sent a letter in March 2020 explaining he needed to submit a late appeal with a written signature. The Council says Mr X has not done this.
15. Mr X could still submit a late appeal. He could also submit to the tribunal his argument that there are no time limits on appealing when there has been an official error. Again, it would be for the tribunal to decide whether to accept a late appeal.

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Final decision

16. I will not start an investigation because this is a late complaint and Mr X could have appealed to the tribunal.

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Investigator's decision on behalf of the Ombudsman