Summary: Mr X complained the Council was recovering an overpayment of housing benefit despite the Tribunal asking it not to. There is no fault with how the Council reached its decision to continue with the recovery.

The complaint

1. Mr X complained the Council continued to seek recovery of a housing benefit overpayment even though it had made mistakes. Mr X said he feels he is being punished through no fault of his own. He said the situation has affected his mental health and the Council is making his recovery difficult. He thinks the Council should write-off the overpayment.

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What I have investigated

2. A Tribunal has considered Mr X’s case. We cannot investigate a complaint about overpayment recovery decision which went to appeal. However, I have investigated the Council’s actions which took place after the Tribunal which led to its decision to continue with the recovery of the overpayment.

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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. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
6. 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

7. I have considered Mr X’s complaint and the Council’s response to Mr X and to my enquiries.
8. Mr X 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

The law

Overpayment

9. If a council reviews a claim and decides it has paid too much benefit, this is an overpayment. Some overpayments are always recoverable. A council has discretion to not recover any overpayment. Councils can recover an overpayment from the claimant. The person from whom the authority decides to recover an overpayment can appeal.

Underlying Entitlement

10. A Housing Benefit overpayment may be able to be reduced by using Underlying Entitlement. Underlying Entitlement is a calculation of what a claimant would have received if their assessment was based on what their actual circumstances were when they were overpaid. This means that the amount the claimant has to pay back may be reduced.

What happened

Background

11. In September 2017, Mr X and his father, Mr Y moved in together. Mr X and Mr Y have the same first name and surname.
12. The landlord only wanted a single rather than a joint tenancy agreement. Mr Y signed the tenancy agreement.
13. Mr X and Mr Y approached the Council for housing benefit. Mr X and Mr Y showed the tenancy agreement and supporting information. The Council accepted that Mr X had rental liability as the names matched up. Mr X was awarded housing benefit. Mr Y was already in receipt of universal credit.
14. In May 2019, the Council became aware of the error. Mr X had been receiving housing benefit even though he had no rental liability. This was because Mr Y’s name was on the tenancy agreement. The Council wrote to Mr X to notify him of the overpayment amounting to £8,873.47.
15. Mr X appealed against the Council’s decision to cancel his housing benefit claim and to create an overpayment.
16. In September 2019, Mr X began making monthly repayments to the Council. He said he still wanted to pursue his appeal.
17. In February 2020, the Tribunal accepted that there was no official error by the Council and no grounds that would be successful in the appeal.
18. The Tribunal said that the error occurred because of a catalogue of mistakes not only from Mr X, but also the landlord, and the customer support centre. It said if the claim had been done correctly then Mr Y would have been eligible for Housing Benefit. It went to say that the Council would have had to pay this money in any event and there would have been no loss to the Council.
19. Although the Tribunal found in favour of the Council, it said it hoped the Council would use its discretion not to enforce the overpayment.

After the appeal

20. In March 2020, the Council wrote to the Tribunal. It appealed its decision as it believed there was an error in law. It explained that the Mr X could not have his housing benefit offset as he had no genuine rental liability. Because of this, the Council argued it could not apply underlying entitlement.
21. The Council explained since May 2018, the Council had become a full service for Universal Credit and could no longer accept claims for Housing Benefit. It said, this being the case, the Council was not able to award Housing Benefit to the actual tenant, Mr Y, as he would be required to claim his housing costs through Universal Credit. The Council went on say that the Housing Benefit Overpayment legislation would have also prevented it from recovering Housing Benefit from a different claimant’s claim.
22. It requested a statement of reasons regarding Mr X’s appeal from the Tribunal.
23. The Council received the statement of reasons. The Council said it considered all the factors regarding the cause of the overpayment and whether it was recoverable.
24. It said it considered the experience of the customer service advisor who dealt with Mr X when he visited the office prior to making his claim. It explained that the most basic training for advisors clearly states a claimant must have a rental liability to claim Housing Benefit. The Council said if the advisor was told that there was a rental liability, and Mr X was struggling to meet this then the advice at that time would be to complete an online claim form. If the advisor had been made aware that it was Mr Y’s (the father’s) rental liability the advice would have been that Mr Y must make the claim.
25. I have seen the evidence that the advisor spoke to Mr and Mr Y and asked for the relevant information. Mr X was clear he was the claimant and on the housing benefit form, he stated that he rented his home from a Housing Association. Mr Y completed a form and stated that he was moving in with his son.
26. In May, the Council wrote to Mr X to say that it had decided to recover the overpayment from him. It explained that during the period he was receiving housing benefit, the Council sent him several decision notices which showed he was receiving it. The Council said Mr X was aware he was not the legal tenant and had no rental liability and was not entitled to housing benefit.
27. Mr X then complained to the Ombudsman.

Analysis

28. The Tribunal reached the decision that there was no official error with the Council’s decision to cancel Mr X’s housing benefit claim and to create an overpayment. It asked the Council to consider not pursing the repayment of the overpayment.
29. The Council reviewed the information regarding Mr X’s case in line with the Tribunal’s request for it to consider exercising its discretion. There is no fault with the way the Council reached its decision to continue with its recovery of the overpayment.

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Final decision

30. I have completed my investigation. There is no fault with the Council.

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Parts of the complaint that I did not investigate

31. I did not investigate the aspects of the complaint that were considered by the Tribunal.

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Investigator's decision on behalf of the Ombudsman