Summary: We will not investigate this complaint about a housing benefit overpayment because the complainant could have appealed to the tribunal. In addition, he could complain to the Information Commissioner regarding his complaint the Council has not responded to his information request.

The complaint

1. The complainant, whom I refer to as Mr X, complains about a housing benefit overpayment. He says he did tell the Council, in 2016, that his son had moved out.

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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. 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)
5. We normally expect someone to refer the matter to the Information Commissioner (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I read the complaint and the Council’s response. I considered the housing benefit overpayment decision letter and found out Mr X did not ask for an appeal. I considered comments Mr X made in reply to a draft of this decision.

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What I found

Housing benefit decisions

7. If someone disagrees with a housing benefit decision they can ask for a review or appeal to the tribunal. If they have a review, and are unhappy with the decision, they can then appeal to the tribunal. The law says people should appeal within one month of the date of the decision they think is wrong.

What happened

8. In March 2020 the Council asked Mr X to repay a housing benefit overpayment of £1032. The letter notified Mr X of his appeal rights. The overpayment arose because the Council says Mr X did not tell the Council until 2020 that his son moved out in 2016.
9. Mr X did not appeal but he complained. He said he had told the Council in 2016 that his son had moved out. In response the Council said it had no record of Mr X providing this information until 2020. The Council provided statements, written by Mr X between 2016 and 2020, in which he referred to his son as still living with him. The Council invited Mr X to get in touch if the recovery of the overpayment was causing hardship. The Council says Mr X has not done this.
10. Mr X made a request for information under the Freedom of Information Act and a Subject Access Request. The Council says it has provided the information he asked for but Mr X says this is not correct.
11. Mr X says the Council has treated him very badly and has failed to deal with his complaint. He says he has repeatedly asked the Council for an appeal.
12. I double-checked with the Council if it had received any appeal requests from Mr X regarding the overpayment. The Council says Mr X has sent many emails but he has not asked for an appeal.

Assessment

13. I will not start an investigation because Mr X could have appealed to the tribunal if he did not think he should have to repay any money to the Council. 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 Mr X was liable to repay the overpayment. The tribunal had the power, if appropriate, to cancel the overpayment – we do not have that power.
14. In addition, the Council notified Mr X of his appeal rights and invited him to get in touch regarding the rate of recovery.
15. I will not investigate the complaint that the Council has not provided all the information Mr X asked for. This is because Mr X can complain to the ICO. It is reasonable to expect him to do that because the ICO is the appropriate body to consider complaints about data handling and responses to information requests.

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Final decision

16. I will not start an investigation because Mr X could have appealed to the tribunal and could complain to the Information Commissioner.

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Investigator's decision on behalf of the Ombudsman