Summary: We cannot investigate this housing benefit complaint because the complainant appealed to the tribunal and could make a new appeal. I cannot investigate the Council’s decision to ask the complainant to pay rent arrears, or decide the property has two bedrooms, because I have no power to investigate a council when it is acting as a landlord.

The complaint

1. The complainant, whom I refer to as Mrs X, complains the Council is applying a deduction to her housing benefit even though she won a tribunal saying the deduction should not be applied. Mrs X complains the Council is pursuing her for rent arrears which have arisen because the Council is not paying enough housing benefit. Mrs X wants the Council to follow the tribunal decision and clear the arrears. Mrs X also complains the Council is wrongly treating her as living in a two bedroom property.

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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’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if we believe the fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended)
3. We cannot investigate a complaint if someone has appealed to a tribunal about the matter. (Local Government Act 1974, section 26(6), 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)
6. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)

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How I considered this complaint

7. I read the complaint and the Council’s responses. I read the tribunal decisions and letters inviting Mrs X to make a new appeal. I considered comments Mrs X made in reply to a draft of this decision.

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What I found

Housing bedroom – under-occupancy charge

8. Housing benefit may be reduced if someone lives in a home that is too big for their needs. There are some exceptions and the courts have made decisions which, at different times, have changed who is subject to the charge. The regulations do not define the term ‘bedroom’. There is a 14% housing benefit reduction for every spare room.

What happened

9. The Council allocated Mrs & Mr X a two bedroom home. The Council recognised they needed an extra bedroom because Mr X had a disability and the couple had been unable to share a bedroom for a long time. The Council awarded housing benefit but applied a 14% deduction for the under-occupancy charge. It also awarded a Discretionary Housing Payment (DHP) to cover the deduction.
10. Mrs X appealed to the tribunal about the deduction. The tribunal upheld her appeal in 2014. The tribunal said that, although described as a two bedroom home, it is treated as a one bedroom home, suitable for a disabled couple. The Council disagreed with the tribunal’s decision and appealed to the Upper Tribunal (UT).
11. Mr X died in 2015. The Council reassessed Mrs X’s housing benefit as she was now a single claimant. The Council applied the 14% deduction. The Council issued a new decision in April 2015 with fresh appeal rights. Mrs X did not appeal.
12. In the meantime the Council continued to pay a DHP. In July 2017 the Council told Mrs X it would stop paying a DHP at the end of 2017. It told Mrs X that her grounds of appeal against the deduction no longer applied because Mr X had died. It said she could make a new appeal against the deduction applied to her as a single person.
13. Mrs X appealed to the tribunal in August 2018. The tribunal dismissed her appeal on the grounds that it was late and there was no prospect of success.
14. In 2020 the UT dismissed the Council’s appeal. The UT confirmed Mrs & Mr X were entitled to housing benefit with no deduction. The UT referred to them as living in a two bedroom property and said there was clearly a medical need for an additional bedroom. The Council awarded housing benefit of £1887 to Mrs X. This was the amount it had deducted from 2013 until 2017 for the under-occupancy charge. Mrs X had received a DHP for most of this time which she did not have to repay.
15. Mrs X continues to dispute that her housing benefit should be reduced. She says the tribunal said she lives in a one bedroom home with space for storage. She complained about the on-going deduction to the Council and complained it was pursuing her for rent arrears. In March 2021 the Council provided a summary of events since 2013, explained that the successful appeal decision only applied while her husband was alive, and it invited her to make a fresh appeal. The Council says Mrs X has not lodged a new appeal but she could make a new appeal about the latest housing benefit decision from 1 April 2021.
16. Mrs X says the Council is failing to treat her home as a one bedroom property with storage as decided by the tribunal in 2014. Mrs X is also unhappy that the Council applied for a DHP. She says it was unnecessary because she has it in writing that she lives in a one bedroom home.

Assessment

17. The tribunal decided the under-occupancy charge should not apply to Mr & Mrs X. If Mrs X believes this decision should continue, even though she is now a single claimant, then that would be a matter for the tribunal. We do not make housing benefit decisions.
18. Mrs X appealed to the tribunal in 2018 about the decision to apply the deduction to her as a single claimant. The law says we cannot investigate any matter that has been the subject of an appeal to the tribunal. This restriction applies even though the tribunal dismissed the appeal.
19. I also will not start an investigation because Mrs X could have appealed to the tribunal about the most recent housing benefit decision and was invited to appeal in March. It is reasonable to expect Mrs X to appeal because the tribunal is the appropriate body to consider benefit disputes. And, Mrs X already knows the tribunal can make decisions about whether the under-occupancy charge should apply.
20. Mrs X disagrees with the Council’s decision that she lives in a two bedroom home. She says this is at odds with the 2014 tribunal decision. I note, however, that the UT, a higher body, described it as a two bedroom property. I cannot investigate this part of the complaint because the Council, acting as Mrs X’s landlord, decided she lives in a two bedroom home and I have no power to investigate a council when it is acting as a landlord. For the same reason I cannot investigate a complaint about the Council pursuing her for rent arrears.
21. Mrs X is unhappy the Council applied for a DHP. I will not investigate this part of the complaint because there is no injustice. This is because if Mrs X had not received a DHP then her arrears would be higher than they are now.

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Final decision

22. I cannot start an investigation because Mrs X appealed to the tribunal and had further appeal rights she could have used. In addition, I have no power to investigate a council when it is acting as a landlord.

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Investigator's decision on behalf of the Ombudsman