Summary: We cannot investigate this complaint about a housing benefit overpayment because the complainant appealed to the tribunal. In addition, there is insufficient evidence of fault by the Council to warrant an investigation.

The complaint

1. The complainant, whom I refer to as Mr X, complains the Council is trying to recover a housing benefit overpayment that he is not liable for. Mr X has sent evidence showing he cannot pay and the pressure is affecting his mental health. Mr X wants the Council to waive the debt.

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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 it is unlikely we would find fault. (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 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

5. I read the complaint and letters the Council sent to Mr X’s MP. I got some additional information from the Council and considered comments Mr X made in reply to a draft of this decision.

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What I found

Housing benefit overpayments

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.

What happened

7. The Council paid too much housing benefit to Mr X because it used a rent figure of £351 a week rather than a month. The Council found out about the overpayment in 2012 and asked Mr X to repay £27,367.
8. Mr X appealed to the tribunal. In 2014 the tribunal decided that £2857 was not recoverable from Mr X. The tribunal decided he did have to repay the remaining £24,510. The Council recovered some of the money by deducting £10.80 a week from Mr X’s housing benefit until his claim stopped in August 2017. The Council then put recovery action on hold until 2017 because Mr X appealed to the Upper Tribunal. In 2017 the Upper Tribunal refused permission for Mr X to appeal.
9. In 2017 the Council issued Mr X with an invoice. Mr X did not respond so the Council asked the Department for Work and Pensions (DWP) to make deductions from his benefits. The Council received deductions until November 2017 when Mr X stopped receiving benefits.
10. The Council issued new invoices in 2020. Mr X tried to appeal the recoverability of the overpayment. The Council said he had exhausted his appeal rights. Mr X made an offer to pay £30 a month. The Council asked him to provide a financial statement so it could assess the offer. Mr X subsequently said he had not understood the conversation and had not been mentally strong enough to make the offer. The Council told Mr X that if he did not pay £30 a month it would apply for deductions from his DWP benefits. It said deductions would be more than £30 a month.
11. Mr X sent a financial statement. He explained he had no money to pay and the recovery action was putting a severe strain on his mental health. The Council has assessed the financial statement and intends to confirm a repayment plan of £30 a month. Mr X sent me, although he may not have provided it to the Council, a budget form he completed in February in which he offers £50 a month towards a debt of £24,533; of this £690 is for rent arrears and £23,843 for the overpayment.
12. Mr X says the Council should waive the debt because he still disputes the overpayment and he has no money to pay debts. He says the debt is statute barred because it arose in 2012 and he says the Council has no debt recovery policy for vulnerable people.

Assessment

13. Mr X says he does not owe any money to the Council. However, the tribunal decided that Mr X has to repay £24,510. This decision is the final decision in respect of the overpayment and Mr X has no further appeal rights. I cannot investigate the overpayment, or ask the Council to waive it, because Mr X appealed to the tribunal. The law says we cannot investigate any matter that has been appealed to the tribunal.
14. Mr X has known, since 2014, that he has a recoverable overpayment that he has not repaid. He made some repayments but the bulk remains unpaid. The Council’s letter of 21 January 2021 says the balance is £23,643. As the tribunal decided Mr X must repay the money, but he has not done so, there is insufficient evidence of fault in the Council’s decision to seek repayment. It is prepared to accept £30 a month or, if Mr X does not wish to make these payments, it will resume deductions from his DWP benefits. These are all steps it is open to the Council to take.
15. In addition, the Council made a referral to mental health to offer support and it will make another referral before it formally asks Mr X to pay £30 a month. It told Mr X it is developing an ethical debt recovery policy and a senior officer reviewed the case given Mr X’s statements about the impact on his mental health.
16. The debt is not statute barred as Mr X alleges because the clock starts from the last tribunal decision and that was in 2017. This is less than six years ago.
17. Mr X has queried the balance being claimed by the Council. He has compared the letter from January which says the balance is £23,643 with a letter to his MP. But, the letter to the MP was not giving a balance but referring to the appeal to the tribunal. Mr X can check the current balance with the Council.

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Final decision

18. I cannot start an investigation because Mr X appealed to the tribunal. In addition, there is insufficient evidence of fault by the Council to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman