Decision : Upheld
Decision date : 11 Oct 2021
The Ombudsman's final decision:
Summary: We shall not investigate Ms X’s complaint. We are unlikely to find fault on some points. The Council has agreed to seek a late appeal against its decisions to reduce Ms X’s housing benefit, which is a suitable remedy for other parts of the complaint.
- Ms X complains about various events connected to the Council reducing her housing benefit. She states this caused her rent arrears and she is in danger of losing her home.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6))
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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) 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)
How I considered this complaint
- I considered information provided by the complainant and copy correspondence from the Council. I also suggested to the Council a possible way forward on one point of the complaint.
- I considered the Ombudsman’s Assessment Code.
- I gave Ms X the opportunity to comment on my draft decision.
- Ms X was receiving housing benefit (HB) from the Council. On two occasions Ms X received payment for some work. The Council reduced her weekly HB due to those earnings.
Telling Ms X of the decisions to reduce her HB
- Ms X says the Council did not tell her at the time it reduced her HB. The Council says it sent decision letters in June 2019 and January 2020. It has supplied copies of the letters it says it sent. Those letters were addressed to Ms X’s correct address and gave details of the decisions and Ms X’s review and appeal rights.
- I do not believe there is a realistic chance I could reach a clear enough view now about whether the Council did not send the letters or whether there was another reason Ms X did not receive them, for example if they went astray in the post or on delivery to her building. Therefore there is not enough evidence of fault by the Council and further investigation is unlikely to change that. So I shall not pursue this part of the complaint.
Not awarding discretionary housing payment for the relevant period
- Ms X complains the Council did not offer a discretionary housing payment (DHP) to cover the periods it reduced her HB. The Council says Ms X did not apply for a DHP to cover that. It states her only DHP application was for something else, namely her move from HB to Universal Credit. The Council also says it would anyway be unlikely to award DHP to cover HB reductions that were due to increases in income. I understand that reasoning, as if the Council cover such HB reductions, it would undermine the reason behind the reduction in HB, namely that some of the increased income should go towards the rent.
- The evidence I have seen suggests the Council was not at fault for not giving a DHP if Ms X did not seek one for this situation. Moreover, even if Ms X had applied for a DHP to cover this point, it seems unlikely on balance the Council would have given such a DHP, for the reasons explained above. So even if there might have been fault on this point (and I have not found there was), it would not have disadvantaged Ms X significantly. For these reasons, I shall not investigate this part of the complaint.
Ms X’s arguments that the Council was wrong to reduce her HB
- Ms X argues: the Council reduced her HB months before she received payment for the work in question; the Council took no account of Ms X being self-employed and the two pieces of work in question being carried out for the Council; and she put any earnings into meeting business, childcare and travel costs.
- Those points all concern whether the Council was correct to reduce Ms X’s HB in the way it did. There are regulations and guidance covering in which circumstances, when and by how much councils can reduce someone’s HB when the person earns some income. The law entitles HB claimants to challenge such decisions by asking the Council for a review and by appealing to an independent tribunal. Therefore the restriction in paragraph 2 applies.
- The tribunal, rather than the Ombudsman, has the expertise to decide such matters. It can also make binding decisions, whereas the Ombudsman can only make recommendations. It is therefore more suitable for the tribunal than the Ombudsman to consider whether the Council acted properly in reducing Ms X’s HB.
- I appreciate Ms X states she was unaware of the Council’s decisions to reduce her HB at the time. That is presumably why she did not seek a review or appeal then. The normal period for appealing has now expired. After I contacted the Council about this complaint, the Council said in the circumstances it is willing to send the matter to the tribunal and support Miss X having a late appeal as she states she did not receive the decision letters at the time. The Council says it would need Ms X to confirm to the Council her reasons for wanting to appeal and the Council would then send an appeal submission to the tribunal. The Council cannot force the tribunal to hear a late appeal, but it states the tribunal has generally agreed to hear late appeals where the Council supports it doing so.
- In the circumstances, this is a reasonable way forward.
The level of Ms X’s rent arrears
- Ms X argues the Council’s HB reductions caused all her current rent arrears. She would like the arrears paid off. The Council has explained the amounts by which it reduced her HB were lower than her total rent arrears. It suggested the rest of the arrears resulted from decisions related to her Universal Credit. The Council does not manage Universal Credit.
- I do not fault the Council’s explanation. The total HB reductions were less than the total rent arrears Ms X later accrued.
- On the part of the rent arrears that resulted from the Council’s HB reductions, it does not automatically follow the Council was at fault. That depends on whether the Council was wrong to reduce the HB in the way it did. As I have explained above, that is more appropriately a matter for the tribunal than for the Ombudsman and the Council has agreed to send the matter to the tribunal.
The Council’s complaint-handling
- The Council apologised for taking seven months to deal with Ms X’s complaint at the first stage of its complaint procedure. That was fault, which would have caused Ms X some avoidable uncertainty and frustration. I consider the Council’s apology was enough remedy.
- The delay meant that when the Council replied to the complaint and gave Ms X copies of its HB decision letters, the normal maximum timescale for appealing to the tribunal had expired for the January 2020 decision. (The timescale for the June 2019 period had ended before Ms X made her formal complaint.) So it is possible the Council’s delay prevented Ms X deciding whether to appeal against that decision in the usual timescale. I consider the Council’s agreement to seek a late appeal now will remedy that point, as far as possible. I do not consider I can reasonably achieve more on this point.
- The Council has agreed that, if Ms X tells the Council her reasons for wishing to appeal, it will send an appeal submission asking the tribunal to hear the late appeal. The Council and Ms X can liaise direct about those points as necessary, without involving the Ombudsman.
- We shall not investigate this complaint. This is because it is unlikely we would find fault about notification of the HB decisions, not awarding a DHP and some of the rent arrears being unrelated to the Council’s decisions. The action the Council has agreed to take is sufficient remedy for the other parts of the complaint.
Investigator's decision on behalf of the Ombudsman