Summary: Mr X complains on behalf of Mr Y that the Council delayed passing his housing benefit appeal to the tribunal after it upheld its earlier decision to recover an overpayment. The Council is at fault. There was delay submitting the appeal to the tribunal. This did not cause Mr Y a significant injustice, but may be causing injustice to others. The Council has agreed to review its procedures.

The complaint

1. Mr X complains on behalf of Mr Y that the Council delayed passing his housing benefit appeal to the tribunal after it upheld an earlier decision to recover an overpayment. He says this delayed Mr Y accessing a right of appeal against the decision. The Council has since decided it will write off the overpayment and has repaid Mr Y the funds which it recovered before suspending action. However, Mr X says the delay passing the appeal to tribunal caused Mr Y frustration and similar delays may be causing injustice to others.

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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’. 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)
3. 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

4. I spoke with Mr X about the complaint and considered information he sent me.
5. I considered previous LGSCO decisions on complaints about similar issues with this Council.
6. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Background information

7. Housing benefit helps people on low incomes to pay their rent. It is a means tested benefit, taking both capital and income into account. Claimants are responsible for ensuring they update the council with any changes in their circumstances. Failure to do so can affect the housing benefit paid.
8. The council must make a decision about housing benefit in writing. The decision notice must also advise claimants of their rights to ask for more information and to appeal. If a claimant disagrees with a decision they can ask the council to review it. The council must then review the decision again (Housing Benefit Regulations 2006).
9. Where an appeal has been reviewed by the council and they have decided not to review the decision advantageously to the appellant, the appellant has the right to make further representations to the council for up to a month following the review. If the decision is not reviewed again advantageously, the appeal must be passed to the tribunal (The Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001).
10. If the decision remains unchanged the council must pass the matter to the tribunal “as soon as reasonably practicable” (Rule 24(1A) of The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008).
11. In January 2020 we published a focus report on housing benefits. This sets out that regulations do not specify how long councils should take to reply to housing benefit appeals, but they must do so as soon as is reasonably practicable. Our principles of good administrative practice encourage councils to make timely decisions and proactively explain the reasons for any delays. As a benchmark we consider councils should aim to process appeals within four weeks.
12. In 2020, we investigated three complaints against the Council where we found it at fault for delays in processing requests for housing benefits appeals. The Council accepted our findings and agreed to review its processes to reduce unreasonable delays.

What happened

13. Mr Y claims housing benefit from the Council. In September 2020, the Council reviewed the benefit paid and decided it had made an overpayment. It wrote to Mr Y to tell him this and started action to recover the overpaid funds.
14. In November 2020, Mr X contacted the Council on Mr Y’s behalf. He said Mr Y wanted to appeal against the housing benefit overpayment decision made in September 2020. The Council acknowledged his request.
15. In January 2021, Mr X chased up the appeal. The Council told him it had not yet been allocated to an officer. Mr X asked that the appeal request be escalated. The Council suspended the ongoing recovery action, pending the outcome of his appeal request.
16. The Council considered Mr Y’s case and discussed it with Mr X and Mr Y. It decided to uphold its original decision but did not pass the case to the tribunal.
17. In February 2021, the tribunal confirmed to Mr X that the Council had not yet sent it Mr Y’s appeal. Mr X applied to the tribunal for it to send a direction notice to the Council, requiring it to submit the appeal. Mr X received a copy of the direction notice which the tribunal sent to the Council in March 2021. The Council said it never received the notice.
18. In April 2021, the Council submitted the case to the tribunal.
19. Mr X and Mr Y were dissatisfied with the delay and Mr X complained to the Council.
20. The Council responded in May 2021. It said it had tried to contact Mr Y in January 2021 to discuss his appeal but had difficulty making contact. However, it accepted it had not referred Mr Y’s case to the tribunal in a timely manner. It said the delay was due to reduced resources caused by the COVID-19 pandemic. It confirmed it had now submitted the appeal and had suspended all recovery action pending the outcome of the appeal.
21. Mr X remained dissatisfied and escalated his complaint through the Council’s complaints process. He complained that, despite previous LGSCO decisions upholding complaints about delays, the Council was still not referring housing benefit appeals to the tribunal within a reasonable timescale. In its response, the Council set out to Mr X how it had reviewed its processes since 2020 and said it was now appropriate to await the outcome of the appeal before discussing Mr Y’s case further.
22. Mr X and Mr Y remained dissatisfied and Mr X brought the complaint to us.
23. The tribunal heard Mr Y’s appeal in November 2021. Just before the appeal, the Council decided to write off the overpayment. It wrote to Mr Y to confirm its decision and that it had stopped all recovery action. It refunded him the amount it had recovered to date.
24. Mr X said that although the Council had decided not to recover the overpayment, the delay referring the case to tribunal between January and April 2021 had caused Mr Y frustration and delayed his right of appeal. He said previous LGSCO decisions had found similar fault, and despite Council assurances following these decisions that it would review its procedures to reduce delays, the service had not improved. He was concerned this could lead to potential injustice for others.

Findings

25. The Ombudsman cannot investigate a complaint about any matter which was appealed, or could have been appealed, to a tribunal. The Ombudsman can, however, investigate the appeal process itself.
26. The Council was allowed in law to review Mr Y’s appeal request and discuss it further with him, before deciding whether to write off the overpayment or refer the appeal to the tribunal. This review process could reasonably take up to a month. When the Council upheld its decision, it should have submitted the appeal to the tribunal at this stage. This could reasonably take up to a further month.
27. Allowing for this still means there was a delay of over three months in submitting Mr Y’s appeal to tribunal. This delay is fault. However, the delay did not cause Mr Y a significant injustice as the Council suspended recovery action whilst awaiting the appeal. It also repaid Mr Y the funds it had already recovered once it decided to write off the overpayment in November 2021.
28. Although, in this case, the fault did not cause Mr Y a significant injustice, Mr X and Mr Y are concerned ongoing delays submitting housing benefit appeals to tribunal may be causing injustice to others. They say the service has not improved, despite our three previous decisions which found the Council at fault and led to Council action to try and address the matter. Although I accept the pandemic may have had an impact in this case, I agree that actions taken following our previous investigations have not led to an improved service. The Council should now take further action to review its services to reduce a recurrence of this fault going forward.

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Agreed action

29. Within three months of the final decision, the Council will review its housing benefit appeal process to minimise delays and ensure that, where appropriate, appeals are passed to the tribunal within a reasonable timescale.

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Final decision

30. I have completed my investigation. I have found fault. This did not cause Mr Y a significant injustice but may be causing injustice to others. The Council has agreed to review its procedures.

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Investigator's decision on behalf of the Ombudsman