Summary: Mr B complained on behalf of Mr C that the Council had refused to forward his housing benefit appeal to the Tribunal service. We found the Council at fault, but we do not consider this caused Mr C an injustice.

The complaint

1. Mr B complained on behalf of Mr C, that the City of Bradford Metropolitan District Council (the Council) wrongly refused to forward his appeal to the Tribunal service. This left him with no way of challenging the Council’s refusal to pay him housing benefit.

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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. 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)
4. 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

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Housing Benefit

6. Universal Credit replaced housing benefit for most claimants with housing costs. However, a tenant who lives in supported accommodation can still claim housing benefit if they live in ‘exempt accommodation’.
7. When a tenant in supported accommodation applies for housing benefit the Council has to decide in accordance with the law and guidance, whether the accommodation is exempt accommodation. The applicant will then have the right to appeal to the tribunal against that decision.
8. If the Council does not consider it has enough information to make the decision it can ask the applicant to provide more information within a reasonable period of time. If the applicant does not provide the information the Council can make a decision (under regulation 86) that the applicant has not provided sufficient information to determine the claim. There is no right of appeal against this decision.

What happened

9. Mr C lives in supported accommodation for vulnerable adults
10. Mr B (who works for Mr C’s landlord) submitted a claim for housing benefit for Mr C in March 2021 on the basis he lived in supported accommodation. Mr B provided with the application form, a copy of Mr C’s tenancy agreement, a copy of the referral form to the landlord, Mr C’s support needs assessment and a breakdown of the rent.
11. The Council sent Mr C a letter on 17 March 2021 saying:

“You are not entitled to Housing benefit as your circumstances mean that you should be receiving Housing Costs directly from the Department for Work and Pensions as part of your entitlement to Universal Credit.

It is up to Bradford Council’s Housing benefit department to determine which claims may be regarded as supported accommodation in accordance with the relevant legislation and it has not been agreed that this is supported accommodation.

Should your landlord consider that this tenancy meets the requirement to be regarded as eligible for Housing Benefit under specified accommodation rules then they should contact our office directly so that we may consider whether the scheme meets the required criteria. As there is no alternative pathway for you to claim Housing benefit I advise you to contact UC for help with your housing costs.”

12. Mr C submitted an appeal against the Council’s ‘decision’ not to accept that Mr C lives in exempt accommodation entitling him to the full rate of housing benefit.
13. The Council refused to treat the letter as an appeal because the Council had not previously made a decision as to whether Mr C’s accommodation was exempt accommodation. It had a lead case with the Tribunal on the question of exempt accommodation with Mr C’s landlord, but neither the lead case nor the linked appeals concerned Mr C’s accommodation and so the Council was not prepared to add the appeal to that case. By way of explanation the Council said:

“…there isn’t a decision to appeal and the letter dated 17/03/21 encourages [Mr C’s landlord] to contact the Benefits Service should they believe it should be treated as ‘exempt accommodation’. While I realise there are outstanding issues at other properties that does not mean we bypass the legal process for new/other properties…So please contact the Benefits service if you believe [property X] should be exempt accommodation and when a decision is made you will be given appeal rights as required by legislation.”

14. Mr B complained about the Council’s refusal to pass the appeal to the Tribunal service. The Council did not uphold the complaint. It said Mr B had failed to respond to a reasonable request for information and as such no decision had been made, so there was no right of appeal. If the landlord provided the requested information the Council would be able to review the information and provide a further response.
15. On 26 April 2021 the landlord asked the Council what information it required to consider whether Mr C’s accommodation was exempt accommodation. The Council replied the next day and the landlord provided some information shortly afterwards. The Council responded explaining that the information was insufficient and setting out what was required. The landlord provided further information on 5 August 2021 and on 17 August 2021 the Council requested clarification and further documents.
16. Mr B complained to us.
17. The Council and the landlord continued exchanging correspondence until February 2022 when the Council issued a decision on Mr C’s claim (received on 11 March 2021). The decision has a right of appeal to the Tribunal.
18. In response to my enquiries the Council said:
• previously when this landlord refused to engage with the Council in providing evidence regarding supported accommodation, it had forwarded the matter to the Tribunal to confirm that no appeal rights lay against the decision made under regulation 86 of the housing benefit regulations (that sufficient evidence and information had not been provided to make a decision).
• its letter of 17 March 2021 clearly invited the landlord to contact the Council if it believes the accommodation to be exempt accommodation.
• It decided to try and engage with the landlord rather than issue decisions under regulation 86 which would not have carried a right of appeal.

Analysis

19. The Council had a duty to decide Mr C’s application for housing benefit. In order to do this, it had to decide whether or not Mr C’s accommodation was exempt accommodation in accordance with the steps set out in the housing benefit guidance. If it did not have enough information to reach a decision it could have requested further information from Mr C.
20. I consider the Council’s letter of 17 March 2021 tried to follow both those options at the same time because it said:
1. Mr C was not entitled to housing benefit because the Council had not decided that he lived in exempt accommodation; and
2. The Council needed more information to determine whether Mr C’s accommodation was exempt.
21. While I understand the Council’s intention was to ask for more information, the wording does not reflect this intention: by saying Mr C is not entitled to housing benefit, the Council appears to be raising an appealable decision. The letter does not say it is making this decision under regulation 86 of the housing benefit regulations, nor what information Mr C needs to provide to enable the Council to make a decision.
22. Even if the Council considered the decision was not appealable based on the history of claims concerning the landlord, it should have forwarded the appeal to the Tribunal to decide. The failure to do so was fault. If the Council considered it did not have enough information to reach a decision, it should, instead, have asked Mr C to provide more information from his landlord within a given timescale. It cannot do both things at the same time.
23. There is not a separate process or requirement for landlords to apply for accommodation to be approved as exempt. It is not a requirement of the regulations and it denied Mr C the opportunity to appeal against a decision that he was not entitled to housing benefit.
24. However, I note the landlord engaged in the process of providing information regarding supported accommodation, shortly afterwards, in April 2021 and this process continued until February 2022 when the Council was able to make full decision with appeal rights to the Tribunal. I accept the Council’s view that it was not possible to reach this decision in March because the landlord had not provided sufficient information.
25. So, while I have concluded the Council was at fault in the way it communicated with Mr C in March 2021, I do not consider this caused him an injustice. Mr C now has a decision with full appeal rights to pursue with the Tribunal if he wishes. If an appeal is successful any entitlement will run from the date of claim (11 March 2021) and Mr C will not lose out financially.
26. I believe that Mr C is still living in the accommodation and has not been evicted due to rent arrears, so I do not consider he has been caused an injustice by the length of time this process has taken.

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Final decision

27. I have completed my investigation into this complaint as I do not consider fault by the Council caused Mr C an injustice.

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Investigator's decision on behalf of the Ombudsman