Summary: Mr K complains on behalf of Ms R about the Council’s decision to waive an outstanding balance in relation to an overpayment in housing benefit, instead of paying the amount directly to her. Mr K says that at the time the Council decided to waive the overpayment amount due to alleged service failings, Ms R had already paid this in full. While the Council’s decision to waive the overpayment amount in 2020 is a matter we would normally be able to consider, it would require investigation of matters which date back to 2004. It is not the role of the Ombudsman to investigate historical complaints. Given the passage of time, we do not consider we could reach a robust and reliable decision in Ms R’s case. We are therefore discontinuing our investigation in relation to this complaint.

The complaint

1. The complainant, who I refer to as Mr K, is making a complaint on behalf of Ms R. He says the Council decided to write off Ms R’s housing benefit overpayment totalling approximately £750 in September 2020 to acknowledge various administrative failings. However, Mr K says the overpayment should have already been cleared by this time and so there was no overpayment to waive. Further, Mr K complains the Council has failed to provide him and Ms R with key documents which are necessary to understanding whether repayment of the overpayments in housing benefit have been made in full.
2. As a result, Mr K believes that Ms R has not received any recompense relating to the Council’s administrative faults. Therefore, Mr K wants the Council to explain how the overpayment amount was calculated and pay Ms R the amount as a gesture of good will payment.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. If we are satisfied with an organisation’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).
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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).
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended).
7. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended).
8. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended).

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How I considered this complaint

9. I have read Mr K’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation. I invited both Mr K and the Council to comment on a draft of my decision. All comments received were fully considered before a final decision is made is made in this case.

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My findings

Background and legislative framework

10. Housing benefit was introduced in the early 1980s. It helps people on low incomes to pay their rent. It is a means tested benefit, taking into account both capital and income. If a council reviews a claim and decides it has paid too much benefit, this is an overpayment. Some overpayments are always recoverable (although a council has discretion to not recover any overpayment). Councils can recover an overpayment from the claimant or the person to whom it made the overpayment, for example the claimant’s landlord if a council has made a direct payment. The person from whom the authority decides to recover an overpayment can appeal to the First-Tier Tribunal (the Tribunal).

Chronology of events

11. Between January and October 2004, Ms R received overpayments in housing benefit which totalled approximately £1,500. This was in respect of Ms R being paid another person’s housing benefit.
12. Between August and November 2004, Ms R received an overpayment in housing benefit which totalled approximately £2,0220. This was in respect of Ms R being paid housing benefit when she had actually left the Council’s area.
13. As of January 2005, and following some repayments being made, the Council says Ms R was liable to repay approximately £3,050.
14. In June 2020, the Department for Work and Pensions (DWP) sent Ms R a letter confirming the amount she had left to repay in respect of her overpayment. The DWP said the original overpayment was approximately £2,840 and that as of the date of the letter, the outstanding balance stood at approximately £75. The letter by the DWP only provided repayment figures Ms R had made since 2009.
15. In September 2020, the Council told Ms R it would waive the remaining outstanding balance of £750 on account of alleged service failings. Mr R later made a formal complaint advising the amount of £750 should be paid direct to Ms R because she had already cleared this amount since 2004.

My assessment

16. Importantly, my role is not to consider whether the overpayments the Council says Ms R owes are accurate or not. These are matters which are outside of the Ombudsman’s jurisdiction. We cannot investigate a complaint where the complainant could reasonably have appealed to the Tribunal. I have seen no evidence it would not have been unreasonable for Mr R to have appealed the Council’s overpayment decisions when they were applied in 2004. I therefore have no legal authority to investigate this matter as the provision I outline at Paragraph 5 (above) applies.
17. In addition, the passage of time since the application of the overpayments is an important consideration I need to make. The law says we cannot normally accept a complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion (see Paragraph 6). Ms R was made aware of the Council’s overpayment decisions in 2004 and as I understand, she accepted she was not entitled to the money and agreed to make repayments. I recognise Ms R has since been making repayments, but where there is a dispute as to the amount recovered, it is not the role of the Ombudsman to investigate historical complaints.
18. The key part of this complaint relates to an overpayment of approximately £750 in housing benefit. However, that overpayment is part of a larger overpayment of approximately £2,020 paid to Ms R for the period between August and November 2004. The Council says the overpayment occurred as a result of Ms R moving out of its area and yet continuing to claim housing benefit without notifying the authority. As I understand, Ms R agreed to repay the overpayment to the Council. Moreover, the Council has explained that prior to this overpayment, Ms R had another outstanding overpayment on account of being paid someone else’s housing benefit by mistake in 2004. It says that overpayment totalled approximately £1,060 which had been reduced to £1,025 by January 2005. Therefore, the Council told me that as of January 2005, the total overpayments Ms R was liable to repay was approximately £3,050.
19. Over the years, Ms R has made repayments through the DWP with a view to repaying the total overpayment. The Council says Ms R repaid approximately £2,300 by September 2020 which left a remaining £750 balance. There was subsequently a number of alleged service failings by the Council which meant the Council waived the outstanding £750. It is Mr K’s position that Ms R had cleared the entire amount of the total overpayment by September 2020, meaning there was no amount to waive. He therefore wants the Council to pay Ms R £750 to remedy the alleged service failings. In response, the Council states Ms R had categorically not repaid the outstanding £750.
20. I have reviewed documents presented by Mr K and the Council. Mr K has provided a letter from the DWP which sets out that, as of June 2020, Ms R’s outstanding overpayments totalled approximately £75. Mr K says this figure should be taken as accurate, meaning that our jurisdiction relating to time is not applicable. However, this amount is heavily disputed by the Council.
21. The total overpayment recorded by the DWP in its letter to Mr K is lower than that deemed recoverable by the Council. Further, the Council does not accept that it received all payments from the DWP outlined its letter to Mr K and it has given reasons why this may be the case. This is plausible given the overpayments do not refer to being paid to a single authority. It may be the case that Ms R has other debts owing in housing benefit with other authorities. I cannot assess that point without exploring all overpayments applied since 2004 and repayments made since then. There is a direct conflict between the information provided by the DWP to Mr K and that held on Council records. In my view, the Council has provided factual information of the repayments it has received and I see no good reason to give greater weight to Mr K’s comments and evidence without conducting a thorough investigation into this. This would involve making enquiries to the DWP to require it to provide records held about repayments since 2004.
22. While I acknowledge there is likely fault by the Council in terms of the alleged service failings, it is the Council’s position that is had already offered a suitable remedy to address this by waiving the outstanding overpayment. To be clear, the alleged service failings by the Council do not form part of Mr K’s complaint to us. Further, it is highly unlikely we would recommend a payment for procedural failings which is close to what the Council waived in this case. I am therefore unclear what outcome I can achieve for Ms R because it is unlikely I would recommend the Council pay her an amount equivalent to what was waived.
23. In any event, I acknowledge the act the Council took to waive Ms R’s overpayment is in time and so falls within our jurisdiction. However, as said, the appropriateness of that decision rests on matters which date back to 2004. It is not our role to investigate historical concerns. I consider the following:
1. There would be difficulties in establishing the material facts with reasonable confidence and gathering sufficient evidence to reach a sound judgement. As the Council says, information it held on old systems have now been replaced.
2. We cannot apply current standards, guidance, or professional expectations to historical situations. It is therefore likely to be more difficult to reach a firm and fair conclusion on whether there was maladministration in Ms R’s case.
3. It is likely to be more difficult to achieve a meaningful remedy in Ms R’s case, given the length of time that has already passed, the difficulty in establishing causality over longer time periods, and changes in the situation of the parties.
24. Separately, Mr K complains the Council has not provided him with requested documents in order to assess the repayments Ms R made. This is a matter which properly relates to access to information under data protection laws. The Information Commissioner’s Office (ICO) is the body best placed to consider data access and protection concerns. I do not consider there are any good reasons why either Mr K or Ms cannot make a complaint to the ICO. The provision I outline at Paragraph 8 applies.
25. For these reasons, I am exercising my general discretion (see Paragraph 7) and have discontinued my investigation. Given the passage of time, I do not consider I can reach a robust decision with accuracy. We are also not the body best placed to investigate data access and/or protection issues.

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Final decision

26. I have discontinued my investigation. While the Council’s decision to waive the overpayment amount in 2020 is in jurisdiction, it would require investigation of matters which date back to 2004. It is not the role of the Ombudsman to investigate historical concerns. Given the passage of time, I do not consider we could reach a robust and reliable decision in Ms R’s case. Further, it would be reasonable for either Mr K or Ms R to complain to the ICO if they have concerns relating to data access and/or protections matters.

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Investigator's decision on behalf of the Ombudsman