Summary: We will not investigate this complaint about housing benefit overpayments and the Council’s decision not to award compensation. This is because the complainant appealed to the tribunal and could have appealed about another overpayment. In addition, part of the complaint is late.

The complaint

1. The complainant, whom I refer to as Ms X, complains the Council wrongly ended her housing benefit and, as a result, she lost her home. She won her appeal but the Council will not award compensation. Ms X also complains the Council asked her to repay a second overpayment and will not let her appeal.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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)
5. 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)
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)

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How I considered this complaint

7. I considered information provided by Ms X and the Council. This includes the tribunal decision and the complaint correspondence. I considered our Assessment Code and comments Ms X made in reply to a draft of this decision.

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My assessment

8. In July 2016 the Council asked Ms X to repay a housing benefit overpayment. The decision letter would have explained her appeal rights. Ms X repaid some of the overpayment through deductions from her housing benefit. The overpayment period was from 2013 to 2015. Ms X’s housing benefit ended in November 2018 because she had started work and her income was too high to qualify. Ms X still owed £5884 for the overpayment.
9. In July 2019 the Council asked Ms X to repay another overpayment of £9827 for the period April 2017 to July 2019. Ms X appealed to the tribunal. In January 2022 the tribunal decided Ms X did not have to pay back the £9827 because the overpayment had been caused by Council error.
10. In the meantime Ms X had been evicted for rent arrears. Ms X says this was due to the Council wrongly stopping her housing benefit. She also says she was evicted due to the Council’s error regarding the overpayment. Ms X asked the Council to backdate the housing benefit and pay compensation. The Council said it could not backdate the award because her claim ended in November 2018. The Council declined to pay compensation.
11. The Council sent Ms X an invoice for the outstanding £5884 for the first overpayment. The Council told Ms X it was too late to appeal although the end of a decision letter from February 2022, that refers to both the overpayments, does refer to appeal rights.
12. Ms X wants compensation and for the Council to backdate housing benefit to 2019.
13. I cannot investigate the overpayment that was considered by the tribunal because the law says we cannot investigate any matter that has been appealed to the tribunal. Although Ms X won her appeal, the tribunal process does not provide for compensation in the event of a successful appeal. And, while Ms X did nothing wrong, she has benefited from £9827 that she was not entitled to and the Council decided she did not have to pay council tax of £1989.
14. Ms X appealed to the tribunal about the 2019 overpayment decision. She did not appeal about the decision to end the claim. If Ms X disagreed that her income was too high then she could have appealed to the tribunal about the decision to end the claim. Ms X has not been entitled to housing benefit since 2018 so there is no claim for the Council to backdate. The tribunal decision only deals with the overpayment and not with the decision to end the claim. It is unfortunate Ms X was evicted but that was not linked to the overpayment decision and she did not challenge the decision to end the claim. The official error related to the overpayment decision not to the decision to end the claim.
15. I will not investigate the Council’s request for the remaining £5884. Ms X has been aware of this overpayment since 2016 so it is a late complaint. In addition, if Ms X disagreed with the 2016 overpayment decision she could have appealed to the tribunal. It is reasonable to expect her to appeal because the tribunal is the appropriate body to determine housing benefit appeals. Ms X says she was unaware of the overpayment in 2016 and would have appealed if she had known. But, the decision letter would have explained her appeal rights and, if she was unsure, she could have queried why money was being deducted from her housing benefit. A recent letter does refer to the £5884 having been billed to her and notifies Ms X of appeal rights. In response the Council explained it relates to a historic overpayment and, as I have said, we will not pursue this because Ms X could have taken action in 2016.

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Final decision

16. We will not investigate this complaint because there were appeal rights that Ms X has either used or could have used and because part of the complaint is late.

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Investigator's decision on behalf of the Ombudsman