Summary: We will not investigate this complaint about the Council’s decision to recover overpaid housing benefit dating back to 2011. This is because the complainant has the right to defend himself in court if the Council takes recovery action and the Council has not had a reasonable opportunity to respond to the complaint to us.

The complaint

1. The complainant, Mr X, complained about the Council’s decision to recover overpaid housing benefit dating back to 2011 without giving him a detailed breakdown and consistent information about the amount due.

Back to top

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. 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)
4. 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)
5. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6

Back to top

How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.
9. Mr X has had the opportunity to comment on my draft decision. I considered any comments received before making my final decision.

Back to top

My assessment

10. Mr X told us the Council sent him requests for a housing benefit overpayment from 11 years ago. He said the Council have not provided a breakdown of the overpayment. Mr X said the Council have threatened to send the case to court. He wants the Council to show why there was an overpayment.
11. The Council issued a letter to Mr X and said in 2011 and 2012 it assessed Mr X’s housing benefit claim. It said the assessment created an overpayment. The Council advised Mr X that at the time of each assessment, it issued an overpayment letter notifying him of the overpayment and how it was calculated. We could not now effectively investigate what happened in 2011 and 2012.
12. If a council pays too much housing benefit to someone it will usually ask them to repay it. The law says an overpayment is recoverable unless it was caused by an official error and it was not reasonable to expect the person to realise they were receiving too much benefit. If someone disagrees with a decision that they must repay an overpayment they can appeal to the first tier tribunal. The law says people should appeal within one month of the date of the decision they think is wrong. The tribunal can accept a late appeal up to 13 months from the date of the decision. Mr X cannot now appeal against decisions he received from the Council in 2011 and 2012. He would have the right of appeal against any recent housing benefit decisions the Council has made.
13. Mr X told us the Council have threatened to send the case to court. This would give him the right to defend the case in court. It is reasonable to expect him to do so if the Council takes action to recover the overpayment.
14. We cannot normally investigate a complaint unless we are satisfied the Council knows about the complaint and has had the opportunity to investigate and reply. It is reasonable to give the Council the opportunity to consider Mr X’s complaint that it has not given him a detailed breakdown to show how the housing benefit overpayment has occurred and consistent information about the amount due.

Back to top

Final decision

15. We will not investigate Mr X’s complaint because he has the right to defend his case in court if the Council takes recovery action, and the Council has not had a reasonable opportunity to respond to his complaint to us.

Back to top

Investigator's decision on behalf of the Ombudsman