Summary: We will not investigate this complaint about a housing benefit overpayment from 2013. This is because there is insufficient evidence of fault by the Council, it is a late complaint, and because the complainant could have used his appeal rights.

The complaint

1. The complainant, whom I refer to as Mr X, says the Council threatened him with a Direct Earnings Attachment (DEA) regarding a housing benefit overpayment. He says the Council is bullying him into paying money he does not owe.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• it would be reasonable for the person to ask for an organisation review or appeal.

(Local Government Act 1974, section 24A(6))

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. 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

5. I considered information provided by Mr X and the Council. I also considered our Assessment Code and comments Mr X made in reply to a draft of this decision.

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My assessment

6. The standard weekly rate of repayment for a housing benefit overpayment is £11.25. Councils can also recover an overpayment via a DEA. The amount of the deduction is set in the regulations. The maximum that can be taken is 20% of net monthly earnings.
7. In 2013 the Council asked Mr X to repay a housing benefit overpayment. In 2014 and 2018 Mr X asked for a review. The Council was unable to complete the review because Mr X did not respond to requests for information. Since 2019 there has been a payment plan in place for £10 a month and the Council provided information about the overpayment and events since 2013. Mr X was keeping to the plan and in April the balance was £640. Recently Mr X has been paying less than £1. In 2019 the Council told Mr X it may use a DEA if he did not keep to the plan.
8. Mr X says he cannot afford £10 a month and sent the Council a financial statement showing he can only pay 43p. The financial statement shows he pays £60 a month to two other non-priority creditors. Mr X says the Council has threatened him with a DEA which would take 75% of his net pay. The Council said £10 is reasonable based on the financial statement.
9. I will not investigate the overpayment because Mr X could have used his review and appeal rights and because it is a late complaint. Mr X says he knew nothing of the overpayment until 2019 but he queried it in 2014 and asked for reviews in 2014 and 2018. It is reasonable to expect Mr X to have used his appeal rights because that is the correct way to challenge benefit decisions. It is now too late to appeal and there is no mechanism for Mr X to challenge the overpayment in court as he has requested. Mr X was also given a summary of the overpayment history in 2019 but he did not complain to us until 2022. I have not seen any good reason for Mr X to delay making a complaint.
10. I will not investigate the rate of repayment because there is insufficient evidence of fault by the Council. The usual rate of repayment is £11.25 a week but the Council has accepted £2.30 (£10 a month). I have considered Mr X’s financial statement and can see why the Council has decided this is reasonable, not least because he is paying £60 a month to other creditors.
11. The Council is not currently using a DEA but, if it did, it is a method which the law permits it to use. A DEA would not be 75% of Mr X’s wage because that is more than the maximum permitted deduction.
12. Mr X says the Council blocked his emails and will not communicate with him. The Council explained in 2019 that it had not blocked his email and there have been email exchanges this year. The Council has, however, said it will not communicate further about this issue. There has been a lot of communication about this issue since 2013 and the Council is entitled to say it has nothing further to add.

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Final decision

13. We will not investigate this complaint because there is insufficient evidence of fault by the Council, Mr X could have used his appeal rights, and because it is a late complaint.

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Investigator's decision on behalf of the Ombudsman