Summary: Ms D complained the Council delayed in passing an appeal about a housing benefit overpayment to a tribunal. We upheld the complaint. We found there were potential grounds to delay the appeal. But this was a decision for the tribunal service to take, not the Council. Consequently, the Council’s actions caused Ms D uncertainty. The Council has accepted these findings and at the end of this statement we set out the action it agreed to remedy this injustice.

The complaint

1. I have called the complainant ‘Ms D’. She complained the Council delayed in passing an appeal against a housing benefit overpayment to a tribunal.
2. Ms D said as a result she had not had the opportunity to potentially overturn the Council’s decision. She said the delay added to her stress and anxiety caused by the Council’s actions since May 2020, when it first suspended her housing benefit.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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)
6. 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)
7. The Valuation Tribunal deals with appeals against decisions on council tax liability and council tax support or reduction.
8. 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)

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How I considered this complaint

9. Before issuing this decision statement I considered Ms D’s submissions to this organisation and information provided to us by the Council. This included details of how the Council replied to Ms D’s complaint before she contacted us. I also considered relevant law and guidance referred to in the text below.
10. I gave both Ms D and the Council chance to comment on a draft decision statement where I set out my proposed findings. I took account of any comments made before finalising this statement and completing my investigation.

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What I found

Background and key facts

11. In May 2020 Ms D received housing benefit to help with her rent payments and council tax support which reduced her council tax bills. Both of these are means tested benefits administered by the Council. The Council suspended the benefits while it investigated if Ms D remained entitled to them.
12. In June 2021 the Council decided Ms D was no longer entitled to either benefit. It cancelled earlier awards and decided it had overpaid Ms D both benefits.
13. Two days after the Council told Ms D of its decision, she wrote to it saying she wanted to appeal the housing benefit decision. And just over a week later Ms D wrote directly to the Valuation Tribunal saying she wanted to appeal the council tax support decision.
14. Up to March 2022, the council tax support appeal progressed, although the Valuation Tribunal did not hear the appeal until May 2022. During this time Ms D also learnt she would face a criminal prosecution for the circumstances resulting in the overpayments. But there was no progress with the housing benefit appeal.
15. Ms D complained, saying the Council was at fault as it should have issued a revised decision on her housing benefit claim given how long her appeal had been outstanding. Or it should have passed her case to ‘the Tribunal Service’ (a reference to the Social Entitlement Chamber as above).
16. The Council replied two days later saying the appeal had to await the outcome of the criminal prosecution.
17. Ms D escalated her complaint saying that an appeal did not need to await the outcome of a criminal prosecution. She explained that without a ‘final response’ from the Council she could not ask the Tribunal Service to hear her case. Ms D also wanted to know the Council’s position on her appeal as it had potential relevance to her defence of the criminal prosecution.
18. The Council replied to the complaint in May 2022. It did not change its position, saying again the housing benefit appeal must await the outcome of the criminal case. It also provided commentary on how it had dealt with Ms D’s appeal to the Valuation Tribunal. A few days later it clarified to Ms D it understood these were separate appeals procedures. But it reiterated for a third time the housing benefit appeal would have to await the outcome of the criminal case.
19. In June 2022 the Valuation Tribunal gave its ruling. It did not uphold Ms D’s appeal. However, its decision led the Council, in July 2022, to revise its June 2021 housing benefit decision slightly in Ms D’s favour and reduce the overpayment outstanding, although not significantly. As a result, the Council says the June 2021 housing benefit appeal has now lapsed. But Ms D has new appeal rights arising from the July 2022 decision.
20. In separate comments to this office the Council also provided other reasons for not passing Ms D’s appeal of the June 2021 housing benefit decision to the Tribunal Service. First, it said that it was under no duty to do so as the law places no time limit on how long the Council can take to send an appeal.
21. Second, the Council said it would not have been a good use of resources to forward the housing benefit appeal while the Valuation Tribunal case was outstanding. It considered the two cases covered similar grounds and the evidence bundle in the Valuation Tribunal case ran to over 1000 pages. It said if Ms D appealed the July 2022 housing benefit decision it would cross-reference the Valuation Tribunal papers in its response.

My findings

22. This case highlights what should happen when the Council receives a request for a review or appeal of a housing benefit decision.
23. The Housing Benefit and Appeal Regulations 2001 entitle the Council to replace a housing benefit decision, on receiving an appeal. If that decision is in the claimant's favour, even if only slightly, then appeal rights arising from the original decision lapse. So, in this case, it is now the Council’s second decision of July 2022 which carries appeal rights.
24. This investigation must therefore focus on whether the Council should have reviewed sooner its June 2021 decision following receipt of Ms D's appeal made the same month; or else passed that appeal to the Tribunal Service to determine.
25. The Council is correct to say that there is nothing in the regulations that requires it to take either of these actions within a set time. However, all appeals carry the potential of being passed to the Tribunal Service, as that is what will happen if the Council decides not to revise a decision. In which case the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 become relevant.
26. These rules say the Council should forward an appeal “as soon as reasonably practicable”. Further the rules say their “overriding objective” is to enable the Tribunal to deal with cases “fairly and justly” which includes “avoiding delay, so far as compatible with proper consideration of the issues”.
27. There is inherent fault therefore if the Council delays acting on receiving an appeal or review request. Because in doing so, it cannot comply with the Tribunal Procedure Rules and the principles of natural justice those rules uphold. And for many years this office has criticised councils for delays in actioning appeal and review requests. In January 2020 we published a focus report which looked at complaints we receive about housing benefit administration. In that, we said we expected councils to usually process appeal or review requests within four weeks.
28. In this case the Council took around 13 months to review Ms D’s case after receiving her appeal request, significantly more than this suggested timescale. The Council gave two reasons for not actioning the request more quickly. First, to await the outcome of the criminal prosecution and second for administrative efficiency, as the Valuation Tribunal hearing covered the same issues.
29. I can understand the Council’s thinking. And I find that a housing benefit tribunal can be delayed for either or both reasons. However, it is not the Council’s role to decide this. The Council should still action the appeal request as it would normally. If it considers a delay justified for these reasons, then the Council should ask the Tribunal Service for such a delay (see Housing Benefit and Council Tax Benefit Guidance Part C7 paragraphs 7.260 and 7.270-7.271). The onus therefore remains on the Council to process a review or appeal request without delay.
30. I accept had the Council raised this matter with the Tribunal Service it might have agreed to delay Ms D’s appeal for either of the reasons given. And of course, there is no guarantee that an appeal from Ms D will succeed, something which might be considered less likely in view of the Valuation Tribunal decision. But I cannot say this with any certainty. And where there is uncertainty we regard this as a form of distress caused to the complainant. This is Ms D’s injustice.

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Agreed action

31. The Council has told me it accepts these findings. To remedy the injustice caused to Ms D, it has agreed that within 20 working days of this decision it will:
1. apologise to Ms D accepting the findings of this investigation;
2. pay Ms D £150 in recognition of her injustice; this amount can be set aside to await the outcome of any pending housing benefit appeal (of the July 2022 decision on review) or criminal prosecution. If applicable, it can then be offset against any overpayment deemed to be recoverable by the Council at the end of those proceedings.
32. In sending my draft findings I also asked the Council to consider wider learning from this complaint. It checked whether it had any similar cases where an appeal was outstanding and the case subject to a criminal prosecution. It told me that it would not in future delay passing a case to the Tribunal Service for this reason. In the light of these reassurance, I decided no further action to improve procedures was required in this case. This is also on the understanding the Council will take a similar position when it comes to administering cases where a claimant has made simultaneous appeals to different tribunals.

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Final decision

33. For reasons set out above I have upheld this complaint finding fault by the Council caused injustice to Ms D. The Council has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman