Summary: Mr X complains about an overpayment of Housing Benefit from 2010 that the Council is now seeking to recover. We have concluded our investigation having not made a finding of fault. The Council were not at fault to pursue Mr X for the overpayment and correctly served the notification to Mr X which contained his right of appeal.

The complaint

1. Mr X complains about an overpayment of Housing Benefit from 2010 that the Council is now seeking to recover. Mr X says the Housing Benefit payments were not paid directly to him, and the Council should pursue the recipient of the overpayment. Mr X says he informed the appropriate party at the time about his change in circumstances and so the Council should have been aware. Mr X would like the Council to end recovery of any Housing Benefit overpayment it seeks from him.

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What I have and have not investigated

2. I have not investigated any complaint about the recovery of Council Tax Benefit. I have provided further information in paragraphs 46 and 47. I have investigated all other aspects of the complaint.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. We 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. I considered the information Mr X provided. I also raised enquiries with the Council and considered the information it provided in response. I invited Mr X and the Council to comment on my draft decision and I considered all comments that were made.

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What I found

Benefit overpayments

10. If a Council reviews a claim and decides it has paid too much benefit, this is an overpayment.
11. 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.
12. Housing Benefit regulations state the minimum information that should be included in a decision notice about overpayments, including the right to apply for a revision of the decision or appeal against it and the manner and time to do so.
13. A person who has received an overpayment decision notice has a right of appeal to a First Tier Tribunal (FtT) against some relevant decisions (whether as originally made or as revised or superseded) that the Council makes on a claim, or on an award of Housing Benefit.
14. The Department for Work and Pensions publishes a Housing Benefit overpayments guide. Paragraphs 4.240-4.243 says it is good practice to not start recovery until the end of the one-month appeal period. Recovery action should also be suspended if a claimant appeals.
15. The Government published a good practice guide titled, “Pursuing Housing Benefit overpayment recovery effectively”, in 2015.

Housing Benefit Matching Service (HBMS)

16. The Housing Benefit Matching Service is a mechanism used to cross reference all Department for Work and Pensions' (DWPs) benefits systems by data matching details against local authority systems with the purpose to support local authorities in identifying fraud and error.

Passported benefits

17. Passported benefits are benefits or schemes which some groups of people are entitled to because of their entitlement to certain other benefits or tax credits.

Discretion to investigate

18. Events in this complaint begin in August 2010 when Income Support ended for Mr X. In March 2011, the Council sent Mr X notice of an overpayment and so this is the point Mr X should have been aware and had reason to complaint. As per paragraph 7, we cannot investigate late complaints unless we decide there are good reasons.
19. We have exercised our discretion to investigate this complaint as Mr X is unlikely to have been aware at the time. Mr X says he was not occupying the property and therefore did not receive the correspondence at the time from the Council. The Council located Mr X in February 2022 and again sent him notice of the overpayment.

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What happened

20. Mr X lived in rented accommodation at Property A, renting the property from Mr Z. Whilst in Property A, Mr X was in receipt of Housing Benefit and Council Tax Benefit. The Housing Benefit was paid directly to Mr Z.
21. It is not clear when Mr X moved out of Property A. When Mr X complained to the Council, he says he vacated Property A sometime in 2010.
22. At the beginning of October 2010, through the HBMS, the Council received notice which indicated a change of address for Mr X.
23. Toward the end of October 2010, the Council sent a letter to Mr X at Property A to provide proof of residency. The Council did not receive a response.
24. In December 2010, through the HBMS, the Council received notice which indicated the end of the passported benefit. Later in December 2020, the Council checked DWP’s system which confirmed Income Support for Mr X had ended in August 2010 and so it wrote to Mr X at Property A to provide further information.
25. In January 2011, Mr X returned a completed ‘Change in Circumstances’ form to the Council indicating no change in circumstances to his living arrangements and employment status.
26. The Council wrote back to Mr X asking for further information about how he was supporting himself and asked Mr X to respond by February 2011. The Council did not receive a response and so it terminated his claim, effective from August 2010, when his Income Support had ended.
27. In March 2011, the Council wrote to Mr X at Property A to inform him of the overpayment calculation. The Council concluded that as Mr X had not been receiving Income Support or Job Seekers Allowance since August 2010, it was seeking to recover the overpayment of Housing Benefit and Council Tax Support.
28. The overpayment of Housing Benefit was for approximately £3,200 for the period covering August 2010 to December 2010, and approximately £850 of Council Tax Benefit for the period covering August 2010 to March 2010. In this letter, the Council gave Mr X his right of appeal. The Council did not receive a response to the letter it sent Mr X.
29. The Council again wrote to Mr X in April 2011, October 2011, and April 2012 but did not receive a response. Thereafter followed a period where the Council did not make any further attempt to write to Mr X until 2022. In February 2022 and again in June 2022, it sent Mr X a Housing Benefit overpayment invoice and final notice for the approximate amount of £3,200.
30. Mr X complained to the Council in September 2022. The Council concluded that Mr X was liable for the overpayment of Housing Benefit and it should not seek to recover the funds from Mr Z as the responsibility was with Mr X to inform the Council about a change in his circumstances.

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Analysis

31. It should be noted that a considerable amount of time has passed since events in 2010 and 2011. This has understandably impacted the availability of evidence and the ability for those involved in this complaint to recall events and dates confidently and soundly.

Should the Council have suspended the Housing Benefit payment sooner?

32. Mr X disputes the overpayment on the basis that the Council should have been informed about any change in his circumstances, and should have therefore suspended the Housing Benefit payments it was making to Mr Z.
33. Mr Z says he informed the Job Centre, who should have informed the Council about a change in his circumstances. I have not been able to confirm whether Mr X did inform the Job Centre, and whether the Job Centre subsequently informed the Council, but in any event, due to the passage of time that has passed, I would not expect the Job Centre to soundly recall such events. The Council says it did not receive any notification from the Job Centre about a change in Mr X’s circumstances.
34. However, I note that Mr X had a duty to inform the Housing Benefit department himself, and this is something he acknowledged in a signed declaration provided to the Council in his original claim. There is no evidence to show Mr X did inform the Council himself, and I therefore conclude that the Council were not at fault for continuing to make the Housing Benefit payments to Mr Z, as it was Mr Z’s responsibility to inform the Council himself.
35. Further, The Council made several attempts to contact Mr X to confirm any change in his circumstances between October and December 2010 but did not receive a response from Mr X. Mr X says he did not respond to any correspondence from the Council because he was not occupying the property and therefore did not receive it, but from the evidence available to me, Mr X was occupying the property at least up to January 2011.

Were the Council at fault to pursue Mr X for the overpayment?

36. Mr X says that as he was not the beneficiary of the overpayment, the Council should pursue his landlord, Mr Z, with whom the funds were paid directly to. Mr X says his landlord would have been aware of a change in his circumstances, as he was no longer occupying the property when the Housing Benefit payment was paid to him.
37. Mr X said he vacated Property A sometime in 2010, but Mr X provided the Council with a completed ‘Change of Circumstances’ form in January 2011, confirming that he was still occupying Property A, and that there was no change in his employment status. The period the Council is seeking to recover the overpayment is for the period from August 2010 to December 2010, and so it unlikely that Mr Z would have been aware of any changes in Mr X’s circumstances.
38. Further, the law says the Council can recover overpayment from Mr X, unless the overpayment was caused by an official error. I have not found any evidence of an error by the Council and so I have not made a finding of fault by the Council in its decision to pursue Mr X for the overpayment.
39. The Council says that Mr Z would not have been aware of Mr X’s circumstances, because the overpayment was triggered by a change in Mr X’s income, not by him vacating the property, and I have not found any evidence to challenge this statement.

Did the Council serve the overpayment notification correctly?

40. I have seen a copy of the overpayment notification the Council sent to Mr X in March 2011. It contained the required information and outlined Mr X’s right of appeal.
41. I have not been able to confirm when Mr X vacated Property A, and although Mr X says he vacated the property in 2010, the evidence available to me demonstrates he was still occupying the property at least to January 2011. On balance, it is likely that Mr X had vacated the property and therefore did not receive the original overpayment notification it sent in March 2011.
42. Although it is unlikely Mr X received the original overpayment notification, I found that it was correctly served to Mr X at the time. The Council wrote to Mr X at his last known address and provided him with his right of appeal, and we cannot criticise a Council where it has acted properly.
43. Should Mr X wish to do so, he can appeal the decision from March 2011 by submitting an out of jurisdiction appeal to the Tribunal to make a final decision on the matter.

Is there fault by the Council in the time taken to recover the overpayment?

44. The Council accepts that there was significant delay between the final contact it attempted to make with Mr X in April 2012, and the contact it made with Mr X in February 2022; almost ten years.
45. The Council says there can be several factors that impact upon the length of recovery, and in these circumstances, it was unable to locate Mr X. There is no time limit on recovery action and so this is not fault by the Council. However, I note that the timescale outlined in the Housing Benefit overpayment recovery good practice guide published by the Government indicates that recovery action should be taken after 52 days. Although not fault, the ten-year delay by the Council between 2012 and 2022 does not constitute good practice and the length of delay has impacted on the availability of evidence.

Council Tax Benefit

46. When I raised enquiries with the Council, I asked it to confirm the overpayment it was seeking to recover from Mr X. The Council provided a breakdown for approximately £3,250 of Housing Benefit overpayment and approximately £850 of Council Tax Benefit. Mr X has not received notice of any overpaid Council tax Benefit that the Council is seeking to recover.
47. After the Council wrote to Mr X in 2022, it sent him only an invoice for a Housing Benefit overpayment and so any complaint already considered by the Council is limited to only that of the Housing Benefit overpayment. Should the Council seek to recover any overpayment of Council Tax Benefit, Mr X can complain to the Council. If Mr X is unhappy with the Council’s response, he can bring his complaint to the Ombudsman.

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Final decision

48. I have concluded my investigation having not made a finding of fault. The Council were not at fault to pursue Mr X for the overpayment and correctly served the notification to Mr X which contained his right of appeal.

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Investigator's decision on behalf of the Ombudsman