Summary: Mr Y complains that, after a Tribunal decision, the Council failed to refund him payments the Tribunal had found as irrecoverable. The Ombudsman’s decision is there was fault by the Council. After Mr Y raised the matter, the Council should have conducted a thorough enough investigation that would have led to it resolving the issue. Instead Mr Y needed to complain to the Ombudsman. And we needed to make multiple enquiries before the Council actioned the Tribunal’s decision. The Council has agreed to my recommendations.

The complaint

1. My summary of this complaint is that, after a Tribunal hearing, the Council failed to repay the complainant (whom I shall describe as Mr Y) payments he had made to his housing benefit account.

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What I have and have not investigated

2. I have not investigated the Council’s decisions on what Mr Y had overpaid, or the amount of the overpayments. This is because Mr Y has used a right of appeal about these matters to the Social Entitlement Chamber (also known as the Social Security Appeal Tribunal): a tribunal that considers housing benefit appeals. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I 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. 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)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr Y;
• made enquiries of the Council and considered its responses;
• spoken to Mr Y;
• sent my draft decision to Mr Y and the Council and considered their responses.

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What I found

Legal and administrative background

Housing benefit and overpayments

6. Housing benefit helps people on low incomes to pay their rent. It is a means tested benefit, taking into account both capital and income.
7. 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.
8. If someone disagrees with a decision that they must repay an overpayment they can appeal to the Tribunal.

Effective Complaint Handling for local authorities

9. In October 2020 we issued best practice guidance for local authorities on effective complaint handling. This noted when a person asked the Council to consider a complaint a council’s role was to investigate the issue, taking into account all the available facts and evidence.

What happened

10. Mr Y complains about several housing benefit accounts going back to 2016.

Invoice 1

11. After an appeal, Mr Y ended up with a credit on this account. The Council later transferred this credit to Invoice 2.

Invoice 2

12. Mr Y moved house in 2017. He informed the Council of the move. The Council kept billing Mr Y at his old address, resulting in an overpayment. The Council later recovered this overpayment from the transfer of the credit from Invoice 1.
13. In the spring of 2021 Mr Y contacted the Council about decisions it made on Invoice 2.

Invoice 3

14. In 2017 Mr Y’s partner (whom I shall refer to as Ms Y), became a student. This affected Mr Y’s entitlement to housing benefit. The Council was not initially aware of this chance of circumstances. But in early 2018 it noted the change and billed Mr Y taking into account the change. Its decision was he no longer qualified for housing benefit. The Council calculated Mr Y’s overpayment.
15. Later the Council calculated what it would have paid in housing benefit, if it had been correctly notified of the change in Mr Y’s family’s circumstances. It then offset this figure from the overpayment, so reducing it.
16. In the spring of 2021 Mr Y contacted the Council about decisions it made on Invoice 3. The Council’s response reduced the amount owed. This was because it accepted Mr and Ms Y did tell it about the change some time before it took action. So it decided it could not recover the overpayment for that period.
17. The Council’s new decision reduced the amount owed, but did not eliminate it. The Council’s view was there was still a period (the time before Mr and Ms Y told it about the change) that was still recoverable.

The Tribunal’s decisions

18. Mr Y appealed the Council’s decisions on Invoice 2 and Invoice 3. In May 2022, a Tribunal considered the appeal.

Invoice 2

19. The Tribunal found Mr Y informed the Council of his change of address and circumstances. But the Council continued to issue decision notices to his old address. As its view was Mr Y could not know he was being overpaid, it set aside his overpayment for that period.

Invoice 3

20. The Tribunal considered the Council’s 2021 review of its decision on this invoice. It confirmed the amount that review had found Mr Y as owing as correct.

Mr Y’s complaints

21. In June Mr Y contacted the Council, as it had not implemented the Tribunal’s decision. He noted:
• the Tribunal had upheld his appeal against Invoice 2, but he had not heard from the Council;
• the Council had reviewed the amount owed on Invoice 3. And the amount remaining was less than he had paid on that account. So it owed him for that account as well.
22. The Council’s complaint response was delayed until August, for which it apologised. It said it had reviewed Mr Y’s claims and decided its calculations were correct. Later the Council advised Mr Y it did “not have evidence” to support his assertion a Tribunal had upheld his appeal. Mr Y responded the same day, enclosing a document from the Tribunal.
23. Mr Y did not hear anything further, so he complained again at the beginning of September. The Council did not provide its full response until the end of October, again apologising for a delay. This letter said an officer had looked at Mr Y’s accounts and agreed with his calculation for one of the issues he raised. So it owed him a payment.
24. Mr Y complained to the Ombudsman. After we notified the Council, at the beginning of December, it provided us and Mr Y a further breakdown of his accounts. It advised the only outstanding balance was just under £300 on Invoice 3. And that there were “no unallocated amounts of changes due that would offset the balance of this invoice”.
25. I made enquiries. The Council’s response advised it had carried out a “full review of the claim”. Its conclusion was its October (paragraph 23) advice was wrong, but its early December advice (paragraph 24) was correct.
26. I made further enquiries, as Mr Y maintained the Council had not dealt with some matters, including the Tribunal’s decision on Invoice 2. In response to my letter, the Council advised:

“As a result of the decision for Tribunal …[Mr Y]’s claim has been further amended to change the status of part of the Housing Benefit overpayment set against … [Invoice 2] to non-recoverable. As the balance on Invoice [2] had already been cleared by previous adjustments, this resulted in a credit balance … on that invoice. The credit has been transferred to the outstanding balance of £297.43 on Invoice [3]”.

27. The Council advised it had made the small remaining balance unrecoverable.
28. The Council’s response to my further enquires was substantially delayed.

Was there fault by the Council?

29. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision.
30. I have considered the steps the Council took to respond to the Tribunal’s decision. From the Council’s responses, it would seem it was not aware of the Tribunal’s decision on Invoice 2 before Mr Y contacted it in June 2022. But after this contact, the Council delayed implementing the Tribunal’s decision. This was despite Mr Y sending it information from the Tribunal. The Council also said it had carried out reviews of the situation, but still did not notice its omission.
31. The Council did not resolve this in response to my enquires . It was only in response to further enquires, asking it to clarify some issues I was unable to resolve, that it noted its error in implementing the Tribunal’s decision.
32. So, my decision is their was fault in the Council’s response to Mr Y’s complaints and the Ombudsman’s enquiries. The responses failed to seek to test the information Mr Y gave it.
33. The Council delayed responding to both of Mr Y’s complaints. It also took an unacceptably long time to respond to my further enquires.

Did the fault cause an injustice?

34. There is inevitably time and trouble involved in bringing a complaint to the Council and Ombudsman. Our view is this generally only requires a remedy when there has been a fault in the way an organisation considered the complaint. This means injustice of time and trouble above what is considered usual.
35. My view is that applies here. If the Council had acted without fault, it could have resolved the complaint without involving us. It would have saved Mr Y both time and trouble and some stress and frustration.

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Agreed action

36. The Council has written off the small balance that was owing on Mr Y’s account. The Council has also agreed to, within a month of my final decision, also:
• apologise to Mr Y for the fault in the handling of the issues he raised;
• make Mr Y a symbolic payment of £150 for his stress and frustration in not having the Council investigate fully the issues he raised and the delays in providing a response;
• make an additional symbolic payment of £100 for Mr Y’s avoidable time and trouble in having to complain to us.
37. The Council has also agreed that its relevant team will conduct a review of lessons it can learnt from the way it handled the issued and report back to us.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I uphold this complaint. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman