Summary: We will not investigate this complaint about the Council’s decision to recover housing benefit overpayments from Mr X. The Council has referred the case to His Majesty’s Courts and Tribunals Service, and this is the appropriate route for Mr X to challenge the decision.

The complaint

1. Mr X complains about the Council's decision to recover a year’s worth of overpayment of his housing benefit that he was not aware of and did not cause. He says he disputed this but the Council sent enforcement agents to his property and has made an attachment of earnings order. Mr X says he has been placed in financial difficulty due to the Council’s mistake and this has caused the family distress. He wants the Council to accept its mistake.

Back to top

The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
3. 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 or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating.

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

Back to top

How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. Mr X says the Council overpaid housing benefit in 2021, which he says he was not aware of at the time. He says it was not due to any fault by him, and its subsequent recovery of the overpayment has placed him in financial difficulty.
7. The Council has referred the decision to His Majesty’s Courts and Tribunals Service (HMCTS). The tribunal can decide whether to consider a late appeal from Mr X, as he has explained he did not use his right to appeal earlier due to his mental health. The Council’s decision about whether the overpayment is recoverable will be considered by the tribunal. We would not generally consider such complaints due to this right of appeal.
8. However, Mr X’s complaint was also about the Council’s decisions on how it would recover the overpayment, which does not carry appeal rights. Mr X says the amount the Council chose to recover directly from his employer was not affordable and it has also sent enforcement agents to his home.
9. There is insufficient evidence of fault by the Council in this respect to warrant investigation. The Council is entitled to decide how it will recover overpayments and has explained why it took different approaches after Mr X did not send payments directly to it as agreed. It considered an income and expenditure form Mr X submitted and calculated payments based on this.
10. After the tribunal has made a decision, if applicable the Council will carry out an affordability assessment to determine the amount it recovers in line with Mr X’s income and expenditure. It is open to Mr X to complain to us after the tribunal has made a decision, if he believes there is fault in any subsequent decision by the Council about how it will recover any remaining debt.

Back to top

Final decision

11. We will not investigate Mr X’s complaint because he has the right to appeal via His Majesty’s Courts and Tribunals Service, and the Council has begun this process.

Back to top

Investigator's decision on behalf of the Ombudsman