Summary: There was fault by the Council when it failed to offer Mr B a late appeal to dispute an overpayment of housing benefit. Later the Council considered this and decided not to allow the appeal. However, it was fault when the Council did not pass the dispute about whether Mr B could appeal, to the Tribunal. The Council has agreed to remedy this.

The complaint

1. Mr B complains that the Council wrongly recovered an overpayment of housing benefit (HB) and did not deal with his appeal request properly.
2. Mr B has ill health, mentally and physically and is in receipt of benefits that reflect his poor health. He says the Council’s dealings have left him frustrated and distressed.

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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. I considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I took account of all comments received before reaching my final decision.

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What I found

The law and guidance

6. If a council pays too much HB 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.
7. If someone disagrees with a decision that they must repay an overpayment they can appeal to the tribunal. The law says people should appeal within one month of the date of the decision they think is wrong. The tribunal can accept a late appeal up to 13 months from the date of the decision.
8. The law sets out how the council should deal with a late appeal request. This says that it there is a dispute about whether an appeal was brought in time, it should be referred to the tribunal to decide. (Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, regulation 19)
9. The Government’s Housing Benefit Manual says that if the Council can accept a late appeal if it considers it is in the interests of justice to do so. If the Council decides it is not in the interests of justice to accept the late appeal, or considers it was not made in time, it must refer it to the first-tier tribunal for a decision. (Housing Benefit and Council Tax Benefit Guidance 2009, 7.82)

What happened

10. Mr B was in receipt of HB. In June 2021, the Council reviewed his benefit entitlement. The Council had information that showed that his partner’s wage had increased in November 2020 and so he had been overpaid HB. The Council wrote to Mr B in June 2021 to notify him that he had been overpaid HB and the Council would recover this. The Council reduced Mr B’s HB to recover the overpayment in instalments. Mr B says he did not receive these letters.
11. In November 2021, the Council reviewed Mr B’s entitlement again. It asked whether he was still receiving child benefit. Mr B told the Council that he was no longer receiving child benefit. This meant the Council had overpaid a second period of HB. It wrote to Mr B on 1 December telling him about the overpayment and that it would be recovered from his ongoing HB. Again, Mr B said he did not receive these letters.
12. In April 2022, the Council reviewed Mr B’s HB again. It asked Mr B for his current information but received no reply. The Council suspended Mr B’s HB and asked for the information again. When it received no response, the Council cancelled Mr B’s claim and benefit payments stopped. At this point Mr B still owed just over £600.
13. Mr B then received a letter saying that he owed this money but with no details of how the debts had accrued. He says he telephoned the Council, but it would not give him details, would not discuss his dispute or allow him to pay by instalments. Mr B says the Council was rude to him during these telephone calls.
14. On 22 December 2022, Mr B complained to the Council that it had not sent him the details of the invoice. Following a telephone conversation, the Council responded on 5 January. It said the overpayment decisions were made on 8 June and 30 November. He was notified by letter and this also had set out his right to ask the Council to review its decision or to appeal within one month of the decision. The Council told Mr B that as such, he was now out of time to appeal against these decisions.
15. Mr B replied that he had not received these letters. He also disputed some of the detail. The Council set out how it had calculated the overpayments and again told Mr B that he was too late to appeal. The Council also told Mr B that it could not consider his complaint as he could have challenged the decisions by appealing.
16. Mr B complained to the Ombudsman.

Was there fault by the Council causing an injustice to Mr B?

17. The Council’s letters to Mr B were correctly addressed. It is unfortunate that Mr B did not receive these, but it is not fault by the Council.
18. However, when Mr B contacted the Council to dispute the debt and when he complained in December 2022, he was still within the 13-month deadline to appeal the Council’s decision. The Council should have invited Mr B to submit a late appeal request. It could then have considered whether it was in the interests of justice to accept the late appeal. If it did not accept the appeal then it should have referred this to the first-tier tribunal to determine.
19. We asked the Council to consider offering a late appeal to Mr B now. It decided not to offer Mr B a late appeal. It said that Mr B needed to submit his appeal within 13 months of the decisions. The Council said it had notified Mr B of its decisions on 9 June 2021 and 1 December 2021, and so Mr B was outside the time limits.
20. The Council explained that in response to our request, it had considered whether there are any special circumstances that mean that it should accept his appeal. The Council has decided that it should not do so because Mr B had two decision letters and also a statement of the amount owed sent on 5 March 2022.
21. However, Mr B asked the Council to review its decision in December 2022, and this was within 13 months of the most recent overpayment decision. And so it was fault when the Council failed to consider whether to offer Mr B a late appeal at that time.
22. The Council considered this later in response to our investigation. It was open to the Council to refuse to allow a late appeal. However, it was further fault when the Council having decided later there were no good grounds to accept a late appeal, failed to pass this to the first-tier tribunal to determine. The tribunal can decide whether to accept the appeal, refer it to the Council to review its decision, or can refuse the appeal as not made on time.

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Agreed action

23. The Council will within one month of the date of this decision:
• Apologise to Mr B; and
• Offer Mr B a later appeal and refer it to the tribunal for its decision;
24. Within three months of the date of the decision, the Council will:
• update its guidance to relevant staff on handling late appeals and the requirement to pass disputed appeals to the tribunal; and
• provide a training update to the relevant staff on this issue.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed my investigation. There was fault by the Council causing an injustice.

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Investigator's decision on behalf of the Ombudsman