Summary: Miss X complains the Council failed to consider her housing benefit appeal, which prevented her from appealing to the tribunal. The Ombudsman finds fault with the Council for failing to consider Miss X’s request for appeal, which delayed her right to appeal to tribunal. The Ombudsman also finds fault with the Council for how it communicated with Miss X and for failing to provide a stage two complaint response. The Council has agreed to carry out the appeal and pass to the tribunal without delay if Miss X remains unhappy. The Council has also agreed to make a financial payment and service improvements.

The complaint

1. Miss X complains the Council failed to acknowledge or accept her appeal about Housing Benefit. This meant she was prevented from exercising her right to appeal to tribunal about the decision.
2. Miss X complains this has meant she was not granted the housing benefit amount she was entitled to.
3. Miss X also complains about the handling of her complaint and the delay in issuing a stage two response.

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The Ombudsman’s role and powers

4. 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)
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. 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

8. I considered Miss X’s complaint and information she provided. I also considered information from the Council.
9. I considered comments from Miss X and the Council on a draft of my decision.

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What I found

Legislation and guidance

Housing Benefit

10. Housing Benefit helps people on low incomes to pay their rent. It is a means tested benefit, taking both capital and income into account. Claimants are responsible for ensuring they update the council with any changes in their circumstances. Failure to do so can affect the Housing Benefit paid.
11. The council must make a decision about Housing Benefit in writing. The decision notice must also advise claimants of their rights to ask for more information and to appeal. If a claimant disagrees with a decision they can ask the council to reconsider it. The council must then review the decision again. (Housing Benefit Regulations 2006)
12. If a claimant remains unhappy after a review they can ask the council to pass their appeal to the Social Entitlement Chamber of the First-Tier Tribunal (the Tribunal). Claimants must send their appeal to the council within one month and the council will refer the appeal to the Tribunal. The council can consider appeals up to 13 months from the date of its original decision. (The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008)
13. Where the council receives an appeal they can reconsider the decision before passing it to the Tribunal. If the decision remains unchanged they must pass the matter to the Tribunal “as soon as reasonably practicable”. (Rule 24(1A) of The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008)

What happened

14. Miss X is in receipt of housing benefit from the Council. She is also self-employed and must submit her earnings and childcare costs to the Council in order for it to calculate her entitlement.
15. Miss X supplied the Council with information about her self-employment earnings and her childcare costs. This was to ensure she was being paid the correct amount of housing benefit.
16. The Council responded to Miss X with its calculation for her housing benefit entitlement based on the figures provided by her.
17. Miss X wrote to the Council in June 2022 asking to appeal the housing benefit decision. She did not get a response to her request for appeal.
18. Miss X also complained to the Council in June 2022. She complained the Council had not properly considered the amounts she submitted for her self-employment and childcare costs.
19. The Council responded to the complaint in June 2022. It said that self-employment was complicated and that there had initially been an error which resulted in an underpayment, but this had been corrected and Miss X would be paid.
20. Miss X requested the Council escalate her complaint to stage 2 as she felt the stage one response did not consider the childcare costs. The Council did not respond to Miss X’s request for a stage 2 or her request to appeal the Housing Benefit decision.
21. She chased the request for an appeal in October 2022 and still got no response.
22. Miss X remained unhappy with the Councils actions and bought her complaint to the Ombudsman.

Analysis

23. If Miss X is unhappy with the decision about her housing benefit, she can ask the Council to pass her appeal about her claim to the Tribunal. As the Tribunal will consider Mrs X’s Housing Benefit claim we have not investigated whether Mrs X is entitled to Housing Benefit or the amount she may be entitled to. We have investigated the Council’s handling of Mrs X’s request for an appeal.
24. Mrs X asked to appeal the decision about her housing benefit in June 2022. The Council did not acknowledge or accept the request for appeal. In the Councils response to my enquiries, it said this was because the request for appeal came in May 2023 and was mistakenly logged as a complaint appeal.
25. I have reviewed the documents from Miss X which clearly show she logged the appeal of the housing benefit with the Council in June 2022. Miss X also provided evidence that she continued to chase the Council about this in October 2022.
26. The Council has said there is nothing to appeal as it has used the correct amounts. It is Miss X’s right to appeal the decision, and to go to tribunal if the Council does not uphold the appeal.
27. If the Councils decision was to not uphold the appeal, it should have told Miss X about this to give her the right to appeal at tribunal. However, the Council has not considered the appeal and has delayed doing so by over a year.
28. The Council also acknowledged it mixed up some of the dates in the complaint response but maintained that the calculations were correct. The Councils refusal to consider the appeal and fail to inform Miss X of this decision in writing is fault, causing Miss X injustice and preventing her right to appeal to tribunal. If Miss X remains unhappy with the appeal, she can ask the Council to pass the appeal to the tribunal.
29. The Tribunal rules say the Council should make a referral “as soon as reasonably practicable” once a council’s decision is no longer subject to change. Our view is this should usually take no longer than four weeks. The Council says it has not passed the appeal on because it has not carried out the appeal.
30. Additionally, the Tribunal rules say its “overriding objective” is to deal with cases fairly and justly, including avoiding delays. The rules require the Council to help the Tribunal achieve this objective. Mrs X’s appeal started when she sent her appeal to the Council. The Council has failed to comply with its duty to help the Tribunal achieve its overriding objective.
31. The Council has also failed to follow its complaints procedure and issue Miss X with a stage two response. This is further fault by the Council causing additional injustice to Miss X.

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Agreed action

32. While the outcome of Mrs X’s appeal cannot be known, the fault identified has caused a delay in the Mrs X’s right of appeal. The Council has agreed to:

• apologise to Mrs X, carry out the appeal and pass her appeal to the Tribunal if she remains unhappy.
• pay Mrs X £350 for her time and trouble in pursuing her appeal for such a length of time.

33. Within three months the Council has also agreed to:

• review its procedures to ensure it complies with the Tribunal rules; and
• review its procedures to ensure it processes all appeals in a timely manner.

34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have now completed my investigation. I find fault with the Council for unreasonably delaying Miss X’s appeal and failing to provide a stage two response.

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Investigator's decision on behalf of the Ombudsman