Summary: Mr X complains about delay in processing his Housing Benefit claim. Mr X says the Council failed in its duty to forward the relevant documentation to the Housing Benefit Appeals Tribunal in a suitable timeframe. We have concluded our investigation having made a finding of fault by the Council. There were avoidable delays when considering Mr X’s second appeal, and further delay in submitting Mr X’s appeal to the Tribunal which caused uncertainty and frustration. The Council have agreed to our recommendations.

The complaint

1. Mr X complains about delay in processing his Housing Benefit claim. Mr X says the Council failed in its duty to forward the relevant documentation to the Housing Benefit Appeals Tribunal in a suitable timeframe. Mr X says this has caused him distress and financial hardship and would like the Council to acknowledge its error and provide a suitable remedy.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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. 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)
5. 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)
6. 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

7. I liaised with Mr X and considered the information he provided. I also raised enquiries with the Council and considered the information it provided. Mr X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant guidance and legislation

Housing Benefit

8. Housing benefit helps people on low incomes to pay their rent. It is a means tested benefit, taking both capital and income into account.
9. 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. Claimants can ask the council to ‘reconsider’ the decision. Before doing so they can request a written statement of reasons for the decision. The claimant must ask for a reconsideration and/or appeal within one month of the decision or within two weeks of receiving additional information they requested from the council. If the council receives an appeal request, it must pass the appeal to the Tribunal “as soon as reasonably practicable”. (Rule 24(1A) of The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008)
10. The Ombudsman’s principles of good administrative practice encourage councils to make timely decisions and proactively explain the reasons for any delays. As a benchmark we consider councils should aim to forward appeals within four weeks.

The Council’s housing benefit appeals process

11. The Council has a two-stage process for appeals of its decisions about housing benefit.
12. Stage one is a written appeal to the Council’s benefits team within one month of the decision letter.
13. Stage two is an appeal to either:
• The Social Entitlement Chamber tribunal for housing benefit. The applicant must write to the Council within one month of the reconsideration response, after which the Council will send the appeal to the tribunal.

What happened

14. I have included a summary of some of the key events in this complaint, however, this is not intended to be a comprehensive account of everything that took place.
15. In January 2022, the Council received an online application form for housing benefit and council tax support from Mr X. Later in January 2022, the Council wrote to Mr X to ask for more information. In February 2022, Mr X responded to the Council providing the additional information it requested.
16. In March 2022, the Council issued its decision to Mr X, refusing his application for housing benefit on the basis he did not have a liability to pay rent and does not have an income.
17. In April 2022, Mr X completed a dispute form informing the Council he was awaiting a decision from the DWP regarding his application for Pension Credit. Mr X also informed the Council he was self-employed. In May 2022, the Council wrote to Mr X requesting bank statements, an SE form, and his SA tax return.
18. The Council says it did not hear back from Mr X, and so in June 2022, it sent a further email asking for the information. Mr X provided the information shortly after.
19. Later in June 2022, the Council wrote to Mr X asking for additional information relating to his self-employed earnings. Mr X did not respond to the Council, and so in July 2022, the Council wrote to Mr X, informing him that he does not have an entitlement to housing benefit on the basis he has not provided satisfactory information relating to his income.
20. At the end of July 2022, Mr X called the Council, informing the Council he was unhappy with its decision. The Council says it informed Mr X that he had incorrectly included his part time earnings from employment on the SE form, and that he should complete a dispute form to ask the Council to reconsider his benefit entitlement.
21. Mr X completed a dispute form at the beginning of August 2022 to appeal the Council’s decision. The Council wrote back to Mr X In November 2022 requesting additional information relating to his arrangement with the landlord, accuracy of dates, evidence of deposit and rent paid, and his rent statement.
22. Mr X replied to the Council with the information it had requested. In December 2022, the Council wrote to Mr X, informing him that housing benefit could not be awarded on the basis that his tenancy is not on a commercial basis.
23. In January 2023, Mr X wrote to the Council asking it to refer his appeal to the Tribunal Service. Later in January 2023, the Council wrote to Mr X informing him that his appeal would be passed to its tribunals team, who will prepare the submission for tribunal.
24. Between February and March, Mr X contacted the tribunal directly regarding his appeal. Toward the end of March 2023, the Council submitted Mr X’s appeal to the tribunal.

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Analysis

25. The Housing Benefit and Appeal Regulations 2001 entitle the Council to replace a housing benefit decision, on receiving an appeal. If that decision is in the claimant's favour, even if only slightly, then appeal rights arising from the original decision lapse. So, in this case, it is now the Council’s third decision of December 2022 which carries appeal rights.
26. This investigation focuses on whether the Council should have reviewed its decisions sooner following receipt of Mr X's appeals, or else passed that appeal to the Tribunal Service to determine.
27. It should be noted that there is nothing in the regulations that requires the Council to take either of these actions within a set time. However, all appeals carry the potential of being passed to the Tribunal Service, as that is what will happen if the Council decides not to revise a decision. In which case the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 become relevant.
28. These rules say the Council should forward an appeal “as soon as reasonably practicable”. Further the rules say their “overriding objective” is to enable the Tribunal to deal with cases “fairly and justly” which includes “avoiding delay, so far as compatible with proper consideration of the issues”.
29. There is inherent fault therefore if the Council delays acting on receiving an appeal or review request. Because in doing so, it cannot comply with the Tribunal Procedure Rules and the principles of natural justice those rules uphold. And for many years this office has criticised councils for delays in actioning appeal and review requests. In January 2020 we published a focus report which looked at complaints we receive about housing benefit administration. In that, we said we expected councils to usually process appeal or review requests within four weeks.

Appeal 1

30. In the case of Mr X’s first appeal, a decision was not made by the Council until 20 weeks later. However, as per the chronology above, much of this delay can be attributed to the Council awaiting a response from Mr X, for example between May 2022 and June 2022, and June 2022 and July 2022. Whilst I recognise it originally took the Council 5 weeks to contact Mr X to ask for more information, thus falling outside the expectations set out in our focus report, this does not represent a significant delay as to make a finding of fault by the Council.

Appeal 2

31. In the case of Mr X’s second appeal, a decision was not made by the Council until 21 weeks later. Following Mr X’s appeal to the Council in August 2022, it did not consider his appeal until November 2022, 15 weeks later. The Council says it did not consider Mr X’s appeal due to a backlog in it service. This represents a significant delay in the time taken to consider Mr X’s appeal, and this is fault which led to uncertainty and frustration for Mr X. And where there is uncertainty and frustration, we regard this as a form of distress caused to the complainant. This is Mr X’s injustice.
32. Once the Council considered Mr X’s appeal, it asked for more information. Mr X provided this information approximately four weeks later, and the Council made a decision to refuse his application two weeks later.

Appeal 3

33. In the case of Mr X’s third appeal, Mr X asked the Council at the beginning of January 2023 to refer his case to the Tribunal. The Council reviewed Mr X’s request and concluded it would not be changing its decision two weeks later.
34. The Council sent Mr X’s appeal submission to the tribunal two months later, at the end of March 2023.
35. The Council says where appeals are particularly more complex or information is required, timescales may be exceeded. The Council says this case was more complex due to it being an appeal about the Council’s decision that the tenancy between Mr X and his landlord was that of a non-commercial basis. The Council says there were many documents to review and gather as evidence.
36. The Council says it is a separate officer from that who refuses the appeal to who undertakes a final independent review and prepares the submission for Tribunal. Whilst I acknowledge that the Council’s comments that this case may have been more complex, I do not consider its reason for delay applicable. This is because the officer preparing the submission would have already had at hand and reviewed the evidence relevant to the appeal when it when undertook a review and concluded it would not be changing its decision. Therefore, I cannot see that the Council’s reasons for delay in this instance would apply. This is fault which led to uncertainty for Mr X. And where there is uncertainty, we regard this as a form of distress caused to the complainant. This is Mr X’s injustice.

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Agreed action

37. In coming to a remedy recommendation for Mr X, I have referred to our published guidance on remedies. Where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500. I have considered the severity of the distress, those impacted, the length of time involved and Mr X’s particular circumstances in coming to a decision to arrive at £125.
38. Therefore, to prevent similar occurrences and resolve matters, the Council have agreed to:
1. Apologise to Mr X for the avoidable delay during his second appeal. The Council should also apologise to Mr X for the delay in submission to the tribunal is his third appeal.
2. Pay Mr X an amount of £125 to acknowledge the distress imposed on him as a result of delay in this case.
3. Explain what it will do to ensure appeals are decided or forwarded to tribunal without delay.
39. The Councils should have agreed to complete action a-b within one month of the Ombudsman’s final decision and action point c within two months of the Ombudsman’s final decision.

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Final decision

40. I have concluded my investigation having made a finding of fault by the Council. I found there were avoidable delays when considering Mr X’s second appeal, and further delay in submitting Mr X’s appeal to the Tribunal which caused uncertainty and frustration. The Council have agreed to my recommendations.

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Investigator's decision on behalf of the Ombudsman