Summary: We will not investigate this complaint about recovery action taken by the Council to recover benefit overpayments. This is because it is a late complaint, there were appeal rights the complainant could have used and because there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, whom I refer to as Mr X, complains about the way the Council has treated him over a prolonged period of time. He says the Council has no regard for the impact its actions cause and has used a Direct Earnings Attachment (DEA) to cause maximum distress.

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The Ombudsman’s role and powers

2. 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 an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)

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How I considered this complaint

5. I considered information provided by Mr X and the Council. I also considered our Assessment Code and comments Mr X made in reply to a draft of this decision.

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My assessment

6. In 2012 the Council asked Mr X to repay a housing benefit overpayment and a council tax benefit overpayment. The Council did a fraud investigation and decided there was enough evidence to prosecute. However, it offered an administrative penalty as an alternative to prosecution. Mr X accepted the penalty which meant he owed £2902.
7. Mr X repaid some of the money through deductions from his housing benefit. The deductions stopped in September 2012 because the benefit ended. Since 2012 the Council has made on-going attempts to recover the outstanding overpayments. The steps taken by the Council include using bailiffs and trying to get deductions from Mr X’s benefits and wages. The Council traced Mr X to new addresses and issued more reminders.
8. The current position is that the Council is using a DEA and the employer made the first deduction in May.
9. Mr X disputes the recoverability of the overpayment and says he was not treated properly in 2012 during the interview under caution. He says the Council ignored a disability which made it hard for him to understand what was happening. Mr X says the Council sent bailiffs in error and did not tell him about the DEA. He disputes he committed fraud and says he just made an error. Mr X says the DEA will cause financial hardship. The Council declined his request to cancel the DEA because the other attempted recovery methods all failed.
10. I will not investigate whether the overpayment is recoverable because Mr X could have used his appeal rights in 2012. It is reasonable to expect Mr X to have appealed because the tribunal is the appropriate body to consider overpayment appeals.
11. I also will not start an investigation because this is a late complaint. The Council decided in 2012 that Mr X must repay the overpayment but Mr X did not complain to us until 2023. For the same reason I will not investigate any complaint about what happen during the interview under caution in 2012 or whether the Council took Mr X’s disability into account. I acknowledge Mr X’s disability but the events he complains of arose more than 10 years ago which is much longer than 12 months. In addition, there were chances for Mr X to complain when the Council tried recovery action in 2013, 2014, 2015, 2016, 2018, 2020 and 2021.
12. Finally, I will not investigate this complaint because there is insufficient evidence of fault by the Council. The law allows councils to recover overpayments and it can do so by using a range of methods including a DEA. The Council has made on-going attempts to recover the debt since 2012 and decided not to withdraw the current DEA because the debt has been outstanding for so long and all other recovery attempts failed. I appreciate Mr X says the DEA will cause financial hardship but there is nothing to suggest fault in the Council’s actions so there is no reason to start an investigation.

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Final decision

13. We will not start an investigation because this is a late complaint, there were appeal rights Mr X could have used and because there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman