Summary: The Council was at fault when it stopped Mr X’s housing benefit in March 2018. The Council subsequently reversed its March 2018 decision. The Council has apologised and this is a suitable remedy for the impact of this fault. The Council was not at fault for the advice given to Mr X in 2018 to apply for universal credit based on the circumstances at that time.

The complaint

1. Mr X complained the Council:
1. incorrectly stopped his housing benefit in March 2018.
2. provided him with incorrect advice in March 2018 when it told him to apply for universal credit rather than to await the outcome of his housing benefit review.
3. delayed reaching a decision on his housing benefit claim between September 2017 and March 2018 which caused him financial hardship.
2. As a result, Mr X says he has suffered a cash loss as he lost his severe disability premium and is unable to receive transitional protection on universal credit.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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). I have considered what happened in March 2018 because Mr X was not aware he had potentially suffered an injustice in relation to advice he was given in March 2018 until an unsuccessful Tribunal appeal in 2023 and was told at that point by the Tribunal judge that it was open to him to complain to us.
5. The further away in time an investigation takes place from the events to be investigated, the more difficult it may be for us to establish the material facts with reasonable confidence. In older cases we are less likely to be able to gather sufficient evidence to reach a sound judgement. Even if some evidence is available, we need to be particularly careful to ensure it is reliable and provides a full picture. In historical cases it is also likely to be more difficult to achieve a meaningful remedy, given the length of time that has already passed, the difficulty in establishing causality over longer time periods, and changes in the situation of the parties.
6. I have not considered Mr X’s complaint at paragraph 1c) regarding the delay in determining his housing benefit in 2017/2018. If Mr X had concerns about delays at that time it was open to him to complain to us then. There is no good reason to consider these delays seven years later.
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. 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

9. I considered evidence provided by Mr X and his representatives, the Council’s response to Mr X as well as relevant law, policy and guidance. I requested notes of contact with Mr X from 2018. The Council has provided a brief chronology of contact but this does not include details of what was discussed.
10. I gave Mr X, his representatives and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

The relevant law and guidance

11. The Council manages and pays housing benefit which helps eligible people on low incomes pay their rent. Regulations set out the rules councils must follow for calculating and paying housing benefit. Usually, the Council pays the tenant housing benefit. The tenant is then responsible for paying the rent to their landlord.
12. Universal credit is a payment to help with living costs (including rent). It replaced housing benefit. The Department for Work and Pensions (DWP), which is not part of the Council, manages universal credit.
13. If someone disagrees with a housing benefit decision they can ask the Council for a review. If they have a review, and are not happy with the decision, they can then appeal to the tribunal.
14. Severe disability premium (SDP) is additional financial support provided to those who are severely disabled and are receiving certain benefits including housing benefit. SDP is not available to those on universal credit.
15. In June 2018 the Secretary of State for Work and Pensions announced changes to the universal credit system for those in receipt of SDP. This meant those on SDP would only move onto universal credit via a managed migration and would receive transitional protection, safeguarding their entitlement to the existing benefit. It also provided transitional payments to those eligible claimants who received SDP who moved onto universal credit before January 2019. This change came into force in January 2019. In early 2019 the Government sent councils updates about these changes.
16. The conditions for eligibility to transitional protection include that a claimant has to be on income support, income-based job seekers allowance or income-related employment and support allowance and that they are still eligible for the SDP at the start of their universal credit claim.

The Council’s complaints procedure

17. The Council’s formal complaints procedure says it will acknowledge a complaint within three working days. It will then investigate and respond within 20 working days. If a complainant remains unhappy it will arrange a review of the complaint. It says the Council does not investigate complaints about issues that happened more than 12 months before you contact the Council for the first time.

What happened

18. Mr X received housing benefit and income-related employment support allowance with the severe disability premium (SDP). In mid-2017 Mr X started living with his partner. His benefits therefore changed, and he received contribution-based employment support allowance instead of income-related employment support allowance and so no longer received the SDP.
19. On 15 March 2018 the Council cancelled Mr X’s housing benefit back to mid-2017. On the same date, Mr X spoke to an officer who he says advised him to apply for universal credit with housing costs to cover their rent. The Council’s records confirm Mr X called the Council that date regarding his claim. Mr X claimed for universal credit on 17 March 2018.
20. The Council has said that according to its records, on 23 March 2018 the Council received Mr X’s request for a review of the decision to stop his housing benefit on 15 March. The notes the Council provided in response to my enquiries record Mr X called the Council on 23 and 26 March to check it had received the review request but contain no other details of what was said or advised. The Council reviewed its housing benefit decision on 22 April 2018 and reinstated Mr X’s housing benefit back to mid-2017. However, Mr X’s housing benefit could not continue beyond 17 March 2018 when he claimed universal credit.
21. Mr X and his partner stopped living together in late summer 2018. As a result, Mr X’s benefit entitlement changed, and SDP is not paid as part of universal credit. Mr X says he contacted Council staff because by claiming universal credit he now received less in benefits than he would have if he had still received housing benefit.
22. The DWP did not award Mr X transitional protection as Mr X was not entitled to be paid SDP whilst living with his partner. Mr X appealed that decision. The Tribunal heard his appeal in late 2023. It dismissed the appeal.
23. In late November 2023 Mr X contacted his MP with his concerns. In mid-December 2023 the MP asked the Council for its comments on Mr X’s concerns.
24. The Council responded to the MP. It said Mr X spoke with an officer “at the point his housing benefit entitlement was zero and advised that they have worked out by reducing their self-employed income that they would be eligible for income support and therefore housing benefit and council tax support. [Mr X] said they would be claiming income support today and it would be paid from today. [Mr X] was advised by the Benefits Officer that housing benefit was no longer available for new claims and he would have to apply for universal credit for help with his rent because of this”.
25. The Council also explained to the MP that “the advice was directly in response to the enquiry [Mr X] made at the time and consistent with there being no ongoing housing benefit entitlement at that time”. The Council said after his enquiry on 15 March 2018 and his universal credit claim of 17 March 2018, it received an appeal on 23 March 2018. This resulted in housing benefit being paid but it could not continue beyond 16 March 2018 due to Mr X receiving universal credit from 17 March 2018.
26. Mr X then complained to us.
27. Mr X emailed the Council in January 2024 and provided it with a copy of the Tribunal’s decision. The Council responded later that month. It said it had reviewed the reasons for the revised housing benefit calculation and identified a change made in the April 2018 review decision which was missed when the March 2018 decision was determined. It apologised for this.
28. As Mr X’s housing benefit had reverted to zero the Council said on that day (15 March 2018) it advised him to apply for universal credit. Had the change identified in the April 2018 review decision been applied on 15 March 2018, it accepted Mr X’s entitlement to housing benefit would have remained in payment. Instead, his housing benefit was not re-instated until April 2018. As Mr X had by that point claimed universal credit it could not be reinstated beyond 16 March 2018.

Findings

29. The Council stopped Mr X’s housing benefit on 15 March 2018. The Council has accepted the decision to stop Mr X’s benefit was fault. Mr X had a right of review against the Council’s decision to cancel his housing benefit, and he used that right. The Council overturned its decision on review and apologised to Mr X in its letter of January 2024 for the mistake it had made. Following the review, the Council reinstated the benefit up to the point Mr X claimed universal credit. However, given Mr X had claimed universal credit it could not reinstate the housing benefit beyond 17 March 2018.
30. According to the Council’s response to the MP in 2023, in March 2018 Mr X told the Council he intended to apply for income support and therefore housing benefit and council tax support. The officer told Mr X that housing benefit was not available for new claims and he would have to apply for universal credit. The Council has said that this email provides clarification of Mr X’s contact with the Council on 15 March 2018. This advice was not fault as it was based on Mr X’s circumstances at the time. At that time, Mr X’s housing benefit had been stopped, and Mr X had not yet applied for a review of the Council’s decision to stop his housing benefit when the Council gave its advice.
31. Additionally, at the time Mr X remained cohabiting with his partner and moving on to universal credit would not and did not immediately result in any loss. We would not expect the Council’s benefits officer to have predicted or advised about the potential for this change in his personal circumstances. Finally, it was not fault for the Council not to advise Mr X about the implications of moving on to universal credit for transitional protection. Firstly, as above, Mr X was not at that stage receiving SDP because he was cohabiting with his partner. Secondly, the changes around transitional protection and SDP were not announced by the Government until June 2018, and the regulation changes did not come into effect until January 2019. Overall, the advice was based on Mr X’s circumstances at the time, was given in good faith to prevent hardship, and did not amount to fault.
32. Had Mr X remained on housing benefit, when he later split from his partner, he would have received income-related employment support allowance with SDP in addition to his housing benefit and would have received transitional protection when he eventually moved to universal credit. The fact that the Council stopped his housing benefit on 15 March 2018 therefore set in train a series of events which ultimately led Mr X to lose out financially. This was because, having moved on to universal credit, he was not entitled to SDP after he ceased cohabiting with his partner. However, although the timing of events was unfortunate, the loss suffered by Mr X, in missing out on SDP (and transitional protection), was not a direct consequence of the Council’s fault in stopping Mr X’s housing benefit. This is because the following subsequent events also contributed to, and were more direct causes of the loss: Mr X applying for, and subsequently moving on to, universal credit; and Mr X ceasing to cohabit with his partner (prior to which he was no worse off on universal credit). While the Council’s advice of 15 March 2018 caused or contributed to Mr X applying for universal credit, that did not amount to fault for the reasons explained above. Since the financial loss to Mr X was not a direct consequence of the Council’s incorrect decision to stop his housing benefit on 15 March 2018, I do not consider it appropriate to recommend that the Council reimburse Mr X for the financial losses which Mr X ultimately suffered. The Council overturned its incorrect decision to stop Mr X’s housing benefit on review and apologised in its letter of January 2024 for its mistake. That was an appropriate remedy.

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Decision

33. There was fault in the Council’s decision to stop Mr X’s housing benefit. The Council subsequently reversed its March 2018 decision. There was no evidence of fault in the advice given to Mr X following the stopping of his housing benefit, based on the circumstances at the time.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman