Summary: Mr X complained the Council gave him incorrect advice to apply for universal credit which led to a cash loss. The Council was not at fault for the advice given based on the circumstances at that time.

The complaint

1. Mr X complained the Council 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. 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.
2. Mr X also complained about the Council’s delay in determining his housing benefit claim between September 2017 and March 2018 which he says led to him being in debt and caused him distress.

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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 back to March 2018 because Mr X was not aware he had suffered an injustice until an unsuccessful Tribunal appeal in 2023 and was advised at that point by the Tribunal judge to complain to us.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended) 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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What I have and have not investigated

7. I have not investigated the complaint at paragraph 2 above. 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). Mr X was aware of the delay in 2017/2018 and of the impact this had on him. The more time that passes after events the less likely it is we can investigate fairly and achieve a meaningful outcome. It was open to him to come to us at the time and I have not seen any good reason why he did not do so. I will not investigate this now.

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How I considered this complaint

8. 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.
9. I gave Mr X, his representatives and the Council an opportunity to comment on a draft of this decision. I considered any comments I received before making a final decision.

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What I found

The relevant law and guidance

10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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

16. 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 we do not investigate complaints about issues that happened more than 12 months before you contact us for the first time.

What happened

17. Mr X received housing benefit and income-related employment support allowance with the severe disability premium. Mr X has a neurodivergent condition and mental health difficulties. 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 severe disability premium.
18. In March 2018 the Council cancelled Mr X’s housing benefit back to mid-2017. Mr X spoke to an officer who he says advised him to apply for universal credit with housing costs to cover their rent. Mr X claimed for universal credit shortly afterwards.
19. The Council reviewed its housing benefit decision in April 2018 and reinstated Mr X’s housing benefit back to mid-2017. However, Mr X’s housing benefit could not continue beyond the point in March 2018 when he claimed universal credit.
20. Mr X and his partner stopped living together in late summer 2018. Mr X’s benefit entitlement changed, and SDP is not paid as part of universal credit. Mr X says he contacted council staff as by claiming universal credit he now received less in benefits than he would have if he had still received housing benefit.
21. The DWP did not award Mr X him 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.
22. Mr X then complained to us.
23. 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.
24. As Mr X’s housing benefit had reverted to zero it said he was advised to apply for universal credit. Had the change identified in April 2018 been correctly applied it accepted Mr X’s entitlement to housing benefit would have remained in payment. As Mr X had claimed universal credit it could not be reinstated.

Findings

25. Mr X had a right of review against the Council’s decision to cancel his housing benefit and he used that right. I therefore cannot investigate the Council’s decision to cancel Mr X’s housing benefit.
26. In March 2018 the Council advised Mr X to apply for universal credit. At that time Mr X was cohabiting with his partner and a move to universal credit did not cause him financial loss.
27. 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 advice given to Mr X by the Council to apply for universal credit in March 2018 did therefore ultimately lead to him losing out financially, as Mr X was not entitled to SDP whilst on universal credit, but I do not consider the advice was inadequate or fault.
28. I cannot now know exactly what was discussed and explained at that time. However, 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. The Council could not therefore be expected at that time to have had sufficient awareness of the potential loss to Mr X if he claimed universal credit, and his circumstances changed in future, to have warned him about this. The advice given was based on Mr X’s circumstances at that time and was given in good faith to prevent hardship.

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Decision

29. Ther was no fault in the Council’s actions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman