Summary: Mrs K complained, as the executor of Mr X’s estate, about the Council’s handling of her concerns relating to historical housing benefit overpayments. We found her concerns about the accuracy of the overpayments are late and appeal rights have expired. However, the Council was at fault for how it responded to her reasonable concerns. The Council has apologised but should also make a small symbolic payment to acknowledge time and trouble she experienced as a result.

The complaint

1. The complainant, Mrs K, complained as the executor of her brother’s estate about how the Council dealt with her concerns relating to his housing benefit overpayments between 2009 to 2017. She said it had:
• made errors which meant the overpayments were incorrect, and she questioned whether he had enough support available to contest the Council’s decisions at the time; and
• communicated with her poorly and failed to properly respond to her concerns.
2. Mrs K said, as a result, she had experienced distress and had time and trouble to pursue her concerns.

Back to top

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)
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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
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)

Back to top

How I considered this complaint

9. As part of my investigation, I have:
• considered Mrs K’s complaint and the Council’s responses;
• discussed the complaint with Mrs K and considered the information she provided; and
• had regard to the law and guidance relevant to the complaint.
10. Mrs K and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law

11. The Housing Benefit Regulations 2006 and Housing Benefit and Council Tax Benefit (Decisions and Appeal Regulations) 2001 sets out the process which should be followed where a local authority finds an individual has received an overpayment of housing benefit. This includes:
• a person affected by a benefits decision has a right to appeal to a Tribunal. The timescales to do so is one month, or a maximum of 52 weeks in certain circumstances;
• only the person affected by a benefits decision has the right of appeal, unless in specific circumstances such as where an appeal has been started and an executor continues the appeal, or an appointee is acting on the individual’s behalf; and
• overpayments of housing benefit are recoverable from a person affected, or from the estate of a person affected who has died.

What happened

12. Mrs K is the executor for the estate of her brother, Mr X.
13. Mr X had health conditions which made him vulnerable and in need of support. He lived in a flat and was in receipt of housing benefit for many years.
14. The Council issued Mr X with a number of housing benefit overpayments over a 20-year period. This included overpayments in 2009, 2014 and 2017.
15. After Mr X died, Mrs K became the executor of his estate. In late 2022, the Council shared an invoice with her for his housing benefit overpayments.
16. During the following five months, Mrs K contacted the Council several times to get information about the overpayments. However, the Council did not share further information with her.
17. In May 2023 Mrs K submitted a request to the Council under the Data Protection Act 2018 (GDPR) to obtain the relevant information around Mr X’s housing benefit overpayments.
18. The Council sought proof of identity documents from Mrs K and considered the request. It decided to release the information to Mrs K in her capacity as the executor of Mr X’s estate in July 2023.
19. In July 2023 Mrs K wrote the Council regarding Mr X’s overpayments. She questioned:
• its handling of her attempts to obtain information around Mr X’s overpayments as she had to submit her GDPR request to get this;
• Mr X’s housing benefit overpayments since 2003 as the Council had information about Mr X’s circumstances at the time. She also questioned what support he had available to him to contest the overpayments due to his vulnerability;
• The difference in the outstanding overpayment set out in two invoices she received in 2022;
• why Mr X was liable for the overpayments as its letters showed housing benefit had been paid to his landlord. She asked whether attempts had been made to recover the payments from his landlord; and
• why Mr X debt had increased when he had been repaying the debt in small weekly repayments between 2009-2022. She believes the Council has made errors and mistakes in its handling of this.

Mrs K’s complaint

20. In October 2023, Mrs K again complained to the Council as she had not received a response to her concerns.
21. The Council responded to her complaint in November 2023. It did not uphold her complaint and explained:
• it had not provided Mr X housing benefit information until it received her GDPR request. Once it received this it was decided it could provide Mr X’s personal information to her;
• it would not consider her disagreement about its housing benefit decisions as Mr X had appeal rights when its decisions were issued. It said he was informed about his rights at the time which was evidenced in its data request response. It also explained the timescales to appeal had expired long ago and Mrs K did not hold the appeal rights as an executor at the time; and
• it would not issue its reasons for the overpayment notices as this would generate new appeal rights, which was available at the time the original notices were issued.
22. Mrs K was not satisfied with the Council’s response and asked it to escalate her complaint. She said it had been four days late in its complaint response, it had not explained why its invoices in 2022 were for different amounts and questioned the support available to Mr X at the time to support him with the appeals process. She said she understood she could not appeal the overpayments but contested the amounts and whether any monies had been recovered from his landlord.
23. In January 2024 the Council provided its final complaint response. Following Mrs K’s further questions, it provided a further final response in February 2022. Overall, it did not uphold her complaint and reexplained its view. However, it accepted some fault and apologised for:
• the short delay in its complaint’s response, lack of information around its stage two complaint process, and for overlooking an email from her in May 2023 in which she sought information. It said it had reiterated its policy to staff; and
• not providing a response to her July 2023 letter. It said, while it had provided a response and shared the documentation following her GDPR request, this was not a satisfactory response. It had addressed this with staff in its complaints team.
24. The Council subsequently provided a response to Mrs K’s July 2023 letter. This was largely the same information as set out in its complaint responses and aimed to address her concerns.
25. Mrs K remains dissatisfied with the Council’s handling of her concerns and continues to believe the Council made errors regarding Mr X’s overpayments.

Analysis and findings

Mrs K’s disagreement with the debt owed by Mr X’s estate

26. I understand Mrs K wishes to ensure she manages Mr X’s estate well as the executor and only pay the debt which is due. However, her dispute about the debt relates to housing benefit decisions which was made several years ago. Each of those decisions had appeal rights for Mr X, if he wished to do so. Those rights have expired long ago.
27. The Council correctly told her it could not reissue the decisions or the reasons for the decisions as this would generate new appeal rights. I have not found the Council at fault for refusing to provide information to Mrs K which could generate appeal rights.
28. Mrs K’s concerns about the support Mr X had available at the time were relevant concerns. However, given the length of time since the housing benefits decision were made, I cannot consider this. In addition, whether Mr X should have been allowed to appeal late due to lack of support, would have been a matter for the Tribunal to decide as part of its late appeals process.

Mrs K’s request for information between January 2023 to May 2023

29. The Council provided its response to her May 2023 GDPR request in July 2023.
30. I cannot consider Mrs K’s concerns about the Council’s failure to provide the information she was seeking at the time. This is because the information she was seeking related to Mr X’s personal data.
31. The Information Commissioner’s Office (ICO) is the organisation best placed to decide whether the Council caused delays or failed to provide the information she was entitled to receive.

The Council’s handling of Mrs K July 2023 questions and complaints

32. The Council has accepted:
• its brief letter and data request response in July 2023 was not a satisfactory response to the questions and concerns Mrs K raised;
• it had overlooked an email from her in May 2023; and
• it had caused a short delay in its complaint response.
33. The Council apologised and shared a response to her July 2023 letter in April 2024. This largely set out what it had explained in its complaint’s responses and aimed to address her concerns.
34. I agree with the Council’s findings of fault. It should have addressed Mrs K’s concerns set out in her July 2023 letter in a tailored response. This could have been drafted in a manner which did not give rise to new appeal rights but addressed her key points of concern.
35. Considering the length of time Mrs K tried to get the answers to the questions the Council should have answered, including her need for initiating the complaints process and the time this took, I am satisfied she experienced some distress and time and trouble to get her concerns responded to.
36. While the Council has apologised, I am not satisfied this therefore fully acknowledges the distress she experienced due to the time and trouble this caused her. The Council should therefore make a small symbolic payment.
37. I have not made any service improvements as the Council’s responses shows it has taken the learning from Mrs K’s complaint and shared this with relevant officers to ensure requests and responses are made in line with its policies.

Back to top

Agreed action

38. To remedy the injustice the Council caused to Mrs K, the Council should, within one month of the final decision:
1. pay Mrs K £100 to acknowledge the time and trouble the Council’s delay in providing an appropriate response to her concerns caused her.
39. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

40. I have not investigated the key points of Mrs K’s complaint as these were late and carried appeal rights. However, there was some fault by the Council which caused Mrs K an injustice. The Council has agreed with my recommendations, it is on this basis I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman