Summary: We will not investigate Mr X’s complaint about the Council’s handling of a housing benefit overpayment. This is mostly because it would be reasonable for him to appeal the matter to the Tribunal.

The complaint

1. Mr X complains about the Council’s mishandling of his housing benefit. He says the Council:
• wrongly issued him an overpayment;
• made contradicting statements about the overpayment in its letters and wrongly referred his matter to the Tribunal; and
• failed to make reasonable adjustments for his disabilities throughout the process.
2. He also complains about the Council’s handling of his personal data and its response to his subject access request (SAR).
3. Mr X says the matter has caused his significant distress. He wants the Council to apologise, provide an accessible SAR response and review its procedures and how they engage with disability-related access needs.

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The Ombudsman’s role and powers

4. We investigate 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 or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating,
• any fault has not caused injustice to the person who complained,
• any injustice is not significant enough to justify our involvement,
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

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How I considered this complaint

8. I considered information provided by Mr X and the Council.
9. I also considered the Ombudsman’s Assessment Code.

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My assessment

10. If someone disagrees with a housing benefit decision they can appeal to the Tribunal. The First-tier Tribunal (Social Security and Child Support) considers appeals about housing benefit decisions. The law says people should appeal within one month of the Council’s appeal decision. The Tribunal may also accept a late appeal in some circumstances. We normally decide not to investigate complaints where someone has a right of appeal to the Tribunal, unless it would be unreasonable for that person to appeal.
11. Mr X says he did not appeal to the Tribunal because he believed our office was more appropriate to consider his complaint. We are not a substitute for the statutory appeals process, and we do not have the power to change, vary or cancel the overpayment; only the Tribunal can do this. Complaining to us did not make it unreasonable for Mr X to use his right of appeal to the Tribunal, therefore I cannot investigate this aspect of his complaint. It remains open to him to make a late appeal if he is out of time.

Contradictory statements and referral to the Tribunal

12. Mr X complains the Council’s letters contain contradictory statements about the overpayment and the Council’s recovery action. He also complains the Council referred the matter to the Tribunal without his consent.
13. The Council sent Mr X a letter in December explaining that part of the overpayment was caused by its error. It confirmed the error part of the overpayment was no longer recoverable and removed it from the total figure. The Council then sent Mr X another letter in January with the revised overpayment figure, which no longer included the error amount. There is not enough evidence of fault on this point to justify us investigating and I am satisfied the Council’s letters are consistent with each other.
14. I acknowledge the Council referred the matter to the Tribunal without first confirming whether Mr X wanted to appeal. However, given that Mr X disagreed with the overpayment decision, I do not consider the Council’s decision to refer the matter to the Tribunal to be unreasonable. In any case, I do not consider the referral caused Mr X significant injustice and the appeal has since been withdrawn.

Reasonable adjustments

15. The evidence I have seen shows that upon being made aware of Mr X’s disabilities and vulnerabilities, the Council adjusted its correspondence accordingly. It apologised to Mr X for any confusion or upset its prior correspondence caused. It also reissued its SAR response in a more accessible format.
16. I am satisfied the Council considered Mr X’s vulnerabilities and disabilities in its treatment of him and that its actions are a sufficient remedy for any injustice caused. There is not enough evidence of fault on this point to justify us investigating.

Data handling

17. The Information Commissioner’s Office (ICO) handles complaints about misuse of personal data and any failures to comply with SARs under data protection law. I will not investigate this aspect of Mr X’s complaint because the ICO is better placed to consider these concerns.

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Final decision

18. We will not investigate Mr X’s complaint mostly because it would be reasonable for him to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman