Trafford Council (19 015 316)

Category : Benefits and tax > Local welfare payments

Decision : Upheld

Decision date : 21 Dec 2020

The Ombudsman's final decision:

Summary: Ms Y complains about the way the Council handled her applications for a Discretionary Housing Payment. The Ombudsman has found fault by the Council causing injustice. It has agreed to remedy this by apologising to Ms Y, paying her £150 to reflect the distress caused and carrying out a service improvement.

The complaint

  1. The complainant, who I am calling Ms Y, complains about the Council’s handling of her applications for a Discretionary Housing Payment. She says the Council:
  • delayed assessing her applications
  • wrongly made payments direct to her landlord
  • handled her complaints poorly
  • failed to adhere to her request for contact in writing or by email only, as a Reasonable Adjustment.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with a council’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)

How I considered this complaint

  1. I read the information Ms Y and the Council provided about the complaint.
  2. I invited Ms Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

The legal background and the Council’s policy

  1. The discretionary housing payments guidance manual issued by the Department for Work and Pensions says a discretionary housing payment (DHP) may be awarded where a council considers a claimant requires further financial assistance towards housing costs and is entitled to either housing benefit or the housing cost element of universal credit. The scheme is purely discretionary, a claimant does not have a statutory right to a payment.
  2. The Discretionary Financial Assistance Regulations 2001 (as amended) govern the DHP scheme. The Regulations give councils broad discretion. But they must act fairly, reasonably and consistently, and take into account the claimant’s financial circumstances and any other relevant factors when making a decision.
  3. The Council’s policy says the DHP scheme should be seen in most cases as a short-term emergency fund. It will decide the length of time to award a DHP from the available information on a case by case basis. Awards are expected to last for a fixed period of between one week and typically 26 weeks. In exceptional cases a DHP can be awarded for up to 52 weeks.
  4. The policy also says:
  • In deciding whether to award a DHP the Council will consider, amongst other factors, any steps taken by the customer to reduce their rental liability such as the engagement of services to support budgeting and debt advice, the customer’s income and expenses, any savings or capital, and their indebtedness.
  • The Council will decide the most suitable person to pay based on the circumstances of each case. This could include paying the landlord.
  • Subsequent awards of DHP will require engagement with advisory agencies such as budgeting and debt support before an application will be considered.
  • There is no statutory appeals mechanism. A customer who disagrees with a decision may request a review within one month of the issue of the written decision. An officer of the Council will review the decision.
  • Where the customer is still not satisfied, they can request a final review within one month of the date of the review outcome letter. An Exchequers Services Team Leader will conduct the final review. This decision will be confirmed in writing and is binding. It may only be challenged by judicial review or by complaint to the Local Government Ombudsman.

Reasonable adjustments

  1. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to anybody which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
  2. When the duty arises, service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.

What happened

  1. Ms Y moved to new rented accommodation in 2018 following abuse and violence at her previous address. In October 2018 she applied to the Council for a DHP to help cover the shortfall in her rent. She was initially told, incorrectly, she was not eligible for a DHP. The Council then considered, but refused, her application in January 2019.
  2. Ms Y disputed the decision. After a review, the Council decided in February to award a DHP from October 2018 to 31 March 2019. This was paid to Ms Y.
  3. On 30 March Ms Y applied for a further DHP. She said, in her application, she had rent arrears of £311 and weekly credit card payments of £100. She was not currently able to move (to a smaller property). She asked for help for 52 weeks, and DHP to be paid to her. She did not give authority for the Council to speak to her landlord about her application.
  4. On 13 May the Council told Ms Y it had refused her application. Ms Y disputed the decision. After a review the Council decided, on 21 May, to award a DHP for a two month period. It said the payment would be made to Ms Y’s landlord.
  5. On 24 May Ms Y told the Council she was unhappy a DHP had been awarded for two months only, not 52 weeks as requested, and payments were to be made to her landlord. In June Ms Y contacted the Council again. She complained it had discriminated against her by paying her landlord direct, and raised concerns information about her application had been shared and about further violence she was experiencing at her new address.
  6. On 5 July Ms Y applied for a further DHP. She said, in her application, she had credit card debts of £3,000. She asked for help for 52 weeks until she could move to alternative accommodation, and DHP to be paid to her. She did not give authority for the Council to speak to her landlord about her application.
  7. On 10 July the Council responded Ms Y’s concerns of 24 May and June. It said:
  • The two month period was the standard award it made and longer awards up to 52 weeks were at its discretion and only made in exceptional circumstances.
  • It would consider, and make a decision on, her further application of 5 July in due course.
  • With any DHP application, it may ask the applicant to engage with agencies to help with budgeting or debt issues.
  • Its policy states it may decide the most suitable person to pay. One of the aims of DHP is to safeguard residents in their homes and in line with this it will usually pay DHP direct to a landlord where there are arrears, to prevent these increasing. As Ms Y had indicated she had rent arrears it had decided to pay the rent directly to her landlord.
  1. Ms Y has told us although the Council decided in May to pay DHP to her landlord, it did not in fact do so and the payments were made to her as she had requested.
  2. On 7 August the Council told Ms Y it had decided to award a DHP for the period from 8 July to 6 October.
  3. On 26 September Ms Y applied for a further DHP. She said, in her application, she had credit card debts of £2,950, electric arrears of £6,475, rent arrears of £220. She asked for help for 12 weeks until she could move to alternative accommodation, and DHP to be paid to her. She did not give authority for the Council to speak to her landlord about her application.
  4. The Council considered Ms Y’s application. It wanted to discuss this with her. It did not have a telephone number for Ms Y and sent an email asking her to call. Ms Y replied by email on 5 October. She was unhappy the Council had asked her to call. She said she had previously told it her preferred contact method was email.
  5. The Council sent a further email to Ms Y on 4 November asking her to contact the team to discuss her application. Ms Y complained by email the same day about the delay in dealing with her application and being asked to telephone the team. She said she had already told the Council all contact had to be in writing due to her circumstances and health conditions.
  6. On 8 November the Council told Ms Y it had decided to award a DHP from 7 October to 5 January 2020. It said it had also decided to pay DHP directly to her landlord because she had rent arrears and had not responded to its email of 4 November.
  7. The Council has told us it did not contact Ms Y’s landlord before 8 November. But when it decides to pay a landlord direct it will send the landlord an email to notify them of the amount being paid, the period it covers and for which tenant, so the payment can be allocated to the correct rent account. It sent an email with this information to Ms Y’s landlord on 8 November.
  8. On 14 November the Council responded to Ms Y’s complaint of 4 November. It said:
  • It was sorry for the delay in completing her application of 26 September and confirmed the details of the decision notified to her on 8 November.
  • It had made a note on her claim of her request for all communication to be by email. If she needed to chase anything she could email to escalate her query.
  1. On 29 November Ms Y complained about the decision to pay DHP directly to her landlord. She said the Council had corrected this when she had complained before and asked why it was paying the landlord directly now. The Council was discriminating against her by treating her as if she was not in control of her finances.
  2. The Council sent its final complaint response on 5 December. It said:
  • Her application of 26 September was decided on 8 October and it could not see a delay in processing her application.
  • She had been in receipt of a DHP award for 57 weeks and 5 days. DHP in most cases should be seen as a short-term emergency fund. She may be required to seek advice about budgeting and debt before a further application is considered.
  • It understands she did not want it to speak to her landlord about her DHP application. It made the decision to pay her landlord direct because she had rent arrears and did not respond to its email of 4 November. It sent an email to her landlord confirming the award so the payment could be allocated correctly to her rent account.
  • As explained in its response of 10 July, its policy states the Council will decide the most suitable person to make a payment of DHP to.
  • If Ms Y was unhappy with the outcome of her complaint she could refer it to us.
  1. Ms Y complained to us on 6 December.

Analysis – was there fault by the Council causing injustice

Assessment of the applications

  1. Ms Y made the following applications for a DHP in the period from October 2018 to September 2019:
  • First application made in October 2018. The decision to refuse the application was issued in January 2019.
  • Second application made 30 March 2019 and the decision issued 13 May 2019.
  • Third application made 5 July 2019 and decision issued 7 August 2019.
  • Fourth application made 26 September 2019 and decision issued 8 November 2019.
  1. The Council says it aims to deal with DHP applications within 28 working days, however this is subject to demand. It accepts it did not meet its usual service standard when dealing with Ms Y’s first application due to the high level of demand at the time.
  2. I do not consider there was fault by the Council in the time taken to process Ms Y’s second, third and fourth applications.
  3. But it took over three months to deal with her first application which I think is too long and amounts to fault. Ms Y had to wait longer than she should have done for the Council’s decision and the payment of the award and this caused her avoidable uncertainty and distress.

Direct payment to the landlord

  1. The Council’s policy says it may decide the most suitable person, including a landlord, to whom DHP should be paid. And the Council may ask applicants to engage with advice about debt and budgeting. I understand claimants may be unhappy about this and feel it suggests they cannot manage their own finances. But DHP is a discretionary scheme and the rules governing it, and the Council’s own policy, allow it to make these decisions. We can only consider whether there has been fault in the way decisions were made.
  2. Ms Y provided information in her application about her financial circumstances, including rent arrears and other debts. The evidence available shows the Council considered this information. And it explained the reasons for its decision to pay DHP directly to Ms Y’s landlord in its letters of 10 July and 5 December 2019. It said it had taken into account the information she had provided about her rent arrears.
  3. On the basis of the evidence I have seen, my view is there has not been fault by the Council in the way it reached its decisions about the award of DHP, and to whom it should be paid.

Contact with Ms Y’s landlord

  1. Ms Y had not given authority for the Council to contact her landlord. I appreciate, having made a decision to pay DHP directly to Ms Y’s landlord, the Council had to provide payment details to the landlord so they could be allocated to Ms Y’s rent account.
  2. But I consider it was wrong for the Council to provide this information to Ms Y’s landlord on 8 November without first giving her the opportunity to respond to its proposed contact. This amounts to fault.
  3. I understand the landlord already knew Ms Y was in receipt of statutory benefit payments towards her rent and would have been aware of the rent arrears. But I consider finding out the Council had contacted her landlord without her consent caused Ms Y avoidable distress.

Complaint handling

  1. Ms Y made the following complaints about the handling of her applications:
  • 24 May and in June. The Council responded on 10 July 2019 explaining the reasons for its decisions and actions.
  • 14 July. The Council responded on 7 August 2019.
  • 5 October and 4 November. The Council provided its response to her concerns on 14 November 2019.
  • 29 November. The Council responded on 5 December 2019.
  1. The Council provided substantive responses to Ms Y’s concerns and I do not consider there was fault in the way it handled her complaints.
  2. But there appears to have been confusion by the Council about its response to Ms Y’s complaints and its separate process for reviewing decisions about DHP awards.
  3. Under the process set out in its policy, Ms Y was entitled to ask for a review of the Council’s 8 November decision to pay DHP directly to her landlord. She disputed this in her email of 29 November. The Council dealt with the issue as part of its complaint response. It did not offer her the option of the final review as set out in its policy.
  4. I consider this was fault by the Council. Ms Y lost the opportunity of a final review of the 8 November decision. But the payments to her landlord reduced her rent arrears and I do not consider this fault caused her any significant injustice.

Request for contact in writing or by email only

  1. Ms Y told the Council on 5 October 2019, she only wanted contact by email, and not phone. I consider it was fault by the Council to send Ms Y an email on 4 November asking her to call. But in my view, the Council put this right by its response on 14 November in which it confirmed her request had been noted on her claim and she could contact it by email with queries.

Agreed action

  1. To remedy the injustice caused by the above faults, and within four weeks from the date of this final decision, the Council has agreed to:
  • Apologise to Ms Y for the faults identified above.
  • Pay Ms Y £150 to reflect the distress caused by its delay in processing her first application and contacting the landlord without her consent.
  • Remind officers handling DHP applications about the review process set out in the Council’s policy and provide us with evidence it has done this.

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Final decision

  1. I have found fault by the Council causing Ms Y injustice. I have completed my investigation on the basis the Council will take the above action as a suitable way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman

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