Westminster City Council (14 013 635)

Category : Housing > Council house rent

Decision : Upheld

Decision date : 03 Jul 2015

The Ombudsman's final decision:

Summary: There was fault in the way the Council dealt with an underpayment of housing benefit. The Council has agreed to reduce the amount of rent arrears by £803.10. The Council can then recover that amount from the complainant’s current housing benefit entitlement. There remains an outstanding amount of rent arrears.

The complaint

  1. Miss B complains the Council is wrongly seeking to recover rent arrears from her for a property she lived in between 2006 and 2010.

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The Ombudsman’s role and powers

  1. The Ombudsman cannot investigate late complaints unless she decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
  2. Miss B was aware of the matters she complains about at the time but the Council considered her complaints in 2014 so we decided to exercise our discretion and investigate the complaints.

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How I considered this complaint

  1. I considered the complaint and the documents provided by Miss B and spoke to her on the telephone. I wrote to the Council and considered the comments and documents the Council provided. I sent both the Council and Miss B a statement with my draft decision.

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What I found

  1. Miss B has rent arrears of over £2500 from a property she occupied between 2006 and 2010. The property had been provided to Miss B as temporary accommodation as she was homeless.
  2. Miss B was receiving housing benefit. There were changes to housing benefit entitlement due to changes in her circumstances. This meant that she had been overpaid housing benefit. Miss B appealed against the recovery of the overpayments and the tribunal decided in 2010 that a large part of the overpayments were due to official error and should not be recovered. The Council wrote to Miss B’s solicitors in September 2011 explaining how the Council had actioned the tribunal decision.
  3. Miss B complained to us in April 2014 about this matter. We closed the complaint as we considered the events happened too long ago and Miss B was aware of them at the time and could have made a complaint sooner. Miss B did not respond to our draft decision on the complaint or to the final decision. Miss B made a fresh complaint about the same matters to us in October.

My assessment of the key issues

  1. The Council is treating the entire shortfall on Miss B’s rent account as rent arrears. I do not consider that is right. During the relevant period the Council calculated that Miss B had been underpaid housing benefit of £2317.17. The Council credited this underpayment against overpaid benefit. It was right to do this where the underpayment related to the same period as the overpayment. This was the case for £385.74 which was offset against an overpayment for 8 September 2008 to 10 November 2008. Miss B did not appeal against that overpayment. £1128.33 of the underpayment related to the period 24 September 2007 to 31 March 2008. This was the period which was subject to the appeal and which the tribunal determined should be written off. This meant the amount of overpayment that was determined by the tribunal to be non-recoverable was less.
  2. £803.10 is the remainder of the underpayment. The Council has accepted this amount should have been credited to Miss B’s rent account. Essentially Miss B owes the total amount the Council has said but £803.10 of it is not rent arrears but overpaid housing benefit. The Council has agreed it will reduce Miss B’s rent arrears by this amount but it means it will seek to recover the amount from her current entitlement of benefit. This means that Miss B would have to make up the shortfall which would be about £9.50 a week in order not to fall into arrears with her current tenancy.
  3. Although I consider there is this fault there is no evidence to suggest the total amount the Council says is due is wrong. Miss B took the right action in appealing to the tribunal to decide if the recovery of the overpaid housing benefit was right. The Council explained to Miss B’s legal advisers in September 2011 how it had carried out the tribunal decision.
  4. Miss B has argued in response to the draft of this statement that the arears are because there was a shortfall in her housing benefit which meant that it did not cover all her rent. It is correct the arrears stems from a period when Miss B’s housing benefit entitlement did not cover all her rent. But she knew this at the time and the way to challenge whether her housing benefit entitlement was correct or not was to appeal against the Council’s determination. Miss B had appealed about the recovery of the overpayment I therefore consider it would have been possible and reasonable for Miss B to have appealed about the entitlement to housing benefit at the time. If Miss B wants to raise this point with the Council then she can do so but I am not going to consider it further.

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Agreed action

  1. The Council will reduce the rent arrears by £803.10 but it can then seek to recover that amount as overpaid housing benefit.

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Final decision

  1. There was fault in the way the Council dealt with an underpayment of housing benefit which will be resolved by reducing the amount of rent arrears. The Council can then recover the amount as an overpayment of housing benefit. There remains an outstanding amount of rent arrears.

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Investigator's decision on behalf of the Ombudsman

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