Decision : Closed after initial enquiries
Decision date : 19 Mar 2020
The Ombudsman's final decision:
Summary: Mr X complained on behalf of his friend Ms Y about the Council’s decision to evict and discharge its housing duty to Ms Y in November 2018. He also complained the Council failed to respond to his appeals about decisions around Ms Y’s housing benefit. Ms Y had a statutory right of review around the Council’s decision to discharge its housing duty and it was open to her to use that right. Therefore, I have not investigated that matter any further. The Council was at fault for failing to formally respond to Mr X’s appeals on behalf of Ms Y and for failing to pass them to the tribunal. The Council has now reconsidered the appeals and has formally written to Ms Y explaining its decisions which is an appropriate remedy.
- Mr X complains on behalf of his friend, Ms Y. Mr X complains about the Council’s handling of Ms Y’s housing case. In particular Mr X complains about:
- The Council’s decision to discharge its housing duty to Ms Y in November 2018; and
- The Council’s decision on Ms Y’s housing benefit between October 2018 and January 2019. Mr X said the Council failed to respond to his appeal on the matter.
The Ombudsman’s role and powers
- 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)
- 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)
- 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 raised an issue about the Council’s handling of Ms Y’s eviction from a previous property in 2015. It was open for Ms Y to complaint to us sooner about what happened in 2015. I consider it is too far back for me to investigate that issue now.
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (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)
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
- 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
- I spoke to Mr X about the complaint and the information he provided.
- I considered the Council’s response to my enquiries.
- Mr X and the Council had an opportunity to comment on my draft decision. I received no comments from either Mr X or the Council.
What I found
- The Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
- The Act gives homeless applicants a right of review about councils’ main decisions on their homelessness application. This includes a decision the person is intentionally homeless.
- If the person wants to challenge a review decision, they can appeal to the county court on a point of law.
- Housing benefit helps people on low incomes to pay their rent. It is a means tested benefit, taking both capital and income into account. Depending on the claimant’s means the benefit might not meet their entire rent amount. If this is the case the claimant is responsible for making up any shortfall.
- The Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 and government guidance (‘housing benefit overpayments guide’) set out a council’s duties to people who appeal its decisions. Councils must make decisions in writing. The decision notice must advise claimants of their right to ask for more information and to appeal the decision. Claimants can ask the council to reconsider (internally review) its decision. The request must be made in writing within one month of them receiving the council’s decision letter.
- The council will look at its housing benefit decision again when it receives an appeal. It may ask the claimant for further evidence to support their appeal. The Council will then write to the claimant with its review decision explaining its decision. The Council should automatically send the claimants appeal to the tribunal if it does not change its decision, or if it changes it decision and reduces the housing benefit further.
Housing benefit non-dependent deductions
- It is assumed that most non-dependent adults living with someone on housing benefit should contribute towards the rent. A reduction to housing benefit applies whether the person is contributing to the rent or not. A claimant’s housing benefit is reduced by a set amount based on the non-dependent’s weekly income. It is the claimant’s responsibility to tell the Council about any non-dependents living with them.
- A non-dependent can be a parent, child, relative or friend who lives in the home. They must be aged 18 or over. A non-dependent deduction does not apply to a person who is under the age of 25 who claims jobseekers’ allowance, income support, income related employment support or universal credit with no income. If a non-dependent claims benefits, the claimants housing benefit is reduced by £15.60 each week. Otherwise, the amount differs depending on the non-dependent’s weekly income.
- In 2015 the Council accepted a full homelessness duty to Ms Y. This was after the landlord evicted her from the private rented accommodation she lived in previously. Records show the landlord intended to refurbish and sell the property. In line with its duties the Council provided Ms Y with temporary accommodation at property A. Ms Y moved into property A in November 2015. Ms Y occupied property A with her two children, one of whom, G, was an adult.
- Ms Y claimed housing benefit and had done so since 2010. Ms Y used her housing benefit to help pay for the rent at property A. The records show the rent at property A was £402.50 each week and the Council made Ms Y aware that it was her responsibility to pay any shortfall in the rent which her housing benefit did not cover. The records show Ms Y was awarded various amounts of housing benefit after she moved into property A and for a large proportion of the time, this amount was not enough to cover the full rent. Housing benefit letters to Ms Y show this was because of deductions due to Ms Y’s income and because her child G, was an adult and therefore treated as a non-dependent member of the household. The rent records for property A show Ms Y did not make payments each week to cover the shortfall in rent.
- In March 2016 the Council wrote to Ms Y and informed her that the rent account for property A was in arrears and invited her to discuss the matter with its support services. The letter warned Ms Y was at risk of eviction if the arrears were not cleared. Ms Y met with the support service in March. At this meeting Ms Y signed an agreement confirming she would make extra payments of £15 per week towards the arrears. The Council wrote to Ms Y in April 2016 to remind her of this agreement as she had failed to make any payments. The letter warned Ms Y that she was at risk of losing her accommodation if she continued to miss payments.
- The Council wrote to Ms Y again in May 2016 to inform her that the rent account was now over £1500 in arrears. The letter asked Ms Y to contact it to arrange further repayment instalments. The Council wrote to Ms Y again in June 2016 as it had still not received any further payments and the rent arrears continued to rise.
- In July 2016 the Council wrote to Ms Y with a final letter. It said her rent account was now £1689 in arrears. The Council said its intention was to evict Ms Y from property A unless she engaged to discuss how to clear the arrears. The records show Ms Y signed a further agreement in August 2016 where she agreed to pay £60 per month to help clear the arrears.
- Records show Ms Y failed to keep to that agreement and her arrears remained at over £1000 during much of 2016 and the first half of 2017. The rent arrears began to rise again from August 2017 onwards after Ms Y’s housing benefit entitlement was reduced.
- The Council referred the matter to an officer within its housing team to consider whether to discharge its housing duty to Ms Y. The records show the officer made attempts to assist and advise Ms Y with her arrears.
- The Council wrote to Ms Y again in October 2017 with a notice to vacate property A. At this point Ms Y’s rent arrears were £2138. The letter said Ms Y was in breach of her rent agreement. The housing officer sent an email to Ms Y in October 2017 which explained her rent arrears were now £2221 and said Ms Y would be evicted in November 2017. The officer explained there was a shortfall of £83 each week between her rent and housing benefit entitlement. The officer asked for a full rundown of Ms Y’s financial situation including all outgoings, contributions from her children, any medical evidence, and any other relevant evidence which would assist her case.
- The records show Ms Y provided some of the information requested by the housing officer including medical evidence, however Ms Y did not provide relevant bank statements and other financial information. The housing officer on advice from the Council medical advisor decided Ms Y was capable of paying rent despite the evidence she provided.
- In November 2017 Ms Y agreed to pay £500 each month going forward to clear the arrears, which the Council accepted. The housing officer checked Ms Y’s rent account in January 2018 with a view to ending his involvement however he found Ms Y had not kept to the agreed plan. The Council served Ms Y with another notice to vacate property A in April 2018 after it found she had failed to make the payments as agreed. The notice to vacate expired in May 2018 and at this point the Council closed Ms Y’s rent account. Ms Y refused to vacate the property, so the Council applied to the court to evict her. This was completed in October 2018 and Ms Y left the property. The Council housed Ms Y in emergency accommodation at property B while it considered whether to discharge its housing duty to her. Property B was in a different council area.
- The Council wrote to Ms Y in November 2018 and informed her it had discharged its housing duty to her. The Council decided Ms Y had made herself intentionally homeless by failing to pay the full rent at property A. The letter outlined Ms Y’s right to request a review of the decision.
- There is no record of Ms Y requesting a review of the Council’s decision to discharge its duty. The Council evicted Ms Y from the emergency accommodation at property B in January 2019 and ceased paying her housing benefit. Records show Ms Y continued to live at property B after January 2019 on a private arrangement with the landlord.
- Mr X complained to the Council on behalf of Ms Y. Mr X complained the Council had incorrectly accused Ms Y of having rent arrears and had failed to consider her vulnerability and medical needs when it discharged its housing duty.
- Mr X also complained separately about how the Council had calculated Ms Y’s housing benefit. Mr X said G was claiming job seekers’ allowance and therefore the Council was wrong to take the maximum deduction for G’s status as a non-dependent adult. Mr X wrote to the Council in December 2018 and appealed against its decision on Ms Y’s housing benefit.
- The Council responded to Mr X about Ms Y’s housing benefit in January 2019 and acknowledged it as an appeal. The Council wrote to Ms Y and asked her to provide proof of G’s entitlement to job seekers’ allowance. Ms Y sent the Council some information. However, the Council wrote to her again to say it needed G’s full entitlement letter. The Council said it could not amend the claim until it received that information.
- The Council wrote to Ms Y in February 2019 and said it had ended Ms Y’s claim for housing benefit from the end of January 2019. It notified Ms Y of an overpayment. Mr X wrote to the Council again and reiterated his complaint about the housing benefit. Mr X further complained about the overpayment and said he wanted to further appeal the Council’s decision to end Ms Y’s housing benefit.
- Council emails show the Council considered whether to send Ms Y’s appeal to tribunal in March 2019. The emails show the Council was unsure at the time whether it had received the evidence it requested about G and was unsure what exactly Ms Y was appealing. The Council said it did not want to carry out a tribunal hearing unless it was clear what the appeal was about.
- The Council wrote to Ms Y again in March 2019 and said it was unable to reinstate her housing benefit because she was now living at property B under a private agreement with the landlord. It said Ms Y should claim housing benefit from the council area she now lived in. Mr X wrote again and asked when he could expect the tribunal to hear the case. There are no records or letters which show how the Council considered the appeal request. In response to my enquiry letter the Council said it is allowed to negotiate matters without the need for an appeal hearing. It said that as it had ended its housing duty to Ms Y, her appeal was not valid.
- The Council formally responded to Mr X at stage 2 about the discharge of duty decision and Ms Y’s eviction from property A. The Council said it had reviewed Ms Y’s rent account, letters and her case file and was satisfied it had correctly informed her about the rent arrears. The Council said Ms Y chose to ignore that information and failed to cover her full rent liability. The Council said that resulted in her eviction from property A and its discharge of duty to her. The Council said the evidence showed Ms Y was treated professionally and was given support and advice in relation to her arrears. The medical assessment found Ms Y was able to manage her own affairs and was fully aware of her responsibilities.
- Mr X was unhappy with the Council’s responses to his complaint and housing benefit appeal on behalf of Ms Y, and complained to the Ombudsman.
The Council’s decision to discharge its housing duty
- Certain decisions about homelessness can be challenged by seeking a review and by using a right of appeal to the county court on a point of law. The Council decided Ms Y had made herself intentionally homeless by failing to pay her rent. We would not normally investigate complaints about decisions such as this where rights of review and appeal apply, as long as councils have properly informed complainants of those rights.
- I have read the Council’s decision letter to Ms Y where it outlined its reasons for discharging its housing duty. The letter fully explains its reasons for making that decision and how it concluded Ms Y made herself intentionally homeless. The letter informed Ms Y of her right to request a review of the decision which she needed to make within 21 days of receiving the letter. There is no evidence she did this. It was reasonable for Ms Y to use that right, and there is no obvious fault in how the Council made its decision, therefore I will not investigate this matter further. It remains open for Ms Y to ask the Council to consider a late review request if she still wishes to challenge the decision. It is at the Council’s discretion as to whether it will accept a late review request.
Housing benefit appeal
- The Council paid Ms Y housing benefit up until it ended its housing duty to her in January 2019. Letters show Ms Y’s housing benefit fluctuated while she lived at property A, however it was in October 2018 that the Council decided to take the maximum non-dependent deduction with regards to G. Mr X appealed this decision on behalf of Ms Y in December 2018. Mr X appealed further when the Council informed Ms Y in February 2019 of the overpayment after it ended her housing benefit entitlement.
- I have not seen any evidence which shows the Council properly reviewed Mr X’s appeal on behalf of Ms Y. The Council said there was no basis for an appeal because it had already ended her benefits and discharged its duty. However, Mr X’s appeal was about decisions the Council made from October 2018 onwards when Ms Y was entitled to housing benefit.
- The Council accepted Mr X’s appeal about G’s non-dependent deduction in January 2019 and asked for further information about G’s job seekers’ allowance. The Council did not receive the information it asked for. So, at this point it should have formally written to Mr X explaining it had not revised its decision and that the appeal would proceed. It did not, and that was fault. Ms Y was denied her right to appeal to the tribunal.
- There is no evidence to show how the Council considered the appeal about the overpayment. The letters from Mr X to the Council are clear that he, on behalf of Ms Y, wanted the matter passed to the tribunal. The Council should have formally written to Mr X explaining its decision. It then should have passed the matter to the tribunal if it decided not to revise its decision. By not doing so it denied Ms Y her right to have the tribunal consider the matter.
- The Council has now formally written to Ms X explaining its decision making with regards to her housing benefit. The Council said it would consider forwarding the matter to the tribunal if Ms X continued to disagree with the decision, provided she writes within the deadline given. This is a suitable remedy for the injustice caused.
- I have completed my investigation. I have found fault with the Council. The Council has already provided a suitable remedy. I did not investigate the homelessness matter any further
Investigator's decision on behalf of the Ombudsman