Summary: We found fault on Mr C’s complaint about the Council failing to respond to evidence he submitted for his housing benefit claim. This caused no injustice. There was no fault on his complaints about it failing to make adjustments under the Equality Act 2010, wrongly demanding he refund an overpayment, or not communicating properly with him.

The complaint

1. Mr C complains about the Council:
1. failing to make adjustments as required by the Equality Act 2010 to allow him extra time to respond to its decision that he was not entitled to housing benefit leading to a claim of an overpayment;
2. wrongly deducting overpayments from his housing benefit after an error by the Department of Works and Pensions;
3. not responding promptly when he sent evidence of entitlement to housing benefit; and
4. failing to properly communicate with him.
2. As a result, he was caused a great deal of stress, frustration, and inconvenience as he worried about getting evicted.

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What I have and have not investigated

3. I have not investigated any complaint about Council decisions where Mr C had a right of appeal. This would include the decision to suspend his housing benefit claim, for example, as well as the overpayment decision. This is because the law usually prevents us from investigating a complaint about a matter that can be appealed to a statutory tribunal. I have seen no good reason why I should exercise discretion to investigate these complaints.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)

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Housing benefit

7. Housing benefit helps qualifying people on low incomes pay their rent. It is administered and paid by the council. The Housing Benefit Regulations 2006 set out the rules councils must follow for calculating and paying housing benefit.
8. Usually, housing benefit is paid to the tenant, who is then responsible for paying their landlord.
9. If a council pays too much housing benefit to someone it will usually ask them to repay it. The law says an overpayment is recoverable unless caused by an official error, and it was not reasonable to expect the person to realise they were receiving too much benefit.
10. If someone disagrees with a decision that they must repay an overpayment they can appeal to the tribunal. The law says people should appeal within one month of the date of the decision they think is wrong. The tribunal can accept a late appeal up to 13 months from the date of the decision. The opportunity to appeal means we would not normally investigate complaints about this type of decision.
11. If someone disagrees with a housing benefit decision, they can ask for a review or appeal to the tribunal. If they have a review, and are unhappy with the decision, they can then appeal to the tribunal. The law says people should appeal within one month of the date of the decision they think is wrong. Again, due to this opportunity for appealing, we would not normally investigate complaints about this type of decision.
12. A council can ask a claimant for evidence and information it reasonably requires. The claimant should provide this within one month or, a longer period specified by the council.

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The Equality Act 2010

13. The Act applies to any organisation which carries out a public function. It aims to ensure a disabled person can use a service as close as it is reasonably possible to the standard usually offered to non-disabled people. Disability can include mental health.
14. The duty is ‘anticipatory’. This means the public body cannot wait until a disabled person wants to use its services but, must think in advance about what disabled people might reasonably need.
15. When the duty arises, the public body is under a positive and proactive duty to look at removing or preventing obstacles to a disabled person accessing its services. If the adjustments are reasonable, it must make them.
16. If a disabled person has a “substantial disadvantage” compared to a non-disabled person, the public body must consider:

• changing the way it does things;
• if it can remove barriers created by the physical features of a building, if the building is open to the public or a section of the public; and
• if it can provide extra aids and services to help the disabled person access the service.

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How I considered this complaint

17. I considered all the information Mr C sent, as well as the Council’s response to my enquiries on his complaint. I sent a copy of my draft decision to Mr C and the Council. I considered their responses.

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What I found

18. Mr C suffers from various physical and mental health problems. He received housing benefit from the Council.
19. In June 2022, the Council told him he owed £1,709.19 as he had been overpaid benefit from April to June. This was because the Department of Works and Pensions (DWP) suspended his Employment Support Allowance (ESA). This is a benefit for those who have a disability or health condition which affects how much they can work. He says the DWP later issued an entitlement letter for ESA covering this period.
20. He complains the Council failed to act on evidence he submitted and did not allow him extra time to respond to its request for information which breaches the Equality Act 2010.
21. These are the key dates:

2022:

• June: The DWP told the Council that his ESA had stopped in February. I have seen this notification which said his claim ended as he failed to return, ‘Self Cert’. It gave the termination date as February.

The Council wrote to Mr C telling him it had suspended his housing benefit claim while it assesses his claim. It explained he had the right to dispute this decision by asking for a revision or appeal it to a tribunal.

It later sent him another letter. This explained the DWP told it that it ended his ESA from February. It asked him to provide details of his income from February to the present date as well as bank statements. It needed this information to help it decide if he was eligible for housing benefit. He had one month to send it. There is no evidence showing Mr C responded to this letter.

• July: An overpayment arose after the Council carried out a review. The Council wrote to him, explaining how this arose and how this was a recoverable overpayment. The Council had not received the information it previously requested from him. It sent him a letter about the need to send it. The letter advised him of his appeal rights. The Council later discovered the DWP reinstated his ESA but not for the period February to June.
• August: Mr C provided a copy of a letter from the DWP which said he was awarded ESA from February. He uploaded the letter onto its webpage. The Council said the evidence was seen and it decided to take no further action. It accepted it should have sent a letter to Mr C at this point telling him it received it and asking why he provided it. The Council checked with the DWP later in the month and was told there was still a gap with ESA for February and June.
• October: Having heard nothing from the Council, Mr C called and spoke to an officer who confirmed receiving his evidence but, also confirmed the decision remained. He was upset as the officer gave him no explanation.

The Council says the officer told him to put the dispute in writing. The same month, he asked for a housing benefit review of its decision and made a formal complaint.

• November: During a review, the Council discovered the DWP had now reinstated the ESA for the period February to June which resulted in no overpayment. The Council told him he did not owe the overpayment.

The Council responded to his complaint, 12 days after receiving it at the start of the month. It explained it had not received any information about all his ESA being reinstated until Mr C provided this information with his complaint.

Mr C sent the Council his response complaining its reply was unprofessional and had not investigated his complaint properly. The Council dealt this as another complaint.

2023:

• January: The Council responded to Mr C’s complaint. It did not uphold his complaint and signposted him to us.
• May: The Council responded to his other complaint.

Complaint a): failing to make adjustments

22. I found no fault on this complaint. This is because:

• the evidence does not show Mr C contacting the Council and asking for extra time to respond following its letter in June requesting information. In fact, Mr C did not respond to this letter at all;
• there is no evidence of Mr C explaining to the Council that he needed it to make any type of adjustments in his dealings with it because of his health;
• I am satisfied the Council has processes in place should it need to make adjustments for claimants. It’s system allows for the placing of a ‘vulnerable indicator’ on its housing benefit/council tax support accounts. It also allows officers to insert special instructions on the notebook for such claimants. Whether it needs to do this is considered on a case-by-case basis; and
• its guidance to officers states they must consider how the change to a person’s claim, where it is suspended or terminated, will affect them, particularly when vulnerable.

Complaint b): deducting overpayments

23. I found no fault on this complaint. This is because I am satisfied the Council was entitled to act on the information received from the DWP about Mr C’s entitlement, or lack of entitlement, to ESA.

Complaint c): not responding to evidence

24. I found fault on this complaint. The Council accepted it failed to acknowledge the evidence Mr C uploaded in August 2022. While it decided no further action was needed as a result of it, the Council did not contact Mr C about this decision. Nor did it acknowledge receipt of the evidence or ask him why he had provided it.
25. I am not satisfied this caused Mr C an outstanding injustice. This is because the Council contacted the DWP the same month and was told he still was not entitled to ESA from February to June.

Complaint d): failing to communicate

26. I found no fault on this complaint. I am satisfied the evidence shows the Council responded to his communication.

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Final decision

27. I found the following on this complaint:

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Investigator's decision on behalf of the Ombudsman