The Investigation

The complaint

1. On behalf of Mrs X, Mr Y complained the Council took over six years to forward Mrs X’s benefit appeal to the Tribunal. Mr Y said the Council’s delay caused Mrs X avoidable distress, uncertainty and frustration.

Legal and administrative background

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

4. 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)

5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)

Housing Benefit

6. Housing Benefit helps eligible people on low incomes pay their rent. The Council manages and pays this. The Housing Benefit Regulations 2006 (the Regulations) set out the rules councils must follow for calculating and paying Housing Benefit. Claimants are responsible for updating the council with any changes in their circumstances. Failure to do so can affect the Housing Benefit paid.

7. The council must make a decision about Housing Benefit in writing. The decision notice must also advise claimants of their rights to ask for more information and to appeal. If a claimant disagrees with a decision they can ask the council to reconsider it. The council must then review the decision again. (Housing Benefit Regulations 2006)

8. If a claimant remains unhappy after a review they can ask the council to pass their appeal to the Social Entitlement Chamber of the First-Tier Tribunal (the Tribunal). Claimants must send their appeal to the council within one month and the council will refer the appeal to the Tribunal. The Tribunal can consider appeals up to 13 months from the date of the original decision. (The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008)

9. Where the council receives an appeal they can reconsider the decision before passing it to the Tribunal. If the decision remains unchanged they must pass the matter to the Tribunal “as soon as reasonably practicable”. (Rule 24(1A) of The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008)

10. Our principles of good administrative practice encourage councils to make timely decisions and proactively explain the reasons for any delays. As a benchmark we consider councils should aim to forward appeals within four weeks.

How we considered this complaint

11. We have produced this report following the examination of relevant files and documents and having considered information provided by the complainant and the Council.

12. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were considered before the report was finalised.

What we found

What happened

13. In April 2017, the Council wrote to Mrs X to confirm it had stopped her housing benefit claim, effective from February 2017. Mrs X would have to pay full rent from this date. The Council said this was because it had decided Mrs X’s tenancy was created to take advantage of the housing benefit scheme. It explained its reasons in its decision letter.

14. In May 2017, Mrs X appealed the Council’s decision, setting out her reasons. The Council did not change its decision.

15. In August 2023, the Council referred Mrs X’s appeal to the Tribunal.

16. In October 2023, Mr Y complained to the Council. Mr Y asked why the Council had only just referred the appeal to the Tribunal, over six years after it had been made.

17. The Council replied to Mr Y’s complaint. It said:

• appeals had to be referred to the Tribunal “as soon as reasonably practicable”, but there were no specific time limits set out in regulations;

• its appeals team had been historically under-resourced before 2020. It said it had added more resources, but it took a long time to train new officers. This added to the backlog of work;

• its appeals team dealt with all types of appeals, not just housing benefit appeals. The Council said certain types of appeals had specific timescales attached, so the Council had to prioritise these over others;

• the impact of COVID-19 had left the Tribunal with a backlog of appeals to decide, with some appeals not being heard for a year after referral. The Council said:

  • this was outside its control;

  • the Tribunal had also made changes to the submission requirements for appeals which it said had increased the time needed to produce and submit appeals to the Tribunal;

• it recognised the delays were not acceptable and it was working to address this as quickly as possible.

18. Mr Y escalated his complaint. He said the delay in Mrs X’s case was not due to the Tribunal, but to the Council. He wanted an apology and a financial remedy for Mrs X.

19. In November 2023, the Council responded to Mr Y’s complaint. It reiterated the explanations it had offered in its first response, about its resources, the time needed to train new officers, and changes to appeal submissions. In its response the Council accepted it had not updated Mrs X about the delay at any point since she made her appeal, though it later told us it had provided regular updates. It said the Tribunal had now set a hearing date for the appeal and it apologised for the delay. It said it was for us to make recommendations about compensation.

20. In November 2023, the Tribunal heard Mrs X’s appeal. The Tribunal refused the appeal and upheld the Council’s original decision.

21. Responding to our enquiries, the Council told us it had 68 appeals waiting to be referred to the Tribunal as of June 2024. The Council said the oldest of these appeals was dated March 2019.

Conclusions

Delay in referring Mrs X’s appeal to the Tribunal

22. We have not considered Mrs X’s entitlement to Housing Benefit, as the Tribunal considered this when deciding Mrs X’s appeal. We have investigated the Council’s handling of Mrs X’s request for an appeal to the Tribunal.

23. Mrs X’s complaint concerns matters that occurred more than 12 months ago. We believe Mrs X could have complained about these matters sooner. However, we have exercised discretion to consider the Council’s actions from this period. This is because of the significant delay Mrs X experienced, and the likely impact these same delays will have on other members of the public.

24. The Council should have referred Mrs X’s appeal to the Tribunal “as soon as reasonably practicable”. We consider councils should aim to do so within four weeks. The Council should therefore have aimed to pass Mrs X’s appeal to the Tribunal by approximately the end of June 2017.

25. The Council accepts it took more than six years to pass Mrs X’s appeal to the Tribunal. This is a significant delay and is fault.

26. The Tribunal rejected Mrs X’s appeal and upheld the Council’s original decision. Because the Tribunal agreed with the Council’s decision, the delay in referring the appeal did not have any adverse financial impact on Mrs X. However, the delay caused Mrs X injustice in the form of avoidable uncertainty, frustration and distress. The Council accepted this injustice in its complaint response, but did not offer a remedy. This led Mr Y to approach us on Mrs X’s behalf. This put Mrs X to further time and trouble, which could have been avoided if the Council had acted proactively.

Delay in referring other appeals to the Tribunal

27. The Council told us it had 68 appeals waiting to be referred to the Tribunal, the oldest of which was over five years old. This delay is fault.

28. These 68 claimants will also have experienced avoidable frustration, uncertainty and distress due to the Council failing to pass their appeals to the Tribunal in a timely manner. Further, it is likely the Tribunal will uphold some of these delayed appeals. In those cases, there could potentially be significant outstanding injustice, with claimants’ financial circumstances being adversely affected by the Council’s delay.

29. The Council told us the backlog was the result of a historic restructure of its service, which reduced officer numbers, as well as unforeseen circumstances that further affected staffing levels. The Council said it was working to address this backlog. It said it appointed two extra appeals officers in October 2020 as part of this effort, noting that training officers in this area can take some time. In response to our enquiries, the Council said as of June 2024, it believed it would clear the outstanding backlog within two years.

30. The Council later told us as of August 2024, it was seeking to clear the backlog within six months.

31. We recognise the Council has accepted the systemic fault and taken some action to address it. We also note that some of the early circumstances that compounded the delay were outside the Council’s control. However, we consider the Council has been aware of this issue for a prolonged period and it has been four years since it assigned resources to address it. Despite this, the Council has not yet been able to eliminate the backlog of appeals. We have addressed this in our recommendations.

Recommendations

32. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

33. In addition to the requirements set out above, the Council has agreed, within four weeks of the date of this report, to:

• apologise in writing to Mrs X for the faults and injustice identified. The Council should consider our guidance on “Making an effective apology", set out in our Guidance on remedies; and

• pay Mrs X £350 to recognise the avoidable distress and uncertainty caused by the Council’s delay in referring Mrs X’s appeal to the Tribunal. This figure accounts for the length of the delay in Mrs X’s case, while also recognising Mrs X did not complain about the delay within 12 months of becoming aware of it. This also recognises the avoidable time and trouble caused by the Council failing to remedy injustice through its complaints procedure.

34. Within four months of the date of this report, the Council has agreed to:

• pass the remaining backlog of appeals to the Tribunal, prioritising appeals where the decision impacts the claimant’s current entitlement to Housing Benefit; and

• review the resources for its appeals team, to ensure it can process appeals promptly.

Decision

35. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Mrs X and others. The Council should take the action identified in paragraphs 32 to 34 to remedy that injustice.

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