Summary: There was fault by the Council. The Council delayed sending a Housing Benefit appeal to the tribunal. The Council remedied the complaint before it was considered by the Ombudsman by making a payment, apologising and forwarding the appeal to the tribunal. I find no fault in the Council’s consideration of Reasonable Adjustments but Mr X can take the matter to court if he considers they do not comply with the Equality Act 2010.

The complaint

1. The complainant, who I shall call Mr X, complains there was delay sending a housing benefit appeal to tribunal. Mr X says the Council is underpaying his housing benefit each month, so the delay in going to tribunal may have caused him a financial injustice until the decision is made at tribunal.
2. Mr X also complains the Council has not reliably implemented a reasonable adjustment to send correspondence via email rather than post. Mr X says that he has missed correspondence and his benefits have been suspended because of this.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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. 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)

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What I have and have not investigated

6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. I have not considered Mr X’s entitlement to Housing Benefit, as the Tribunal will consider this when deciding Mrs X’s appeal. I have investigated the Council’s handling of Mrs X’s request for an appeal to the Tribunal.
8. I have not considered whether the Reasonable Adjustments comply with the Equality Act 2010, as this is more properly considered by the Courts. I have investigated the Council’s decision making when Mr X asked for Reasonable Adjustments.

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How I considered this complaint

9. I read the papers put in by Mr X and discussed the complaint with him.
10. I considered the Council’s comments about the complaint and any supporting documents it provided.
11. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Housing benefit tribunal

12. 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.
13. 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)
14. 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)
15. 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
16. 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 send appeals within four weeks.
17. Mr X sent his appeal to the Housing benefit tribunal to the Council on 16 March 2023. The Council reconsidered the decision and decided on 5 May 2023 that it would not change its decision. The Council said the appeal was forwarded to the Council’s appeal’s team on the same day and should have been sent to the tribunal within 4 weeks of the appeals team receiving it.
18. The Council sent to the appeal to the tribunal on 18 July 2024. This delay was fault. The Council has said the delay was due to an administrative error.
19. The Council has offered Mr X a remedy of £375 when it responded to his official complaint. This is £25 per month for 13 months delay (£325) and £50 for Mr X’s time and trouble in making the complaint. The Council also apologised and ensured the appeal was sent to the tribunal.
20. 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 Mr X’s appeal to the tribunal by approximately the end of May 2023, allowing time for the Council to reconsider the decision. I would calculate the delay as about 13/14 months, so I consider the remedy offered by the Council is reasonable. It is also in line with our guidance on remedies which suggests a symbolic payment of between £250 and £500 for distress.
21. I consider the remedy already offered by the Council on this part of the complaint to be satisfactory remedy to the injustice from the delay in referring the housing benefit appeal.
22. We have received no similar complaints against the Council so this seems a one off error. The Council has said that it is recruiting to increase its capacity and is working through its caseload in order so I do not intend to make service improvements.

Reasonable adjustments

23. Mr X complains the Council has not reliably implemented a reasonable adjustment to send correspondence via email rather than post. Mr X says that he has missed correspondence and his benefits have been suspended because of this.
24. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body 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.
25. 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.
26. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.
27. The Council has said that ‘Mr X’s request is to receive all communication by email but he has said the Council can send letters by post if it is also sent by email. A condition of being awarded housing benefit is to live in the house the benefits are being claimed for and so sending review forms or letters by post ensures the person is still living at the claim address’.
28. The Council has said to balance Mr X’s reasonable adjustment with its duty to ensure he is living at the claim address it will send a time limited code on postal correspondence so Mr X can use the code when responding by email. Mr X can also request documents are sent by email by contacting the Council.
29. The Council has provided evidence that on the five occasions Mr X’s housing benefit has been suspended since 2022, none have solely been because Mr X did not reply to postal letters.
30. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
31. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.
32. Mr X sent a pre-action protocol letter to the Council, so he is aware that he can ask the courts to consider whether the Council’s consideration of his request for reasonable adjustments breaches the Equality Act. I can see the Council has considered the points Mr X made in his pre-action protocol letter, so I find no evidence of fault in the Council’s decision making. But, this does not mean the Council has not breached the Equality Act, as only the courts can decide this.
33. The Council offered Mr X a payment of £250 in its response, as it said that its policy should have been put in place earlier. I am satisfied that a service improvement is not required.

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Final decision

34. I have completed my investigation of this complaint. This complaint is upheld. The Council has taken appropriate action to prevent reoccurrence of this fault and offered a remedy for the injustice before the complaint was considered by the Ombudsman. There are no wider public interest issues to justify service improvement recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman