Ombudsman finds council at fault for failing to refer housing benefit appeal to the First-tier Tribunal (Rightsnet News 29 September 2017)

It seems that the Ombudsman is now departing from the 2004 report where it was held that delays of more than 4 weeks in sending submissions to the Tribunal would be unreasonable and likely to cause injustice.

The 2004 report is referred to in the Bradford report [at 9]

“In February 2004 we issued a special report offering advice and guidance to councils on arrangements for forwarding housing benefit appeals to the Tribunal. We found a pattern of excessive delays by some councils in passing housing benefit appeals to the Tribunal. We recommended that no more than four weeks should usually be needed before passing an appeal to the Tribunal, a standard which many councils adopted. The report is no longer available on our website due to the legislation the report refers to being amended.”

However the Bradford report now recommends [at 28-29]

29 Within three months we recommend the Council should:
carry out a review of all outstanding appeals and pass the backlog to the Tribunal;
review its procedures to ensure it complies with the Tribunal rules; and
report back to us evidencing how it has changed its procedures and confirming how many of the outstanding appeals it has progressed.

29. The Council has explained this would be difficult due to the number of cases outstanding. The Council also wants to ensure it prioritises those appeals where the decision is impacting on a person’s current entitlement to Housing Benefit. The Council has agreed to:
pass the remaining backlog of appeals to the Tribunal by April 2018, prioritising those appeals where the decision impacts on the persons current entitlement to Housing Benefit;
review its procedures to ensure from April 2018 it processes all appeals within two months (in line with Council Tax appeal guidance).

This does not strike me as an effective redress for those claimants who are still waiting, and I think that it might be more effective for them to send copies of all correspondence to HMCTS along with an application for a Direction to the Council to provide the submission within 4 weeks. I would also include a copy of CH/2812/2005 where Mr Commissioner (as then was) Jacobs held that it was appropriate in some circumstances for a Tribunal to hear an appeal in the absence of a response from the relevant authority. The then Commissioner held [at 34]

“34. In other words, an administrative task need not be performed by a particular person or in a particular way. So long as there is an appeal that satisfies the conditions of regulation 20(1), the tribunal has jurisdiction to deal with any issues that arise in respect of it, regardless of how they are brought to the tribunal’s attention. This does not mean that the parties are free to disregard the usual procedures at will. Claimants cannot simply bypass the local authority and lodge appeals with the tribunal. Likewise, they cannot usually expect the tribunal to deal with a case before the local authority has had a chance to prepare the submission and assemble the papers for the parties and the tribunal. But what the tribunal is free to do is to allow matters to be handled differently if circumstances require it.  The circumstances of this case did require it for two reasons. First, the local authority was refusing to refer the cases to the tribunal on the basis of an issue which the tribunal had (perhaps exclusive) jurisdiction to decide. Second, the local authority was trying to force the claimant to embark on an expensive legal procedure, which was risky in that the Administrative Court might not accept jurisdiction.  “

I had some success with those tactics back in 2011 in a Tax Credit Appeal where HMRC kept delaying sending the response .  This was before the days of Mandatory Reconsideration and I got a robust set of Directions from Judge Wright not long before he went to the Upper Tribunal