Bromford Housing Association Limited (202013537)

REPORT

COMPLAINT 202013537

Bromford Housing Association Limited

28 February 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

This complaint is about:
1. the landlord’s response to the resident’s concerns about the condition of the external communal stairs next to his property;
2. the landlord’s response to the resident’s request for a gate to be fitted to railings around a communal area;
3. the landlord’s response to the resident’s use of CCTV outside his property.
The report will also address the landlord’s handling of the associated complaint.

Background and summary of events

The resident has an assured tenancy with the landlord for a ground floor flat.

Policies, procedures, and agreements

Tenancy agreement:

This states that a tenant cannot make any improvements, alterations or amendments to their home without the landlord’s prior written consent. The landlord will consider any such request and it will not unreasonably withhold consent. Furthermore, if the landlord does provide its written consent, it can also add reasonable conditions to that consent.

Repairs policy:

This confirms that the landlord is responsible for repairing communal stairwells. The policy states that repairs that can be delivered more effectively through a planned or cyclical programme (such as updating communal stairwells) will be dealt with as major works referrals and the timescale will be dictated by the nature of works and the investment plan.

Customer Home Improvements and Alterations Policy:

This sets out the types of improvements that do, and do not, require the landlord’s consent. With regards to installing CCTV, the policy states that if the CCTV is not hard-wired into the mains electrical supply, then consent is not needed. However, it also states that ‘other statutory requirements would still need to be met’, and it may also attach any conditions to the consent.

Complaints policy:

This sets out the landlord’s two-stage complaints process.
1. Stage 1 – the landlord aims to respond within 10 working days.
2. If the tenant remains unhappy, they can request escalation to Stage 2. The landlord will not unreasonably refuse to escalate a complaint. However, it will request that the tenant confirm which specific points of the complaint remain unresolved; what further evidence there is to support the complaint; and what specific outcome the tenant is seeking.
3. Stage 2 – the landlord aims to respond within 20 working days.

Compensation policy:

This states that the landlord can award discretionary compensation where there has been service failure.

Summary of events

The landlord’s repair records show that in August 2019 a repair request was logged from the resident about the external render from the communal stairs which was crumbling and debris was falling down. The records show that a contractor attended and made safe. No further records or correspondence has been provided by the landlord or the resident about this this particular repair. There is no evidence of any subsequent reports about the stairs in 2019 or 2020.
The available evidence shows that there was correspondence between the landlord and the resident in January 2021 about several issues, including the resident’s installation of CCTV equipment, his request for a gate, and the condition of the external communal stairs.
The landlord’s internal emails on 13 January 2021 show that it was in the process of putting out to tender major works to the resident’s scheme in respect of the replacement of existing concrete stair access and overhauling the landing.
On 19 January 2021 the emails between the landlord and the resident showed that the landlord had concerns about the resident’s CCTV camera and that it was positioned in a way that captured the public pathway and needed to be moved. The landlord also explained that it had not been able to find any evidence that the resident had sought its prior written consent for the CCTV and that he would now need to apply for retrospective consent. It also said that if the CCTV camera angle was changed it would not withhold its consent, but the resident would still need to make the formal written application.
The resident disagreed with the landlord’s view about the CCTV installation and he said that his CCTV camera was ‘perfectly legal’ and it was within his human rights to have the CCTV. He said it was not breaching anyone’s privacy or disturbing anyone and it was encouraging safety and security. He also explained why he felt he was not breaching any Data Protection laws and he said he was complying with the advice from the Information Commissioners Office (‘ICO’) and was deleting the recorded footage after a few days.
On 22 January 2021 the resident logged a formal complaint with the landlord. At this time the complaint issues were about the need to seek retrospective consent for the CCTV (which he said he had now moved) and he was unhappy with the tone/manner of messages he had received from the landlord staff.
The landlord acknowledged the complaint and reiterated its stance that the resident would need to obtain formal retrospective consent for the CCTV.
The landlord issued its Stage 1 complaint response on 5 February 2021:
1. It explained that it does not grant permission for CCTV that overlooks public or communal arears. However, if the resident wanted to continue to use the CCTV, he would have to provide answers to questions from the ICO about data protection concerns.
2. With regards to the resident’s concerns about messages from its staff, it acknowledged the concerns and said that using WhatsApp messages was one form of communication, and it said that if this was not the best form of communication for the resident then he could use email or phone. It also said that it was difficult to ascertain any unhelpful tone from these messages.
3. The request for a gate had been noted and it said that its Estate Improvements Team would visit next week to assess if they feel this would be something that would benefit the scheme.
On 10 February 2021 the resident emailed the landlord and requested that the complaint be escalated to Stage 2:
1. He gave some background information about why he needed the CCTV and said he was entitled to install it in order to keep his property secure. He said that his tenancy agreement does not state that he needed to get permission from the landlord to install CCTV. He also referred to the landlord breaching his human rights and that he was fully aware and compliant with ICO rules on data protection.
2. He raised the issue of the external stairs and said that this had been reported last year and had still not been repaired.
3. He reiterated his concerns about the lack of support from staff in relation to the CCTV issue and its communication with him.
4. He requested compensation for the poor handling of these issues.
The landlord’s internal emails on 11 February 2021 show that its surveyor had carried out a site visit to review the gate request and he was of the view that it was not viable due to the width of the gates required which would mean a post would need to be installed reducing the access to under 900mm width. The resulting reduced access width was smaller than what was required for disabled access and for refuse collection, so on this case it was unable to proceed.
The resident contacted this Service on 17 February 2021. We advised the resident to complete the landlord’s internal complaints process first.
The landlord issued a further complaint response to the resident on 22 February 2021 (but this response was not referred to as a Stage 2 response):
1. CCTV – it said that it was presently reviewing its policy on this issue and it would confirm its position shortly.
2. Stairs – it said that the communal stairs outside the resident’s property were currently at the final stages of the procurement process to select a contractor for the overhaul works. It said that the stairs had been surveyed as structurally sound, but the landlord would respond to any further reports in the interim.
3. Staff communications – it agreed to appoint a different member of staff who had previously worked with the resident and it hoped this would reassure the resident.
The resident provided the landlord with photos of the stairs and these were reviewed by the landlord on 22 February 2021 and it was recommended that it periodically check on the structural integrity of the stairs up until the major works commenced in the summer.
On 5 March 2021 the landlord sent the resident its CCTV permission request form. It said it had partially completed the form with the information provided by the resident and he needed to check the form and confirm he was in agreement with it so it could then be processed. It explained that the resident would need to put up a sign outside his property stating that CCTV was in recording and why. A member of staff would then inspect the CCTV installation and if everything was as the resident stated then he could carry on using the CCTV subject to any complaint or non-compliance with ICO guidelines.
The resident responded and stated that he was not happy that he needed to apply for permission and he would not sign the form completed by the landlord. He also asked that his complaint be escalated.
The correspondence shows that on 8 March 2021 the landlord carried out a site visit with the resident to discuss some of the complaint issues. With regards to the CCTV it was confirmed that the range of images captured had been reduced, but the resident was advised to complete the permission process. It was noted that the resident had suffered recent damage to his property that he felt was due to his ex-partner and because of this the landlord ought to reconsider the use of the CCTV. With regards to the stairs, it was reiterated that this was not a quick fix and the process had started for overhauling all the external stairs on the scheme at the same time.
The landlord also arranged for another inspection of the external stairs for 16 March 2021 to check if any interim repairs were necessary while it awaited the full refurbishment works.
The resident responded on 17 March 2021 and stated that he remained unhappy and he again requested escalation to Stage 2.
On 22 March 2021 the landlord confirmed that in order to escalate the complaint to Stage 2, the resident needed to confirm what issues remain unresolved, and what outcome he was seeking. The resident responded and said that the ‘entire complaint remained unresolved’.
Following further communication from this Service, the landlord confirmed on 6 April 2021 that the complaint had now been escalated to Stage 2.
The landlord issued its Stage 2 response on 29 April 2021. It reiterated its position as stated in its Stage 1 response and said that it had nothing further to add and it referred the resident to this Service.
On 30 April 2021 the landlord then issued a further more detailed and explanatory complaint response summing up its final position on each issue:
1. CCTV – it said it had reviewed its policy and it had decided that it would not unreasonably decline permission for CCTV within communal or public areas, as long as the tenant ensured they were abiding by ICO guidelines, and had a reasonable need for CCTV, and completed its formal consent form. In this case it was satisfied that the resident had a reasonable need and had given assurances he would abide by the ICO guidelines. Therefore, as long as the permission request form was completed then permission would be granted.
2. It acknowledged the resident’s concerns about infringement of his human rights, and it explained that in accordance with the tenancy agreement he needed to seek prior permission before making any additions (such as CCTV) and the form was to ensure that it had an audit record of its due diligence duties should a neighbour or member of the public complain about the CCTV.
3. It confirmed that it would not be offering any compensation for any breach of the resident’s human rights.
4. Stairs – it explained that the present damage to the stairs was deemed to be of a cosmetic nature rather than structural, and this would be dealt with via major refurbishment works to the building. These were in the process of being arranged. It also said that for the resident’s peace of mind it had arranged a further inspection of the stairs and it would respond to any ad-hoc repair requests about the condition of the stairs in the interim.
5. Gate – it reiterated that its Estate Investment Team had reviewed the request and had confirmed that it was not possible to install a gate as this would adversely affect disabled access, refuse collection and its landscaping teams.
6. Staff – it said it had acknowledged the resident’s concerns about not feeling supported, and it had therefore agreed to appoint a different officer whom the resident had previously had a good working relationship with.
7. It confirmed that this was its final response through its formal complaints procedure.
This Service understands that the major refurbishment works were carried out in August 2021.

Assessment and findings

The Ombudsman’s role includes an assessment of whether the landlord has followed proper procedure, good practice, and behaved reasonably, taking account of all the circumstances of the case.
When considering the landlord’s handling of the matter, the Ombudsman is guided by the landlord’s policies and procedures and our own Dispute Resolution Principles, which are, ‘be fair – treat people fairly and follow fair process; put things right and learn from outcomes’.
The Ombudsman has determined the complaints on the basis of the evidence made available to it. However, the landlord is reminded of the need for robust record-keeping and to ensure that it provides thorough documentation and full supporting evidence of all its decision-making.

Landlord’s handling of the external stairs repair

Looking at the facts of this case, the first point to note is that the terms of the tenancy agreement state that the landlord is responsible for keeping in good repair the exterior and structure of the building. This includes the external communal stairs. Where any defects and/or such defects/structural issues are identified, the landlord should ensure that it addresses the problem in accordance with its repairs policy and/or within a reasonable time.
The landlord’s records show that when the resident raised initial concerns in 2019 about the condition of the crumbling render this was dealt with promptly and within its repair timeframe to make safe. There were no further reports made about the external stairs until early January 2021.
The landlord responded appropriately by addressing the resident’s concerns and arranging inspections and liaising with its major works team. The landlord has sought to reassure the resident that the damage to the external stairs was not deemed to be structurally significant and its surveyor was satisfied that the damage was more cosmetic in nature rather than structural. As such, it was satisfied that there was no immediate need for repairs.
The landlord acted reasonably by explaining to the resident that all the external stairs on the scheme were to be overhauled as part of a major refurbishment plan. It ensured that the resident was kept updated on the progress of the major refurbishment works.
When the resident raised further concerns, it reiterated that whilst there was no immediate need for repairs, it would respond to any repair reports made by the resident about the stairs on a case-by-case basis, and it would review its position accordingly. This was a reasonable approach for the landlord to take.
From what the Ombudsman has seen, there is no evidence to suggest that there have been any unreasonable delays in the landlord’s process and/or that the stairs were left structurally unsafe or in a hazardous condition. The resident’s concerns about how long it was taking to do the refurbishment works were acknowledged by the landlord as part of its complaint investigation, and it took steps to continually assure the resident that the matter was being progressed.
Looking at the facts and the available evidence, with regards to the landlord’s response to the issue about the external communal stairs, it can be seen that, overall, it has responded appropriately and in a reasonable manner.

Landlord’s handling of the gate request

The resident made a request for a gate to be installed to the fencing that was already in place around a communal grassy area. The resident has said that this request (which was made in conjunction with other tenants) would have made this grassy area safer for children and pets.
The landlord responded appropriately to this request by explaining that the decision on the gate would need to be made by its Estate Investment Team. It arranged for an inspection of the proposed gate and the surveyor confirmed that it was not possible to install a gate because of concerns that it would unduly restrict access for other users e.g. disabled access and refuse collection.
The landlord has shown that it properly considered the request and it explained that the communal grassy area was not a designated play area, and as such, it did not need to be secured with a gate. The landlord has shown that the surveyor’s decision was based upon appropriate considerations. The resident disagrees with the surveyor’s professional opinion and has said that the surveyor took incorrect measurements. The Ombudsman has not seen any evidence to support this, and the landlord has addressed this concern and explained the surveyor’s expert advice and the Ombudsman is satisfied that it is not unreasonable for the landlord to have relied upon this expert advice.
The Ombudsman is satisfied that the landlord appropriately acknowledged the resident’s request; it carried out an inspection as part of considering the request and its decision to decline the request was reasonable and based upon the expert advice it received.

Landlord’s handling of the CCTV issue

The landlord asked the resident to take down his CCTV camera as it had concerns that it was potentially filming public communal areas, and as such, it was worried about possible data protection-related issues. The resident’s concerns with regards to the CCTV issue are that he feels that the landlord is breaching his Human Rights by unreasonably asking him to take down his CCTV camera. He is also unhappy that the landlord is requesting him to formally request consent for use of the CCTV camera.
The resident’s comments about Human Rights legislation and his understanding of data protection laws and the ICO are duly noted. However, it is not for the Ombudsman to make a formal determination on whether or not the resident is legally entitled to have a CCTV camera filming parts of the communal area. Nor can the Ombudsman determine whether or not there has been a breach of the resident’s Human Rights and/or what his obligations are as the ‘Data Controller’ of the footage recorded by the camera. Such matters are better suited to the legal process, in which case the resident should seek his own legal advice about this. As for the data protection issues, the resident can contact the ICO for further advice and guidance in this regard.
What the Ombudsman can look at is how the landlord handled the resident’s concerns about the use of the CCTV. Looking at the available evidence, the landlord has shown that it carefully considered the resident’s concerns and it sought appropriate advice on this issue. It acted reasonably by accepting that its policy could be clearer and it took steps to address this and review its policy.
Its internal communications showed that it acknowledged that the resident had genuine and legitimate reasons for wanting the CCTV and it was prepared to accept the resident’s assurances with regards to its data protection concerns. The landlord’s decision was that it would allow the resident to keep using his CCTV camera as long as he abided by certain conditions, such as putting up a sign to confirm that recording equipment was in operation and limiting the angle of the camera to minimise the recording of the public area, as well as the other ICO-related conditions.
Whilst the landlord was willing to allow the resident to carry on using the CCTV subject to the above conditions, it also asked that he formally complete its consent form. The resident refused to do so as he was of the view that he did not need to formally obtain the landlord’s consent. Looking at the facts and the available evidence, the Ombudsman is satisfied that the landlord’s handling of this matter was appropriate and its decision was reasonable. The landlord has explained that it is willing to agree to the CCTV and that it is not looking to withhold its consent. However, it does need to follow its formal process to ensure that its decision-making is correctly recorded. As such, its request for the resident to complete the formal process is not unreasonable.
Ultimately, the landlord has agreed in principle to the resident’s request and it is not being unreasonable in asking the resident to formalise this consent via the use of its consent form, so that there is an audit trail of its decision-making.

Landlord’s handling of the associated complaint

Whilst the landlord’s handling of the substantive complaint issues were appropriate and reasonable, there were shortcomings in its handling of the associated complaint.
The landlord’s complaints policy sets out how it handles complaints and the timeframes for its responses. Looking at the evidence, it can be seen that the resident logged a formal complaint on 22 January 2021 and this was dealt with in a timely manner.
The resident was unhappy with the Stage 1 complaint response and requested that the complaint be escalated on 10 February 2021 and again on 5 March 2021. It is noted that the landlord did not respond appropriately to these escalation requests. Its policy states that when an escalation request is made it will seek to obtain further information from the resident about the issues that are unresolved and the outcome that is being sought. The landlord failed to abide by its complaints policy in this instance.
The resident referred again to the escalation of his complaint on 17 March 2021 and it was at this stage that the landlord sought further clarification and then eventually accepted the escalation request on 6 April 2021 following further communication from this Service.
The available evidence shows that the landlord failed to escalate the complaint in a timely manner. The landlord’s complaints policy does not specifically set out the timeframe for making the decision to escalate the complaint. However, it can be seen that the landlord issued several responses to the complaint but it did not follow its complaints policy. Some of the responses following the Stage 1 response dealt with the complaint issues but either failed to acknowledge the escalation request and/or neglected to confirm the outcome of the escalation.
Whilst the complaints policy did not stipulate a timeframe for making a decision on the escalation request, the Ombudsman considers that eight weeks to act on an escalation request is unreasonable. It is also noted that the resident had to bring the matter to the attention of this Service on a couple of occasions in order to try and progress the landlord’s complaints process.
Given the length of the delays in acknowledging the escalation request , the landlord also failed to consider if compensation was warranted for this service failure in accordance with its compensation policy.
Its failure to act in a timely manner meant that the resident experienced unnecessary additional inconvenience from not receiving the decision and having to chase progress with the assistance of this Service, which was unreasonable. By not confirming its decision in a timely manner, it has unnecessarily prolonged the complaints process. Looking at the overall handling of the complaint itself and taking into account the failures noted above, the Ombudsman considers that an award of compensation of £100 would be warranted in this case.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s concerns about the condition of the external communal stairs next to his property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s request for a gate to be fitted to railings around a communal area.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s use of CCTV outside his property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its complaint handling.

Reasons

The Ombudsman is satisfied that the landlord duly acknowledged the resident’s reports and concerns about the stairs, the gate and the CCTV and it has demonstrated that it responded appropriately to these issues and it acted in a reasonable manner and in line with its policies. Looking at the available evidence, the Ombudsman is satisfied that the landlord’s overall handling of these issues was appropriate.
With regards to the complaint handling, the landlord failed to act appropriately and in line with its complaints procedure. The Ombudsman is satisfied that the landlord failed to escalate the complaint in line with its complaint procedure and unnecessarily delayed the completion of its internal complaints process.

Orders and recommendations

Orders

The landlord should, within four weeks of the date of this report:
1. Pay the resident £100 compensation for any distress and inconvenience caused by the failures identified with its handling of the complaint.
Evidence of the payment of compensation to be provided to this Service within four weeks.