Central and Cecil Housing Trust (202006602)

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REPORT

COMPLAINT 202006602

Central and Cecil Housing Trust

26 January 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

  1. This complaint is about:
    1. The resident’s allegation that the landlord’s communications breached General Data Protection Regulations (GDPR) and the landlord’s handling of her Subject Access Request (SAR);
    2. The landlord’s management of the resident’s contact preferences;
    3. The landlord’s complaint handling.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, in accordance with paragraph 39 of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
    1. The resident’s allegation that the landlord’s communications breached General Data Protection Regulations (GDPR) and the landlord’s handling of her Subject Access Request (SAR).
  3. Paragraph 39(m) of the Scheme says the Ombudsman will not investigate matters which, “in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.”
  4. The resident has alleged the landlord breached GDPR regulations on multiple occasions since she amended her communication preferences in August 2019. The landlord has said the regulations allow business functions to continue where they are deemed to be in a legitimate or vital interest.
  5. The Information Commissioner’s Office (ICO) was set up to deal with concerns about data handling by organisations, it is therefore in a position to assess the regulatory aspects of both the resident’s complaint, and the landlord’s counter argument.
  6. The resident has indicated she is unhappy with the landlord’s handling of her SAR. Since an organisation’s SAR handling obligations fall within the scope of GDPR, the ICO is the appropriate means to assess the resident’s concerns. As a result, this aspect of the resident’s complaint falls outside of the Ombudsman’s jurisdiction.
  7. The Ombudsman can investigate activities undertaken by the landlord while it is acting in its capacity as a landlord. On that basis, we can consider the landlord’s management of the resident’s contact preference records. This will form the focus for the rest of this assessment.

Background and summary of events

Background

  1. The resident is an assured tenant, and the tenancy began on 4 December 2000. The property is a one-bedroom flat located in a building comprising two flats. The landlord’s website confirms it specialises in providing accommodation for residents aged over 55.
  2. The tenancy agreement predates GDPR by around 17 years. It therefore contains no corresponding obligations on the part of the landlord. However, the resident has rights enabling her to peacefully occupy the premises, and to access information about the landlord’s obligations, policies and procedures.
  3. The landlord has a “Privacy and Data Protection Policy”. The policy document confirms it took effect from 20 October 2020. The Ombudsman was unable to find a preceding policy document online. The document highlights the role of the ICO as the “UK’s Supervisory Authority” in respect of GDPR.
  4. The landlord operates a two stage complaints policy. The policy document is dated November 2020. The Ombudsman was again unable to find a more relevant document, so the version the landlord provided was used for the assessment. The policy shows complaints will be acknowledged within two working days at stage one.
  5. It also confirms complaint outcomes can be appealed. In this event, cases are reviewed by a panel comprising of a director and two residents. Appeal outcomes will be provided within 20 working days. If this is not possible, an update will be issued along with a revised target date for a full response.
  6. The landlord has a compensation policy. The policy confirms it can award compensation in the event of service failure. The level of compensation awarded depends on the impact of the failure. Service failure is defined as not responding to service requests within given timescales or to acceptable levels.
  7. The evidence suggests the resident has vulnerabilities relating to her physical health. It also suggests the landlord was aware of the resident’s situation from the outset of the timeline below.

Summary of events

  1. On 11 August 2019 the resident withdrew permission for the landlord, or its contractors, to contact her by phone or retain her number on its records. Her email said that all further communications were to be conducted via email.
  2. The landlord’s internal correspondence confirms it called the resident on 3 April 2020 as part of its response to the pandemic. It shows the landlord was in the process of making welfare calls to its residents with a view to understanding whether they needed any additional support. Based on the content of the resident’s call, the landlord escalated the incident to several of its senior staff on the basis a breach of GDPR may have occurred.
  3. The resident contacted the landlord by email shortly after the call. The email restated her consent for telephone contact had previously been withdrawn and that communications were to be conducted by email. She alleged the landlord was engaged in harassment based on five previous contacts initiated by the landlord or its contractors. The contacts referenced included surveys undertaken on the landlord’s behalf, along with calls received in connection to unscheduled repairs and maintenance.
  4. The landlord’s internal correspondence confirms it was contacting residents from a list. While an alert about contact preferences had previously been placed on the resident’s file, it was not transferred to the list when the landlord extracted contact details from its systems. The correspondence shows the landlord removed the resident’s number from its system once the error was identified.
  5. The resident later raised a formal complaint in a separate email. The subject line was “Breach of GDPR regulations on 5 occasions”.
  6. The landlord’s data protection specialist issued a written apology the same day. It acknowledged the resident had been contacted against her wishes and experienced distress. It said the contact should not have occurred and the resident’s number had now been removed. The incident was recorded in the landlord’s GDPR register. The resident was given the ICO’s details along with confirmation the incident was being investigated separately as a complaint.
  7. This prompted the resident to respond that the specialist had also breached GDPR regulations recently. This was because a previous unrelated email said the resident would be given a password, to access her rent account, during a phone call.
  8. The landlord acknowledged the resident’s complaint in writing on 7 April 2020. It said the resident would receive a response by 5 May 2020. Its complaint summary centred around the welfare call. This prompted the resident to respond on the same day that information had been omitted from the complaint. However, the complaint was being reported to the ICO and nothing would be omitted at that stage.
  9. The landlord issued a stage one complaint response on 5 May 2020. The main points were:

a.     Following the resident’s notification of her preference for email contact, the landlord had placed an alert on her records highlighting her instruction. However, her phone number had not been removed at this time.

b.     The landlord had decided to call all its residents to check on their welfare due to the pandemic. It had extracted their records from its system in preparation for these calls. At the point of extraction, the resident’s phone number was included but her preference alert was not. This resulted in the resident receiving a welfare call.

c.      Had the correct action been taken when the resident withdrew her consent, all subsequent attempts to call her since August 2019 could have been avoided.

d.     The landlord was sorry for any distress caused. It had removed her phone number to prevent the situation from reoccurring, and a data protection incident had been raised.

e.     The complaint was upheld, and £50 compensation was awarded to recognise the distress and inconvenience the resident had experienced.

  1. The response prompted further correspondence between the parties the following day. The resident again highlighted her complaint referred to more than one GDPR breach and that the ICO would be involved. The landlord replied it had agreed breaches occurred on numerous occasions in its response. It asked the resident to confirm whether she wanted the complaint to be escalated, along with her preferred outcome. The Ombudsman has not seen evidence the resident replied to this email.
  2. On 7 May 2020 the resident notified the landlord she had received two of its newsletters by email that day. She asked for the landlord to prevent further such letters being sent. The landlord referred her request internally to the relevant department. The information seen suggests, following the referral, the resident was assured no further newsletters would be sent. The Ombudsman has not seen a copy of the assurance email.
  3. On 22 May 2020 the resident notified the landlord she had received another unwanted newsletter by email. She again alleged harassment and referred to the landlord’s previous confirmation that it would stop correspondence of this type. The email contained “complaint” in the subject heading.
  4. Further correspondence took place between 22 and 26 May 2020. During this exchange, the landlord apologised that its previous actions had not prevented further general updates being emailed to the resident. It said it would take steps to manually review its mailing lists going forward. In her response, the resident restated she was only to be contacted by email in an emergency, and no correspondence was to be sent by post. She also alleged harassment and a breach of GDPR had occurred. On 26 May 2020 she highlighted the landlord had failed to treat the matter as a complaint in line with her original email.
  5. The landlord issued a stage one acknowledgement relating to the second complaint on 27 May 2020. It confirmed the resident would receive a response by 23 June 2020.
  6. The Landlord issued its stage one response on 10 June 2020. It said the resident had received a general newsletter on 22 May 2020 despite her previous request to be excluded from all non-critical communication. This was due to a system error which had since been fixed. Since a manual check had also been introduced, the landlord did not expect similar incidents to reoccur. The complaint was upheld, and the resident was offered an apology.
  7. On 1 July 2020 the resident asked the landlord to consolidate and escalate all her complaints concerning alleged breaches of GDPR since 11 August 2019.
  8. On 9 July 2020 the resident gave the landlord an email list of 12 alleged breaches to be addressed at stage two by the panel hearing. The Ombudsman has only seen a partial version of this email, which detailed seven incidents between 4 September 2019 and 30 March 2020. The content was similar to the resident’s initial complaint email and referred to many of the same incidents. A separate email the same day contained evidence showing the landlord’s contractor had retained the resident’s phone number in November 2019.
  9. On 29 July 2020 the resident notified the landlord its contractor had texted her details of an upcoming gas safety check. She alleged this was a further breach of GDPR and asked for the incident to be included in her consolidated complaint. She said the landlord’s contractors should not contact her directly. She was also unwilling to facilitate access for this contractor based on her previous experience, which was the subject of a separate panel hearing. The landlord’s internal correspondence suggests it sought to find an alternative contractor based on this exchange.
  10. The landlord issued an update on 10 September 2020. It said stage two panel hearings had been postponed from March 2020 due to the pandemic. However, it was looking at ways to resolve outstanding hearings and asked if the resident would agree to video conferencing.
  11. On 20 November 2020 the landlord issued an update on the complaint. It said the resident’s concerns would be considered by a panel during a video conference on 17 December 2020. The resident was invited to the hearing. Following the hearing a formal response would be issued within ten working days. While the hearing did not take place as scheduled, the Ombudsman has not seen evidence which explains the delay.
  12. During correspondence between the parties on 9 December 2020, the resident raised concerns about the landlord’s handling of her SAR. The correspondence suggests the information request was made in connection with a number of the resident’s formal complaints against the landlord. The resident said the requested data had not arrived, and that information had been omitted or intentionally sent to the wrong address.
  13. On 1 February 2021 the landlord advised there would be a short delay while the panel, which included resident volunteers, sought independent advice to clarify their questions around the legality of GDPR.
  14. The landlord issued its stage two response on 9 February 2021. The main points were:

a.     The hearing had been held on 14 January 2021 without the resident in attendance.

b.     The panel agreed the resident had been contacted against her wishes, but they were satisfied the communications were not intended to cause harassment and were sent without any malicious intent.

c.      Having considered the nature of the contacts, the panel found the majority were connected to the wellbeing of all residents. As such, the resident had not been treated any differently.

d.     The panel found GDPR regulations allowed business functions to continue where they were deemed to be in a legitimate or vital interest, such as welfare calls.

e.     The resident’s complaint was upheld at stage one and the panel were unable to reach a different conclusion. The landlord had apologised, taken preventative steps and referred the resident to the Information Commissioner’s Office.

f.        The landlord was legally obliged to contact the resident in certain circumstances, such as in the event of rent arrears. It had no obligation to prevent specific members of its staff from contacting her.

g.     The resident’s hearing had been delayed due to the pandemic, otherwise there were no identified failures with the landlord’s complaint handling.

  1. The resident responded the same day and copied in the Ombudsman. She disputed the outcome on the basis she had received “marketing” calls, including contact from surveyors and lettings agents, unrelated to her welfare. Further breaches of GDPR were alleged, along with harassment, in relation to the resident’s personal information being sent to the wrong address. The resident again said her concerns would be referred to the ICO at this point.

Assessment and findings

  1. The landlord has accepted it failed to remove the resident’s contact number, following her request in August 2019. Further, that this resulted in several unwanted contacts. It also failed to prevent her from receiving additional newsletters by email after she updated her preferences again on 7 May 2020. It is recognised the resident has experienced distress because of the landlord’s acknowledged failures.
  2. It is also acknowledged the resident has said she was subject to discrimination and harassment from the landlord on numerous occasions. She has also alleged the landlord engaged in intimidation towards her. The Ombudsman cannot make a finding of discrimination under the Equalities Act 2010 or otherwise. Nor can it establish whether harassment or intimidation have occurred. These are legal matters that would need to be determined by a court. These concerns are therefore beyond the scope of this assessment. The resident could contact the Citizens Advice Bureau if she needs assistance pursuing these concerns.
  3. In this case, the Ombudsman can assess the landlord’s management of the resident’s contact preferences and its response to her complaint. Accordingly, any redress the landlord offered will be considered in proportion to these aspects of the complaint in line with the Ombudsman’s jurisdiction. Since the Ombudsman cannot make a finding that the landlord engaged in harassment, it cannot order compensation commensurate with such a finding.
  4. In relation to any failures identified the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the complainant’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
  5. It is accepted the landlord was forced to respond to an unprecedented situation in the form of the pandemic, which was at an early stage at the beginning of the timeline. Given the landlord’s focus on providing accommodation for older tenants, this assessment found its decision to make welfare calls to each of its residents was reasonable given the circumstances. The landlord’s internal correspondence suggests this welfare project was improvised. As a result, it did not predict the possibility that objections to the calls might be raised on GDPR grounds.
  6. The evidence seen shows the landlord has taken appropriate steps to resolve the issue of unwanted contact by removing the resident’s phone number from its system. A data incident was also raised, and the resident was referred to the ICO. In respect of issuing newsletters by email, the landlord fixed a system error and introduced a manual check to prevent the issue from reoccurring. The resident was offered an apology which was proportionate given the circumstances. The timeline shows she has not reported receiving additional contacts that could reasonably be considered non-critical, such as marketing calls, since these actions were taken.
  7. That said, it is accepted the resident reported further phone contact, in the form of a text message, from the landlord’s contractor on 29 July 2020. However, the landlord has said GDPR regulations do not interfere with business functions deemed to be in a legitimate or vital interest. The Ombudsman is unable to consider the merits of this argument or whether the text itself breached GDPR. It is noted the panel sought independent advice in respect of the regulations, before making this argument, and this was a reasonable step on the part of the landlord.
  8. It is recognised a significant volume of unwanted contacts could have a cumulative detrimental impact on the resident. However, no evidence was seen to show she experienced significant adverse effects resulting from the landlord’s calls, emails or texts. While the assessment was mindful of the resident’s vulnerability, there was also no information to show her condition was aggravated by the situation.
  9. Given the above, this assessment found the landlord’s remedial actions and award of £50 in compensation to be proportionate given the circumstances. These actions therefore represent reasonable redress on the part of the landlord in respect of its failure to manage the resident’s contact preferences.
  10. The landlord’s complaint handling was considered in conjunction with the timeline and the Housing Ombudsman’s Complaint Handling Code. Lesser consideration was given to the landlord’s complaints policy document on the basis it did not cover the full timeline and previous versions may differ. Section 3.14 of the Code says, “Landlords shall address all points raised in the complaint and provide clear reasons for any decisions...”.
  11. The resident disputed the scope of the landlord’s initial investigation following receipt of its complaint acknowledgement on 7 April 2020. This was on the basis additional contacts had occurred besides the welfare call. The resident raised this point again on 6 May 2020 after she received the landlord’s stage one response. While the wording of the initial stage one response confirms more than one contact was considered, the landlord could have provided reassurance by referring to the other contacts in more detail.
  12. This was also the case for the landlord’s final response on 9 February 2021, which referenced the majority of contacts being made in connection to wellbeing. However, the landlord’s assertion was not self-evident from the level of detail given in its final response. As mentioned, the Ombudsman is unable to assess whether any contacts made were legitimate, vital or in accordance with GDPR. However, the landlord could have identified the resident’s concerns about the level of detail from her correspondence at stage one of its complaints procedure.
  13. On the other hand, given the nature of the complaint, it is reasonable to conclude the resident would likely need to refer her complaint to the ICO regardless of the level of detail contained in the landlord’s final response. This is because, unless the landlord confirmed every incident raised had breached GDPR, the ICO would need to reach a finding on the regulatory aspects of her complaint. Given the above, this assessment found, overall, the landlord’s responses were compliant with the Code since the resident’s complaint points were addressed and a rationale was provided.
  14. The timeline shows the resident had to prompt the landlord to respond to her formal complaint request, concerning general newsletters, in May 2020. This should not have been the case given the wording of her complaint email. Having considered a 2020 calendar in conjunction with the landlord’s complaints policy, the timeline suggests the landlord should have acknowledged her complaint on Tuesday 26 May 2020. However, the acknowledgement was not issued until the following day. It is unclear whether the case would have been correctly progressed without the resident’s intervention.
  15. While it is accepted there was a short delay in the complaint’s progress, this assessment found the resulting impact on the resident was limited. This is because the timeline confirms the resident was already engaged in correspondence with the landlord at the time. On that basis, it is reasonable to conclude she did not incur significant inconvenience by sending an additional email prompt. Given the duration of the delay, it can be fairly concluded it had no bearing on the outcome of subsequent events.
  16. The timeline confirms it took around seven months, from the point the complaint was escalated, for the landlord to issue a final response letter. The landlord’s complaints policy confirms this timeframe fell significantly outside of its published response timescales. However, the landlord confirmed it was experiencing difficulties resolving stage two complaints at an early stage of the escalation timeline due to the pandemic. On that basis, it cannot fairly be said the landlord was responsible for an unreasonable seven-month delay in resolving the complaint.
  17. That said, the timeline shows the landlord confirmed a panel hearing had been scheduled for 17 December 2020. Contrary to the landlord’s update, this hearing did not take place until 14 January 2021. While Ombudsman has not seen evidence confirming the exact cause of the delay, this assessment found it reasonable to conclude it was caused by the actions of the landlord. This is because any preparation required in advance of the hearing was likely to be on the landlord’s part. On that basis, the landlord was responsible for a delay of around four weeks. While it is unclear what impact this delay had on the resident, the duration was long enough to require redress from the landlord.
  18. Overall, this assessment found the above identified delays amounted to service failure in respect of the landlord’s complaint handling.

Determination (decision)

  1. In accordance with paragraph 55 of the Housing Ombudsman Scheme, the landlord has offered reasonable redress in respect of its management of the resident’s contact preferences.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure on the part of the landlord in respect of its complaint handling.

Reasons

  1. The landlord took proportionate remedial action to rectify its failures while managing the resident’s contact preferences. This included awarding £50 compensation to recognise the distress and inconvenience caused.
  2. The landlord had to be prompted to correctly raise the resident’s complaint causing a one-day delay. It was also responsible for a further delay of around four weeks when it rescheduled a stage two panel hearing. Overall, this assessment found these delays amount to service failure by the landlord although, based on the evidence, their impact on the resident was limited.

Orders and recommendations

Orders

  1. The landlord to pay the resident a total of £100 in compensation within four weeks of the date of this report comprising:
    1. £50 previously awarded at stage one on 5 May 2020
    2. £50 to redress any distress or inconvenience caused by the above identified complaint handling delays.
  2. The landlord should provide evidence of compliance with the order within 4 weeks.