Orbit Group Limited (202202744)

REPORT

COMPLAINT 202202744

Orbit Housing Association Limited

27 June 2023

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

The complaint is about the landlord’s:
1. Role in the decision to serve the resident with a Community Protection Warning Notice.
2. Response to the resident’s concerns about her neighbour’s closed-circuit television (CCTV).
3. Response to the resident’s request to be reimbursed for altering her CCTV.
4. Decision not to investigate the resident’s complaint.

Jurisdiction

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. After carefully considering all of the evidence, complaint 1a falls outside of the Ombudsman’s jurisdiction.
In correspondence to this Service, the resident has complained that she was served with a Community Protection Warning Notice (CPW) which she felt was a direct response to this Service making a determination of maladministration in relation to a previous complaint. The resident disputed the allegations set out in the CPW. While the resident’s concerns are acknowledged, the evidence that is available does not demonstrate that this matter was put to the landlord as a formal complaint.
Paragraph 42(a) of the Housing Ombudsman Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint-handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.
As the matter has not exhausted the landlord’s complaints procedure, and there is no evidence of a complaint handling failure, this complaint has not been investigated. If the resident remains concerned about this issue, she may wish to raise a new complaint with the landlord. Should the resident exhaust the landlord’s complaints procedure and remain unhappy with its response, she may refer the matter back to this Service as a new complaint.

Background

The tenant has an assured tenancy with the landlord who is a Housing Association. The property is a 2-bedroom house.
The landlord received complaints about the resident’s CCTV in July 2020 and February 2021. Evidence provided to this Service shows that the landlord contacted the resident, and her solicitor, to discuss the matter on several occasions.
A further file note shows that this was discussed with the resident on 15 July 2020. The landlord gave the resident advice about her use of CCTV and directed her to the Information Commissioner’s Office (ICO) for further information.
In January 2021 the landlord continued its communication with the resident and her solicitor on the matter of her CCTV. The landlord was concerned that the CCTV’s view took in a neighbouring garden and all of the front parking area. It said that the resident had been asked to remove or reposition her CCTV but this had not been actioned at that time. The landlord received a further complaint about the positioning of the CCTV on 17 February 2021.
The resident has provided this Service with copies of correspondence with her solicitor. This includes an email dated 8 June 2021 from the landlord about its intention to seek an injunction order in relation to the resident’s CCTV. It said it would submit the application by 11 June 2021. The resident’s solicitor intended to contact the landlord to request that it delay proceedings due to the resident’s health needs. Following an inspection of the resident’s CCTV, the landlord closed the case on 22 February 2022. This was because it was satisfied there were no data protection or CCTV breaches.
The landlord has previously considered a multi-faceted complaint from the resident which was escalated to this Service and a determination issued in August 2021.

Policies and Procedures

The landlord’s CCTV procedure says it will give permission for CCTV where the system:
1. Only captures images at the customer’s property and not neighbouring properties.
2. Does not cover communal areas.
3. Complies with UK law.

Where existing CCTV does not meet these conditions, the landlord will write to the tenant and request for the CCTV to be removed.

The Housing Ombudsman’s Complaint Handling Code sets out that a landlord must accept a complaint unless there is a valid reason not to do so. This can include matters that have previously been considered under the complaints policy.
The landlord’s complaints policy says it will treat all complaints, whether handled formally or informally, fairly and transparently, however they are made. It states that “any decision to exclude a complaint from the formal complaint procedure will be explained clearly to customers. There may be times where complaints are made up of multiple issues, where we only exclude part of the complaint from our investigation.”

Summary of events

The landlord inspected the resident’s CCTV on 1 February 2022. During the visit, the resident raised concerns about the positioning of her neighbour’s (Mr J’s) CCTV. The landlord’s file note of the visit says “Mr J’s camera is in breach of the CCTV policy as it is sited underneath a bedroom window at the front of the property and pointing in the direction of the resident’s property.”
The landlord’s records show that it emailed Mr J on 4 February 2022 to ask him to adjust his CCTV so that it only captured footage of within the boundary of his property. The landlord asked Mr J to ensure that the adjustment was made by 8 February because a further inspection would be carried out. It is unclear what transpired following this.
The landlord emailed the resident’s solicitor on 1 March 2022. It said that it had contacted Mr J to request that the camera angle be adjusted or the camera repositioned. It said it had since spoken to the resident who was concerned that although the camera angle had changed, she was concerned the camera was still pointed at her home. It said it would reinspect the camera to check the “recording span.”
The resident emailed the landlord on 7 March 2022 to say that Mr J was not displaying signage to say that CCTV was in operation at the property. In response the landlord visited the resident on 16 March to inform her that Mr J had agreed to adjust the camera. The resident contacted the landlord on 21 March 2022 to report that the camera had not yet been moved.
The landlord contacted Mr J on 23 March 2022 to request that he adjust one of the cameras. The records show that Mr J agreed to move the camera on 30 March 2022, following a visit to his home by the landlord.
On 8 April 2022 the resident’s solicitor wrote to the landlord about Mr J’s CCTV. Within the letter, the solicitor said:
1. The landlord had inspected Mr J’s CCTV on 1 February 2022, concluding it was likely that the system was capturing the resident’s property.
2. The landlord’s subsequent letter of 11 February stated that the CCTV system was “potentially unlawfully recording.” The letter stated the landlord had contacted Mr J to request that the camera be relocated. This would ensure it would only record within the curtilage of their property.
3. The resident had advised that the positioning of the camera had been moved temporarily. However, the resident was concerned the camera had been adjusted and was now tilted towards her property.
4. The resident was dissatisfied that she had complied with a request to ‘mask’ her CCTV, but Mr J had not complied with the landlord’s request in respect of his CCTV. She was concerned that the landlord had failed to enforce this request, as it had done so with her.
The resident phoned this Service on 10 May 2022 to express her dissatisfaction about a number of issues. These included the landlord not enforcing the relocation of Mr J’s CCTV despite her raising this on a number of occasions. She was also seeking compensation for costs she incurred in removing and relocating her own CCTV at the landlord’s request. This Service wrote to the landlord on 11 May 2022 to set out the issues raised by the resident, and requested that it respond to the resident by 25 May.
On 12 May 2022 the landlord contacted this Service to say it had opened a stage one complaint upon receipt of the letter. However, it said it would review the content of the complaint and would close it if, in its opinion, it had already investigated the issues raised by the resident.
The landlord’s internal records show that on 23 May 2022 a member of its Housing Ombudsman Enquiries team raised the question of whether the complaint relating to CCTV was a new complaint.
The resident’s solicitor wrote to the landlord on 23 May 2022 regarding her ongoing concerns about the location of Mr J’s CCTV. The letter refers to a telephone call between the solicitor and landlord taking place a few days prior. This Service has not seen contemporaneous evidence relating to the call.
The landlord confirmed it was satisfied that Mr J’s CCTV did not point at the resident’s property. However, the solicitor was concerned that Mr J could easily adjust the angle of the camera. He made reference to photographs enclosed with the letter showing a different placement of the CCTV before and after the landlord’s visit. The solicitor pointed out that no offer of compensation had been made to the resident to partially compensate her for the costs she incurred as a result of the landlord’s request. The solicitor also queried whether an inspection could be undertaken by the expert who had previously assessed the positioning of the resident’s own camera.
The landlord wrote to the resident on 31 May 2022 to confirm receipt of her complaint of 12 May. It gave a target response date of 18 June.
On 6 June 2022 the landlord wrote to the resident to advise that it was of the opinion that the issues she had raised with this Service had previously been considered under its internal complaints procedure. It said it would therefore not revisit the complaint and the previous responses still stood. It confirmed this was its final response and that the internal complaints procedure had been exhausted.On 22 June 2022, the landlord informed the resident that she could escalate her complaint to this Service if she remained unhappy.
The resident’s solicitor wrote to the landlord on 31 August 2022. It said that the resident remained concerned that Mr J was moving the position of the cameras at the property so as to direct them at her and/or her property. She continued to be dissatisfied that she had privacy zones installed on her cameras to meet the landlord’s requirements.
On 24 April 2023 the resident informed this Service that during a meeting in January 2021, her solicitor raised a concern that the landlord had asked Mr J to move his CCTV, but he had failed to do so. The resident clarified that she had not asked the landlord for compensation in regard to the costs she had incurred in moving her own CCTV. She explained that rather than move the cameras, she adapted them so as to limit their view, meeting the landlord’s requirements. The resident said her solicitor had told the landlord she had incurred costs in carrying out these adjustments so she hoped they would have made an offer to compensate her.

Assessment and findings

Resident’s concerns about her neighbour’s CCTV

In order to investigate the resident’s complaint, this Service requested information from the landlord. This included evidence relating to the positioning of Mr J’s CCTV and correspondence that was sent in relation to the matter. The landlord has submitted further evidence to this Service, however it remains incomplete and our investigation into the resident’s concerns has been limited as a result.
The resident’s solicitor contacted the landlord on several occasions to communicate her dissatisfaction about the positioning of Mr J’s CCTV. The evidence provided to this Service shows that the landlord emailed Mr J on 4 February 2022 to ask him to move or adjust his camera by 8 February. It said it would carry out an inspection after that date. It is unclear if an inspection was carried out.
In an email to the resident’s solicitor on 1 March 2022 the landlord confirmed that it had spoken to the resident who had said that the camera angle had changed. However, she was concerned the camera was still pointed at her home. As the landlord had provided an assurance that it would inspect Mr J’s camera, it would have been appropriate for it to do so. Furthermore, it would have been appropriate for the landlord to have kept a record of what it found on inspection and to update the resident with what it had found. That the landlord did not take such action was a failing in its handling of the matter.
On 16 March 2022 the landlord informed the resident that Mr J had agreed to adjust the camera. The resident contacted the landlord on 21 March to report that the camera had not yet been moved. By way of response, the landlord contacted Mr J again on 23 March 2022.
It is unclear exactly when the landlord followed up on its request, dated 4 February 2022, to Mr J to adjust his CCTV. Had the landlord inspected on or shortly after the 8 February, as it said it would, the request would have been made much earlier. This would have saved the resident the time and trouble of raising her ongoing complaint through her solicitor.
In the days before 23 May 2022 the landlord had confirmed to the resident’s solicitor that it was satisfied that the neighbour’s CCTV did not point at the resident’s property. However, the resident’s solicitor wrote to the landlord on 31 August 2022 to advise that the resident remained concerned that her neighbour was moving the position of the cameras. She believed they were being directed at her and/or her property. In the circumstances it would have been reasonable for the landlord to have allayed her fears by visiting the resident and Mr J’s properties. There is no evidence that the landlord considered doing so which was a failure in its response.
It is acknowledged that landlords lack the financial and practical resources needed to monitor the positioning of its resident’s CCTV at all times. However, a landlord must take reasonable steps to inspect residents’ use of CCTV in the event of a complaint. It should take appropriate steps to ensure that use of CCTV complies with its policy and procedure when a concern has been raised. The evidence suggests that the landlord did not do so in this case. This had a detrimental impact on the resident because she had to go to the time and trouble of repeatedly raising her concerns which also caused her distress. The landlord failed to provide a reasonable and timely response to the resident’s concerns about Mr J’s use of CCTV.
The landlord failed to apply its CCTV procedure which says that where “existing CCTV does not meet these conditions, the landlord will write to the tenant and request for the CCTV to be removed.” The landlord did not ask the resident or Mr J to remove their CCTV. The landlord considered it reasonable to use its discretion to allow the CCTV to remain, providing certain conditions were adhered to. However, this was not in line with the procedure which was a failure and a recommendation has been made accordingly.
The failures identified regarding the landlord’s response to the resident’s concerns about Mr J’s CCTV amount to maladministration. An order has been made to pay the resident £200 compensation.

Request to be reimbursed

The landlord’s CCTV procedure states that CCTV is not permitted, but that permission will be given in certain circumstances. This includes when the system only captures images at the customer’s home and not neighbouring properties or public areas. The resident had previously been asked to adjust her CCTV, and says that she incurred costs in ensuring that it was properly adjusted.
While the resident’s concerns are acknowledged, the landlord had advised that the CCTV needed to be repositioned to ensure that it only covered the resident’s property. In order for the resident to comply with the grounds for permission, she was obligated to ensure that the CCTV was correctly positioned. It follows that there are no grounds for the resident to be reimbursed, or for compensation to be awarded.

Decision not to accept the complaint

The landlord’s complaint policy says, “there may be times where complaints are made up of multiple issues, where we only exclude part of the complaint from our investigation.” The complaint put to the landlord by this Service was made up of a number of components. It was the landlord’s responsibility to consider which elements, if any, it had already considered through its internal complaints process.
The landlord acted appropriately by considering whether it had already considered the issues relating to CCTV. However, there is no evidence that it considered this point any further before concluding that the complaint as a whole had already been investigated. On that basis, it decided that the complaint would not be investigated again. It would have been appropriate for the landlord to separate the elements of the complaint and reserve this element for investigation. If the landlord required clarification about any of the complaint points, it would have been reasonable for it to seek this from either the resident or this Service.
The evidence provided to this investigation shows that the issues relating to CCTV had not been raised as a formal complaint previously and it had therefore not responded to those issues through its internal complaints process.
The landlord’s decision to not investigate the complaint was unreasonable. It denied the resident the opportunity to resolve her complaint quickly through the internal complaints process. This caused her to go to the time and trouble of pursuing the complaint through this Service in order to seek a resolution. It was also a missed opportunity by the landlord to review the service it had provided and to consider whether it could have handled the matter better. It was also a missed opportunity to try to understand the resident’s concerns and the reasons behind her complaint. This is a failure which amounts to maladministration.

Determination (decision)

In accordance with paragraph 42(a) of the Scheme, the resident’s complaint about the landlord’s role in issuing a CPW is outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its response to the complaint about Mr J’s CCTV.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s request to be reimbursed costs incurred in adjusting her own CCTV.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its decision not to investigate the complaint.

Reasons

The landlord failed to take timely action in relation to the complaint about Mr J’s CCTV. It failed to follow its CCTV procedure.
This investigation finds there are no grounds for the resident to be reimbursed, or for compensation to be awarded.
The landlord inappropriately declined to investigate the resident’s complaint.

Orders

Within 4 weeks of the date of this determination, the landlord should pay the resident £500 compensation comprising:
1. £250 for the time, trouble and distress caused by the failings in its response to the resident’s concerns about Mr J’s CCTV.
2. £250 for the time and trouble caused by the failings in complaint handling identified by this investigation.

Recommendations

The landlord should:
1. Review how and when it will enforce complaints about CCTV. It should make sure that the wording in the procedure reflects how it responds to such complaints on a day to day basis.
2. Ensure its CCTV procedure is clear that residents are responsible for any costs associated with installing, maintaining, altering and/or removing CCTV.