Southwark Council (202117882)

REPORT

COMPLAINT 202117882

Southwark Council

30 April 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 response to the resident’s reports about the CCTV his neighbour installed in the communal area.

Background and summary of events

Policy and Legal Context

Guidance from the Information Commissioner’s Office (ICO). The use of recording equipment, such as CCTV or smart doorbells, to capture video or sound recordings outside the user’s property boundary is not a breach of data protection law. People should try to point their CCTV cameras away from their neighbours’ homes and gardens, shared spaces, or public streets.
Recent case law Fairhurst v Woodard in respect of Ring doorbell video footage, it was determined that the Defendant’s legitimate interest was not overridden by the Claimant’s right to privacy as any video footage was likely to be collected only incidentally as the resident walked past.
The landlord’s tenancy agreement states,
1. Clause 25a – residents must not make any improvement to the property without first obtaining written consent from the landlord.
2. Clause 10b – residents and persons residing in or visiting the property must act in a reasonable manner and must not do anything which causes nuisance, annoyance, distress, or alarm to other persons residing, visiting, or otherwise engaging in a lawful activity in the locality.
On the anti-social behaviour (ASB) pages of its website, the landlord:
1. Acknowledges that its residents have the right to live peacefully in their home and commits to investigate all complaints of anti-social and threatening behaviour made by or against its residents.
2. Commits to working with the police and its partners using a range of tools and powers that equip them to deal with anti-social behaviour. These tools include evicting tenants who cause nuisance and applying for injunctions.

Background

The landlords’ records show that there have been previous periodic incidents of ASB, between the resident and the neighbour, since 2016. The neighbour’s behaviour towards the resident in 2017, resulted in the landlord and the police initiating court proceedings against the neighbour to secure an injunction. The Ombudsman has also previously investigated a complaint from the resident in regard to the landlord’s handling of the ASB in 2018 (case ref: 201705617). These events are historic and will not be considered in this investigation. If they are referenced in this report, it will be for context only.

Summary of Events

The resident is a leaseholder of the landlord, which is a local Council. The landlord has not provided a copy of the lease.
On 16 April 2020, the resident contacted the landlord and the police to report that his neighbour had installed surveillance equipment in her bedroom, overlooking the communal area. The resident said that the police advised that this was not within their remit to resolve so he would need to approach his landlord which he had done.
On 24 April 2020, the landlord wrote to the neighbour to advise that on a recent estate inspection, a CCTV camera was spotted in her bedroom window. It said that permission had not been obtained, in line with her tenancy conditions, and that it does not usually allow permission to install cameras that would infringe on other people’s privacy.
The resident said that he contacted the landlord by email on 17 April 2020 to ask what action would be taken, and on 23 April 2020 to advise that the camera was re-instated (although it is not clear if or when it was taken down). On 7 May 2020, the resident requested a further update from the landlord and received no response.
On 22 August 2020, the resident said he reported to the landlord that the neighbour was vandalising the landlord’s communal flowerbeds, but he did not receive a response.
The resident said when he had not received a response to any of his reports, on 24 August 2020, he wrote to complain to the Landlord’s Chief Executive. This was logged as a formal stage one complaint. The key issues in the resident’s complaint were:
1. That he had been the victim of ongoing harassment for seven years, due to the landlord’s failure to act on breaches of the tenancy.
2. He had previously reported that the neighbour had set up video surveillance, to record him coming and going from his apartment and the landlord had not acted on his complaints.
3. The police had confirmed it was within the landlord’s remit to take action.
4. He had endured distress and suffering; the lack of action was an abuse of his human rights, he felt abandoned, and that the organisation did not even follow basic policy.
5. He requested a report of the actions taken and an explanation of why the organisation had not taken steps to evict the neighbour.
On 26 August 2020, the landlord wrote a letter to the neighbour, headed “alleged anti-social behaviour”, advising that she was in breach of her tenancy conditions by not removing the camera as previously advised. It offered mediation as a resolution.
On 15 September 2020, the landlord provided a stage one response, it defined his complaint as the resident having an ongoing neighbour dispute, and the resident felt the landlord had failed in its obligations to him by failing to take enforcement action against the neighbour. In summary the landlord’s response said:
1. When the resident’s harassment first started, it had advised it was a police matter. It worked with the police to obtain a legal injunction against the neighbour; to prevent her causing any action that would amount to harassment of the resident or other neighbours. They were unable to list the case for hearing and it had to be withdrawn.
2. The resident had not reported any further incidents, until recently, when he reported a camera in the neighbour’s bedroom window, directed at the communal entrance.
3. The landlord said it wrote to the neighbour asking her to remove it, as she had not sought permission.
4. It carried out an inspection and no camera were present; however, the resident had recently informed them it was back.
5. It advised that it had offered the resident mediation with the neighbour, which the neighbour had accepted, and the mediator would contact him in due course.
On 18 September 2020, the resident expressed his dissatisfaction at the stage one response and requested escalation to stage two of the complaint process. He did not feel the matter had been treated seriously, he disputed a number of facts set out in the response and believed the offer of mediation to be the result of complaints the neighbour had made about him, carrying out short bursts of exercise in his home; not to help him resolve the problems he was experiencing.
On 8 October 2020, the Council’s Environmental Health Officer (EHO) contacted the landlord, to advise that the neighbour had made allegations of noise nuisance against the resident.
The landlord responded to the EHO advising that it had received several Councillor enquiries on this matter, during the pandemic, but no-one could visit to witness the noise. It advised that both had made counter allegations, and that the parties were being referred to mediation.
At some point the neighbour installed the camera to the front exterior of her property, instead of from her bedroom window. It is not clear at what point between April and November 2020, this happened, but a photograph was provided to the landlord on 3 November 2020. When the camera was placed externally, the resident felt more convinced it was specifically to record him.
The landlord acknowledged the complaint on 8 October 2020 and provided its stage two complaint response on 6 November 2020. The landlord said in its response:
1. The resident had been in dispute with his downstairs neighbour for a number of years, and most recently, the resident had complained about the neighbour installing a security camera, which overlooked the communal stairway at the block. The resident had reported the matter to the Police, who referred them back to the Council.
2. It disputed that it had not followed due process or failed to take the steps available to it within the overarching legal framework. It explained that allegations of ASB, and neighbour disputes, were notoriously difficult and challenging, and that it was often not possible to provide residents with the ‘demonstrable and direct action’ which they want.
3. Whilst the resident may be personally unhappy with the neighbour’s installation of the security camera, the law in this area is that there is nothing illegal in her doing so.
4. The issue for the landlord is that permission must be sought and obtained for any such installation made upon its premises. It is the failure to obtain such permission which would render it a breach of tenancy conditions.
5. It agreed the camera posed potential infringement on the privacy on the residents and it had written to the neighbour on 30 April 2020, requesting that the camera be removed. She had then been given a reasonable period of time to do so. Following receipt of the resident’s recent complaint, she was written to again on 26 August 2020, reminding her of her responsibilities, and inviting her to engage with the external mediation service which the landlord employs.
6. In light of the photo submitted on 2 November 2020, which indicated that the neighbour had installed a camera outside her property, the landlord had written to the neighbour once again regarding permission to make such an installation.
7. In view of the wider scenario between the resident and neighbour, and the length of time for which it seemed to have been ongoing, it considered, mediation to be the best way forwards.
8. The Customer Resolutions Team stated it was not able to remove the CCTV camera at that time without due process being followed.

Assessment and findings

Scope

This service has had sight of further reports made to the landlord about harassment experienced by the resident from the neighbour, dated October 2022, which included, verbal abuse, intimidation, threatening behaviour to his visitors. These reports were made to the landlord sometime after the resident’s complaint was closed and would therefore, constitute a new complaint. The Ombudsman cannot investigate complaints that are made prior to having exhausted a member’s complaints process, so they cannot be included as part of this investigation. The resident is however entitled to pursue a new separate complaint for ASB with the landlord if he chooses to do so.

Assessment

The use of recording equipment, such as CCTV or smart doorbells, has become more commonly used, as residents want to deter criminal activity and make themselves feel more secure. It is an area of activity that is overseen by the ICO, and their guidance confirms that to capture video or sound recordings outside the user’s property boundary is not illegal.
When the resident reported the installation of a camera at the neighbour’s property, it was understandable that he was concerned and questioned the neighbour’s motives, given the previous history of anti-social behaviour and harassment he had experienced. He advised this service that he had been unable to use the lifts of his apartment block for 18 months, due to the fear of being monitored. He said the erosion of his privacy had caused anxiety and he did not feel safe in his own home.
In its approach to ASB, the landlord commits to investigate all complaints of anti-social and threatening behaviour made by or against its residents. On receipt of the report, the landlord appropriately took steps to investigate, and having confirmed a camera had been installed on a site visit on 23 April 2020, it sent a warning letter to the neighbour on 28 April 2020.
The tenancy agreement prevents residents making any improvement to the property without prior written consent from the landlord. As the neighbour had not sought permission for the installation of a CCTV camera the landlord’s letter of 28 April 2020, appropriately warned her that she was in breach of her tenancy conditions and the camera was to be removed.
The landlord said it completed a follow up inspection, and the camera was not visible, although it is not clear when this follow up inspection took place, it was reasonable for the landlord to assume the issue had been resolved.
The resident said he emailed the landlord on 23 May 2020 to report the re-installation of the camera. This is the same day the landlord completed its site visit in response to the resident’s report on 16 April 2020 and confirmed a camera was at the bedroom window.
The resident said he emailed the landlord about the camera a further two times in April and May 2020 for updates, on the report of the camera installation and received no response. This service has not had sight of those emails, but has no reason to doubt they were sent, and the landlord has not disputed receipt.
The landlord’s stage one response said an update was sent to the resident however, it does not indicate the date it was sent, a copy of the email was not provided to this service in the information bundle and the resident said he did not receive it. The landlord would only be required to provide limited information to the resident on any action taken, but this service would expect the landlord to take reasonable steps to respond to the resident’s enquiries and to provide updates until the issue was resolved. Had it done so it could have avoided the complaint in August 2020, because evidence seen in this investigation demonstrate that the landlord was acting on the reports during this time.
The resident’s stage one complaint expressed dissatisfaction that the landlord had not taken sufficient steps to evict the neighbour. Generally, a landlord is required to only consider taking formal action if informal attempts have not successfully resolved the issues and it is highly unlikely that possession would be granted for the installation of CCTV.
The stage one response proposed mediation as the solution between the resident and the neighbour. Whilst mediation can be a useful tool to dispute resolution, it is completely voluntary and will be successful only if both parties agree and are comfortable with it. The resident in this instance was not, so this did not provide a successful solution.
The landlord had already advised in April when it was first reported that it was a breach of the neighbour’s tenancy conditions. Therefore, it may have helped if the landlord had explained the relevant action that could be taken for breach of tenancy, and what steps it had taken so far.
At the time of the stage two investigation, the camera had been installed to the exterior of the neighbour’s property outside her front door, it is not clear in events when this actually happened. The resolution the resident wanted was for the CCTV camera to be taken down.
As stated earlier to have CCTV covering the front of a person’s home or property is not considered illegal. The landlord however does not allow permission to install cameras as it can infringe on other people’s privacy, (as stated in its original warning letter to the neighbour), as she did not have permission for the camera, the landlord was obliged to ensure the neighbour took it down.
The landlord was taking the appropriate action with the neighbour to remove the camera, the stage two response, however, did not clearly explain this. It acknowledged that the resident wanted the camera removed immediately but said it was not something it could achieve at this time, it referenced that the process for neighbour disputes must be followed, which it had stated earlier was mediation, which is not the usual action for getting someone to remove CCTV. Its response did advise that the neighbour had been written to a third time (around 2 November 2020), it did not however explain what the process would be, should this fail. As previous letters requesting removal of the camera had failed to resolve the situation, this was unlikely to have provided the resident with any confidence that it would be resolved now.
The landlord did, however, pursue the issue and on the request for an update, the landlord has advised this service, that the neighbour’s camera was removed after a few weeks.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s response to the resident’s reports about the CCTV his neighbour installed in the communal area.

Reasons

Whilst the landlord’s communication with the resident could have been better, it has evidenced that it took the appropriate action to issue warnings for a breach of tenancy each time the resident made a report the camera was present. It continued to follow through with its monitoring and action, until the camera was removed.