Hyde Housing Association Limited (202011120)

REPORT

COMPLAINT 202011120

Hyde Housing Association

10 December 2021

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. The complaint is about the landlord’s handling of:
   1. The resident’s reports of anti-social behaviour, caused by her neighbour installing a movement activated doorbell.
   2. The associated complaint.

Background and summary of events

Background

2. The resident is a leaseholder of the landlord.
3. The property is a flat, situated on the ground floor in a building comprised of similar properties. The complaint relates to a video doorbell installed by another leaseholder in the building.

Summary of events

4. The resident contacted the landlord on 6 and 13 August 2020 in respect of monitoring equipment, installed by her neighbour, in the form of a movement activated doorbell, which captured both video and sound. The resident advised she was unhappy with this equipment because it allowed her neighbour to record and monitor her front door, private garden, and the pavement in proximity to her property, which she considered to be a breach of data protection and her and her family’s privacy.
5. The landlord replied on 14 August 2020 and advised it would investigate the matter and respond within ten working days. The resident followed this up with the landlord on the same day and stated that the landlord already attempted to discuss the matter with her neighbour, and they refused to remove the device.
6. The resident wrote to the landlord on 20 August 2020 in respect of the following:
   1. She had reviewed the lease terms and found that her neighbour was infringing various clauses through installing the doorbell.
   2. The monitoring equipment was installed on “a plank of timber” which was improperly fitted on a communal fire exit.
   3. She wanted to know what further information/action was needed to ensure her neighbour would remove the equipment, considering he refused to do so when asked.
7. On 8 September 2020, the landlord informed the resident that her neighbour had agreed to alter the settings of his doorbell, to ensure that the resident’s door was “blocked out of any images being captured by the camera”, and had been asked to send in evidence of having done this. The resident replied to this on the same day to express her dissatisfaction with the landlord’s response and reiterate that her neighbour breached the terms of his lease, because the equipment he installed caused her and her family distress and violated her privacy rights. Furthermore, the resident noted that the equipment was fitted on a piece of wood, which was attached to a communal fire exit, which represented a health and safety hazard, and that her neighbour agreeing to change the privacy settings of the equipment to block out her entrance door was unsatisfactory because he could then change these back.
8. On 9 September 2020, the landlord informed the resident that the equipment was installed on a door that belonged to her neighbour, and that it could not enforce her request for the equipment to be removed. The resident wrote to the landlord on the same day to advise that whilst the equipment was installed on her neighbour’s property, it recorded areas that belonged to the landlord, and that she wished to lodge a formal stage one complaint
9. The landlord responded to the above on 10 September 2020, to inform the resident it would not raise a stage one complaint as there had been no service failure. The resident then wrote to the landlord on 19 September 2020, to dispute its decision to not handle her dissatisfaction as a stage one complaint, and request for one to be logged.
10. On 25 September 2020 the landlord discussed the matter with the resident. The resident raised various concerns including that the neighbour had not altered the privacy settings as the recording light still came on when she opened her front door. The landlord informed the resident that it would arrange an inspection of the communal areas to assess whether the equipment installed by her neighbour was still recording.
11. The resident wrote to the landlord on 30 September 2020 to advise that she felt that a visit by the landlord would be insufficient, as she believed this issue constituted a legal matter because her privacy was invaded. Furthermore, the resident noted that the landlord could not verify whether her neighbour had actually changed the privacy settings, as it could only assess the physical equipment, and not the data it recorded. The resident stated that her neighbour being able to record/be notified when she left her property/spent time in her private garden or porch caused her inconvenience. The resident then chased this matter with the landlord on 14 and 16 October 2020.
12. On 14 October 2020 the resident asked the landlord to log the matter as a stage one complaint. She said her concerns about the neighbour’s doorbell/recording device had not been properly investigated.
13. On 20 October 2020, the landlord wrote to the resident to advise that it could not take any further action because the terms of the lease did not prohibit her neighbour to have an “enhanced [door]bell” or recording equipment installed.
14. On 18 January 2021, the resident wrote to this Service to express her dissatisfaction with the landlord’s handling of her reports concerning her neighbour installing recording equipment and the repercussions this had on her. This Service subsequently asked the landlord to respond to the resident under its complaints procedure.
15. On 4 March 2021, the landlord issued a stage one complaint response. The landlord advised that it assessed the equipment in October 2020, along with the “lease documents and the legislation around data protection” and found that it could not “forcibly remove or request the removal of the recording doorbell” and that it asked the resident’s neighbour to “obscure [her] front entrance door from view”. Furthermore, the landlord noted that it would not uphold the resident’s complaint as it could not identify any service failure on its behalf and advised the resident to discuss the issue with the Information Commissioner’s Office as it regarded it to be a civil matter.
16. The resident replied to the landlord on the same day to dispute its stage one complaint response and that the landlord had assessed the recording equipment. She said that the neighbour was recording beyond the boundaries of his property as his flat was upstairs and the area he was capturing on the recording device was her property. In response the landlord provided the resident with an image from the neighbour’s video doorbell, which showed that the resident’s front door had been obscured. The landlord provided advice on how the resident could seek further legal advice and support on the matter.
17. In response the resident asked the landlord to reassure her that the filter was still being used and to explain how she was able to use her path and private garden without being filmed. She also asked how the landlord could be sure her conversations were not being record by the audio feature. She also reminded the landlord that the neighbour lived on the first floor of the building and had installed the video doorbell to ensure his car was under constant surveillance and therefore the camera was capturing areas beyond his property.
18. On 5 March 2021, the resident requested for her complaint to be escalated to the next stage of the landlord’s complaints procedure.
19. The resident wrote to this Service on 23 March 2021, to express her dissatisfaction with the landlord’s handling of her complaint and request for this to be investigated.
20. The landlord acknowledged the stage two complaint on 30 March 2021 and issued its stage two response on 29 April 2021. The landlord advised it had assessed the resident’s complaint and consulted with its legal and data protections team, along with the Information Commissioner’s Office and decided to not uphold her complaint as its stage one complaint was “accurate”. It clarified that:
    1. The video doorbell will record audio however the owner of the recording device must comply with their legal duties (details of which could be found on the ICO’s website).
    2. The neighbour’s camera was permitted to capture areas beyond his property.
    3. It had viewed the doorbell and the view from it. The area within the viewpoint of the doorbell belongs to the landlord as freeholder, this is the communal step which all residents had a right of access over including the path.
21. During June 2021 the landlord responded to an enquiry from the resident’s MP. It said that:

“Hyde Housing is in the process of drafting some guidance around the use of video doorbells which will shortly be available for residents to read on our website. Can confirm Hyde does not prohibit the installation or use of video doorbells by our tenants and nor do our tenants require permission to have a video doorbell on their property. Tenants must ensure that the video doorbell is affixed to their door or the doorframe and must be facing directly outwards of their door area. The video doorbell must not encroach unnecessarily into the communal space. However, it is the responsibility of the tenant, as the “data holder” not to misuse any of the material potentially captured by a video doorbell and to make efforts to ensure that the video doorbell focuses on the main area outside of their front door. If a resident feels that someone is misusing a video doorbell then they would need to take their own private action against that tenant as a civil matter between both parties.”

22. Following this the resident wrote to this Service to express her dissatisfaction with the landlord’s handling of her reports of anti-social behaviour caused by her neighbour installing a movement activated doorbell, which allowed them to monitor and record both video and sound of a communal area, her front door, and her private garden. Additionally, the resident raised concerns regarding the landlord’s handling of her complaint.

Assessment and findings

Video doorbell and anti-social behaviour

23. The resident’s concerns about the video doorbell, and the landlord’s consideration of what its obligations are in a case such as this, have raised several distinct issues that need to be addressed separately.
24. One concern raised was the position of the doorbell. The resident highlighted how the doorbell was attached to a communal door. The landlord responded to this by investigating the legal boundary of the neighbour’s property and confirmed the door (although it appeared to be a communal door) did lie within the neighbour’s property. The resident then accepted the landlord’s position in their reply. The landlord was correct to say that it cannot dictate what the neighbour can attach to their own door frame, so long as it does not cause a fire risk or other issue explicitly prohibited in the lease agreement or its policies.
25. The general concept of video doorbells is a developing area of law and privacy/data regulation. The Information Commissioner’s Office (ICO) is the relevant authority. Its website states:

“If your CCTV captures images beyond your property boundary, such as your neighbours’ property or public streets and footpaths, then your use of the system is subject to the data protection laws.

This does not mean you are breaking the law. But it does mean that, as the CCTV user, you are a data controller. So you will need to comply with your legal obligations under the data protection laws.

You can still capture images, but you need to show you are doing it in ways that comply with the data protection laws and uphold the rights of the people whose images you are capturing”

26. Therefore it is accepted that residents can install video doorbells (which are covered by this CCTV advice from the ICO) to their property that capture public areas.
27. The resident has stated that they consider the video doorbell to be both a breach of their privacy and anti-social behaviour by the neighbour. Any concern about a breach of privacy would be for the ICO to investigate following a complaint to it by the resident.
28. The resident has stated that they find the video doorbell to be a nuisance and harassment in that the neighbour can see when then come and go. While this is understandable concerning, the ICO’s advice above already confirms that residents can install video doorbells that cover public areas. As such the general idea of this technology recording neighbours is something that has been allowed by the relevant regulator. Therefore for the matter to be considered actual ASB then there would need to be some specific report of inappropriate behaviour. Residents are not considered to have breached their tenancy on the basis of nuisance/harassment as defined solely by another resident. Any report of ASB must be investigated so that corroborating evidence can be collected. The landlord would then need to seek legal advice about the likelihood of any success in any formal tenancy enforcement or legal action. Ultimately it would be the courts that would determine whether an incident is considered ASB.
29. As the concept of domestic CCTV is allowed under current legislation and by the relevant authority, the presence of one in itself is not evidence of ASB. There would have to be evidence of specific incidents of misuse for it to be considered ASB. There were no such reports in this case however.
30. While the presence and use of the video doorbell in itself is not evidence of ASB, it did still cause understandable concern to the resident. Therefore, in the interest of good neighbourhood management and avoiding neighbour disputes, it was appropriate for the landlord to follow up the reports.
31. In this case the landlord spoke to the neighbour. They also arranged for the neighbour to change the settings of the areas covered by the doorbell to obscure the resident’s front door, and provided an example of this setup to the resident.
32. This was a reasonable effort to try and manage the competing interests of the two neighbours.
33. The resident has questioned this effort on the basis the neighbour can change the settings of the doorbell to stop the area being obscured. The landlord has explained that the actual use of the video doorbell is the neighbour’s responsibility. Any misuse of the doorbell would be for the resident to pursue as a civil matter through the courts or with the ICO.
34. This explanation is reasonable in that there are specific requirements for any data handler to meet, and any domestic CCTV that captures public areas means the owner is considered a data handler by the ICO and is subject to requirements such as GDPR. Therefore the resident would be able to complain to the ICO about the neighbour in their role as a data handler if they believed there to have been specific misuse.
35. However equally if this were to occur the landlord would be expected to also play a role given its responsibility for neighbourhood management and helping any neighbour dispute it is aware of. However as explained above, there was no evidence of a specific incident of misuse at the time of this complaint and the complaint focused on the resident’s dissatisfaction with the general concept of the use of a video doorbell. Furthermore the landlord did try to alleviate the resident’s concerns by discussing the issue with the neighbour.
36. Therefore the landlord has investigated the use of the neighbour’s video doorbell as far as possible by confirming the position where it was installed was owned by the neighbour, and by discussing the use of the doorbell within the framework of accepted use as monitored by the ICO.

Complaint handling

37. The landlord’s complaint handling was poor however and caused significant inconvenience to the resident.
38. The resident made a clear formal complaint in September 2020 however the landlord refused to handle the complaint through its process. It prejudged the complaint and concluded there had been no service failure without an investigation. It then refused again in October 2020 following another formal complaint. It took the Ombudsman’s intervention in January-March 2021 for the landlord to investigate the complaint.
39. Residents should always be able to submit appropriate complaints to their landlords. The complaint process givens the landlord the opportunity to check the service it has provided. Even if there has been no service failure, as the landlord assumed in this case, the complaint process gives the landlord to explain the reasons for its approach in a way that is more tailored to the resident’s specific concerns.
40. The resident had specific reasons to dispute the statements she had received from the landlord prior to her formal complaint. For example she reported the doorbell continued record when she opened her door. This resulted in a visit and inspection by the landlord.
41. As well as additional information from the resident, this case also concerns a developing area of law and regulation. Video doorbells are relatively new technology that have become widespread but are governed by regulations that relate to the wider category of CCTV. Therefore it would have been particularly appropriate for such a complex and changing issue to be reviewed by senior, more experience and independent members of staff over the course of its complaint procedure.
42. The landlord’s refusal to accept the complaint twice caused delay and inconvenience to the resident, and will have likely increased the resident’s sense that their concerns had not been properly investigated.

Determination (decision)

43. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s reports of anti-social behaviour caused by her neighbour installing a movement activated doorbell.
44. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the associated complaint.

Orders and recommendations

45. As a result of the determination above the landlord has been ordered to, within 4 weeks:
    1. Pay the resident £200 to acknowledge the inconvenience of the landlord’s decision to twice refuse to investigate formal complaints.
46. The landlord has also been recommended to:
    1. Seek advice about its policy and procedure around the use of video doorbells given the recent caselaw example of Fairhurst v Woodward.
    2. Review its staff training and policies around when the landlord will refuse to accept formal complaints to ensure they are in accordance with the Ombudsman’s Complaint Handling Code.