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Orbit Group Limited (202009846)

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REPORT

COMPLAINT 202009846

Orbit Group Limited

Amended on 30 July 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 decision to remove CCTV at the property.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the 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. The resident has challenged the landlord’s reasoning in its decision to remove the CCTV, in particular, he has raised issues of breach of contract (insofar as he moved to the property on the understanding that there would be CCTV). He has also raised concerns about discrimination to those who are deaf or hard of hearing and has questioned whether it was necessary for the landlord to have removed the CCTV given that there were clear signs up indicating that CCTV was in place.
  3. The Ombudsman’s role is to investigate how the landlord responded to the matters arising and whether its response was in accordance with its policies and procedures and appropriate and reasonable in all the circumstances. This Service does not have the authority to make decisions regarding breach of contract, discrimination, or human rights infringements; these are matters which would be properly determined by the Courts.
  4. This is supported by paragraph 39(i) of the Scheme which states that “The Ombudsman will not investigate complaints which, in its opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”. Should the resident wish to pursue these aspects of his complaint further, he is able to do so and may wish to seek independent legal advice in that regard. However, these are matters which will not be considered by this Service because they do not fall with the Ombudsman’s jurisdiction.
  5. Similarly, matters pertaining to data protection and General Data Protection Regulations (GDPR) fall within the remit of the Information Commissioner’s Office (ICO) and alleged breaches of this legislation are for the ICO to consider. Paragraph 39(m) of the Scheme confirms that “The Ombudsman will not investigate complaints which, in its opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.
  6. The decision to not investigate these aspects of the complaint follows careful consideration of the evidence and matters at hand. 

Background and summary of events

  1. The property is part of a residential retirement complex which had access to CCTV before the decision was taken to turn it off. This CCTV could be accessed on the resident’s television and would be able to show if there was a visitor and who it was. CCTV cameras were installed at the front and rear entrance of the building and in the public lobbies inside entrances. Instructions on how to use the CCTV were specified in the resident’s ‘welcome pack’.
  2. On 6 October 2020, a decision was made by the landlord to turn the CCTV off. This decision was based on advice from its ‘Information Governance Department’ (IGD) following an enquiry from the scheme manager. The IGD advised that the CCTV could be a potential breach of the Data Protection Act 2018 and the ICO CCTV code of practice, specifically:
    1. The landlord was not using it for its intended lawful purpose, namely for the purposes of prevention and detection of crime and safety of customers and staff;
    2. By giving customers free access to view CCTV footage the landlord was not demonstrating appropriate controls in relation to handling the data; it would not be able to demonstrate governance on how tenants were accessing and processing this data. For example, a tenant could record the CCTV footage with a mobile phone and post this to social media and the landlord would have no way of preventing this from happening or knowing this had taken place;
    3. The landlord has a responsibility to protect the personal data of all individuals captured by the CCTV footage;
    4. The CCTV could be seen as an invasion of privacy by anyone entering or exiting the scheme via the CCTV location. While there was appropriate signage available explaining the landlord’s usage of CCTV, this would not cover tenants’ usage.
  3. Contained within the documentation provided to this Service, the landlord has referred to being in the process of delivering a full CCTV policy and framework to ensure full understanding of responsibilities in relation to the use of CCTV and compliance with the Data Protection Act 2018. 
  4. There is also reference to the landlord having sent emails to those at the scheme who used email, to advise that the CCTV would be turned off in advance of this being done, although this email has not been provided to this Service and does not appear to have been sent to the resident who does use email.
  5. Further, there is reference to the landlord having advised all customers that their security is their front door and that they have spy holes. If they were not expecting a visitor they should not grant access and, instead, advise the caller to press the manager’s button, so that a member of staff could answer. It is not known when and how this advice was given as no copy has been provided to this Service.
  6. On 8 October 2020, the resident emailed the landlord stating that he had noticed, on 6 October 2020, that the CCTV entry system was not working and asking who had decided to switch it off and why. The landlord responded the same day to advise that it had decided to switch it off because “it was deemed as high risk as customers had access to view CCTV which should be restricted to authorised staff only” and that it had “eliminated the risk by removing access”. It stated that it could pass the resident’s concern onto the customer relations department if he wished.
  7. On 16 October 2020, the landlord emailed and wrote to the resident advising that it had tried to telephone him to let him know that it had raised a formal complaint for him, given his concerns about the CCTV being turned off. It understood he was concerned about this because his wife is deaf and relies on the CCTV to see who is at the door. It stated that it would be in touch within 3-5 days working days with an update.
  8. On 19 October 2020, the resident emailed the landlord expressing his dissatisfaction with its decision and his reasons for this, including his wife being severely hard of hearing and so a “visual link” to the door was vital. He further explained that the CCTV was one of the attractions to the scheme and that, without it, there were risks to safety. He was dissatisfied that there had been no discussion or consultation around the decision to turn the CCTV off and was of the view that, in doing so, the landlord was acting in a discriminatory manner.  The landlord responded the same day, reassuring him that it was investigating the matter.
  9. The landlord discussed the matter with the resident by telephone on 21 October 2020 and issued its Stage 1 response on 28 October 2020. The complaint was not upheld. It explained that the CCTV facility was removed from the property due to GDPR and stated that, while it sympathised with the resident’s situation, the decision had to be taken to remove the CCTV because the footage should be restricted to authorised staff only. It suggested four possible alternatives for the resident to consider, including the potential to make the doorbell louder or to use a device which lights up and/or buzzes when someone is at the door. It offered £50 compensation towards the purchase of a suitable device as a gesture of goodwill.
  10. On 10 November 2020, the landlord confirmed that the complaint had been escalated due to the resident’s continued dissatisfaction and his view that his complaint had not been sufficiently addressed. It asked if he would like to discuss the matter over the telephone before it responded at Stage 2 but he declined due to his own hearing and because he had already put everything in writing.
  11. In the landlord’s Stage 2 response of 12 November 2020 it did not uphold the complaint and reiterated the reasons for the removal of CCTV, explaining that it did this to act in accordance with GDPR regulations. It did find, however, that its previous response lacked empathy and understanding of the impact on the resident and his wife and advised that additional training would be provided around complaint handling in this regard. For this, it increased its compensation offer to £150.

Assessment and findings

  1. Having identified a risk with the use of CCTV cameras around the scheme, the landlord took the decision to turn the facility off. Whilst it was entitled to manage and mitigate risk and indeed, as landlord, is expected to do so, it appears to have made the decision abruptly and without consultation with the ICO. While consultation with the ICO is not mandatory and the Ombudsman cannot order as such, it may have helped the satisfy the resident that the Landlord had made fair considerations before removing the CCTV facility.
  2. The decision appears to have stemmed from a brief query from the scheme manager, who in turn received a brief advisory emailed response, upon which action was taken to remove the CCTV facility. There is limited evidence of any assessment, discussion or consideration of the issues before the decision was taken. However, based on the advice provided by the ‘Information Governance Department’ (IGD) it was reasonable for Landlord to conclude the residents should not have been allowed to access the CCTV.
  3. The decision to turn off the CCTV wasn’t unreasonable given the discovery of a potential breach that had been ongoing for several years. The Landlord could not reasonably justify allowing a potential breach to continue, whilst assessing the consequences for its scheme.
  4. However, it then would have been reasonable for it to have written to residents and outlined why it had taken the decision, with a possible explanation that it was carrying out an assessment before deciding whether the CCTV would be reinstated. There is no evidence that this happened.
  5. The landlord failed to recognise that residents had relied on access to the CCTV for many years, even if they had no right to. So understandably when it was turned off it caused distress. Which would have been exacerbated by the lack of courtesy, empathy and understanding in the decision taken, lack of communication and removal of the CCTV.
  6. While more robust assessment and/or consultation may not have guaranteed the continuation of the CCTV facility, in making the decision without this, it failed to appropriately manage the situation or the resident’s expectations.
  7. The situation was further exacerbated by the absence of a relevant policy or guidance at the time, which meant that the landlord had no framework or expectations within which to operate and a resident, similarly, would not know what to expect. The documentation provided to this Service refers to a policy and framework being developed but this has not been made available to the Ombudsman and there is no information as to whether this has now been developed and is in use.
  8. Although the resident has said that one of the reasons, he chose to move to the scheme was because of the CCTV and the convenience, safety and assurance that this provided him, the landlord was entitled to make changes it saw fit, following proper assessment of the situation.
  9. There was a clear need for an assessment to have taken place, however, consideration must be given to the amount of time an assessment could take and, that such an assessment would likely form part of the current policy development the Landlord is undertaking. This is a step that suggests the Landlord may reinstate the CCTV once it has clear rules and guidelines to govern its usage, which is necessary to avoid situations like this happening again.
  10. The landlord has a two-stage complaint procedure whereby it aims to acknowledge a complaint within three working days and investigate and provide a response at within 10 working days at both stages one and two. Where the landlord is unable to respond within its target timescale, it should contact the complainant to let them know. In responding to the complaint, the landlord acted promptly and in accordance with its complaints policy and procedures. It discussed the issues with the resident, seeking to better understand his concerns and sought to discuss the situation with him again, following his continued dissatisfaction. In its complaints response it reasonably offered possible alternative solutions, as well as using its discretion to offer compensation as a gesture of goodwill. 
  11. The landlord’s policy states that it is able to offer discretionary compensation where it acknowledges service failure, at a flat rate of £25. As a result, the offer of £150 compensation went substantially beyond that guidance and represented a demonstrable effort by the landlord to recognise the impact on the resident. Together with the landlord’s explanation and offer of alternatives, it sought to redress and resolve the issues and to demonstrate that it had made its decision for good reason and wanted to help facilitate a way forward.

Determination

  1. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress which in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Reasons

  1. The landlord has made a concerted effort to acknowledge and redress the issues through the operation of the complaints process. Due to the ramifications of the residents having access to CCTV, the landlord had to act quickly, which unfortunately meant there was always going to be a level of distress caused, as the resident had been using the provision for years. But this does not mean the Landlord acted incorrectly in making the decision. I agree that it showed a lack of courtesy by not informing the residents of the decision, but this failing alongside others was resolved satisfactorily with the offer of £150.

Recommendations

The landlord is recommended to, within 3 weeks of this decision:

  1. Pay £150 to the resident in compensation for the distress and inconvenience caused by its complaint handling failures as offered in its final complaint response.
  2. carry out a thorough review of the situation in respect of CCTV usage at the scheme and whether this should be in place, considering all relevant guidance and legislation. This should involve sufficient consultation with residents and relevant regulatory bodies, ensuring that the decision reached is measured, robust and well-informed.
  3. document the above review process, the decision reached, and its reasons and communicate its decision with regard to CCTV to residents in writing.

The resident to note that this does not necessarily mean the landlord’s decision not to have the CCTV facility at the scheme will change.