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Tower Hamlets Council (202102736)

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REPORT

COMPLAINT 202102736

Tower Hamlets Council

23 May 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. The complaint is about the landlord’s decision to ask the resident to remove CCTV.

Background and summary of events

Background

  1. The resident has a secure tenancy with the landlord that started in 2010. The property is a one-bedroom flat within a block. The landlord is a local authority.
  2. The tenancy agreement says that the resident should not carry out any improvement works to the property without getting the written permission of the landlord first (which will not be refused without a good reason).
  3. The landlord has a two-stage complaints procedure. It aims to respond at stages one and two within twenty working days.
  4. The Information Commissioner’s Office (ICO) is the UK’s independent body set up to uphold information rights. Its website explains that if someone sets up a CCTV system so it captures only images within the boundary of their private domestic property (including the garden), then the data protection laws would not apply. However, if the system captures images of people outside the boundary of the property, for example, a shared space, then the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 will apply. In this case the individual needs to ensure their use of CCTV complies with these laws.

Summary of events

  1. On 3 March 2020 the resident reported antisocial behaviour (ASB), the threat of violence and harassment by a neighbour (the neighbour). The landlord noted she had reported that he had threatened to beat her up, called her offensive names and “swung a punch at her” and, after she had run indoors, had continued banging on her door. The resident reported this matter to the police. The same day the landlord sent her diary sheets on which to record any subsequent incidents and said the ASB officer would be in touch. It also referred her to victim support. Victim support subsequently provided the resident with a panic button and window alarms. Subsequently, the resident continued to report various ASB incidents from other residents to the landlord.
  2. On 24 August 2020 the resident asked the landlord for retrospective permission for CCTV on the front door and windows of the property that she had recently installed. The resident explained that she was located on the ground floor and had been a victim of crime from a neighbour and also ASB by neighbours harassing her at the front door of the property.
  3. On 12 October 2020 the landlord told the resident that her request had been sent to its planning department.
  4. On 4 February 2021 the landlord wrote to the resident in response to her application for the CCTV installation. It explained the data protection regulations that she would have to comply with and said, if she did not comply, then she might be subject to enforcement action by ICO and potentially legal action by affected individuals. The landlord asked the resident to evidence that she had adhered to the ICO guidelines by 15 February 2021 adding, if she could not do so, then a complaint could be made to ICO to have the CCTV removed.
  5. On 11 February 2021, in response to an email from the resident the previous day, the landlord said she was wrong to say that the CCTV did not go beyond the property boundary and therefore did not fall within ICO’s regulation. It said that it had inspected both CCTV cameras and they were in the communal areas of the building, not within the boundaries of the property. It explained that, as the walls belonged to the landlord and were subject to ICO regulation; the deadline of 15 February 2021 still stood. The landlord signposted the resident to ICO’s website.
  6. On the same the day, the resident made a formal complaint to the landlord. She said the CCTV did not breach any regulations or laws and no other person could be captured by the CCTV, as it was only on her front door and windows. She said she thought the landlord had acted unreasonably in refusing permission for the CCTV.
  7. On 25 February 2021 the landlord responded to the resident at stage one of its formal complaints procedure. It gave details of the correspondence it had exchanged with her about the CCTV installation. It confirmed it did not generally agree to CCTV installations on its blocks. The landlord explained that, as well as taking account of the GDPR guidelines, it considered the resident should have a “clear and justifiable reason” for the CCTV; in particular, why she would need these images and if that was reasonable under the circumstances.
  8. The landlord said it understood that the resident wanted the CCTV as she had had disputes with the neighbours and felt “threatened”. The landlord explained that it had a dedicated ASB team to address such issues and she was strongly advised to call the police if there was a serious threat or incident against her. The landlord confirmed that the resident’s request for CCTV was refused and she should remove all the equipment by 15 March 2021.
  9. On 9 March 2021 the resident asked the landlord to escalate her complaint. She said that the reason for her request for permission for the CCTV cameras was that she had been a victim of ASB from other residents in the block. In particular she said a male neighbour had made “threats … towards her, harassment and theft, malicious letters, intimidation, trying to unlawfully enter [the property] by physical force” and had post stolen from outside her front door. She also described ASB incidents from other residents in the block. She said she had reported these incidents to the landlord and the police. The resident also said that she had spoken to ICO who said she was acting within their guidelines.
  10. On 23 April 2021 the landlord wrote to the resident at the final stage of its formal complaints procedure. It gave the background to the complaint and explained the GDPR requirements for using a domestic CCTV system. The main points were:
  1. It had investigated the resident’s ASB reports but no action had been taken due to a lack of evidence. It confirmed the ASB case was closed. The landlord explained that the resident should continue to report incidents of ASB.
  2. The resident should remove the CCTV from the property as there was no justifiable reason for its installation and keeping it was a breach of the tenancy agreement.
  1. The landlord signposted the resident to the Ombudsman.
  2. On 14 June 2021 the resident issued a pre-action protocol letter for an application for judicial review to the landlord. It responded on 28 June 2021. Among other things, the landlord said it had reviewed its position and considered, as a responsible landlord, it must balance the right to privacy for all residents of the block with the need for the resident to protect herself from further harassment and to feel safe in her home. It upheld its decision not to grant permission for the installation of the CCTV but acknowledged that it recognised the security that this might provide her and that it appeared to have been an effective deterrent as no further incidents concerning a male resident of the block had been reported.
  3. The landlord therefore proposed to install CCTV covering the front and rear of the building for the general safety of all residents of the block and it anticipated this would be completed within the next four weeks. It added it would not enforce the removal of the resident’s CCTV until its own system was fully operational; it would then give a reasonable date by which her CCTV should be removed. The landlord also explained that the resident must keep records of how and why she was capturing these images, and for how long she was keeping them and that she might need to make these records available to ICO on request.
  4. On 11 October 2021 the landlord confirmed to the Ombudsman that the resident’s judicial review application did not proceed.
  5. The resident subsequently told the Ombudsman that the landlord had not installed any CCTV cameras at the front or back of the building and that, to be effective, any CCTV camera would have to be located in sight of her back door and front door. She added that any CCTV camera installed by the landlord would unlikely cover her front door, as it was inside. The resident said that only a camera located inside on the ground floor that had sight of her front door would resolve the matter. She added that this matter had caused her a great deal of distress and inconvenience.
  6. The landlord has provided the Service with clarification around the installation of the CCTV. The Service had not had sight of this information prior to the determination of November 2021. The CCTV was installed in August 2021 to the front of the flats and in December 2021 to the rear. Although the exact dates are not clear, the service notes that the installation took place within two months of its proposal on 28 June 2021 (front Camera). The landlord has acknowledged its failing with regards to the time it took to install the rear camera and offered £50 compensation to the resident for this. The resident has since advised that the cameras installed by the landlord do not cover the areas around her front or rear doors.

Assessment and findings

  1. Under the terms of the tenancy agreement, the resident requires permission from the landlord before any improvements to the property such as installing CCTV (paragraph 3).
  2. When deciding whether to grant retrospective permission for CCTV, the landlord had to take into consideration whether or not the resident had a clear and justifiable reason for its installation. The resident was clear this was due to various ASB incidents but also referred to a specific incident in early 2020 where the neighbour had acted in a threatening and violent manner tried to enter her property by force (paragraph 6).
  3. There is no evidence that the landlord considered this incident and the safety of the resident when deciding whether or not to allow her to retain the CCTV cameras; the evidence demonstrates that she had a clear and justifiable reason for the CCTV. Therefore, the landlord decision to refuse the CCTV installation was not reasonable.
  4. Subsequently, after the resident’s pre-action protocol letter, the landlord upheld its decision not to allow her to keep CCTV but agreed to install CCTV at the front and back of the building for the benefit of all residents (paragraph 18). Whilst this has been done, the resident has told the Ombudsman that this would not resolve matters for her as the CCTV cameras installed by the landlord do not cover her front or rear door.
  5. In relation to the failures identified, the Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. In this case, the resident has lived with the threat of having to remove the CCTV that she installed for over a year; it is evident that this has caused her some distress and inconvenience. The sum of £150 is appropriate for the impact of this distress to the resident.
  6. This matter appears to be still unresolved. To progress matters a recommendation has been made below that the landlord should reconsider its decision about allowing the resident to keep the camera recording equipment she currently has installed. The landlord has made it clear that it does not usually allow residents to have CCTV; however, in this case there is a compelling reason to give permission for it. It would be the responsibility of the resident to ensure that she complied with the privacy and data regulations.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its decision to ask the resident to remove CCTV.

Reasons

  1. The landlord did not fully consider the resident’s circumstances before deciding not to grant retrospective permission for the CCTV she had installed. The evidence shows she had a clear and justifiable reason for the CCTV and the landlord later conceded that it had been an effective deterrent.

 

Orders

  1. The landlord shall take the following action within four weeks of the date of this report:
  1. Apologise to the resident for the failings identified in this report.
  2. Pay the resident compensation of £150 for the distress and inconvenience caused by those failings.
  3. Reconsider its decision about allowing the resident to keep the CCTV.
  4. Carry out an investigation to establish what went wrong and why the landlord appeared to initially make the decision refusing the CCTV without being aware of the full facts of the case.
  1. The landlord is to contact this Service within four weeks and provide evidence of compliance with all the above orders.

Recommendations

  1. It is recommended that the landlord does the following:
  1. Ensures its staff are familiar with the guidelines surrounding domestic CCTV and are clear in what circumstances it might give permission for it.