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Dover District Council (202220855)

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REPORT

COMPLAINT 202220855

Dover District Council

25 March 2024


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;
    1. The landlord’s handling of the resident’s reports of antisocial behaviour (ASB) and harassment from her neighbour
    2. The landlord’s response to the resident’s concerns regarding her neighbour’s CCTV
    3. The landlord’s handling of the resident’s reports of poor staff conduct from its ASB officer

Background

  1. The resident is a secure tenant of the landlord. On 5 September 2022, the resident was issued with a warning letter following reports of a noise nuisance coming from her property. The housing officer visited the resident on 8 September 2022 and discussed the reports, which included noise nuisance and cannabis use. However, the resident said that she had previously reported incidents of ASB by her neighbour. 
  2. On 5 October 2022, the resident raised a complaint with the landlord regarding her housing officer making inappropriate comments towards her, and the lack of support she had received regarding her concerns about her privacy due to her neighbours CCTV cameras. The resident said that the cameras were intrusive as they were close to her children’s bedroom window, and it caused her distress. The resident raised further issues of ASB by her neighbour but said the landlord had not taken her previous reports seriously but had supported her neighbour when they had made counter allegations against her.
  3. The landlord issued its stage one response on 18 October 2022. It said that it had reviewed CCTV footage submitted by her neighbour and the camera was pointing into the neighbours garden. It explained that it had received various complaints about the resident causing a noise nuisance, and it was required to gather evidence during an investigation to corroborate the allegations made. The landlord said that it did not have any evidence of the resident previously reporting ASB by her neighbour but asked that the resident report any ongoing ASB by completing diary sheets and utilising the noise app to record any noise nuisance.
  4. The housing officer denied making any inappropriate comments towards the resident but maintained that he could smell cannabis coming from the resident’s property.
  5. Following a meeting between the resident and landlord, the landlord assisted the resident in setting up the noise app to allow her to report ASB by the neighbour. The resident raised concerns about the housing officers claims that her property smelled of cannabis, and that the housing officer had not been dealing with the ASB and counter allegations impartially.
  6. The resident subsequently escalated her complaint on 4 November 2022, as she still had significant concerns regarding her neighbours CCTV cameras, the housing officers claims that her property smelt of cannabis and the landlord’s handling of her reports of ASB and harassment by her neighbour.
  7. On 6 December 2022, the landlord issued its stage two response. With regards to CCTV, the landlord assured the resident that all footage it had received evidenced the neighbours camera pointing into their own garden. However, the landlord advised the resident to provide evidence if she ever saw the neighbours camera pointing into her property. The landlord advised that it could not verify the housing officer’s claims that the resident’s property smelt of cannabis but explained that the housing officer would need to substantiate any statements if he was cross examined under oath.
  8. The landlord said it had provided the resident with diary sheets and a noise app to report ASB and harassment by her neighbour, but it had received minimal evidence so far. The landlord reiterated that it had no evidence of the resident previously reporting issues with her neighbour. The landlord acknowledged that it did not offer a mediation service currently, but it was seeking to implement a service in the future.
  9. The resident remains dissatisfied as she said that her reports of ASB by her neighbour had been dismissed and she had not been treated fairly by the landlord. The resident said the landlord’s final response included false information regarding the resident using cannabis, which she vehemently denies. The resident was also dissatisfied that the landlord does not offer a mediation service, which was breaching her tenancy agreement.

Assessment and findings

The landlord’s handling of the resident’s reports of antisocial behaviour (ASB) and harassment from her neighbour

  1. When ASB is reported by a resident, a landlord has a duty to undertake a proportionate investigation to establish whether ASB is occurring, and if so the nature and extent of the ASB. To undertake a thorough investigation, the landlord is expected to engage with the resident and provide means by which the resident can accrue evidence. Likewise, a landlord has a duty to engage with the alleged perpetrator, in an effort to resolve the issues.
  2. The resident made reference to making several reports of ASB by her neighbour previously and suggested that no action had been taken by the landlord. The landlord denied having evidence of any previous reports of ASB made by the resident. In the absence of evidence to corroborate the resident’s claims, this Service is unable to reach a finding regarding reports made prior to her raising her complaint.
  3. Following raising her complaint, the landlord advised the resident to complete diary sheets and utilise a noise app in order to gather evidence of ASB. This was appropriate and allowed the resident to corroborate her allegations in a way that the landlord would be able to formally evidence ASB should the matter reach court. The landlord completed a risk assessment with the resident and contacted the resident’s neighbour to advise them that an ASB case had been opened, which was reasonable action to take.
  4. The resident provided minimal evidence to corroborate her allegations of ASB. This Service does not suggest that ASB was not occurring, but the landlord is limited in action it is able to take in the absence of evidence in the form of diary sheets and recordings made through approved recording equipment.
  5. We understand the resident’s frustration with the landlord not being able to act on her reports of harassment and understand how distressing this must be for her. When considering such allegations, a landlord needs to carefully consider any supporting information or evidence as well as the reports themselves, before deciding what, if any action it should take. In this case, as the landlord did not have any evidence to support the claims by the resident, it was reasonable for the landlord not to have taken action against the resident’s neighbour at the time of the reports. In the Ombudsman’s view the landlord’s actions have been proportionate and given the lack of evidence, there were no service failings in the way that the landlord handled the resident’s reports of ASB and harassment from her neighbour.

The landlord’s response to the resident’s concerns regarding her neighbour’s CCTV

  1. The Information Commissioner’s Office (ICO) is the UK’s independent body set up to uphold information rights. Its website explains that if an individual sets up a CCTV system, so it captures only images within the boundary of their private domestic property (including the garden), it does not breach the Act. 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. If an individual stores personal data, there are further provisions regarding being registered as a data controller. This applies to domestic premises.
  2. The ICO website gives advice about the use of domestic CCTV including;
    1. People should try to point their CCTV cameras away from their neighbours’ homes and gardens, shared spaces or public streets. But this was not always possible, and it was not illegal to do so.
    2. When people capture images and audio recordings outside of their property boundary, they should consider how intrusive this activity is. They should consider whether they can point their cameras elsewhere or, if possible, apply filters or privacy blocks. In these circumstances, data protection law also requires them to follow certain rules–although these were difficult to enforce.
  3. The resident raised concerns about her neighbours CCTV cameras being intrusive due to the proximity to her children’s bedroom window. The resident questioned how the landlord knew that the neighbour was not moving the camera to record inside the resident’s property, as well as whether the neighbour was saving content that is had recorded.
  4. With any reports concerning a breach of privacy, it is important that the landlord investigate reports made, to ensure the resident’s concerns are considered and any appropriate action taken. This Service has not seen any pictures of the positioning of the neighbour’s CCTV, and it is not within our role to make a determination on whether this is a breach of privacy as this would be a matter for the ICO. However, what we have considered is the landlord’s actions when the matter was reported to it.
  5. The landlord established the location of the CCTV following an unannounced visit to the neighbour and confirmed that all footage it had received was while the camera was facing the neighbours own garden. The landlord did confirm that a small portion of the resident’s garden was visible on the footage, therefore it had provided the neighbour with ICO guidance regarding their obligations to provide the recordings if the resident requested them. This was reasonable action for the landlord to take. The landlord also advised the resident to inform them if she witnessed the camera pointing into her property. This was appropriate advice.
  6. Overall, the landlord demonstrated that it appropriately responded to the resident’s concerns about her neighbour’s CCTV cameras within the limited actions it can take to manage domestic CCTV systems.

The landlord’s handling of the resident’s reports of poor staff conduct from its ASB officer.

  1. The Ombudsman’s role when investigating complaints is to assess the evidence that is available and reach a conclusion as to whether the landlord has complied with its duties and obligations in its response to the complaint. This investigation understands that the resident felt that an ASB officer had made inappropriate comments towards her such as ‘I don’t believe you’ and ‘what is wrong with you’. However, it is acknowledged that there are differing accounts of these events.
  2. On that basis, the Ombudsman cannot make a finding as to what transpired at the time; however, the Ombudsman has assessed how the landlord investigated the matter and whether its response was appropriate in the circumstances.
  3. Upon receiving reports of poor staff conduct, it is the landlord’s role to investigate the concerns raised by the resident and collect evidence from staff members and the resident to determine what events had taken place. In this instance, the landlord discussed the resident’s complaints with the relevant staff member and documented their version of events, which was appropriate.
  4. Overall, the landlord took appropriate steps to investigate the allegation that the ASB officer made inappropriate comments towards her. Given that the staff member denied making the alleged comments, together with the lack of other evidence to corroborate the allegation, it was reasonable that the landlord acknowledged this aspect of the resident’s complaint but did not uphold it.
  5. This Service is aware that the resident disputes the ASB officers claims that her property smelt of cannabis. As above, it is not possible to verify the ASB officer’s claims, nor is it possible for us to reach a finding of maladministration based upon the opinion of a staff member that a resident disputes. In its complaint responses, the landlord confirmed that should any formal action be taken in court regarding ongoing ASB, the ASB officer would be required to substantiate any statements made while being cross examined. This was reasonable of the landlord to advise the resident.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in respect of;
    1. The landlord’s handling of the resident’s reports of antisocial behaviour (ASB) and harassment from her neighbour
    2. The landlord’s response to the resident’s concerns regarding her neighbour’s CCTV
    3. The landlord’s handling of the resident’s reports of poor staff conduct from its ASB officer.