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London Borough of Enfield (21 006 049)

Category : Environment and regulation > Refuse and recycling

Decision : Upheld

Decision date : 24 Mar 2022

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to replace a shed that burnt down and failed to clear land adjoining the allotments despite agreeing to do this. The Council misled Mr X for a short period regarding a replacement shed but there is no evidence it had an obligation to replace it. The Council should apologise for misleading Mr X and should also inspect the land to ensure it has been cleared as agreed.

The complaint

  1. Mr X complained the Council failed to replace a shed that burnt down and failed to clear land adjoining the allotments despite agreeing to do this.
  2. Mr X says that he has had to purchase a new shed in order to continue to use the allotment.

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What I have investigated

  1. I am investigating Mr X’s complaint about a replacement shed and the clearing of land. Mr X also complained about the loss of items in the shed. I explain at paragraph 29 below why I am not investigating this issue.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by the complainant;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with the complainant;
    • sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

  1. Mr X began renting an allotment from the Council in May 2017. The plot he rented already had a shed on it which Mr X was able to use. The invoice of charges dated 3 May 2017 includes the annual plot rental, the water charge and a key and plot deposit. Mr X was not charged any rent for the use of the shed.
  2. Mr X was in correspondence with the Council in June 2020 about some issues on the allotment site. At this time he raised the issue of waste items on the adjoining common areas. On 21 July the Council said it would arrange for it to be cleared.
  3. On 23 July 2020 when Mr X visited his allotment, he found there had been a fire on the site which had affected his plot and the neighbouring plot. The shed on Mr X’s plot and the adjoining plot had been destroyed in the fire, along with the tools Mr X stored in it. Mr X asked for the Council to agree to reinstate the shed.
  4. The Council responded saying it was waiting for the report from the Fire Service about the cause of the fire. It suggested Mr X should speak to the site secretary to see if there was another available plot if his had been damaged. It also said that it was not responsible for any theft or damage on the allotment sites.
  5. Mr X contacted the Council again saying he had concerns about the management of the allotment site and would like to meet to discuss this sometime. He again sought an assurance from the Council that it would provide a new shed for his allotment.
  6. An email from the Council in August 2020 stated “we will get the new one [shed] built once the fire area is clear and we can’t clear it until we get the report as we need to find the cause of the fire”. It also suggested a temporary shed could be found for Mr X’s use.
  7. On 21 September the Council notified Mr X that the fire report did not confirm the fire was deliberate but that it possibly started in the neighbouring shed. The Council said it could not get a new shed fitted but was happy for him to take over another shed on the site.
  8. Mr X asked the Council to explain what was holding up the process of getting him a new shed. The Council explained that it did not have any finances available but it would again ask the site secretary to provide a spare shed for Mr X.
  9. Mr X wrote to the Council on 23 September saying he had visited the site after a period of isolation and found there had been some clearing up of the affected site but that it was an unfinished job. He also said the other clearance work the Council agreed to carry out had not been undertaken. Mr X asked for this communication to be treated as a stage one complaint and passed to the complaints team. He said he was asking for a replacement shed, the allocation of a temporary shed until the replacement shed is built and for all areas of waste on the common land managed by the Council to be cleared.
  10. The Council replied on 24 September saying that as the incident was not caused by the Council it was not its responsibility to replace the shed. It said it would contact the site secretary again about access to a spare shed on the site. It suggested Mr X contact the Council’s insurance service team if he wished to make an insurance claim.
  11. Mr X escalated his complaint and received a final response from the Council on 23 December 2020. The Council explained that because it was not charging him for the shed, and as it does not maintain the sheds, it did not accept any liability associated with their use. It said as it did not charge an additional cost for the use of sheds, it had no budget to replace sheds on the allotment site.
  12. The Council said it had attempted to find an alternative shed for Mr X to use but to date this had not been possible. It said it would keep this under review and notify him if a shed because available. It said action had been taken to clear the areas of litter and fly tipping. The Council again provided details of how to made an insurance claim and it apologised that it had taken longer than its target of 30 days to conclude the complaint response.
  13. Dissatisfied with the Council’s response, Mr X complained to the Ombudsman.

Analysis

  1. Mr X complains the Council failed to provide a replacement shed on his allotment plot after a fire destroyed the previous one. It is my understanding that in the past the Council did provide sheds on each plot and that it made a charge for this. However, when Mr X agreed to rent an allotment the situation had changed and the Council no longer provided sheds or charged for them.
  2. There was a shed on the plot when Mr X started renting it. He was allowed to use the shed that was there. The Council has provided a copy of the initial invoice of charges from May 2017 and there is no charge for the shed. I therefore accept the Council’s position that it was not responsible for the sheds.
  3. After Mr X reported the fire on his plot and that the shed had been destroyed, he asked the Council about a replacement. Mr X assumed this was the Council’s responsibility and asked it for an assurance that it would replace the shed. While the initial responses from the Council said it was waiting for the report from the fire service, in August indicated a replacement would be provided. However, by 24 September the Council clearly stated that it would not be providing a replacement.
  4. The Council’s failure to clearly explain, from the start of its contact with Mr X, that it was not responsible for replacing the shed is fault. After indicating in August that a replacement shed would be provided, it clarified its position by 24 September and Mr X was then in no doubt. While I appreciate this was disappointing and frustrating for Mr X, I have not seen any evidence to show that the Council was obliged to replace the shed. I am satisfied the decision not to replace the shed was one the Council was entitled to take.
  5. Mr X also complains about the Council’s failure to clear littering and fly tipping on land next to the allotment site and says the rubbish has never been removed. In response to my enquiries, the Council says clearance work was carried out. It says it inspects the land several times a year and regularly cuts the grass.
  6. I note Mr X raised this issue with the Council before the fire that destroyed his shed. However, this is not on the PA’s plot and does not prevent him from using it. The Council has not provided any dates for when it cleared the land or any photographs to show it was completed. It is frustrating when a council doesn’t do something it says it will, but I cannot be certain what has happened in this case. The Council should take action to ensure the land has been cleared as previously agreed it would.

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Agreed action

  1. To remedy the injustice caused to Mr X as a result of the fault identified in this case the Council, within one month of my final decision, will:
  • Apologise to Mr X for the misleading information about providing a replacement shed; and
  • Inspect the land next to the allotments and ensure it has been cleared.

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Final decision

  1. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Parts of the complaint that I did not investigate

  1. Mr X also complained that the Council encouraged him to make claim for his lost tools from its insurer and that when he did the claim was refused. It is appropriate for a council to refer people to its insurer to make a claim however, as the decision is not made by the council it is not a matter the Ombudsman has jurisdiction to investigate.

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Investigator's decision on behalf of the Ombudsman

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