Summary: The Ombudsman found fault on Ms D’s complaint about the Council failing to follow procedure when ending her allotment tenancy and hearing her appeal. It also failed to act on reports about some neighbouring tenants’ behaviour and deal with her complaint according to its complaint’s procedure. It was not at fault for asking her to remove her belongings from the plot. The Council agreed to apologise to Ms D, carry out a review, look at whether there is a problem with tenants’ behaviour at this site, and pay her £100 for her distress.

The complaint

1. Ms D had a tenancy to an allotment and complains the Council failed to:
1. follow the correct procedure when it ended it;
2. ensure her appeals against the decision were properly considered;
3. act on her reports of neighbouring tenants’ behaviour including bullying, along with verbal, sexual, and racial abuse;
4. allow her a fair and reasonable opportunity to address alleged breaches;
5. allow her time to remove her personal belongings from the site; and
6. investigate her formal complaint properly.

2. As a result, she no longer has a plot she can enjoy and was put to a great deal of time, effort, and expense improving it.

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The Ombudsman’s role and powers

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)
4. 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)

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Tenancy Agreement: terms and conditions

5. The tenant agrees to abide by the Allotment Terms and Conditions and the conditions attached to the agreement. (section 2 (d), Tenancy Agreement)
6. The Council can end the tenancy agreement by giving the tenant 4 weeks’ notice in writing if the tenant fails to comply with the conditions of the agreement, the Allotment Terms and Conditions, having been previously sent warning letters in accordance with the Terms and Conditions. (section 3 (d), Tenancy Agreement)
7. Tenants found taking produce, plants, plant material, or other items from a plot without permission of the tenant of the plot concerned will automatically have their tenancy terminated. (section 1.8, Allotment Terms and Conditions (29 March 2017)
8. Tenants may not cause any undue annoyance or disturbance to other tenants. Any verbal abuse, threats, or threatening behaviour towards any other person on site will be investigated and may result in immediate termination. (section 1.9, Allotment Terms and Conditions (29 March 2017)
9. The allotment officer will carry out regular site inspections to assess the plot against the Allotment Terms and Conditions. If any plot is found to be in breach of the terms and conditions, then the termination procedure will be activated. (section 1.16, Allotment Terms and Conditions (29 March 2017)
10. No new buildings or structures can be erected by the tenant on the site other than sheds, greenhouses, fruit cages and polytunnels. Consent is needed for new sheds and greenhouses from the Council and Site Committee (section 6.1 and 6.2, Allotment Terms and Conditions (29 March 2017)
11. All paths including main paths must be kept clear of obstructions at all times and must not be encroached (section 6.22, Allotment Terms and Conditions (29 March 2017)

Termination procedure

12. 1st Written Warning: This warning gives the plot holder 4 weeks from the date of the letter/email to return the plot to an acceptable condition. This is defined as being in full compliance with the Allotment Terms and Conditions. (section 2.1, Allotment Terms and Conditions (29 March 2017)
13. 2nd Written Warning: This is issued if the requirements of the first warning letter have not been complied with. The plot holder has 2 weeks from the date of the letter to return the plot to an acceptable condition. (section 2.1, Allotment Terms and Conditions (29 March 2017)
14. A Termination of Tenancy Notice will be issued if the conditions set out in the second warning letter have not been complied with. The termination is effective 4 weeks from the date of the Notice. (section 2.1, Allotment Terms and Conditions (29 March 2017)
15. A plot holder has the right to appeal a termination notice. The appeal must be made in writing within 14 days of the date of the termination letter and addressed to the Head of Parks and Open Spaces. (section 2.2, Allotment Terms and Conditions (29 March 2017)
16. An appeal hearing will be called where the plot holder has the chance to present their case. The panel comprises of 2 allotment chairs and will be chaired by the Head of Parks and Open Spaces. The decision of this panel is final. (section 2.2, Allotment Terms and Conditions (29 March 2017)

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How I considered this complaint

17. I considered all the information Ms D sent, the notes I made of our telephone conversations, and the Council’s response to my enquiries, a copy of which I sent Ms D. I did not send her a complete copy. This is because the Council sent information about third parties which needs to remain confidential. This means I cannot send Ms D copies or refer to their contents directly. I sent a copy of my draft decision to Ms D and the Council. I considered their responses.

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What I found

18. Ms D accepted the tenancy to her allotment (the ‘plot’) in January 2016. She claimed it was unoccupied for 8 years and had 15 tree stumps remaining after the Council cut the trees down. It bordered 3 other plots. She spent money having the stumps removed, buying soil as the quality of the existing soil was poor, and buying ‘sleepers’ for raised beds. She claimed the plot had no proper borders with neighbouring plots whose tenants had to walk across hers to access a water supply.
19. The Council explained prospective tenants are shown plots in their current condition and understand if they accept them, they must clear them if needed. They are shown up to 3 plots and select 1 of them. It did not fell or remove trees from her plot. It claimed the site chairman gave her the chance to move to another plot. It was unable to provide evidence of giving her the option of rejecting the offer.
20. Ms D claimed she arranged to install a fence along one border but the neighbouring tenant (Tenant 1) got agitated about it. This led to the first complaint against her.
21. The Council received a further complaint against her when she brought some reclaimed double glazing on to the plot. The delivery men left it blocking access to the water tap. She claimed she was going to ask a neighbouring tenant to help her move it but nobody was on site. The next day she went to her plot to find Tenant 1 again acting agitated.
22. Another complaint against her involved a different tenant. She asked him to move the car he had parked in such a way as to block access to her plot. The car belonged to another tenant who eventually moved it.
23. Two of the complaints came from Tenant 1 and 4 from three other tenants. These led to the allotment officer visiting (Officer 1) and the involvement of his manager (Officer 2).
24. Ms D believes the way the Council investigated these complaints was unfair, unprofessional, and incorrectly done. The Council gave Ms D notice in October 2016 it was ending her tenancy and she had to remove her belongings from the plot. Her appeal against the decision failed. Her tenancy was terminated in August 2018.

Complaint: a) and b)

25. Ms D argued the Council failed to follow the correct procedure when it ended her tenancy.
26. The Council stated it served her with a notice of termination to vacate the plot in November 2016, but I have not seen a copy of it. Ms D disputes receiving it. The notice alleged she breached section 1.9 of its terms and conditions. Ms D appealed it the same month.
27. Ms D went before the Appeal Panel in January 2017. The Council confirmed it has no minutes for this meeting. It said the 2 members are independent chairs of other allotment sites. Its stage 2 response to her complaint confirmed Officer 2 was part of the Appeal Panel because from October 2016, her managerial role replaced that of the former Head of Parks and Open Spaces. Officer 1 was the presenting officer.
28. Ms D argued the Appeal Panel failed to properly consider her evidence and when she made points, she was told they were ‘irrelevant’.
29. The Appeal Panel decided to give Ms D a 6-month probationary tenancy with conditions. Officer 2 emailed Ms D with the decision and told her:

• The probationary period would run from January for 6 months;
• She had to follow the terms and conditions;
• She needed to get consent before bringing any further hard landscaping materials to the plot;
• She had to cultivate 60% of the site within 6 months;
• Any further breaches would lead to the ending of her tenancy with no right of appeal and she would need to remove all materials within 1 month. Failure to do so would mean it would recover the costs from her; and
• It would hold a review meeting in July to decide the outcome of the probationary period.

30. To meet the conditions, Ms D says she spent a lot of time and money on the plot. Officer 1 and 2 continued to inspect it and decided she failed to meet the conditions.
31. In July, Officer 2 emailed the Appeal Panel members to reconvene a hearing but in a later email, she said she was sending them details of what had happened rather than have a meeting. One of the members replied saying he thought her tenancy should be ended immediately. He was happy to view the plot but noted from photographs, and complaints from adjoining plot holders, the situation would not improve.
32. Ms D asked for a full Appeal Panel hearing. This took place 3 months later in October. In its stage 2 response, the Council confirmed a ‘further appeal panel meeting took place’. It also confirmed this was outside its normal procedure but considered it a fair way for her to put her case. The same Appeal Panel considered her submissions. The Council states members visited the plot in July, but the cultivation of the plot was not the issue. The problem was Ms D’s consistent breaching of terms and conditions.
33. Ms D believes the evidence she supplied rebutting accusations and how she met the conditions was not considered. This included a petition signed by 30 tenants in support of her. During the hearing, new accusations were made against her.
34. The Council could not provide minutes for the meeting nor the evidence presented and considered.
35. The Council sent a copy of an email it sent to her 2 days after the appeal. This told her the Council would end her tenancy because of continued breaches of terms and conditions during her probationary period. Ms D asked for a list of her alleged breaches and the Council’s reply noted:

• January: Moving her water butt on to a neighbouring plot which she moved back after a warning until she left it outside of her plot;
• March: Storing a greenhouse frame without permission and other materials on a neighbour’s plot. When asked to remove it, she told the Council she had consent;
• April: She asked for consent to erect the greenhouse after it was erected. The Council refused and told her to remove it. The allotment secretary wrote about her hoarding belongings on other plots;
• May: Neighbouring tenant told the Council about her shouting, taking photographs, and sending texts. The tenant was moved to another plot as a result. During a visit by both officers, she filmed them and threatened to go to the press. She was asked to deal with the water butt and guttering. She had to ensure it was on her land. She was also told to relocate the boundary fence she erected;
• June: Another plot holder claimed she had been bullying and making threats; and
• July: An inspection found she had worked the plot but not moved the fence. The Council received reports of her filming other tenants to get a reaction.

36. Ms D complained about the Council’s actions and went through its complaint procedure. When she exhausted it in May 2018, the Council gave her 1 months’ notice, ending her tenancy on 25 June.
37. Ms D is also unhappy with the actions of Officer 1 who, she says intimidated her, threatened her, video recorded her, and accused her of lying. Officer 1 denies using any video while doing his job and claimed Ms D took videos and photographs of Council officers without consent.

Analysis

38. I found the following fault on this complaint:
1. The Council provided no evidence of sending Ms D a 1st or 2nd written warning letter before sending her the termination notice. Nor have I seen a copy of the notice despite asking to see it. The current evidence, therefore, does not show the Council followed procedures up to the Appeal Panel hearing in January 2017;
2. The Council failed to produce minutes for the January 2017 Appeal Panel hearing. Nor could it produce copies of all the evidence presented to the Appeal Panel, including that from Ms D. There is no written record showing what the Appeal Panel considered when reaching its decision. There is nothing to show the procedure followed during the appeal either;
3. Nor is there evidence of the Appeal Panel satisfying itself of the Council complying with the procedural requirements for 1st and 2nd written warning letters;
4. It is unclear why Officer 2 decided in July to contact the Appeal Panel members to convene a hearing but then changed her mind and sent them details of the breaches instead. Officer 2’s email to Ms D in January 2017 said there would be a ‘review meeting’ in July to decide the outcome of the probationary period. It was unclear whether Ms D would attend this meeting or have the opportunity to present evidence to it;
5. The Appeal Panel met in October. The failings noted in b) above were repeated;
6. Officer 2’s email of 19 October 2017 to Ms D referred to 2.1.5 of the appeal process. This is not in the copy of the terms and conditions the Council provided. I assume it is from an earlier version but could not find a copy of it;
39. The law requires we consider the injustice caused by any fault identified. In doing so I considered Ms D’s own actions. On balance, I consider any injustice from the fault was reduced because:

• Ms D had an Appeal Panel hearing in January 2017. This gave her another chance and set out what she had to do within the following 6 months to continue with her tenancy;
• Ms D failed to comply with all the requirements set down by the Appeal Panel which resulted in a second hearing; and
• Ms D attended the second Appeal Panel with a councillor.

40. I remain satisfied the remaining avoidable injustice arose from her not knowing the Appeal Panels properly considered all evidence and followed procedure when reaching its decision.

Complaint: c)

41. Ms D claimed the Council failed to act on her reports about the behaviour of the neighbouring tenants. These included allegations of bullying and verbal abuse.
42. There is evidence from different sources that Ms D harassed other tenants and video recorded them and visiting officers. The Council provided evidence of a tenant complaining to the Council about Ms D’s behaviour, for example.
43. The Council provided photographs it claimed showed Ms D filming officers without consent. One of the photographs is of Ms D holding her mobile phone in the direction of Officer 1.
44. The Council also provided a copy of a letter sent from Tenant U in April 2018 who reported several neighbouring plot holders 2 years before for insulting and threatening behaviour. Tenant U asked Officer 2 for help at the time but claimed this was refused. Tenant U noted the atmosphere at the allotments was unhealthy, particularly for female plot holders. Tenant U repeated nasty and defamatory rumours heard more recently about Ms D. Tenant U concluded by asking for an investigation of the culture of bullying, theft, and intimidation at the allotments.
45. Tenant V also sent the Council a letter in May. This referred to abuse Ms D received from some tenants and Officer 1’s behaviour towards him while visiting the plot. The letter also noted theft was common on the site as well as verbal abuse from some tenants. Tenant V named one of the tenants involved. The letter gave the Council his contact details.
46. The Council also provided copies of correspondence from:

• Tenant W: This gave details of an incident in 2016 but did not refer directly to Ms D. The plot reference given does not match that for Ms D;
• Tenant X: This gave details of incidents involving Ms D;
• Tenant Y: This gave details in May 2017 about the condition of Ms D’s plot and her behaviour; and
• Person Z: This information, given in June 2017, gave details of problems with Ms D’s behaviour.

Analysis

47. I have not seen evidence of the Council investigating Ms D’s allegations despite what paragraph 1.9 of the Allotment Terms and Conditions says.
48. While fault, I have taken account of the fact the Council also received allegations from neighbouring tenants about her behaviour and Officer 1’s evidence also tending to support some of the allegations against her.
49. Although the Council has limited resources to investigate claims about tenants’ behaviour in general, there is no evidence it acted on the allegations from Tenants V and U about behaviour towards fellow tenants, particularly women.

Complaint: d)

50. Ms D also claimed the Council failed to give her the opportunity to address the breaches alleged.
51. The evidence shows:

• Correspondence between Ms D and Officer 2 about the positioning of the fence she had to relocate before the second appeal;
• Officer 2 offering an officer to visit to mark the correct boundary for her builders to re-install the fence; and
• Ms D responding to the issue about the location of the fence.

Analysis

52. I have not seen evidence the Council gave Ms D details of all the allegations the second Appeal Panel would consider until after the hearing when Officer 2 sent her an email about them. This is fault. As the Council decided to give her the chance to address the Appeal Panel for a second time, it was only fair for her to know the claims and evidence against her before the hearing so she could prepare her response.
53. Any injustice to Ms D because of the fault was reduced by her knowing some of the allegations in advance. For example, there is email evidence Ms D knew the Council would allow her to keep the fence but wanted it relocating to reflect the boundary which she failed to do.

Complaint: e)

54. Ms D is unhappy with the way the Council wanted her to remove all her belongings from the plot.
55. In October 2017, when the Council wrote to give her notice of her tenancy, it also asked her to remove her belongings within 1 month.
56. The Council gave Ms D until 25 June 2018 to vacate the plot and return the key.
57. In August, the Council sent Ms D an email about her failure to return the plot key and remove her belongings. It warned it would seek to recover the costs of removing her belongings.
58. When Ms D failed to remove all her belongings, the Council arranged to remove them. In November, it told her councillor the charge for this was £498. It would not charge for storage if she arranged to collect them within 2 weeks. If she failed to collect them, the Council would dispose of her belongings and invoice her £2,000.

Analysis

59. I found no fault on this complaint. The Council’s email to Ms D of 23 January 2017 following the Appeal Panel’s decision to give her a probationary period of 6 months stated if the tenancy was terminated, she had 1 month from the date of the notice to remove belongings from the plot. The Council gave her notice of the need to remove her belongings, extended the time within which she had to do so, before making its own arrangements.
60. I am satisfied, therefore, Ms D knew she had to remove her belongings if given notice. She was also aware of the time frame within which to do so. Ms D failed, despite having time extensions, to remove her belongings. The Council was entitled to remove them so it could re-let the plot. The fact Ms D was pursuing her complaint with the Council did not override this requirement.

Complaint: f)

61. Ms D is unhappy with the way the Council dealt with her formal complaint.
62. The key dates are:

• 17 November 2017: Ms D sent an email complaint;
• 16 February 2018: Ms D chases the Council having heard nothing;
• 13 March: The Council told Ms D it would investigate her complaint at stage 2 immediately because of the delay;
• 27 April: The Council sent her an email following a meeting with her earlier that week. The email said she would receive the stage 2 response by 11 May;
• 11 May: The Council emailed to say it needed more time and would respond by 18 May;
• 17 May: The Council emailed to say it would now respond by 23 May;
• 25 May: The Council sent her its stage 2 response. This formally gave her notice of the Council ending the tenancy within 1 month.

Analysis

63. The Council complaints procedure is as follows:

• Stage 1: A manager will investigate the complaint and usually provide a reply within 15 working days but if this is not possible, the complainant is told why;
• Stage 2: A request to go to this stage needs receiving with 20 working days. A senior manager (investigating officer) will investigate the complaint and write a letter for the director of the service to consider, approve, and sign. A senior manager from another service (independent person) works alongside the investigating officer. The director usually sends the response within 25 working days but if this is not possible the complainant is told why and when to expect a response.

64. I found fault on this complaint. Ms D’s complaint sent in November 2017 should have been sent a response by 8 December. This is fault.
65. It was only after chasing the Council that it agreed in March 2018, nine weeks from the date she should have received a response, to put it straight to stage 2 of the complaint’s procedure. This means she should have received the response by 17 April. I understand officers met her the week before the Council contacted her again on 27 April to discuss her complaint. Two deadlines for its stage 2 response were given to her before she received it towards the end of May.
66. The injustice from the fault was her distress (sense of frustration, stress, and inconvenience) with the complaint procedure and the time and trouble in having to pursue it.

Agreed action

67. I considered our guidance about remedies.
68. The Council will, within 4 weeks of the final decision on this complaint, do the following:
1. Send Ms D a written apology for the failures to: keep proper records of the appeal hearings and the deliberations; send her details of the evidence against her before the hearings; investigate her allegations about other tenants.
2. Start a review to ensure these failures are not repeated on future cases;
3. The review needs to include looking at improving the procedure for Appeal Panels so appellants know what will happen, as well as improving the record keeping. It also needs to clarify what happens when the first Appeal Panel decides to hold a review meeting;
4. Look at whether there is a problem with some tenants’ behaviour at this site and how it can tackle this; and
5. Pay Ms D £100 for the distress caused and the time and trouble to which she was put.

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Final decision

69. The Ombudsman found fault on Ms D’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman