Summary: Mr X complains the Council has wrongly accused him of breaking allotment regulations and evicted him from his allotment. He says this has caused him distress and the Council has banned him from having an allotment for five years. There was no fault in how the Council considered the evidence and made its decision. There was also no fault in the process it followed to evict Mr X. It says it has not banned him from having an allotment and he can join the waiting list for a new allotment, should he wish to do so.

The complaint

1. Mr X complains the Council has wrongly accused him of breaking allotment regulations and has evicted him from his allotment. He says the Council has banned him from having an allotment for five years and its actions and allegations have caused him distress. He wants the Council to admit it has made a mistake, apologise and reallocate him his allotment.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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

4. I read Mr X’s complaint and discussed it with his representative over the phone.
5. I considered documents Mr X’s representative provided.
6. I made enquiries of the Council and considered the information it sent me.
7. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making my final decision.

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What I found

Legal and administrative background

8. The Smallholdings and Allotment Act 1908 provides the legal framework for the letting and management of allotments.
9. Section 27 of the Act relates to the letting of allotments and says allotments should not be sublet.
10. The Council has its own Allotment Rules and Regulations of Tenancy (the Rules). These were amended in 2018. All tenants must sign a tenancy agreement yearly stating they agree to abide by the Rules.
11. The Rules say:
• The tenant must be the primary user of the plot and is responsible for the activities of the registered partner and any visitors to the plot;
• The sale or subletting of plots is not allowed;
• A tenant may register one partner to assist on the plot;
• The Council will consider each tenancy on an individual basis. It reserves the right to allocate the plot to a partner, who has been registered and working the plot for a minimum of three years;
• All correspondence is for the attention of, and shall be sent to, the tenant (at the tenant’s address). It will not send correspondence to family members, partners or any other arranged address. Tenants are responsible for their plot and all correspondence is for their attention only. This is to detect and prevent fraud.
12. Prior to 2018, the Rules allowed correspondence to be sent to “care of” addresses. This changed when amendments to the Rules came into force in April 2018.
13. The Rules also set out the enforcement procedure for breaches of the agreement. There are two procedures, firstly for general breaches of tenancy, and secondly for serious breaches.
14. General breaches of tenancy are subject to a three-stage enforcement procedure.
• The tenant is issued with a warning letter giving them opportunity to rectify the problem within 14 days.
• If no or insufficient action is taken, a second warning letter is issued giving them a further 14 days.
• If, after 14 days from the second warning, the Council finds no or insufficient action has been taken, then the tenant will be issued with a Notice to Quit. This instructs the tenant to vacate the plot within one month and their tenancy will be ended.
15. The Rules define a serious breach of tenancy as:
• Abuse or violence towards other tenants, officers of the council or members of the Public,
• Criminal activities; or
• Activities which may cause significant harm to human or animal health or to the environment.

Where the Council finds a serious breach of tenancy, it will issue an immediate Notice to Quit.

What happened

16. Mr X has been an allotment tenant for many years. In 2009, he asked the Council to register another person, Mr Y, as a partner on the plot. The Council agreed to this request.
17. Mr X also asked the Council to change his address. He registered a “care of” (c/o) address for all correspondence. The address given was Mr Y’s address. The Council agreed to this request.
18. In 2014, Mr X submitted a partnership registration request. He asked the Council to register a community group as a partner on the plot. The Council says it sent him a letter saying he already had a registered partner on the plot, Mr Y. It referred him to the section in the Rules where it said only one partner could be registered to assist on a plot. It declined the application. I have seen a copy of this letter. Mr X says he never received this letter.
19. In 2015, the Council agreed to add the community group’s name to Mr X’s tenancy agreement in the form of “Mr X c/o the community group”.
20. In 2016-17, the Council sent Mr X correspondence addressed in this way.
21. In 2017, The Council agreed some amendments to the Rules. It agreed that as tenants are responsible for what happens on the land, “care of” addresses should no longer be allowed, and that correspondence must be sent directly to tenants.
22. The amendments to the Rules came into force in April 2018.
23. In May 2018, Mr X signed his tenancy agreement for the period from 1 April 2018- 31 March 2019. The agreement recorded Mr X as the tenant and his address as Mr Y’s address.
24. The Council says it soon after became aware the address listed on Mr X’s tenancy agreement was not his home address. It used Council records to locate his home address.
25. In July 2018, a Council officer visited Mr X’s home. The Council say this visit was to tell Mr X of the amendments to the Rules related to “care of” addresses and to complete anti-fraud checks.
26. The Council says that during this visit, Mr X told the officer information which amounted to an admission that he was subletting the plot. Council notes record Mr X as saying:

“I don’t go to the allotment; I haven’t been there in years. Mr Y deals with the paperwork and pays for the rent”.

Mr X denies he said this and says the allegation of subletting is false.

27. In September 2018, the Council sent Mr X an immediate Notice to Quit. It said he was in breach of the Rules, as the subletting of plots is strictly prohibited. It considered subletting a serious breach of tenancy, as it is unlawful under the Smallholdings and Allotment Act 1908.
28. In October 2018, Mr X wrote to the Council to appeal the eviction. He did not provide any additional evidence to support his appeal at this time. The Council did not uphold his appeal.
29. Mr X made a formal complaint to the Council later that month. The Council put the Notice to Quit on hold whilst it investigated his complaint.
30. In November 2018, the Council responded to his complaint. It said it had started an anti-fraud check as the address on the tenancy agreement did not match the address where the Council was sending correspondence. It said when the officer visited his property, Mr X confirmed he was not the primary user or responsible for cultivating the plot. It was satisfied Council officers followed correct procedures and acted appropriately when issuing the Notice to Quit. It did not uphold his complaint.
31. The Council re-issued the Notice to Quit order.
32. Mr X was not happy with the Council’s response and brought his complaint to us in December 2018.
33. In January 2019, Mr X provided the Council with four letters from other allotments holders saying he was a regular visitor to the plot. Mr X met with Council officers in January 2019 where this was noted, but the Council did not alter its position.
34. Mr X surrendered his tenancy of the plot later that month.
35. The Council offered the allotment to Mr Y, as he had been the registered partner on the plot for more than three years. Mr Y accepted and is now the tenant on the plot.
36. In its response to enquiries, the Council says despite Mr X being evicted, he is not banned from having an allotment. He can join the waiting list for a new allotment, should he wish to do so.

Analysis

37. The Council registered Mr Y as a partner on the plot in 2009. When Mr X made a request to add the community group as a partner in 2014, the Council declined this request. This was not fault as it was in line with its policy to only allow one registered partner to assist on a plot.
38. The Council says it wrote to Mr X explaining this decision. I have seen a copy of this letter and am satisfied the Council sent it. Mr X says he did not receive the letter. I cannot say why he did not receive it, but this is not Council fault.
39. In 2017, the Council decided to amend the Allotment Rules and Regulations of Tenancy to no longer allow “care of” addresses. The Council was entitled to review its policy and make this change. The amended Rules came into force from April 2018.
40. When the Council identified the address on Mr X’s tenancy agreement was not his home address, it started anti-fraud checks. The Council was entitled to decide to do this.
41. When the officer visited Mr X’s home in July 2018, there is disagreement over what was said. The Council says Mr X provided information which proved he was subletting the plot. Mr X denies telling the officer any information which would lead to this allegation. As I was not there, I cannot know what was said. However, I have seen the Council officer’s record of this visit. The Council considered the officer’s information and decided there was sufficient evidence Mr X was subletting the plot. As there is no evidence of fault in how it considered the information, I cannot say the Council was at fault for making this decision.
42. The Council considered this a serious breach of tenancy as the subletting of plots is unlawful. In line with the Rules, it issued Mr X with an immediate Notice to Quit. The Council followed its enforcement procedure as set out in the Rules and is not at fault for issuing the Notice to Quit.
43. When Mr X made a formal complaint, the Council acted appropriately by putting the Notice on hold whilst it investigated his complaint. I cannot see that Mr X provided any further evidence at this time to support his request to withdraw the Notice. When it did not uphold his complaint, the Council was entitled to re-issue the Notice to Quit in line with its policy.
44. At the meeting in January 2019, the Council considered the letters from other allotment holders. Mr X had not provided this information either at his appeal or as part of his formal complaint. The Council considered the information in the meeting but decided not to change its decision. This was a decision the Council was entitled to make and is not fault.

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Final decision

45. I have completed my investigation. I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman