Summary: Mrs X complains about the Council’s handling of matters associated with the management of an allotment she rents. The Ombudsman finds no fault causing significant injustice to Mrs X in the substantive issue complained of. There was however fault by the Council in its handling of Mrs X’s complaint. A remedy for the injustice arising from that fault is recommended.

The complaint

1. The complaint, whom I shall call Mrs X, complains the Council failed in 2012 to undertake due diligence in assigning a 25-year lease to a horticultural society to manage allotments. Mrs X says the society fails to allow allotment holders a say in the running of the allotments, leading to serious and ongoing disputes, including financial mismanagement.

Back to top

The Ombudsman’s role and powers

2. 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)
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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

Back to top

How I considered this complaint

5. I considered all the information provided by Mrs X about her complaint. I made written enquiries of the Council and took account of the information it provided in reply. I provided Mrs X and the Council with a draft of this decision and considered all comments received in reply.
6. I considered it reasonable to exercise discretion to consider Mrs X’s complaint in spite of there having been some delay: she became aware of the Council’s role in the matters complained of in November 2017, and she pursued the complaint with the Council after having sight of the lease in February 2018, before coming to the Ombudsman in January 2019.

Back to top

What I found

7. Information on the Council’s website says that allotments are managed in one of three ways: directly by the Council; in partnership with an allotment association; or fully managed by an allotment association. It is the latter arrangement that is in place here, the allotments which are the subject of this complaint being managed by a horticultural society (HS).
8. Mrs X and her husband are allotment holders, having rented the same plot for almost 30 years. HS members pay yearly rent and membership fees to the HS, which pays rent to the Council for three allotment sites. Mrs X reports there have been many complaints about the management of the allotments, including in the handling of finances, and the HS committee has refused all proposals for arrangements that would give control to allotment holders.
9. In November 2017 Mrs X became personally concerned about the management of the allotments and sought to understand her position as a tenant. In February 2018 she saw the lease the Council had granted the HS in 2012. She considered that before assigning the lease the Council had failed to ascertain that the HS had a constitution which rendered it fit for purpose as an allotment society.

Mrs X complains to the Council

10. Mrs X complained to the Council on 5 March 2018 and this was acknowledged the same day when the Council said it would review and respond within 14 days. In her complaint Mrs X said the lack of proper provision within the constitution of the HS for the direct involvement of allotment holders in the management of their allotments had led to several disputes. Allotment holders found they had no rights to democratically challenge the decisions of the committee, for example through an annual general meeting (AGM) or extraordinary general meeting (EGM). Mrs X wanted the Council to acknowledge that due diligence was not undertaken in the assignment of the lease, and she wanted a clear commitment to rectify the situation, if necessary by rescinding the lease, to ensure that management of the allotments properly involves allotment holders and meets the Council’s own guidelines.
11. Having received no response to her complaint Mrs X sent the Council an email on 4 April 2018. The Council acknowledged this the following day. However, by 17 December 2018 Mrs X had received no further response and so she sent a further email. She had not chased it in the interim, as she had understood action was being taken.
12. The Council replied on 31 January 2019. The Council apologised for the delay, saying this issue had created an 'industrial level' of paperwork and correspondence and Mrs X’s query had been missed. I will return to the matter of this delay later in this statement.
13. The Council said that in answer to Mrs X’s specific question regarding due diligence undertaken in 2012 when the lease was agreed with the society, it said the HS had been an obvious tenant as several allotment plot-holders were members of the HS at the time. It said that although the HS had a wider purpose, as an established constituted body the decision to award the lease to the society was a pragmatic one. The Council said arrangements with the HS worked for several years but latterly problems had arisen which it had sought to address. It said it had expressed its concerns to HS about the governance, transparency and financial management of the allotments and in the past 18 months had sought to mediate between the HS and aggrieved plot-holders in order to resolve issues and put control in the hands of plot-holders only and not to the wider society. The Council confirmed an internal audit had been carried out into the affairs of the HS. The Council said rescinding the lease was not straightforward, although was not being ruled out, and the audit had validated several Council concerns.
14. The Council said its focus was on trying to draw a line under the past and the various allegations made against the committee and find a way forward. It noted that the intransigence of the committee to relinquish control of the allotments and address the Council's concerns meant it had now had to revisit those allegations and give the society an opportunity to respond to the allegations. It would need to take a view on whether there is any confidence in the HS continuing to manage the allotments.

The Council’s actions and supporting evidence

15. In May 2017, having received allegations about the conduct of the HS in respect of the allotments, the Council wrote to the Chair seeking assurances that the concerns raised were addressed and resolved by the committee. In July 2017 the Council met with members of the HS committee and considered that progress was being made with a new constitution, policies and procedures. But the Council reports that in August that perceived progress unravelled, as concerns were raised about a recruitment drive of new members to ensure any decision was pre-determined to suit the wishes of the Trustees and committee. The Council wanted a new constitution to ensure fair representation for allotment holders. Meanwhile further allegations of bullying, harassment and discrimination against plot-holders were made, and concern was expressed regarding the accounts. The Council considered very little of what it had raised in its letter to the Chairman in May had been addressed. A sub-committee was tasked with completing a new constitution and disciplinary, appeals and complaints procedures, an allotment code of conduct, definitions of officer roles and financial procedures. This work was to be completed by the end of November in advance of the AGM in February.
16. In November 2017, the Council noted that it was ultimately responsible for the activities of the HS as relates to the allotment sites. It said it was not satisfied that the HS was operating in accordance with the Council's Allotment Strategy, which expects allotment management organisations to develop best customer care practices relevant to allotment holders as council customers; offer fair, open and equitable treatment and safe tenure; and provide effective and efficient allotment administration. At a meeting on 23 November 2017 all parties agreed the day to day management including finances of the individual allotment sites should be with a committee entirely made up of representatives of each site. The Council said it would arrange a meeting early in 2018 for any interested people to attend with the aim of producing a framework for the new arrangements and to agree the next steps; and the draft constitution and policies and procedures produced over recent months would be reviewed. The intention at this time was to resolve outstanding matters in time for the HS’ AGM in early February 2018. The process was to be Council-led and various information was requested from the HS including accounts, an inventory of equipment, and a list of plot-holders. The Council’s position statement for the AGM in February said HS members were being asked to approve the Council proposal to decouple the allotments from the HS and to voluntarily rescind the lease. The Council said if the motion was not carried it would instruct its legal team and auditors to fundamentally review all aspects of the HS’ governance and financial arrangements relating to the allotment sites. The HS voted against the motion.
17. The Council commissioned an independent audit report. The auditor noted that if the information in complaints was accurate then there may have been breaches of the lease agreement, but legal action would be costly and would probably not lead to the Council taking back control of the lease. The audit report made eight recommendations and set out an action plan. The recommendations included the following:

• The Council should introduce a monitoring regime for the Society to ensure that the terms of the lease are complied with, and with a view to improving the administration of the allotments and or obtaining evidence of breaches of the lease;
• The Council should consider offering to provide advice and guidance to the Society to improve their governance processes (and to the plot holders directly if they do not provide assistance to the Society);
• The Council should insist that the Society brings its number of trustees and executive board members up to full strength in accord with its constitution and that trustees should oversee the executive committee and the strategic running of the Society; and
• The Council should insist it is included in the Society’s information from board meetings and AGM and EGM’s to show that the Society is capable of good governance in respect of the allotment holders, and that they are complying with their constitution, as currently there are failings in compliance.

18. The Council wrote to the HS setting out the main findings from the audit, The Council said it was returning to the principle of self-governance for the allotment holders and income from plot holders being for the benefit of the allotment sites only and put forward the view that in hindsight, the granting of a lease to the HS had not worked and its forfeiture appeared the only way to resolve matters. It said if the HS did not want to do this, it would consider legal action to put in place new arrangements. The Council also noted that information it had requested from the HS was still outstanding. The Council wrote again to the HS in January 2019 inviting comments on the governance and financial concerns it had identified.
19. The HS eventually responded to the audit report. It considered there were inaccuracies in the report, but it had no objections to the recommendations made. It said a new draft constitution had been agreed at its AGM in February 2019. A proposal for an allotment sub-committee had been put forward and interest in this was being gauged.

The current position

20. The Council says it now intends to work with the committee to ensure the implementation of the findings of the audit and its concerns regarding governance are addressed. It says this includes ensuring a wider engagement with plot holders more generally and making sure that the control and accountability for allotment matters rests with a representative group of allotment plot-holders not the wider Society some of whom are not plot-holders. It says a senior representative will be attending committee meetings to ensure an agreed improvement plan is implemented.
21. At the time of responding to my enquiries, the Council confirmed that a meeting with the HS was planned for 18 July, at which most of the recommendations set out in the audit report would be considered. Other recommendations were also being progressed, for example the Council now receives minutes of the HS’ board meetings and AGMs; the HS is recruiting trustees; and during this year the monitoring regime will be implemented and a forum for allotment holders with annual meetings will be established.

Analysis

22. The Small Holdings and Allotment Act 1908 allows councils to let sites to associations for the purposes of providing allotments. The tenancy agreement between the Council and the HS says the HS is “To be responsible for the management of the allotments on the premises in accordance with the rules and constitution of the Society”, and “To be responsible for the day to day running of the allotments within the premises’. The lease allows the HS to licence individual allotment plots to its members.
23. Regarding whether the HS’ management of the allotments meets the requirements of the lease the Council says there are examples of poor maintenance and site management which could be construed as not meeting the requirements of the lease. However, the judgement the Council has made is that if these matters were used to seek a termination of the lease this would be subject to challenge by the trustees.
24. The Council was entitled to award the lease as it did. The Council considered the decision to assign the lease to the SDHS was a pragmatic one. As described at paragraph 13 above, at the time of assignation in 2012 the Council considered it relevant that several allotment plot holders were members of the SDHS and it was an established constituted body. The available evidence for the decision-making in this case, which may be diminished by the passage of time, indicates the Council reached a reasoned decision.
25. The Council was also entitled to decide whether there were grounds to seek revocation of the lease and, if so, whether to pursue such action in the face of possible legal challenge. The Council has sought to take a pragmatic approach to address alleged issues of poor governance, transparency, communication and financial management. Its work to progress this aim has been protracted and there appear to have been some delays both by the Council and by the HS in the process. However, on balance I consider it would be disproportionate to undertake further investigation to establish the extent of any such delay by the Council because it is likely the position now reached would have been the same and that the impact for Mrs X would not have been significantly different if that position had been reached a little sooner. The current position is effectively that the Council intends to work more closely with the HS towards achieving what the audit report determined were necessary improvements.
26. As set out earlier in this statement, there was a long delay by the Council in responding substantively to Mrs X’s complaint. That delay was fault. She was put to some time and trouble in pursuing the matter as a result and did not know what steps were being taken to address the concerns she had raised.

Agreed action

27. In recognition of the injustice to Mrs X described above, I recommended that within four weeks of the date of the decision on this complaint the Council:

• pays her £150;
• undertakes to update her every three months with progress made towards achieving compliance with the recommendations of the audit report.

28. In addition, I recommended that within three months of the date of the decision on this complaint the Council reviews lessons learned from the complaint handling in this case and puts in place measures to ensure that so far as possible such fault as identified in this case does not occur in future.
29. The Council has agreed to my recommendations.

Back to top

Final decision

30. I have completed my investigation on the basis set out above.

Back to top

Investigator's decision on behalf of the Ombudsman