Summary: The Council wrongly refused to investigate a complaint from an allotment holder that an Allotment Association was in breach of its lease with the Council. The Council did not check if the Association had correctly ended a tenancy. This caused injustice as the allotment holder missed the opportunity to resolve the complaint without losing her allotments. The Council will apologise, make a payment, and carry out an investigation.

The complaint

1. Miss X complains an Allotment Association, acting for the Council, treated her unfairly and wrongly evicted her from two allotments. She says the Council then refused to investigate what had happened.

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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)

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How I considered this complaint

4. I considered information from Miss X and the Council.
5. I took legal advice on whether the Allotment Association acts for the Council.
6. A council must ensure there are allotments in its area, but it does not have to own or manage all allotments.
7. A council can give a long lease of land to another person or body.
8. The Council has given a 25 year lease to the Allotment Association. Under the lease the Allotment Association has control of the land and does not act as the agent of the Council when running the allotments. Allotment tenants do not have a contract with the Council. As the Association is not acting for the Council, it is not in the Jurisdiction of the Ombudsman. We cannot investigate actions of the Association, including Miss X’s complaint about it.
9. We can investigate the Council’s decision not to investigate Miss X’s complaint, as this is an act of the Council.
10. Miss X and the Council had the opportunity to comment on a draft version of my decision. I considered what they said before I made a final decision.

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What I found

The law and the lease

11. Allotment landlords can only end a tenancy by a giving the tenant 12 months notice. (The Allotments Acts 1922 and 1950)
12. The lease says any building or structure on the land needs the prior written consent of the Council.
13. The lease says the Association will observe and perform all rules and regulations on allotment gardens made by the Council.
14. The lease says the Trustees of the Association will settle all disputes, unless the dispute concerns a stipulation of the lease.
15. The Association rules for its tenants says tenants will not cause nuisance or annoyance to other allotment holders. The rules say tenants should act courteously and avoid abusive language and acting aggressively.
16. The Council has model rules for Associations. These say an Association can only end an allotment tenancy using the provisions of the Allotments Act 1922 and 1950. The Council’s allotments strategy says it sent these rules to all Allotment Associations in May 2013.

Background

17. Miss X had two allotments on the Allotment Association’s site. In 2018 the tenant of the neighbouring allotment erected a bat box on a 5.5 metre high pole. Miss X says the box hung over her allotment. Miss X said she made a complaint to the Committee. She says when she chased this a Committee Member told her the neighbour had permission and she should discuss her concerns directly with the neighbour.
18. The Association says the Chairman gave the neighbour verbal permission.
19. Miss X says she had a difficult conversation with the neighbour, but he agreed to remove the bat box.
20. The neighbour complained about the way Miss X approached him. In December 2018 the Committee arranged a disciplinary hearing. Miss X could not attend because of ill health but sent in a written submission. The Committee decided Miss X caused the problem. It gave her a written warning. It said she must apologise to the neighbour or it would not renew her tenancy.
21. Miss X asked for the details of the complaint made against her, as she said all the Association told her was the neighbour found her rude and obnoxious. She said could not apologise unless she knew what she was accused of. The Association said it could not provide details of the complaint because of data protection.

The complaint to the Council

22. On 1 February 2019 Miss X asked the Council to intervene. She sent it photos of the bat box and other documents. She sent her letter to a Councillor and an Open Spaces Officer. The Council replied on 27 February. It said the Association was responsible for the site and the Council had no direct relationship with Miss X. It drew Miss X attention to the part of the lease that said the Trustees would settle all disputes unless the dispute involved a breach of the lease.
23. Miss X obtained the names of the Trustees from the Land Registry. She then wrote to all 3 Trustees to ask for a dispute resolution hearing. The Trustees refused and said they were no longer Trustees. The Association said Miss X had no right to contact the Trustees.
24. On 8 March Miss X made a second complaint to the Council. She said the Trustees had refused a meeting. She said her dispute did involve the lease as it concerned allotments law and the Trustees refusal to deal with the dispute. She also complained the Council had not changed the Trustees with the Land Registry. On 20 March the Council sent Miss X the same response it sent her on 27 February.
25. On 18 March the Association wrote to Miss X saying it would not renew her tenancies on 1 April. It gave her 14 days to clear both allotments and said it would then let them to others.
26. Miss X contacted the Council again asking it to properly respond to her complaint. She said the Association was not following the lease. The Council replied on 14 May. It apologised for the delay. It said her dispute with the Association did not concern the Council’s lease to the Association. It said it did not need the names of the current Trustees and changing the names with the Land Registry was for the Association. It gave Miss X the number of the Association Secretary. It said her Ward Councillor might be able to mediate between Miss X and the Association.
27. On 10 June Miss X asked to take the complaint further. She told the Council she had already asked the Ward Councillor to mediate. The Council replied on 11 July. It said it would not hold an independent review of her dispute with the Association. It said it now had the names of the current Trustees and would ask the Association if it could disclose these to Miss X. It said the Ward Councillor was unwell and it would ask him if he was willing to mediate when he was better.
28. Miss X asked the Council to ask the Association for the names of the Trustees. On 13 August the Council contacted the Association. The Trustees did not want the Council to give Miss X their contact details. The Council replied to Miss X on 22 August. It said if she wrote to the Association Secretary, he would pass the letter to the Trustees.
29. In response to my enquiries, the Council says it has no power to intervene but would be willing to mediate if both sides agree to this.

Findings

30. That the Council has leased the allotment site does not absolve it of all responsibility. It is the landlord of the Association and should ensure the Association abides by its lease, this includes abiding by the rules set by the Council.
31. Miss X’s dispute with the Association potentially involves three clauses of the Council’s lease to the Association

• The bat box that caused the original dispute. The Council should have considered if it was a structure the Association needed written permission for.
• The Council’s rules include serving the correct notice on tenants under the Allotments Acts. The Council should have considered if the Association had served the correct notice on Miss X.
• The Lease says the Trustees will settle all disputes. The Council should have considered if the Trustees had taken a proper role in settling the dispute.

32. The Council is at fault for not investigating to see if the Association was in breach of its lease. The Ombudsman cannot investigate the Association, but the Council can. If it had investigated Miss X’s complaint it might have resolved the issues between the Association and Miss X. The missed opportunity caused injustice to Miss X.
33. The Council added to the injustice to Miss X in its delays in responding to her. Miss X contacted the Council more that six weeks before the Association gave her 14 days to clear her allotments. If the Council had dealt with her complaint it might have helped the Association resolve the situation before the Association repossessed Miss X’s allotments.

Agreed action

34. To put matters right for Miss X the Council has agreed that within a month of my final decision it will

• Apologise to Miss X.
• Pay Miss X £150 for her time and trouble.
• Pay Miss X £250 for its failure to deal with her complaint and the missed opportunity of resolving her dispute.
• The Council should properly consider if the Association lawfully ended Miss X’s tenancies. If the Association did not, and it will not reinstate Miss X’s tenancies, the Council should help her find another allotment.
• The Council has also said it will liaise with the Association to see if it can help it review its procedures.

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Final decision

35. The Council is at fault and has caused injustice. It has agreed to provide a remedy for this. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman