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Calderdale Metropolitan Borough Council (20 004 984)

Category : Other Categories > Leisure and culture

Decision : Upheld

Decision date : 25 May 2021

The Ombudsman's final decision:

Summary: Mr X complained his local allotment association, acting on behalf of the Council, did not follow the correct process when it evicted him from his plot and refused his request for an appeal. The Council was at fault. There are no records evidencing the allotment association’s decision making or actions. This led to uncertainty as to whether it followed the correct process. Mr X was also denied a right of appeal. The association has since quashed Mr X’s eviction, but the Council will now review the association’s procedures and monitor it going forward to reduce the risk of injustice to other allotment tenants.

The complaint

  1. Mr X complained that his local allotment association, acting on behalf of the Council, unfairly evicted him from his plot. He said the association did not follow the correct process before evicting him and had not responded to his request for an appeal. He said the Council had also refused to investigate.
  2. He wanted the Council to instruct the allotment association to quash the eviction notice and monitor its actions going forward to ensure plot holders are treated fairly and in line with the tenancy terms and conditions.

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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. 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. I read Mr X’s complaint and spoke with him about it on the phone.
  2. I made enquiries of the Council and considered information it sent me.
  3. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Background information

  1. Mr X’s allotment is managed by an allotment association, on behalf of Calderdale Council. The association has an agreement with the Council which says that the association will:
    • Be responsible for the day to day running of the allotments and the letting of individual plots.
    • Have authority and responsibility for the giving of notice to allotment holders for non-cultivation and/or non-payment of rent.

The tenancy agreement terms and conditions

  1. The association lets individual plots to its members and each plot holder must sign an agreement to say they will adhere to the terms and conditions within it.
  2. Mr X’s tenancy agreement says:
    • Tenants should use their plot for allotment gardening.
    • Plots should be kept free from weeds and in a good state of cultivation and in good condition.
    • Greenhouses must be well maintained and broken or loose glass repaired for safety.
  3. It says the association may terminate plot tenancies in line with agreed notice periods if the tenant is in breach of any of the rules or their tenancy agreement, by following the Breach and Dispute resolution procedures and the Notice to Quit procedures.
  4. The Council was unable to provide a full copy of these procedures, but from evidence provided, the association should give a tenant a verbal warning and the opportunity to resolve any issues at least 30 days before issuing a Notice to Quit.

What happened

  1. The allotment association allocated Mr X his allotment in 2015. He signed a tenancy agreement, agreeing to comply with the allotment association terms and conditions.
  2. In 2020, the association served Mr X with a Notice to Quit. The Council said the association had had a number of conversations with him about the poor condition of his plot, during the last of which Mr X had agreed there need to be improvement. However, the condition of his plot had not improved and the association had decided it was now necessary to serve Mr X with a Notice to Quit. It gave him 30 days notice to leave his plot.
  3. Mr X complained to the allotment association. He said it had not given him a verbal warning and 30 days to improve the condition of his plot, as set out in the tenancy agreement procedures. He asked it to review the decision.
  4. Mr X says the association did not respond to his request for an appeal. He says he approached the Council, but the Council refused to investigate his complaint.
  5. Mr X remained dissatisfied and brought the complaint to us.
  6. In response to my enquiries, the Council was unable to provide a full copy of Mr X’s tenancy agreement or details of the Notice to Quit or Dispute Resolution procedures. It said the association had several conversations with Mr X about the poor condition of his plot, but that none of these were documented.
  7. During the course of my investigation, the allotment association has elected a new committee. The committee reviewed the Mr X’s Notice to Quit and quashed its decision to evict him. Mr X told us he wanted to continue with the investigation as the association had not followed the correct procedure when issuing him with the Notice to Quit. He wanted to ensure all tenants were treated fairly and in line with the terms and conditions in the tenancy agreement.

Analysis

  1. Although the allotment association says it gave Mr X a verbal warning before issuing Mr X with the Notice to Quit, there is no evidence of this. Mr X says he did not receive any verbal warning. The lack of records leads to uncertainty as to whether the association followed the correct procedure when it issued Mr X’s Notice to Quit. This is fault.
  2. Mr X says the association did not respond to his request for an appeal and the Council refused to investigate his complaint. Although the allotment association has authority and responsibility for giving notice to plot holders, it is providing these services on behalf of the Council. The Council should ensure the allotment association adheres to the terms of the agreement. It should either have instructed the association to implement its dispute/ appeal procedure or investigated Mr X’s complaint. It did neither, which denied Mr X a route to appeal his eviction. This is fault.
  3. The Council has been unable to provide a full copy of Mr X’s tenancy agreement or the Notice to Quit and Breach and Dispute resolution procedures. This lack of records leads to uncertainty as to whether the association is running the allotments appropriately. As it is providing services on the Council’s behalf, the Council should ensure it has oversight of the association’s activities to ensure it adheres to the management agreement, keeps appropriate records and treats tenants fairly. It did not do this, which is fault.
  4. The new committee has since reviewed the eviction decision and quashed Mr X’s eviction. This has remedied the injustice caused to Mr X, but without service improvements there is a risk other allotments tenants could be caused a similar injustice. I have made recommendations below for the Council to improve its oversight and monitoring of the allotment association’s management of the site to ensure it maintains appropriate records and allotment tenants are treated fairly and in line with their tenancy agreements.

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Agreed action

  1. Within two months of this decision, the Council has agreed to meet with the allotment association management committee to review its process and procedures.

It will ensure the allotment association:

    • Has a record of allotment tenancies and has provided each tenant with a full copy of their tenancy agreement including access to or a copy of the Breach and Dispute Resolution and Notice to Quit procedures.
    • Has a process to record evidence of committee’s decision making when it decides to issue a tenant with a verbal warning or a Notice to Quit, and records when the verbal warning or Notice to Quit has been issued.
    • Has a process to reviews any appeals against eviction decisions in line with its procedures.

It has also agreed to review its support and monitoring of the allotment association to ensure it adheres to the management agreement going forward and treats tenants fairly and in line with their tenancy agreements.

  1. It should provide us with evidence it has complied with these agreed actions.

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Final decision

  1. I have completed my investigation. I have found fault which caused Mr X an injustice. The Council has already remedied the injustice caused to Mr X and has agreed actions to improve Council services going forward.

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Investigator's decision on behalf of the Ombudsman

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