Summary: There was no fault by the Council, or by the association acting on its behalf, in evicting the complainant from his allotment plots. The association followed the Council’s best practice procedure. There is also no evidence the Council or association have bullied or discriminated against the complainant. For this reason, we have completed our investigation.

The complaint

1. I will refer to the complainant as Mr C. Mr C is represented in his complaint by his daughter, to whom I will refer as Miss L.
2. Miss L complains about Mr C’s eviction from his allotment plots, administered by an association (‘the Association’) on behalf of the Council. In particular, she says:

• the Association did not follow the correct eviction procedure;
• the Association bullied and discriminated against Mr C; and
• the Council did not impartially investigate her complaint.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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 councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)

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How I considered this complaint

5. I reviewed Mr C’s correspondence with the Association, Miss L’s correspondence with the Council, and the terms and conditions for allotment plot holders.
6. I also shared a draft copy of this decision statement with each party for their comments.

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What I found

7. Mr C had been a plot holder on a Council-owned allotment site for more than four decades. The site is administered on the Council’s behalf by the Association.
8. In November 2019, the site manager spoke to another plot holder about the condition of Mr C’s three plots. Mr C complained about this, and the manager emailed him on 28 November to apologise. She explained she had not wished to send formal letters to Mr C, but said two of his plots had seen no work that year, and the third was being worked on by people who were not the plot holders or co-workers. The manager asked Mr C to meet her on site.
9. Mr C replied on 9 December. He said he had come to the site twice in the previous week but had been unable to meet the manager. Mr C wrote that, although he was happy to discuss the issue, he had “made it clear in the previous email that nothing has changed”.
10. The manager replied on the same day. She said she could not confirm when she would be on site to meet Mr C, and that there was no point in a meeting if Mr C was not prepared to discuss anything. The manager said she should have evicted Mr C for failing to cultivate two of his plots that year, but she would take no further action for the time being because she noticed some work had been done. The manager reiterated the work should be done by the plot holder, however.
11. In March 2020, the UK entered lockdown. Mr C began shielding in accordance with Government guidance.
12. In July, the Council says Mr C informed the Association he was shielding. He said he could not visit the site but was willing to discuss the situation.
13. On 13 July, the Association’s treasurer emailed Mr C. He thanked him for the update, and asked him when they could hold a discussion about his plots. The treasurer offered to do this by phone or email if necessary.
14. Mr C replied on 15 July to enquire what the treasurer wished to discuss about his plots, as the rent was up-to-date. The treasurer replied to say he wished to discuss the following year’s rent increase, and the maintenance of Mr C’s plots. He explained the Council was pressuring the Association to reduce the waiting list for allotments, and again asked Mr C to attend a meeting, or to send a representative.
15. Mr C responded that he would pay the increased rent when he received the invoice. He said the treasurer’s other points were a matter for all plot holders, and should be put on the agenda for the next plot holders’ meeting.
16. The treasurer replied to say he assumed Mr C was unwilling to discuss the matter any further, and wished him well.
17. On 20 July, the Association served an eviction notice on Mr C. The notice said Mr C had 28 days to contact the treasurer to arrange a meeting, in order to discuss his capacity to manage his plots to the required standard. If Mr C failed to do so, the eviction notice would take effect on 19 August, and he would be required to return his keys and remove his belongings from the site. The notice confirmed the reason for eviction was Mr C’s failure to maintain two of his plots, and allowing other people to use the third plot.
18. On 22 July, Miss L contacted a Council officer (Officer W). She accused the Association of discriminating against Mr C, and explained he was shielding. After several emails from Miss L, Officer W explained he would investigate when he returned from leave in two weeks’ time.
19. Officer W visited the site on 12 August. He says the treasurer explained Mr C was being evicted because the Association no longer believed he could manage his plots, and had failed to engage when they had attempted to discuss it with him. Officer W observed that two of Mr C’s plots appeared uncultivated, and although the third was in better condition, this was the one Mr C was alleged to have sub-let.
20. Miss L emailed Officer C several times over the following days, again alleging the Association had discriminated against Mr C. Officer W arranged to meet Miss L on 20 August.
21. On 19 August, the eviction notice took formal effect. Miss L submitted a formal stage one complaint to the Council on the same date. The Council says it closed this the following day, after Officer W’s meeting with Miss L, because they had agreed a course of action. This was for Officer W to meet Mr C on site a few weeks later, to explore whether he was capable of managing his plots.
22. Officer W contacted Miss L on 14 September to arrange this meeting. Miss L replied to say the meeting would have to be virtual, because of the COVID-19 situation, but Officer W insisted he needed to meet Mr C on site. This was agreed for 1 October.
23. On 15 September, Miss L complained to Officer W the Association had sent Mr C a rent demand due for October. Officer W agreed this was insensitive.
24. Miss L cancelled the meeting on 1 October, and it was rearranged for 29 October. Miss L attended the site on 29 October, but without Mr C. Officer W said this was unacceptable, as shielding had ended on 1 August, and said he could only conclude Mr C was not capable of maintaining his plots.
25. On 30 October, Miss L’s sister asked if one of Mr C’s plots could be transferred to her. Officer W established she was not on the allotment waiting list, so sent her a registration form. He later established there were approximately 40 people already on the waiting list.
26. On 5 November, both Miss L and her sister called the site manager. The manager later told Officer W these conversations were “not pleasant”.
27. Officer W emailed Miss L and her sister on 13 November. He explained the Association had followed the correct procedure to terminate Mr C’s tenancy, and so the eviction must stand. The Council had registered Miss L’s sister’s application, but she would have to wait her turn for a plot and could not jump the queue.
28. Miss L and her sister then called Officer W. He says he explained his decision again, and they said they would raise a stage two complaint. Officer W said the sisters should not visit the site, even pending the complaint investigation, but assured them Mr C’s possessions would be left alone in the interim. Officer W says he then contacted the treasurer, asking them not to relet the plots of dispose of Mr C’s possessions.
29. Miss L formally submitted her stage two complaint on 16 November.
30. Officer W says the treasurer called him on 17 November. The treasurer expressed frustration, because he had been unable to Mr C at any point during the proceedings, and said he was confident the conclusion would have been amicable if so.
31. The Council sent its stage two response on 4 December. The Council quoted the Association tenancy agreement, and said the evidence showed Mr C had been in breach of the agreement since November 2019.
32. It also said best practice was for the Association to attempt to address such an issue with the plot holder first, in writing or by phone, but if this failed to resolve it a 28-day eviction notice should be served. In this case, the Council was satisfied the Association had attempted to discuss matters with Mr C before sending the 28-day notice. The Association had therefore followed the correct procedure in evicting Mr C.
33. The Council acknowledged Mr C’s distress at being evicted after such a length of time. It said the Association’s correspondence with Mr C had been insensitive, especially in sending the eviction notice and follow-up correspondence during lockdown. However, although the Association had “demonstrated no real understanding of customer care”, it had not been at fault.
34. The Council confirmed it had now completed its complaints process, and referred Miss L to the Ombudsman if she wished to pursue the matter further.
35. Miss L complained to the Ombudsman on 13 January 2021.
36. Following her complaint, Miss L exchanged a further series of emails with Officer W. Officer W sought confirmation from Miss L whether she had complained to the Ombudsman, so the Council could inform the Association whether the complaint was ongoing. Miss L did not initially reply to Officer W.
37. When Miss L did reply, she said the Association and Council would be committing “criminal activity, aggression, intimidation, harassment, ageism, racism and discrimination” against Mr C if it relet his plots, or moved his possessions, while the complaint was ongoing. She threatened the refer the matter to the police if it did.
38. Officer W replied to say he was content to allow the Ombudsman investigation, but could not suspend the reletting of the plots indefinitely. He asked Miss L for the Ombudsman’s case reference number, so he could contact us to discuss how long the investigation would take.
39. Miss L then complained the Association have moved some of Mr C’s belongings. Officer W replied to say they had been moved for safekeeping because Miss L had not confirmed she had complained to the Ombudsman. He asked again for the case reference number.
40. After Miss L still declined to provide the number, Officer W explained he could not confirm whether there was a complaint with the Ombudsman without this. On 2 March, he said he now had no choice but to proceed with the reletting of Mr C’s plots.
41. Miss L sent a final lengthy email on 4 March. She accused the Council of failing to follow the complaints procedure and said Officer W was not impartial. She said the Council had discriminated against Mr C, and again threatened to report the matter to the police if the plots were relet or his possessions moved.
42. Officer W replied on 8 March to confirm again the plots would now be relet, because the Council still could not confirm Miss L had made a complaint to the Ombudsman.

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Analysis

43. Miss L has raised several issues as part of her complaint, on behalf of Mr C. I have grouped these into three broad points of complaint, which I will now address in turn.

The Association did not follow the correct eviction procedure

44. The Council says, under best practice, the Association should first warn a plot holder of concerns they are breaching the tenancy agreement, before sending a 28-day eviction notice. The plot holder will then have a further opportunity to resolve the breaches, before the eviction formally takes effect.
45. In her complaint to the Ombudsman, Miss L said “the process of informing a plot holder that they are not following their tenancy agreement … did not take place”. She also says the site manager failed to contact Mr C after a “request was made to set a time and date for a meeting”.
46. I have seen copies of the correspondence between Mr C and the site manager in November and December 2019, as well as the correspondence between Mr C and the treasurer in July 2020. In both cases, the Association made clear there were concerns about Mr C’s management of his plots; and, in both cases, the Association asked Mr C to agree a date for a meeting, which he did not.
47. In particular, I note the manager’s email in December 2019, where she specifically told Mr C he should already have been evicted for the tenancy breaches. I therefore cannot accept Miss L’s allegation the Association failed to follow this correct procedure here; it informed Mr C of its concerns about breaches of his tenancy, and attempted to engage with him about it, long before it eventually served an eviction notice.
48. This said, I do consider it would have been better if the treasurer had warned Mr C again, during the correspondence in July 2020, that he faced an imminent eviction notice. Given this followed only five days after the email exchange, it appears reasonable to expect the treasurer to have mentioned this.
49. However, I do not consider this is so significant it amounts to fault. While the Council says best practice is for a problem to be discussed first, before an eviction notice, this does not mean there must be an explicit warning that a notice is imminent. I am also conscious the eviction notice itself is a form of warning, which provides the plot holder a further opportunity to address the problem.
50. Critically, I also note the Association’s concerns pre-dated the COVID-19 pandemic. So I do not consider the fact Mr C was shielding after March 2020 explains, in isolation, why he may not have been maintaining his plots to the required standard. Nor, given this fact, do I consider it inappropriate for the Association to escalate its concerns in July.
51. The Ombudsman’s role is to review the way councils (or bodies acting on their behalf) make decisions. If a council has followed the correct procedure, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. We do not offer a right of appeal against contested decisions, or make decisions on councils’ behalf, and we cannot uphold a complaint simply because a person disagrees with what a council has done.
52. As the Council says, I acknowledge the distress Mr C will have suffered from being evicted after such a long period of time. However, the Association’s eviction process is very straightforward. It identified two potential tenancy breaches, explained these to Mr C, encouraged him to meet to discuss them, and then served an eviction notice when this did not resolve the problem. There is no evidence of fault here, and so nothing I can criticise.
53. I find no fault in this element of Miss L’s complaint.

The Association bullied and discriminated against Mr C

54. Miss L has made various allegations the Association, and by extension, the Council, bullied and discriminated against Mr C. She also accuses them of “criminal activity”, aggression, harassment, intimidation, ageism and racism.
55. I do not consider there is any objective evidence to support these accusations. It is clear Miss L does not agree with the Association’s decision to evict Mr C; nor the Council’s decision there was no fault with this. I also understand why she finds these decisions upsetting.
56. But this does not mean either the Association or Council is guilty of bullying, discrimination, or any of Miss L’s other allegations. They have a duty to ensure the allotment site is managed properly, and this includes enforcing the tenancy agreement where it has been breached. There is nothing here to suggest either body was motivated by anything other than this duty, and nothing to suggest it would have act differently with any other plot holder in the same situation.
57. I do note the Council’s own comments about the Association’s lack of sensitivity or “customer care”. However, I find this difficult to reconcile with the evidence. What is ‘insensitive’ is, of course, quite subjective, but there is no reason to the Association’s (admittedly limited) correspondence with Mr C as rude or inconsiderate – its emails were brief and to the point, but also polite, and expressed a keenness for Mr C to engage with the Association to address the issues they had raised.
58. The Council has said it was insensitive for the Association to send the eviction notice and follow-up letters during lockdown. But, while there was no simple ‘end date’ to lockdown in 2020, most services and facilities were able to open by 20 July; and so I am not convinced it is correct to say the notice was served during lockdown.
59. And even if it were, I note again that the Association’s concerns about Mr C’s plots pre-dated the pandemic anyway.
60. Miss L also complained the Association sent a rent demand in September, after Mr C’s eviction. I understand Mr C paid this.
61. It is not clear to me why this happened, although it appears likely to have been an administrative error. This is unfortunate, and I agree the timing was somewhat insensitive. Either way, Officer W apologised for this, and on balance I do not consider it a significant issue.
62. There is, however, no indication Mr C received a refund for this overpayment, as it appears he should have. I will not make a finding here because it is not part of the complaint, but I would expect the Council to ensure the Association has refunded any overpaid rent or other monies to Mr C.
63. I note Miss L is also dissatisfied with Officer W’s comments after she had brought her complaint to us. In particular, she is of the view that any attempt by the Association to relet the plots, or move Mr C’s possessions, while the Ombudsman’s investigation was pending was a criminal matter.
64. This is untrue. We have no power to require the Council to suspend its business pending an investigation by us, and it is certainly not a criminal offence for the Council to relet the plots, even accepting the dispute over Mr C’s eviction. We will sometimes ask authorities to suspend a particular action (such as collecting a debt), where it will make it easier for us to remedy any injustice which we might subsequently find; but they do not have to accede to this request.
65. In this case, Officer W asked Miss L to confirm she had approached us. Although she eventually confirmed this, she then declined to provide any evidence to allow the Council to verify it. After several requests, the Council then decided to relet the plots, as it was not satisfied Miss L was pursuing her complaint with us.
66. Miss L was under no obligation to share this information with Officer W, as she correctly explained. This does not mean Officer W could not ask her for it, and as he pointed out himself, we would eventually inform the Council ourselves anyway, so there was no reason for Miss L to keep it confidential. I am, however, not convinced it was good practice for him to repeat this request, once she had declined.
67. Either way, I cannot overlook this was all with Mr C’s benefit in mind. The Council was under no obligation to wait before reletting the plots at all – this could have happened as early as August. Given the allotment waiting list, I do not consider it fault for the Council to decide, by January, it needed to move on and relet the plots.
68. Even then it gave Miss L a further opportunity to postpone this. She was entitled to decide not to co-operate, but the Council was equally entitled to decide to relet the plots.
69. I find no fault in this element of Miss L’s complaint.

The Council did not impartially investigate Miss L’s complaint

70. Miss L considers the Council, and in particular Officer W, did not act impartially in investigating her complaint.
71. Again, I cannot see any foundation to this allegation. Officer W visited the site and inspected Mr C’s plots as part of his investigation. He discussed the matter with the Association, made several attempts to arrange a meeting with Mr C, and met Miss L on site when this could not be arranged. He then provided a clear explanation for why he had not upheld Miss L’s complaint.
72. The Council’s stage two response also sets out clearly why it could not uphold the complaint. And I note again its criticism of the Association’s alleged insensitivity to Mr C, which is particularly difficult to reconcile with Miss L’s view the Council has not been impartial (especially as I do not actually agree with the Council here).
73. I understand why Miss L is disappointed the Council has not upheld her complaint. However, the Council is entitled to come to its own view of the matter, and the simple fact this does not align with Miss L’s view does not mean the Council has not been impartial.
74. I find no fault in this element of Miss L’s complaint.

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Final decision

75. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman