Summary: Ms B says the Council unreasonably refused to consider her complaint against the allotment association that evicted her and delayed reaching that decision. In deciding it could not pursue the complaint the Council failed to consider whether the allotment association had breached its lease by the way it handled the complaint. The Council also delayed responding. An apology and payment to Ms B, alongside liaison with the allotment association, is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained the Council unreasonably refused to consider her complaint against the allotment association and delayed reaching that decision. Ms B says the Council’s actions caused her distress and financial loss.

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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)
4. A Council must ensure there are allotments in its area, but it does not have to own or manage all allotments. A Council can give a long lease of land to another person or body.
5. The Council has given a 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 the actions of the allotment association, including Ms B's complaint about it. We can investigate the Council's decision not to investigate Ms B's complaint, as this is an act of the Council.

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Ms B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

8. Under the terms of the lease the allotment association can sublet plots to members of the association.
9. For third party complaints the lease says the allotment association will resolve complaints or disputes, having due regard to any relevant guidelines for dealing with such complaints concerns or disputes as may be agreed from time to time between the Council and the Barnet Federation of Allotment and Horticultural Societies (the federation).
10. The federation has produced advice for allotment societies on complaints procedures. This refers to the memorandum of understanding between the Council and the federation which includes guidance in relation to handling complaints. It makes clear neither the memorandum of understanding nor the guidance is part of the lease and it is not mandatory for societies to follow the provisions in every detail. It makes clear though societies are required by the lease to have due regard to the guidance. It makes clear the Council retains a statutory duty regarding the management of the allotment service and therefore retains a role in ensuring complaints are satisfactorily handled. It says it would be wise for a society to offer a dissatisfied complainant a process of review where an initial decision did not meet all the complainant wished. The memorandum of understanding suggests a two-stage process which allows an appeal from the first verdict.
11. The allotment association’s terms and conditions say members will not put up any buildings or erections without the written consent of the association and then only in accordance with the plans approved by committee.
12. The terms and conditions say the association shall have the right immediately to enter and take possession of the allotment and terminate the tenancy of any tenant in certain circumstances, including where the tenant breaches any of the tenancy agreements.
13. The terms and conditions say where an offence has been committed a charge must be sent to the secretary in writing who will at the earliest convenience call a meeting of the committee to deal with it. It says an appeal from the decision of the committee may be granted to the annual or a special general meeting upon written application signed by not less than 10 members.

What happened

14. Ms B held an allotment tenancy which was granted by the allotment association. The allotment association runs the allotment under the terms of a 38 year lease with the Council.
15. In 2020 the allotment association issued Ms B with a notice of eviction following concerns about the size of a structure erected on the allotment and alleged inappropriate behaviour towards other allotment holders.
16. Ms B contacted the Council in 2020 to complain about the way she had been treated by the allotment association. The Council contacted the allotment association which provided details of the case. The allotment association told the Council it would not consider an appeal due to an incident which took place during the period of notice. The Council asked the allotment association to confirm whether it was following the Council's memorandum of understanding in terms of its complaints processes. The allotment society advised the Council it was not following the memorandum of understanding and had its own complaints process. The Council subsequently wrote to Ms B to advise as the allotment society was not following the memorandum of understanding the Council could not intervene in the dispute.

Analysis

17. Ms B says the Council initially did not know who was responsible for dealing with complaints about allotments and then unreasonably refused to consider her complaint against the allotment association and delayed reaching that decision. I have carefully considered the documentary evidence.
18. As I said earlier, the Council has leased the allotment site to the allotment association. However, that the Council has leased the allotment site does not mean it has no responsibility. The Council remains the landlord and it therefore has a responsibility to ensure the allotment association abides by its lease, including abiding by any rules set by the Council.
19. I refer in paragraph 9 to the content of the lease between the Council and the allotment association regarding consideration of third party complaints. As I say in that paragraph, it is the allotment association which is responsible for investigating those matters. The lease also makes clear though the allotment association must have regard to any relevant guidelines for dealing with complaints or disputes which the Council has agreed with the federation. In this case there is a memorandum of understanding between the Council and the federation, which I refer to in paragraph 10. I appreciate the Council has confirmed the allotment association has not signed up to the memorandum of understanding. That is a decision for the allotment association to take. However, I would expect the Council to have considered whether the allotment association had in place an alternative complaints procedure and that it had followed that complaints procedure when responding to the complaint raised by Ms B. I have found no evidence to suggest the Council made sufficient inquiries to satisfy itself on that point.
20. Indeed, I note in correspondence with the Council the allotment association made clear it had not allowed Ms B a right of appeal. I can see no evidence the Council followed that up with the allotment association to confirm whether this was in breach of its complaints procedure and, therefore, potentially a breach of its lease. Based on the documentary evidence I have seen so far I cannot be satisfied the Council properly investigated whether there had been a breach of the lease in terms of how the allotment association considered Ms B's complaint. That is fault. The Council also delayed considering the complaint given it did not write to Ms B to advise why it did not consider it could pursue the complaint further until March 2021. That is also fault. Those faults have left Ms B not knowing whether she would have received an opportunity to challenge the allotment association's decision if the Council had properly investigated whether the allotment association had breached the lease.
21. As remedy for the complaint I recommended the Council apologise to Ms B and pay her £250 to reflect her time and trouble in pursuing the matter. The Council should also consider the way the allotment association dealt with Ms B's complaint. If the Council does not consider the allotment association dealt with that complaint in accordance with its complaints procedure the Council should consider whether it needs to take any action under the terms of the lease. I also recommended the Council liaise with the allotment association to make sure it has in place a complaints procedure and that, in adopting that complaints procedure, the allotment association has given due regard to the guidelines for considering such complaints. The Council has agreed to my recommendations.

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Agreed action

22. Within one month of my decision the Council should apologise to Ms B and pay her £250.
23. Within two months of my decision the Council should:
• consider the way the allotment association dealt with Ms B’s complaint. Following that the Council should write to Ms B to explain the view it has reached. If the complaint was not dealt with in accordance with the allotment association’s complaints procedure and the Council is concerned the allotments association has breached the lease the Council should consider whether any further action is necessary; and
• liaise with the allotment association to ensure it has in place a complaints procedure which has given due regard to the guidelines for considering such complaints. If there is no appeal provision in the complaints procedure the Council should consider whether, in the absence of any other appeal route, the Council should consider any such appeals.

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Final decision

24. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman