Summary: Mr D complains about the Council's decision to evict and ban him from an allotment. We have found no fault.

The complaint

1. Mr D complains about the Council's decision to evict and ban him from an allotment. In particular he complains the Council failed to:
• provide evidence of his alleged breaches of the tenancy rules
• inform him of his appeal rights
• investigate further before dismissing his appeal
2. Mr D says the eviction has significantly affected his and his partner's physical and mental health and has cost him £1,500 in legal fees.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I spoke to Mr D’s legal representative about his complaint and considered the information she sent and the Council’s response to my enquiries.
6. Mr D 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

The Council’s allotment tenancy rules

7. The Smallholdings and Allotment Act 1908 provides the legal framework for the letting and management of allotments. The Council has Allotment Rules and Regulations of Tenancy. These say:
• An allotment tenancy is made in one person’s name only, though they may register one partner to assist on the plot. The council can dissolve a partnership.
• A registered partner has no automatic right to the tenancy if it is surrendered by the tenant. The Council will consider each tenancy on an individual basis. It reserves the right to allocate the plot to a partner, who has been registered and working the plot for a minimum of three years.
• The tenant must be the primary user of the plot and is responsible for the activities of the registered partner and any visitors to the plot. (rule 1.3.1)
• The sale or subletting of plots is not allowed (1.4.3).
• If you cause hindrance or harassment of a duly appointed officer in carrying out an inspection of the plot, an immediate Notice to Quit will be issued. (1.8.3)
• No additional entrances or gates can be installed without prior written permission of the Council. (2.6.2)
• Tenants cannot modify or interfere with the padlocks, fences, gates or any other security provision made by the Council. (2.6.3)
• No tenant must cause another tenant, officer of the Council or member of the public harassment, alarm or distress. (2.8.2)

Breaches of tenancy agreement

8. The Rules also set out the enforcement procedure for breaches of the agreement. For general breaches the Council will issue two warning letters. If no or insufficient action is taken, the tenant will be issued with a notice to quit the plot within one month and their tenancy will be ended. A notice of re-entry will be posted; the council will then have re-gained possession.
9. Where the Council finds a serious breach of tenancy, it will issue an immediate notice to quit. The Rules give examples of a serious breach of tenancy as:
• Abuse or violence towards other tenants, officers of the council or members of the public.
• Criminal activities.
• Activities which may cause significant harm to human or animal health or to the environment.
10. The Council has the right to stop someone going back on the register for another plot for five years if they have been subletting or there has been a serious breach of tenancy; or for three years for a breach of tenancy or abuse of another tenant.
11. There is no separate appeal process for evictions; tenants need to follow the Council’s corporate complaint procedure if they are unhappy with the Council’s decision.

What happened

12. Mr D was helping the tenant of allotment plot 1 and was also working on plot 2 which was next door. In 2018 Mrs J became the tenant of plot 1 and in 2019 Mr D became the tenant of plot 2. He continued to work on plot 1, along with Mr K. Both had property on plot 1 but neither were the registered partner. Mr D said Mr K gave him money for the rent of plot 1 which he passed to Mrs J’s husband. At some point an access point was created in the fence between plots 1 and 2.
13. Mr D had also been working on plot 3 although the Council had previously dissolved his partnership. In January 2020 the Council asked Mr D to move his property from plot 3 but he did not.
14. In March 2020 Mrs J and her husband started shielding from the coronavirus and could not visit the allotment. Mr D said he would look after plot 1.
15. The Council took possession of plot 3 in June 2020 and re-let it. In October it was reported to the Council that Mr D had padlocked the entrance to plot 3 and had placed a notice on it to say the community group he chaired would not leave plot 3 as the group was a partner. The Council removed the padlock as there was a new tenant and neither Mr D nor the group were a partner. Mr D complained this was damage to his property. He installed another padlock which was also removed and the Council contacted Mr D’s solicitor. Mr D told the Council it was harassing him and he had installed the padlocks to prevent break-ins. He contacted his local councillor.
16. In February 2021 the Council started an amnesty. This allowed people who had been working on a plot to apply for tenancy outside the usual waiting list process. This was only possible if the existing tenant had agreed to surrender their tenancy.
17. Mrs J contacted the Council. She wished to return to the allotment but she said Mr D was using plot 1 and would not leave. Mrs J said Mr D had installed padlocks and his property was in some of the sheds.

The Council’s investigation

18. The Council started to investigate. It spoke to Mrs J and Mr K and met Mr D on 9 April. In the meeting Mr D said he had taken rent for plot 1 from Mr K and given it to Mrs J’s husband, as he and Mrs J did not visit the plot. He agreed that Mr K accessed plot 1 from plot 2 and initially said he and Mr K had created an access point in the fence. He later said there was a number of people present at the time and that he did not personally create the gate. Mr D said he had a trailer on plot 1 but he denied padlocking plot 1 to prevent Mrs J accessing it or refusing to leave. He said Mrs J had not asked him to, but the Council had a recording of a call between Mr D and Mrs J in which he said he would not leave plot 1.
19. The Council completed its investigation on 19 April 2021. It had found that Mr D had:
1. “Installed (or allowed to be installed) an additional entrance to plot 1 from his own plot in breach of ARRT 2.6.2 and 2.6.3 and by doing so has caused criminal damage to the boundary fence;
2. Caused the tenants of plots 1 and 3 harassment, alarm and distress by:
1. Unlawfully restricting their access to their plots by locking the entrance;
2. Occupying the plots without the express permission of the tenant; and
3. Refusing to remove property and otherwise vacate the premises despite a reasonable request by the lawful tenant in breach of ARRT 2.8.2;
3. Facilitated the sub-letting of plot 1 in breach of ARRT 1.4.3; and
4. Hindered a duly appointed officer in carrying out an inspection of plots 1 and 3 by unlawfully securing the entrances with additional padlocks in breach of ARRT 1.8.3”
20. The Council issued Mr D with an immediate notice to quit on 19 April. It said it would withhold his right to be a tenant or partner of any plot on the allotment for five years as there had been a serious breach of tenancy.

Mr D’s complaint

21. Mr D appealed the eviction on 22 April 2021 through his solicitor. He said the Council had not provided any evidence of its allegations and had failed to inform him of his appeal rights. Mr D said he was not subletting plot 1; Mrs J was subletting it to Mr K.
22. The Council replied on 4 May that it did not uphold the appeal. It apologised it had not made clearer in the notice to quit letter that any appeal against eviction would be dealt with as a corporate complaint. In response to further correspondence, the Council sent a list of evidence, the note of its meeting with Mr D and photographs of Mr D’s notice and padlock on plot 3 to Mr D’s solicitor. The Council re-entered plot 2 on 19 May 2021.

My Findings

23. The crux of Mr D’s complaint is that the Council did not substantiate its allegations that he had breached the tenancy rules and that he had therefore been unfairly evicted.
24. The Ombudsman is not an appeal body; it is not my role to determine whether Mr D breached the tenancy rules. My role is to consider whether the Council’s decision was taken properly.
25. I have seen that the Council investigated the matter. It met Mr D, had photographic evidence of the padlocks, a recording of a call between Mrs J and Mr D, and had spoken to Mrs J and Mr K. An officer had also visited the allotment.
26. Mr D is correct that he was not subletting his plot (plot 2) to another person. It was Mrs J who was subletting plot 1 to Mr K, although she said she was unaware that Mr K was paying rent to her husband. However, the Council was entitled to consider Mr D’s role in this arrangement and take into account that he was responsible for the actions of visitors to his own plot. It decided that Mr D was facilitating the subletting of plot 1 and that this was a serious breach of tenancy, as subletting is unlawful under the Smallholdings and Allotment Act 1908.
27. The Council’s evidence shows Mr D initially accepted he had created the opening between plots 1 and 2 (a breach of 2.6.2), but later denied it. The Council was entitled to decide which version of events it considered to be correct. As the opening was created on Mr D’s plot and he was responsible for the actions of any visitors to it, I consider the Council was justified in its view that Mr D had either created the opening or allowed it to be created.
28. I accept that photographs of padlocks on plot 1 is not evidence they were installed by Mr D (a breach of 2.6.3). However, there was also a recording of a call (which I have heard) where Mr D told Mrs J he would not leave plot 1 and a photograph of a notice Mr D had placed on plot 3 that his group refused to leave. Mr D also accepted the padlock on plot 3 was his as he complained the Council had damaged his property. The Council was entitled to decide that it had evidence Mr D was refusing to leave or denying access to a plot, that this was harassment of other tenants and therefore a serious breach of tenancy.
29. The Council has shared the evidence it can with Mr D’s solicitor. It also has other evidence which cannot be shared but which I have seen. The Council was entitled to decide, based on the evidence it had, that Mr D had breached the tenancy agreement. There was no fault in this decision.
30. Mr D complains the Council has wrongly banned him for five years. The Rules say this can be done for serious breaches of tenancy. The Council has determined that facilitating subletting and harassment of other tenants are a serious breach of tenancy. There is therefore no fault in its decision to ban Mr D for five years.
31. Mr D says the Council treated him unfairly. The Council decided that Mr D’s appeal should be handled by an independent officer because Mr D had said he was being harassed by the allotments team. This is in line with the Council’s complaints procedure, which says it will identify officers to investigate complaints who were not directly involved in the decision being complained of. There is therefore no fault. Mr D says it is unfair that the Council has taken action against him but not Mrs J. The Council’s actions in relation to Mrs J are not evidence of fault in relation to Mr D. The Council was entitled to decide that there had been a serious breach of tenancy by Mr D. Such a breach enables the Council to ban a person for five years. I have not found any unfair treatment.
32. Mr D complains there was no appeal procedure. The Council’s policy is to use its corporate complaint process to deal with appeals about allotment evictions. It is entitled to have this policy and I have seen no evidence of fault in the way it was followed. The Council has already apologised that its notice to quit letter was not clearer about this process.
33. Mr D complains there was no further investigation after he appealed. The Council’s response to his appeal shows the officer considered the evidence the Council had and the findings of its investigation. There was no requirement for the officer to investigate further and I do not find fault.

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Final decision

34. There was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman