Summary: The Ombudsman found fault by the Council on Mrs Q’s complaint of it failing to act against a neighbouring allotment tenant after upholding her complaint and failing to respond to her correspondence. It failed to keep proper records, could not show it did what it said it would do, delayed responding to her formal complaint, and delayed making her a payment. The agreed action remedies the injustice caused.

The complaint

1. Mrs Q complains the Council failed to:
1. take agreed action about a neighbouring allotment tenant after upholding her complaint about 7 months before: and
2. respond to her correspondence about it for several months.
2. As a result, she cannot secure the rear of her garden due to the tenant’s waste on the other side and feels frustrated with the lack of progress.

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The Ombudsman’s role and powers

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. 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)

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How I considered this complaint

5. I considered all the information Mrs Q provided, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent her. I did not send her a complete copy as it contains information about third parties which needs to remain confidential. I sent a copy of my draft decision to Mrs Q and the Council. I considered their responses.

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What I found

6. Mrs Q has lived in her home for more than 20 years. To the rear of her house was waste land. About 5 years ago, the Council converted it to allotments. She says the tenant who rents the plot directly behind her house caused problems from the start. Over time, the tenant dumped waste material near her fence to the rear of her garden and told other tenants to do the same. She claims he brought household waste and started dumping that too. The waste grew to 6 metres in width and 1 metre in height. The rotting weight of this started to damage her fence which began to collapse.
7. When she raised this with the tenant, he became abusive and aggressive. She is unhappy with the time taken for the Council to get the tenant to move the waste. She ended up replacing only part of her damaged fencing because she could not access the rest due to the waste. The tenant finally moved the waste about 0.5 metre from her fence.
8. She is unhappy with the Council’s failure to promptly deal with her complaint which she says took 10 months to complete.
9. In response to my enquiries, the Council provided the following information:

2020:

• April: A webform was sent to the allotment officer but, there is no response on its system. The Council did not provide a copy of this form;
• November: An officer visited the site and took photographs. No files were saved on the system. The Council could not send a copy of any site visit notes or photographs taken;

2021:

• April: An officer visited the site after a further report from Mrs Q that the problem continued. No notes of this visit were provided;
• July: Another officer sent a Notice to Remedy to the tenant. The Council could not provide a copy of this Notice but says its sending was recorded on its system. The officer later met the tenant on site to agree what works were needed. The Council did not send a copy of the Notice, any site visit notes, or any evidence held on its systems;

The Council failed to provide a copy of the original email it sent to the tenant in July 2021. Instead, it copied it and included it in its written response to my enquiries. The email said the tenant was required, in December 2021, to clear the boundary from waste and return it to its original position within 6 weeks. The email asked him to confirm if he had now done this as an officer would visit the site. It warned if he failed to do this, the Council would give him a further 14 days after which it would serve a Notice to Quit if he continued not to comply.

The tenant emailed back saying he never received any such a request in December 2020. His email accepted he had created a ‘bank’.

The email evidence shows an officer visited the site the same month. The Council emailed him saying it would serve a Notice to Remedy about the infringement against Mrs Q’s boundary, which will require him to remove it within 14 days. Failure to do so would lead to a Notice to Quit.

The Council says the problem was resolved at the end of July 2021 following its email which both the tenant and Mrs Q confirmed; and

• October: Another Notice to Remedy was raised by the officer but, contained no notes to confirm what the problem was so it was removed from the system.

10. The Council was unable to provide a copy of any letter or Notice it sent to the tenant which it said it would write when it responded to her stage 2 complaint in November 2020. It could not show it sent the tenant a warning of the need to act within 1 month as promised or whether officers visited to check if works were completed.
11. The Council explained the allotment management software it uses does not hold copies of Notices served on tenants or appear to have all site visits logged. The information it provided was obtained from correspondence. A new allotment officer and manager have joined the service as the previous ones are no longer with the Council. The Council will draft a new tenancy agreement, rules, and strategy, to ensure tenants comply and that guidelines are clear and meet the needs of both tenants and neighbours.
12. It also explained officers carry out an annual inspection which highlights any infringements of the tenancy agreement or areas of concern. No evidence of annual inspections was provided.
13. Although I have not seen the complaint she sent in April 2020, there is evidence of the Council acknowledging it in May and her chasing the Council again when she heard nothing in June.
14. In September, she complained again as she had received no response. The Council apologised shortly after, responded to her enquiries, and told her she could go to the second stage of its complaints procedure if she remained unhappy.
15. In October, the Council delayed forwarding another email she sent for a response. The following month, it sent her its stage 2 response upholding her complaint. It told her it gave the tenant one month to remove the waste.
16. The Council accepts Mrs Q paid a contractor to remove the waste so she could restore her fence line that had been damaged by the rotting waste. It agreed to pay her £250 for out-of-pocket expenses and for her time and trouble. It confirmed it paid her this after a 3-month delay.

Analysis

17. I found fault on this complaint for the following reasons:
1. While the Council confirmed there is an annual inspection of allotments, it provided no record of any inspection of this one. I am satisfied, therefore, that there is no evidence of it carrying out annual inspections as claimed.
2. If the inspections had taken place, these should have revealed the problem with the waste next to Mrs Q’s boundary.
3. If they had not taken place, inspections might have identified the problem with the waste sooner without Mrs Q needing to make a complaint.
4. Either way, opportunities were missed to identify possible breaches under the tenancy agreement such as condition 4 (which requires tenants not to cause of permit or cause any nuisance or annoyance to the occupier of any adjoining or neighbouring property) and condition 10 (which requires tenants not to deposit or permit to suffer to be deposited any refuse or decaying matter or place on any adjoining or neighbouring property).
5. The Council was unable to provide records of site visits, photographs, officer contact with the tenant, and Notices served.
6. It could not provide evidence to show it carried out the action it said it would take in its stage 2 response to her.
7. It took 5 months for the Council to respond to her stage 1 complaint. Although I have not seen the April complaint, on balance I am satisfied it was sent. This is because of the acknowledgement the Council sent. Under its complaints procedure, a response to a complaint under its first stage should be sent within 15 working days. Mrs Q had to wait about 12 weeks longer than she should have done for this response.
8. It took a further 2 months to deal with her stage 2 complaint. Under its complaints procedure, a response to a complaint under its second stage should be sent within 20 working days. Mrs Q had to wait about 4 weeks longer than she should have done for this response.
9. The Council agreed to make a payment to Mrs Q for out-of-pocket expenses and the time and trouble to which she was put making her complaint. The evidence shows it took the Council 3 months to make this payment. I consider a period of 4 weeks is usual.
18. I am satisfied the identified fault caused Mrs Q an injustice. This caused her distress. She lost the opportunity of having the situation resolved sooner than it was, possibly by 13-14 months. Delays dealing with her reports about the tenant and delays dealing with her complaint caused some frustration, inconvenience, and anxiety. In addition, there was a loss of confidence in the Council when it told her of actions it intended to take and failed to do them. Due to the lack of record keeping, she also has the uncertainty of not knowing whether the Council did what it says it did.

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Agreed action

19. I considered our remedies on guidance and took account of the £250 the Council already paid Mrs Q.
20. The Council agreed to carry out the following action within 4 weeks of the final decision on this complaint:
1. Send Mrs Q a written apology for its failure to: send evidence of annual inspections; provide evidence of site visits carried out by officers, photographs taken, officer contact with the tenant and notices served; deal with her formal complaint promptly; provide evidence of the actions it said it would take in its stage 2 response to her complaint; pay her the £250 it agreed her promptly.
2. Make a payment of £350 to Mrs Q for the injustice the identified failures caused her.
3. Take steps to ensure case management of allotment cases have proper records of site visits, contact with tenants, photographs taken, and formal notices served.
4. Identify the reasons why it failed to take action set out in its stage 2 response and take steps to ensure this failure cannot be repeated in future.
5. Identify the reasons why it delayed dealing with her formal complaint and take steps to ensure this failure is not repeated in the future.
6. Identify the reasons why the £250 payment to her was delayed by 3 months and ensure this failure is not repeated on future cases.
21. In response to my draft decision, the Council said it had taken the following action:

• A permanent allotment officer was appointed in September 2021 and a new role created for an Allotment and Smallholding Manager who started in November 2021;
• The new team has started reviewing processes for the day-to-day management and improvements of allotment sites;
• The Allotment Officer now ensures all records of site visits, contact with tenants, and formal records served, are entered on its management system;
• It is in the process of buying an updated management software system which will allow staff to record notes during site visits and photographs directly on to it;
• A new tenancy agreement and allotment rules are being drafted to ensure tenants who breach rules or cause neighbours a nuisance can be issued to Notices to Remedy or Quit promptly;
• A tenant’s handbook is also being drafted to provide them with clear guidelines of their responsibilities; and
• The allotment team are working closely with its complaints team to ensure communication and procedures for managing further complaints are dealt with by the allotment team initially and then the complaints team promptly if escalated.

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Final decision

22. The Ombudsman found fault Mrs Q’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman