Summary: The Council followed the correct process to end Mr B’s allotment tenancy. There is no evidence to support harassment or an abuse of power by the Council.

The complaint

1. The complainant, who I will call Mr B, says the Council wrongly ended his allotment tenancy because of an abuse of power and unfair treatment by a council officer. Mr B says the Council has failed to properly deal with his concerns, often closing them down without contacting him. Mr B says the Council’s actions have worsened his anxiety, caused him emotional distress and financial loss.

Back to top

The Ombudsman’s role and powers

2. 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)
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)

Back to top

How I considered this complaint

4. I considered information provided by Mr B and the Council, including Mr B’s tenancy agreement terms and conditions.
5. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

6. Mr B had a tenancy for a Council allotment plot. Mr B cared for his grandfather who had dementia and was on end-of-life care, so was finding it hard to spend much time at the allotment. Mr B made the Council aware of his circumstances.
7. Mr B also made the Council aware that he has anxiety and Post Traumatic Stress Disorder, and that the allotment helps with his anxiety.

What should happen

8. The allotment rules state the plot must be kept safe and maintained in a good horticultural state of cultivation, fertile and productive condition. This means it should not have weeds, and plants and crops should be maintained all year round for which the tenant would need to commit to visit regularly to achieve.
9. The allotment rules state the plot should be 25% cultivated within three months, 50% within six months and 100% within twelve months of taking up the tenancy. Only 20% of the total plot can be used for non-productive growing purposes, such as a shed, greenhouse, pathways, fruit trees, keeping hens, or composting. Of the remaining 80% area you can grow vegetables and fruit in 70% and flowers and herbs in 10%. All weeds and grasses must be eradicated at seedling stage and not allowed to grow and set seed.
10. The allotment rules state you cannot have a fire of any description. All unwanted material that you cannot compost you must remove from the site and not store on your plot.
11. Where the tenant fails to meet these conditions, the Council will serve a ‘Notice to Improve’ allowing the tenant 28 days to improve the site. The Council will inspect after 28 days and if the site still does not comply it will serve a ‘Notice for Termination of Agreement’. The tenant will have seven days to vacate the plot.
12. The allotment rules state vacant plots must be offered to applicants on the waiting list for that site only and must be offered to the person at the top of the waiting list.

What did happen

13. On 12 December 2019 the Council served Mr B a notice to improve. It advised his allotment had unacceptable usage and quoted the section of the allotment rules about not having a fire and removing all unwanted material from the site. The letter was not explicit about what exactly Mr B’s unacceptable usage was at that time. It stated the Council would inspect again in 28 days and if the plot did not meet the expected standard the Council would serve a termination notice.
14. Mr B says this notice was in relation to a wood burning stove he had in his shed to keep warm, and that the Council wrongly served this notice as he had not breached any of the rules. Mr B says he made a complaint and heard nothing further.
15. On 27 November 2020 and on 15 July 2021 the Council sent Mr B a notice to improve. Both notices advised Mr B’s allotment had an unacceptable condition regards non cultivation and quoted a section of the allotment rules “The tenant shall use the land only as an allotment garden and cultivate the land according to the rules of good husbandry and to the satisfaction of the Council and keep the land clean and free from weeds.” The letters were not explicit about what exactly was the unacceptable condition of the plot. The letters stated the Council would inspect again in 28 days and if the plot did not meet the expected standard the Council would serve a termination notice.
16. After receiving both notices Mr B called the Council to complain and said he felt harassed. Mr B says in November 2020 he spoke with a relevant manager who apologised and told him his allotment was safe. I have no evidence of this, though the Council took no further action for another eight months. I have seen transcripts of calls between Mr B and the Council’s call centre in June and July 2021. These say the call handler will pass the concerns to a relevant officer to respond. The Council’s records show a relevant manager left messages for Mr B in mid-July and mid-August, but never got to speak with him about his concerns.
17. Mr B feels victimised by the Council officer who sent the notices. The same Council officer also refused Mr B an allotment plot that another tenant Mr B had helped was giving up. Mr B thought he could have first refusal, but the allotment rules state it must go to the person at the top of the wait list. The Council says it investigated Mr B’s concerns about the officer by looking at the evidence Mr B provided and speaking to members of the allotment committee but could find no evidence to support a claim of harassment or abuse of power.
18. Mr B says he visited the plot after the July 2021 notice, tidied things up, planted fruit trees and laid bark paths. Mr B also says he attended in July and August but could not gain access as the locks had changed. The Council says sometimes the lock does break but is always replaced with the same lock so that it does not have to reissue new keys to everyone. Mr B says he called the Council for a new key, the Council has no record of any contacts from Mr B about his key not working or asking for a new key.
19. The Council says the work Mr B did was insufficient to meet the standard of being sufficiently cultivated. Only 20% of the plot can be used for fruit trees and pathways, the other 80% should be used for productive growing purposes, and Mr B’s allotment was not.
20. On 17 September 2021 the Council sent Mr B a termination notice. It said it had recently inspected the plot and it did not meet the expected standard. The Council terminated Mr B’s tenancy and gave him seven days to clear the plot.
21. The Council has provided photographs, though these are not dated so it is unclear to which inspection they refer. The photographs show Mr B's plot was not cultivated and shows materials and weeds on the plot.
22. The Council says it visited the plot in October 2021 when investigating Mr B’s complaint, and believes officers acted correctly in serving a termination notice. It has provided no evidence of the site visit.
23. The Council has no policy or guidance regarding vulnerable allotment tenants, and what might happen if someone could not maintain their allotment for a period, for example due to a hospital admission or illness. The Council says in Mr B’s case it gave extended timescales to improve the condition of his plot before it finally served the termination notice. So, the Council gave some leeway for Mr B’s circumstances.
24. In an email to a member of parliament the Council said it has offered Mr B support and time to cultivate the plot correctly, though the Council has been unable to evidence to the Ombudsman any support it offered.
25. The Council says when Mr B can maintain an allotment to the appropriate standard it can add him to the waiting list for a plot if he wishes.

Was there fault by the Council causing Mr B injustice?

26. I must now consider whether there was any fault in the Council’s process which has caused an injustice to Mr B. The Ombudsman is not an advocacy service, we must focus on whether the Council has made its decisions with fault and cannot base our decisions on whether we have sympathy for an individual’s circumstances.
27. I cannot conclude there was harassment of Mr B by the Council or an abuse of power. Mr B had reasons why he could not visit his allotment plot regularly, and he made the Council aware of his circumstances. But that does not negate the terms and conditions of his tenancy agreement and mean the Council cannot rely on those to act. The Council sent Mr B three notices to improve in an 18-month period, which does not amount to harassing its tenant.
28. The Council sent Mr B notices to improve which were not explicit on what the issue was that required improvement, but they did contain contact details for a relevant officer/department should Mr B want to clarify what he needed to do. The Council took no further action after the first two notices, it is not clear on its reasons for this, but it causes no significant injustice to Mr B.
29. Mr B is disappointed by the Council’s decisions to serve improvement notices, and ultimately the termination notice, these are decisions the Council is entitled to take. The Council followed the process laid out in the allotment rules and had reasons in accordance with the allotment rules to serve the notices, so I can find no fault in its actions. Mr B has provided no evidence to show the notices were not warranted.
30. Mr B accepts he could not go regularly and has not challenged that his plot did not meet the rules regarding cultivation and being weed and material free. Mr B feels the Council should have given more leeway for his circumstances; the Council says it allowed more time than it had to before it ended Mr B’s tenancy. The Council had to give 28 days from the notice to improve but did not send the termination letter until two months later, so it did allow Mr B more time than its standard process.
31. Although Mr B planted fruit trees and laid bark paths after the July termination notice, that was not sufficient to meet the requirements of the allotment rules and the Council was within its rights to decide to terminate Mr B’s tenancy. It might be there was an occasion when Mr B could not access the allotment to do works because of a broken lock, that is not fault of the Council. It is more likely than not the Council replaces with an identical lock rather than issuing 48 new keys for a new lock. At that point there was sufficient time for Mr B to bring the plot to standard, but he did not visit for another three weeks. I understand it was difficult for Mr B to visit, but the allotment rules require regular visiting to maintain the plot, so I cannot say the Council was at fault in not allowing him more time than it did. I have no evidence to show Mr B contacted the Council for a new key, so cannot conclude the Council prevented him access.
32. There are other reasons Mr B feels harassed, he says he overheard a Council officer making derogatory remarks about him which were discriminatory about a protected characteristic and not in accordance with the Equality Act 2010. There is no evidence an officer made the remarks so I cannot make a finding of fault.
33. The Council does not appear to have any policy or staff guidance on vulnerable tenants, and it might want to consider introducing something on this subject. The Council might also want to consider making its improvement notices more explicit about what the breach is, or informing the tenant if they need advice on what action to take to avoid termination they can contact the Council.

Back to top

Final decision

34. I have completed my investigation on the basis there is no fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman