Summary: Ms X complained the Council failed to properly investigate her concerns about the allotment committee’s decision to evict her from her plot causing her to lose out financially and be the subject of harassment. The Ombudsman does not find fault with the Council.

The complaint

1. Ms X complained the Council failed to properly investigate her concerns about the allotment committee’s decision to evict her from her plot.
2. Ms X says this matter caused her to lose thousands of pounds she spent on her allotment, suffer harassment and defamation from the allotment committee and caused her anxiety and ill-health.

Back to top

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. 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)
4. We cannot question whether an organisation’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)
5. If we are satisfied with an organisation’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

6. I considered information from Ms X and the Council.
7. The Council has given a 25-year lease to the Allotment Association through the powers under the Allotments Acts 1908 to 1950. 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 actions of the Association, including Ms X’s complaint about it.
8. We can investigate the Council’s decision about investigations into Ms X’s complaint, as this is an act of the Council.
9. Ms X provided comment on my draft decision and I considered her comments before reaching my final decision.

Back to top

What I found

The law and the lease

10. Under The Smallholdings and Allotments Act 1908, a council must ensure there are allotments in its area if six or more people in the area ask for them.
11. A Council can manage allotments in their area or can instead jointly manage allotments with an Allotment Association. A Council can also lease land to an Allotment Association to delegate the entire management to the Allotment Association or similar body.
12. When a Council leases out a land, the lease will set out the terms under which the Council grants use of the land to the Allotment Association or the trustees. This contract is between the Council and the Allotment Association and does not automatically result in a direct or implied contractual relationship between the Council and the individual allotment holder.
13. While no contract exists between the individual allotment holder and the Council, the Allotment Association is acting on behalf of the Council in providing allotments on the land under the 1908 Act. Final responsibly for the actions and decisions of the Allotment Association remains with the Council.
14. The lease says:
• The power of appointing and dismissing Trustees lies with the members of the association. The members of the association can appoint or remove Trustees by following its constitution.
• It authorises the Trustees to take lawful steps to forfeit or terminate tenancies of plots for breach or non-observance of tenancy conditions or other proper cause.
• The Allotment Association must have a written constitution and ensure it manages the site and conducts its affairs following this constitution.
• The Trustees must not act or allow any person on the land with their authority to act in any which will subject a person to any form of harassment or verbal abuse.
15. The Allotment Association’s constitution says it will take whatever steps are needed to preserve and improve the allotment site. The Allotment Association’s constitution also says it will approve appointment of Trustees for the Allotment Association in line with the lease.
16. The Allotment Association’s rules state that plot holders must not cause nuisance or annoyance to any other occupiers of the allotment. The Allotment Association’s rules say breach of this can result in a warning and termination of tenancy.

What happened

17. On 6 July 2021, the Allotment Committee issued a warning letter to Ms X to advise her allotment failed inspection. The Allotment Committee said a future breach of tenancy agreements terms would in result in a formal Notice to Quit.
18. Ms X sought advice from the Council 7 July 2021. The Council told Ms X the allotment was self-managed by the Allotment Committee. The Council said individual plot disputes are between tenants and the Allotment Committee and are not a matter for the Council.
19. Ms X told the Council on 8 July 2021 that she was the subject of bullying from the Allotment Committee. Ms X asked if this was acceptable under the lease contract between the Council and the Allotment Association. Ms X also told the Council she had concerns that tenants of the allotment had not voted in some members of the Allotment Committee.
20. On 10 August 2021, the Allotment Committee issued Ms X with a Notice to Quit. The Allotment Committee said it had issued the Notice to Quit because of Ms X’s actions towards Committee members causing a nuisance.
21. The Allotment Committee wrote to Ms X on 10 September 2021 to confirm termination of her plots from this date. The Allotment Committee said Ms X could collect her items on appointment and should do so before 10 December 2021.
22. Ms X raised a formal complaint with the Council on 20 September 2021. Ms X said:
• The Allotment Committee had unfairly treated her through bullying and harassment.
• The Allotment Association had unlawfully evicted her from her plot and refused appeal.
• The Allotment Association is not running the allotment in line with the lease agreement with the Council.
23. The Council told Ms X that it did not have a say over allocation or termination of plots on a self-managed site. The Council said its allotment officer was investigating to decide if the allotment was acting under the terms of the lease.
24. The Council contacted the Trustees of the allotment on 21 September 2021. The Council told the Trustees it was investigating to decide if the allotment was acting under the terms of the lease. The Council said Ms X had raised concerns about:
• Her unfair eviction and lack of opportunity to appeal the eviction.
• Appointment of the Allotment Committee. The Council sought minutes of the meetings showing the new Allotment Committee members being voted in.
25. The Council provided its Stage 1 complaint response on 9 November 2021. The Council told Ms X it had contacted the Trustees setting out the issues. The Council said the Trustees had provided the minutes of the meetings showing the Allotment Committee had been voted in. The Council said its role only relates to the lease agreement and not to management of individual plots.
26. Ms X sought consideration of her complaint Stage 2 of the complaints process. Ms X said the lease agreement between the Council and Allotment Association prohibits harassment which she has been the subject of from the Allotment Committee.
27. The Council told Ms X it had brought the matter to the attention of the Trustees. The Council said it cannot override the decision made by the Allotment Association or Trustees about individual plots.
28. The Trustees provided feedback of its investigation to the Council on 11 December 2021 about Ms X’s eviction from her plot and the issues with harassment.
29. The Council sent Ms X a Stage 2 complaint response on 18 January 2022. The Council said:
• The lease between the Council and the Allotment Association placed a responsibility on the Trustees. These responsibilities included day-to-day management of allotment lettings, collecting rent and maintaining tenancy conditions, including termination of tenancies for non-observance of rules.
• Its role related solely to matters about the lease and not matters about individual plots.
• It had tried to influence the Trustees to seek mediation with Ms X but the eviction process is a matter between Ms X and the Allotment Association.
• From its investigation the governance arrangements in place for the Allotment Association are in order and it has found no evidence the Allotment Association cannot meet its lease.

Analysis

30. Since the Council has leased the land to an Allotment Association, tenants of this allotment do not have a contract with the Council.
31. While the Council does not have a direct or implied contract with Ms X, this does not absolve it of all responsibility. The Council is the landlord of the Allotment Association and should ensure the Allotment Association abides by its lease, this includes abiding by the rules set by the Council.
32. Ms X’s dispute with the Allotment Association potentially involved three clauses of the Council’s lease with the Allotment Association:
• The Trustees and Committee members had not been installed in line with the Allotment Associations constitution.
• The Allotment Association had unlawfully evicted her from her plot without proper cause.
• The Allotment Committee has subjected her to harassment on the allotment site which the Trustees allowed.
33. The Council made enquiries of the Trustees and completed an investigation into the three issues about the lease.
34. The Council sought evidence the Trustees and Allotment Committee had been officially voted in. The Trustees provided the Council with the relevant minutes to prove it had followed due process. The Council has checked adherence with the lease about the governance arrangements at the site. I do not find fault with the actions of the Council.
35. The Council made enquiries of the Trustees about Ms X’s eviction but repeatedly told Ms X that it had no control over allocation or termination of individual plots. The Council is correct in that the lease provides the Trustees with powers to take lawful steps to terminate tenancies of plots for breaches or non-observance of tenancy conditions. The Council cannot override the Trustees decision.
36. The Trustees presented the Council with its rationale for evicting Ms X which fell within the terms outlined in the lease agreement. The Trustees also provided feedback to the Council about harassment at the site with its view of the matter from the perspective of the Allotment Committee and Ms X.
37. The Ombudsman cannot question the decisions of the Trustees or the Allotment Association. The Council can investigate the Allotment Association and has shown it carried out due diligence by making enquiries of the Trustees. The Council assured itself the Trustees followed the terms of the lease based on its investigation. This is a decision the Council was entitled to make. I do not find fault with the Council.

Back to top

Final decision

38. I have completed my investigation as there was no fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman