Summary: Mr X complained the Council wrongly terminated his allotment tenancy and banned him from the grounds. He says the Council did not investigate concerns he raised about another allotment holder. The Council is at fault for not getting all relevant information when it investigated Mr X’s breach of the rules. The Council has not caused a personal injustice but will take action to prevent reoccurrence.

The complaint

1. Mr X complained the Council wrongly terminated his allotment tenancy and banned him from the grounds as it did not carry out a fair and unbiased investigation into concerns he had breached his tenancy.
2. Further Mr X says the Council did not investigate his concerns when he reported that another allotment owner had attacked him.
3. Mr X says this has caused him to unfairly lose his allotment and be banned from entering. He says this has caused him distress and he is upset he can no longer help his disabled wife with her allotment.

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The Ombudsman’s role and powers

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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)

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How I considered this complaint

7. I have considered:
• The information provided by Mr X and discussed the complaint with him;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
8. Mr X and the organisation 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

Law and guidance

9. When a Council leases out land, the lease will set out the terms under which the Council grants use of the land to the Allotment Association or the trustees.

Council policy

10. The Council has an appointed allotment officer that oversees allotments, each allotment also has a site rep that acts on behalf of the Council.
11. The allotment rules and guidance, issued to all tenants, says there will be an immediate termination of a tenancy for breaking one of any seven rules. The relevant rules in relation to Mr X’s complaint are:
• You are not allowed to remove anything from a vacant plot, including sheds, greenhouse, plants etc unless given permission by the site rep or allotment officer.
• You must not use any abusive or threatening behaviour on site or social media, be it physical or verbal.
12. The rules say that each case will be investigated on merits and that it will look to include written evidence, witness statements, physical evidence, police statements, photographs and so on.

What happened

13. Mr X has had an allotment plot since 2009.
14. In or around April 2022 an allotment plot was vacated. The owner left a large number of items on the plot including a fence panel.
15. Mr X sought to gain a fence panel from the plot in May 2022. On the day he went to retrieve the item another plot holder spotted Mr X and a friend removing items. He returned a short while later with the potential new owner of the plot and confronted Mr X. The incident became violent when this plot holder grabbed Mr X by the neck.
16. Mr X reported the incident to the Council in mid-May 2022. He told the Council he had notified the site rep he had permission to remove a fence panel from the new tenant. When he had got the fence another plot holder had confronted him. He had grabbed him by the throat and pushed him against the allotment fence.
17. The Council investigated the report. It reviewed Mr X’s statement of the incident, got statements from other allotment holders and spoke with the site rep.
18. In July 2022 the Council wrote to Mr X to inform him that appropriate action had been taken in relation to his report. It then noted that Mr X had breached the allotment rules as it was not satisfied that either the Council or the site rep had given him permission to remove items from a vacant plot. Although it accepted Mr X had spoken to the site rep, it felt he had misled the rep into believing he had permission from the new tenant.
19. The Council gave Mr X notice to remove items from his plot and terminated his tenancy. Further it banned him from the allotments. Mr X raised concerns about the time frames given for leaving and the Council agreed to extend this until 31 October 2022 to allow him to harvest the crops he had grown.
20. Mr X raised a complaint in August 2022 about the Council’s actions as he believed it should have contacted him to tell him about its investigation and taken a statement. He provided the Council with a further statement of the events surrounding the removal of the fence. He explained that he had had earlier conversations with the site rep to ask if he could take the fencing. He explained he understood the site rep had given him permission. The Council considered Mr X’s further information but upheld its decision.
21. Mr X also raised concerns the Council had not investigated his complaint about the other plot holder. He raised concerns the plot holder was still on site and felt it was unfair his lease was terminated, and he had been banned, when the other person seemingly had not. The Council explained that the other plot holder was complying with its instructions, but it could not provide details for data protection reasons.

Findings

22. The Ombudsman is not an appeal body. We cannot question a council’s decisions if there was no fault in the way they were reached. I have therefore considered whether the Council carried out an appropriate investigation.
23. When the Council investigated whether Mr X had breached the rules it did not carry out an appropriate investigation. It considered the allotment rules and guidance, but it didn’t seek evidence from all relevant parties.
24. The Council asked the site rep to provide an account on the potential breach, but it did not seek an account from Mr X. The Council relied on information solely provided for a different purpose. It did not consider whether Mr X might have further information to present. The Council did not get all relevant information, and this is fault.
25. The Council did consider Mr X’s further information when it reviewed his complaint in August 2022. On considering these comments it concluded the correct decision had been made. Had it got a statement from Mr X prior to its decision in July 2022 the outcome would have been the same. As such Mr X has not suffered a significant injustice because of the fault.
26. During the Ombudsman’s investigation the Council has explained that any plot holder will be permanently banned from the site for a serious offence such as theft. It has said it has no policy in place outlining the occasions where someone will be banned or the terms but says this is how it has always acted.
27. The Council is entitled to ban people from its property. However, we would expect the Council to provide clear reasons for the ban, outline the terms of the ban and offer an appeal. The Council did not provide Mr X with any reasoning in its letter, terms of the ban, or his right of appeal. Further, its ban is permanent and there is no mechanism for review of the ban in the future to determine if it is still relevant. I consider the failure to properly advise Mr X regarding the ban, and its decision not to review this, amounts to fault as it is contrary to the principles of natural justice.
28. Having identified fault, I must consider whether the failure to explain the ban and offer a review has caused Mr X a significant injustice. Mr X says the ban has had an impact on him as he found the allotment improved his mental health and he can no longer go. While I appreciate his frustration the Council’s fault did not cause this.
29. Mr X also says the ban has affected his wife as he can no longer support her in attending the allotments. The Council has, during the investigation, demonstrated that it accepted Mr X’s wife request to move to Mr X’s plot and that she has alternative nominated helpers. I am not satisfied that Council has caused an injustice to Mrs X.
30. The Council did investigate Mr X reports of violence. It reached a conclusion and has acted on that conclusion. There is no fault in the way the Council has carried out this investigation.
31. The Council did tell Mr X that it had finished the investigation in July 2022. I appreciate that he does not know the outcome of the investigation and is concerned. It was appropriate for the Council not to disclose further information to Mr X about the outcome of its investigation as it contained information about another person. There is no fault in the level of information the Council has provided to Mr X.

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Agreed action

32. The Council will within three months of the final decision:
• Consider its policy on banning people from allotment sites. It should ensure it has guidance in place which set out how it will inform people of the terms of the ban that has been imposed, the length of the ban, the reason for the ban, and their right to appeal. The Council should ensure the policy has a procedure for reviewing the ban within a reasonable period to determine if it remains appropriate. It should ensure the policy is written down and readily available to share should the need arise.
• Write to Mr X to inform him of the terms of the ban, length of ban and his entitlements to request a review under the new policy.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation. I have found fault, but this did not cause an injustice. I have recommended action to stop the fault from reoccurring.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman