Summary: There was fault the Council raised Mr X’s expectations about action that it was taking where the evidence shows it was not taking this action. This caused Mr X an injustice because it raised his expectations about action that was happening. There was also fault in how the Council initially communicated with Mr X over his complaint, however the Council have already apologised prior to our involvement. The Council have agreed to our recommendation about how it should remedy the outstanding injustice to Mr X.

The complaint

1. Mr X said the Council failed to act in response to his complaint that a local resident whose house adjoins his allotment boundary, continually trespassed onto his allotment and who previously he alleged caused damage to his property.
2. Mr X also said the Councils communication with him about this was poor.
3. Mr X said he told the Council he felt unsafe while using his allotment and because the Council did not take any action, he is now no longer able to enjoy his use of the allotment.

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The Ombudsman’s role and powers

4. 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)
5. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)

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How I considered this complaint

7. I spoke to Mr X and considered the information he provided.
8. I considered the Council’s comments and the documents it provided.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

Principles of good administrative practice.

10. In 2018, we published guidance for Council’s dealing with complaints. In that guidance we emphasised the following:
• Explaining and responding to any delays proactively.
• Keeping to commitments.
• Trying to put things right quickly and effectively.

What happened

11. In August 2022, Mr X reported an incidence of criminal damage to the police. He alleged a local resident had damaged his shed while trespassing on his allotment. Mr X also reported this to the Council.
12. In September, a property managing agent, working on behalf of the Council, put up a fence panel across the adjoining boundary. They did this to secure the boundary and prevent access onto Mr X’s allotment. From the information Mr X told us, the local resident took this down the same day and he told the Council about this.
13. In December, following police involvement, Mr X asked the Council for an update on its proposed actions to deal with the trespass and to compensate him for the damage to his shed, as he saw the Council as being liable.
14. In late December, the managing agent responded, telling Mr X it had sent a warning letter to the local resident asking them to remove their gate, which gave them access to the allotment and to stop trespassing. In January, Mr X followed this up and asked for a response about compensating him for the costs of replacing his shed.
15. Having had no substantive response, Mr X followed this request up and in February, the managing agent replied, saying it was intending to inspect the site to see if the gate was still in place. It said if it was, they would have to raise it with the relevant department in the Council, as they had no authority to take any enforcement action outside of the allotments. It also told Mr X it would not reimburse him the costs of his shed.
16. At the end of February, Mr X chased the managing agent for an update and then again three weeks later. In mid-March, the Council acknowledged his contact as a stage one complaint.
17. In early April, in its stage one reply, the Council apologised for not replying to all of Mr X’s previous contact. The reply said the Council was in discussion with its legal team about the issue, in response to Mr X’s complaint. It also confirmed it would not compensate Mr X for the damage to his shed.
18. The evidence shows the Council did not request legal advice at that point.
19. After this response, Mr X sent several messages to the Council asking for an update. I have not seen any evidence of an update to Mr X, on the earlier outstanding action to review the matter with the Council’s legal team at that stage.
20. In late June, the Council acknowledged Mr X’s repeated concerns and escalated his complaint to stage two of its corporate complaint procedure. In mid-July, the Council gave Mr X an interim update explaining its legal team were being consulted and it would provide a full response to him in time.
21. The Council then asked for legal advice at this point. It also sent a further warning letter to the local resident around this time.
22. In late July, the Council formally replied to Mr X, outlining the responses it took previously and highlighted it was taking legal advice. It said in view of the fact his issues were unresolved, it upheld his complaint. It referred Mr X to us at that point.
23. The Council were in continuous contact with a legal practitioner from this point onwards, to provide information, including Mr X’s photographs he had supplied, and assess the options of preventing access onto Mr X’s allotment.
24. In its response to our enquiries, it provided evidence that a further warning letter had been prepared, which was due to be sent to the local resident in January 2024, warning them of the Council’s intention to consider obtaining an injunction.
25. The Council highlighted it had also instructed the managing agent to make efforts to secure the boundary, scheduled also to take place in January 2024. The Council told me it had also updated Mr X on their intended approach around this time.

My findings

26. Mr X highlighted his concerns about trespass and damage to his shed and it was appropriate for the Council to allow the police to respond to allegations of crime. After this had been considered and when Mr X raised it again, in December the Council wrote to the local resident to try and prevent continued trespass. That too was appropriate.
27. When Mr X heard nothing back from the Council, he followed this up and it then explained in February it would carry out a site visit. However, it did not keep Mr X updated on the outcome of the site visit or give him a substantive update after that.
28. Because of this, Mr X had to repeatedly follow this up with the Council and his complaints were lodged as a formal complaint in March. That is a fault in communications, and it caused Mr X an injustice, because he experienced avoidable distress in constantly following up what the Council were doing. I note the Council have already apologised for this and I find that is a sufficient remedy for Mr X’s injustice here.
29. In April, the Council explained it was in discussion with its legal team to identify options going forward. I have not been provided any evidence of these discussions at that point, until the Councils request for legal advice in mid-July. That is fault which caused Mr X an injustice, because it will have raised Mr X’s expectations of action that was being taken, where it was not. The Council have agreed to my recommendation about how it can remedy the injustice to Mr X here.
30. The evidence shows after Mr X’s complaint was escalated, the Council instructed legal advice and wrote again to the local resident while it was waiting for the advice. The evidence also shows it has identified a plan of action going forward and updated Mr X about this.

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Agreed action

31. Within six weeks of the date of my decision, the Council have agreed to write to Mr X with an update on its proposed actions and the outcome of these actions.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I am ending my investigation with a finding of fault as highlighted at paragraph 29. This fault caused an injustice and the Council have agreed to my recommendation about how it should remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman