Summary: Mr X complained about his unfair eviction from his allotment plot by an allotment association, acting on behalf of the Council. We found fault with the appeal process and the Council’s response to his complaint. To remedy the injustice to Mr X, the Council has agreed to apologise and make a symbolic payment to acknowledge his frustration. It will also review its contracting arrangements with allotment associations in its area at the appropriate time.

The complaint

1. Mr X complains an allotment association (“the Association”), acting on behalf of the Council, unfairly evicted him from his plot. He says the correct procedure was not followed, particularly as there was a lack of transparency during the arbitration process.
2. He also says the procedure was discriminatory and failed to take account of his personal circumstances and his protected characteristics under the equality legislation.
3. Mr X says his well-being has suffered.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
5. 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)
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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What I have and have not investigated

7. I have investigated what happened from October 2021. I have referred to earlier events for contextual reasons only.
8. I have not investigated Mr X’s complaint about discrimination under the equalities legislation. Although Mr X says he was treated unfairly compared with other allotment holders because of his protected characteristics, he provided no evidence in support of this claim. Nor have I found any during my enquiries. In the absence of any substance to Mr X’s complaint about discrimination, I will not consider this matter further.

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How I considered this complaint

9. I spoke to Mr X about his complaint and considered the information he sent and the Council’s response to my enquiries.
10. Mr X and the Council 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

Relevant law and background information

Allotments

11. 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.

The contractual arrangements at Mr X’s allotment

12. A council can manage allotments in its area or can lease land to an allotment association to delegate the entire management to the association or similar body.
13. When a council leases out land, the lease will set out the terms under which the council grants use of the land to the association or the trustees. This contract is between the council and the association and does not automatically result in a direct or implied contractual relationship between the council and the individual allotment holder.
14. In this case, while no contract exists between the individual allotment holder and the Council, an association (“the Association”) was acting on behalf of the Council in providing allotments on the land under the 1908 Act.
15. There is an agreement between the Council and the Association that specifies an allotment must be “wholly or mainly cultivated for the production of vegetables or fruit crops for consumption by himself or his family”.
16. The day to day running of the Association was carried out by a committee of volunteers (“the Committee”).

Ms X’s tenancy

17. There was a tenancy agreement between the Association and Mr X. This included conditions about how his plot should be cultivated.
18. The Association had the right to terminate the tenancy, giving one months’ notice, where there was a breach of agreement/covenant or obligation by the tenant.
19. The tenancy included clauses covering the following obligations by the tenant. These included the following requirements.

• To keep allotments reasonable free of weed and rubbish and maintain to a proper state of cultivation to the satisfaction of the Association.
• Not to store materials on site that were not connected with use of the allotment.

20. In the event of a breach of allotment rules, the Association had the power to take such steps it considers necessary.
21. A tenant could appeal against the decision of the Committee. The appeal would be dealt with by someone independent of the Committee or the site. The appellant would be given a fair hearing.

What happened

22. I have set out a summary of key events. It is not intended to detail everything that happened.
23. Mr X had been an allotment holder since 2015. Between September 2017 and November 2018, the Association had concerns about Mr X’s ability to maintain his plot. On appeal, Mr X was allowed one final chance to maintain and cultivate the plot to the required standard.
24. In October 2021, Mr X’s plot failed an inspection due to lack of cultivation, untidiness and excessive material being stored on his plot.
25. Committee members met with Mr X on site to explain why he had failed the inspection. It was agreed that Mr X be allowed three months to meet the required standards.
26. After three months, the Association felt the plot was still not up to standard. Mr X explained he had been ill, had family issues and his tools had been stolen. The Committee gave Mr X three more weeks to comply. Mr X failed to attend the scheduled inspection. It was rearranged to take place in 17 days’ time.
27. Upon inspection, the Association decided that while some improvement had been made, it still did not meet the required standard. Mr X was served with a letter of termination. He was given one months’ notice to vacate his plot.
28. Mr X appealed against his eviction. The Association referred the appeal to an independent arbitrator (“IA”). The IA was a committee member from another allotment site within the Council’s area. The IA was selected by the Chairman of the Committee.
29. Mr X asked the Association for details of the arbitration process. He asked for the name of the IA and requested the IA visit his plot and allow him the opportunity to explain what he was in the process of doing to get it up to standard.
30. The IA did not contact Mr X or visit the plot. The Association said it was unable to tell Mr X the name of the IA.
31. The IA did not uphold the appeal. They made this decision based on Mr X’s letter that requested an appeal and information from the Committee.
32. Mr X was serviced with 12 months’ notice to vacate his plot.
33. Dissatisfied with this outcome, Mr X complained to the Council. He said:

• he had been subject to an unfair appeal process that was not independent;
• the Association and the IA had failed to take account of his special circumstances;
• he had been treated differently to other plot holders; and
• had been served with twelve months’ notice to quit instead of three months.

34. In response, the Council said:

• there was no evidence of that due process had not been followed;
• it was satisfied an independent review had taken place;
• under the terms of its lease with the Association, it had no power to intervene in its complaints processes;
• it was unable to overturn a decision made by the Association; and
• if Mr X had a grievance against the Association, this was a civil matter that could be addressed by Mr X taking court action.

35. Dissatisfied with this outcome, Mr X brought his complaint to the Ombudsman.

Analysis

36. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. It is not my role to interpret the allotment rules, judge Mr X’s cultivation practices or determine if there has been a breach of the rules.
37. These are decisions for the Association and, in turn, the Council.
38. Instead, my role is to look at the process the Association followed in making make its decision to evict Mr X. If we consider it followed that process correctly, we cannot question whether the decision was right or wrong, regardless of whether the person disagrees with the decision.
39. In this context I am investigating both the actions of the Council and the Association who acts on its behalf (see paragraph five above).

The eviction and arbitration process

40. I do not found fault with how the Association managed the situation up to July 2023. It carried out several site inspections, was clear in its written correspondence about what was expected of Mr X and gave him realistic timescales for improvement. The evidence I have seen confirms that Mr X was fully involved with the process.
41. However, based on the evidence I have been provided with, I am not satisfied the arbitration and eviction process that followed was sufficiently fair or transparent for the following reasons.

• The Association refused to provide the name of the IA to Mr X appointed by the chair of the Committee. This demonstrates a lack of transparency and created an understandable perception that there was something to hide and the process was potentially biased.
• The IA had direct contact with the Committee but not with Mr X. Nor was Mr X given the opportunity to provide information to the IA once they had been appointed by the Association. From the evidence I have seen, the IA only considered Mr X’s letter saying he wanted to appeal. In this letter he asked the IA to visit the plot. This was not responded to. The Association on the other hand was given the opportunity to provide additional information, including its own chronology. In my view, this would again cause the appellant to have cause for concern there was bias in the process.
• Mr X was given 12 months’ notice to quit, whereas his tenancy agreement stated only for one months’ notice would be given in the event of a breach of the rules. No reason was given as to why this happened, and this gives the impression that decisions were being made on an arbitrary basis.
• Mr X was not given any information about how the arbitration would be carried out at any point. Nor can I see this information is published or available in request by other plot holders. I found what little information was available about the arbitration process was too vague to be helpful. Mr X was told, “the appeal shall be made to a person independent of the management of the association and of the management of the site. There will be a fair hearing before arriving at a decision”. Where an appeal is held, all parties should have clear information about what they can expect to happen. The Ombudsman expects appeals process to be clear, fair, to both sides and readily available. This was not the case here.
• Mr X gave contextual information about why he had been unable to attend to the plot. He explained he had been ill, yet this was not referred to at all by the IA. We would expect to see some evidence of whether this had been considered and what the IA’s view of this was. Without this, the complainant will inevitably be left wondering whether relevant information has been ignored and question the fairness of the hearing.

42. Overall, I am satisfied the Association’s appeal process was not robust, fair or transparent. This is fault.

Mr X’s complaint to the Council

43. Mr X raised his concerns about this procedural fairness with the Council. In response the Council said the process was fair and it had no right to intervene in the Association’s complaints procedure. The Council had no authority within its lease agreement with the Association to overturn decisions.
44. This is not the approach expected by the Ombudsman. The law says that when a council arranges for another body to fulfil its statutory functions, that council retains responsibility for ensuring things are done properly.
45. To make sure this happens, we expect councils to have contractual arrangements in place that allow for oversight, and to intervene when necessary, in the event of conduct by the other body that amounts to maladministration. The Council’s stated position in this case fault amounts to fault.
46. The Council has provided no evidence to show it has properly considered the Association’s appeal process. This is fault. Where a complaint is received, the Council should take steps to ensure that any review or appeal process is written down, is transparent and fit for purpose. I have made a recommendation to remedy this fault below.

Injustice to Mr X

47. In the event of fault, the Ombudsman must assess what injustice, if any, was caused to the complainant. Mr X claims he should not have been evicted and his tenancy should be reinstated.
48. In reaching my decision about this issue. I cannot ignore what happened before the arbitration process. Prior to this, the Committee demonstrated patience and understanding over a period of several years before Mr X was served notice to quit in July 2022. The evidence I have seen, including copies of letters from the Committee to Mr X, persuades me to concludes Mr X was allowed ample time, opportunity, and guidance to bring his plot up to an acceptable standard.
49. While I acknowledge Mr X had more recent health and other personal challenges, this was taken into consideration by the Committee when allowing Mr X more time to improve his plot.
50. I have also seen photographs of Mr X’s plot and all other plots that were of concern to the Committee around the same time. In my view, there was very little cultivation on Mr X’s plot. These was also clear evidence of a significant amount of material being stored there that was a significant eyesore and was a breach of the rules.
51. Although I found the arbitration process was carried out unfairly, I am not satisfied, on the balance of probabilities, that even it had it been done correctly, the outcome would have been different.
52. For this reason, I consider the injustice to Mr X is limited to the distress and frustration he was caused by the unfair arbitration process and the Council’s refusal to look investigate this properly. This injustice requires a remedy.

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Agreed action

53. Within four weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise in writing to Mr X.
2. Pay Mr X £250 to acknowledge the distress he had suffered because of the fault I have identified in the eviction and complaint handling processes.
3. Provide a copy of this decision statement to relevant officers to ensure they are aware of the Council’s responsibility to properly investigate complaints about bodies acting on behalf of the Council.
54. The Council should provide us with evidence it has complied with the above actions.
55. When entering new lease arrangements, the Council has agreed to assess the review or appeal process used by the Association (and other allotment associations in its area) and:
1. consider amending the Association’s formal agreements with both the Council and allotment tenants to refer to these processes;
2. ensure any formal agreements reflect the fact the Council retains responsibility to ensure its statutory functions are carried out correctly; and
3. ensure any review or appeal processes are written down and readily available to share should the need arise.

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Final decision

56. I have found the Council to be at fault and it has agreed to action my recommendations to remedy the injustice caused. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman