Summary: Mr B complained on behalf of himself and his father about the decision of an Allotment Society, on behalf of the Council, to ban both of them (and his brother) from his father’s allotment in May 2020. This decision was made after they complained about an incident where they were asked to extinguish a fire. We find the Society undertook a flawed investigation of their complaint and its decision to ban them also followed a flawed process. We consider this caused avoidable distress. At the end of this statement, we set out action the Council has agreed to remedy that injustice.

The complaint

1. I have called the complainant ‘Mr B’. He complains on his own behalf and that of his father ‘Mr C’. Mr B complains that in May 2020 an Allotment Society unreasonably banned him, his brother and Mr C from an allotment rented by Mr C, after they complained about the conduct of the Allotment Society Chair during an incident that took place the previous month. Mr B says this followed an inadequate investigation of their complaint.
2. Despite the letter banning him from the site, Mr B says Mr C has continued to visit the allotment with his wife. But Mr C has faced uncertainty in knowing if he can continue pursuing his hobby given the previous actions of the Society. Mr B says he and his brother, who have traditionally helped Mr C with his plot, have stayed away from the site. All of them would welcome clarity on whether they can visit the plot again. In addition, Mr B says the incidents covered by the complaint have caused distress.

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The Ombudsman’s role and powers

3. 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. Where we can investigate an organisation’s actions we describe this as being within our ‘jurisdiction’. (Local Government Act 1974, section 25(7), as amended)
4. Allotment Societies, for the management of allotments, were first created in 1913. In a case where an Allotment Society manages plots brought under the ownership of a council by the 1908 Small Holdings and Allotments Act, we consider the Society is acting on behalf of the council. We therefore treat a society’s actions as if they were the council’s.
5. 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)
6. 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)
7. 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)

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How I considered this complaint

8. Before issuing this decision statement I considered:

• Mr B’s written complaint to the Ombudsman with consent provided by Mr C and any supporting information he provided. This included correspondence with the Allotment Society and the Council about the matters covered by the complaint and various relevant Society documents such as its rules for members and complaint procedure.
• Information provided by the Council, via the Allotment Society, in reply to enquiries. Also, letters exchanged with the Council about our jurisdiction to investigate this complaint.

9. Mr B, the Council and the Allotment Society all had opportunity to comment on a draft decision which set out my proposed findings. This final decision takes account of any comments made in response to that.

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What I found

Allotment Society – general background

10. The allotment at the centre of this complaint is on land which is owned by the Council which comprises both an allotment site and a larger area of green space used as parkland and for various recreational activities. The Council leases the whole of this land to an Association which manages the land on its behalf. The Association then sub-leases that part of the land used for allotments to an Allotment Society.
11. Papers on the Council website show that when the Council last discussed renewing the lease over the land it recognised its ownership extended over the allotment site. It said a condition of the Council leasing the land was that it expected the Association’s sub-lease with the Allotment Society to ensure the Society complied with various standards of good administrative practice. For example, in having open and transparent policies for allotment allocation and waiting lists. Also included was the requirement the Society have a clear process for dealing with complaints and disputes. The Council said such policies and procedures could only be introduced or amended with its consent.
12. The Allotment Society has a constitution. Plot holders become members of the Society. A clause allows “extraordinarily” for a member to be asked to relinquish membership if they have received a warning “setting out the issue at hand” and been given 14 days to resolve it.
13. Members agree to comply with the general rules of the Society. These cover such matters as fees and the general upkeep and appearance of plots. Rule 10 allows the burning of green rubbish so long as this does not cause a nuisance to surrounding plots and it is not left unattended.
14. The Allotment Society operates a three stage complaint procedure:

• at Stage One complaints are answered by the Secretary of the Allotment Society; although they also have discretion to escalate complaints straight to Stage Two;
• at Stage Two complaints are heard by the managing committee;
• at Stage Three an appeal against the decision of the managing committee will be considered by the Allotment Society Chair or Vice-Chair.

15. The procedure says there is no further right of appeal and does not signpost members to the Council or this office.

The impact of COVID-19 on the Allotment Society

16. From late March 2020 the Allotment Society introduced some emergency changes to its rules in response to the pandemic. Of relevance to this complaint:

• On 29 March 2020 it said that from now on “only plot holders” could work their plots and that visitors to the site needed “prior authorisation”.
• On 6 April 2020 it said plot holders could no longer burn waste. The Society said it took this decision because COVID-19 was a respiratory virus and “it is very important that we do not aggravate the situation […] If a fellow plot holder starts a fire, please request it be put out immediately. We must all be aware that fires and BBQs could be reported by others and viewed as an abuse of the 'exercise" guidance we are currently enjoying and could put us into conflict with authorities and spoil the access we currently enjoy”.

17. I understand the Society communicated these changes to its rules by way of erecting signs on a notice board within the allotment site and on entrance gates.
18. Because of COVID-19 the Society also suspended committee meetings for a time with none taking place either in person or virtually between March and May 2020.

The complaint

19. In late April 2020 Mr C was tending his allotment accompanied by his wife and two adult sons, including Mr B. They had a small fire burning green waste. They were approached by a fellow plot holder and asked to extinguish the fire. They did not do so straight away and they were later approached by the Chair of the Allotment Society and asked to put it out. It is common ground that there was some heated discussion before Mr C’s wife extinguished the fire and the family left the plot. During the discussion it is agreed the Chair told Mr C that Mr B and his brother were unauthorised visitors to the site. That during the discussion the Chair asked Mr C’s sons to leave the site. It is also common ground that several other plot holders were present that day and witnessed some of the heated discussion.
20. The Chair of the Allotment Society wrote to Mr C the day after the incident and explained why the Society had temporarily banned fires. The letter said the Chair only became involved when Mr C had ignored the advice of another plot holder who had asked him to extinguish the fire. The letter said that guests of plot holders were only permitted when authorised and at the discretion of Society officers. It said that Mr B and his brother were not authorised to visit. The letter did not warn Mr C about his future conduct or refer to any possible sanction. It said that it hoped “the incident is behind us”.
21. At around the same time the Chair sent that letter Mr B and Mr C made a complaint. Mr B wrote the letter of complaint and this said:

• the Chair of the Allotment Society had acted unprofessionally. He said that he was aggressive and pointed his fingers at Mr C and his family; that he had a dog that was not under control and had not observed social distancing. Mr B also said the Chair continually mispronounced Mr C’s name and when asked to pronounce the name properly the Chair would not do so and said ‘whatever’;
• that Mr C received different treatment to other plot holders. For example, in being asked to remove a frame from his plot and being asked to extinguish the fire when other plot holders were still lighting fires. Mr B implied the allotments were managed by a small clique who engaged in “victimisation and bullying”;
• the sign on the gate entering the allotments had not mentioned anything about not lighting fires. Mr B included a photograph with a notice dated 19 April 2020. This provided the advice on visitors but said nothing about fires. Mr B noted the sign said “it is accepted children can attend with parents when they live at the same house”. Mr B pointed out he lived at the same address as his parents.

22. At the beginning of May 2020, the Society wrote to Mr C and said it would investigate the complaint and one of its officers said they were “collecting witness statements”. The Society said its investigation would focus on the Chair’s conduct. They would not investigate the claim about a clique running the allotments unless Mr B or Mr C provided more evidence in support of their claim.
23. In a reply Mr B cross referred back to his earlier statement saying he had set out the details of the complaint about the Chair. He said that other plot holders had witnessed the Chair’s behaviour. Mr B also had concerns the Chair would be involved in investigating the complaint. He also asked questions about what procedure would be followed in the investigation.
24. The Society said it would investigate the complaint on the basis of this second email (i.e. not the original letter of complaint) at Stage Two of its procedure. The Society said the Chair would have no role in the investigation, but the complaint would be discussed by other committee members.
25. In mid-May 2020 the Society wrote to Mr C with the outcome of its investigation. It said that Mr C had lit a fire contrary to the rules. He had ignored requests to put it out. When the Chair intervened he had been met with a “vociferous response” and the conduct of Mr B and his brother “left a lot to be desired”. The response noted that Mr C’s wife then doused the fire. The letter concluded that because Mr C had lit a fire and due “to the somewhat cavalier response to the requests to comply with society rules” he was “to be given a severe warning” as to his future conduct. Mr C and his sons were also “banned from the Allotment site until you provide the Committee with suitable undertakings as to future behaviours”.
26. Mr B and Mr C escalated their complaint to Stage 3 of the Allotment Society procedures. The Stage 3 response came from a senior officer (not the Chair) who said in the absence of new evidence he agreed with the Stage 2 findings.

The complaint to the Council

27. Unhappy with the investigation of his complaint and the outcome, Mr B contacted this office for advice. We told him to contact the Council and ask to use its complaint procedure because as I have explained above, we consider complaints about allotment societies are within our jurisdiction.
28. When Mr B tried this approach he received a reply from the Council which said it could not investigate his complaint. It said that its lease with the Association did “not allow for the Council to take any role in the management of the allotments or act as an arbitrator in any disputes between the management team and individual plot holders”. So, the Council could not intervene or “take a view” on the complaint.

Our investigation

29. Consequently, Mr B got back in touch with this office and we agreed to investigate his complaint. In January 2021 I made enquiries of the Council wanting to know more about the investigation of the complaint by the Society. I explained our view the complaint was in jurisdiction.
30. In April 2021 the Council replied saying that it did not consider it had any jurisdiction to obtain information from the Society as it considered the investigation of complaints solely a matter for it. It said that because of the role of the Association there was no direct relationship between the Council and the Society. A further exchange of letters followed where we asked the Council to reconsider and it initially declined.
31. However, despite maintaining that it could not interfere in any dispute about land it has leased to the Association, in June 2021 the Council agreed to obtain information from the Allotment Society. As a result, I was provided with the following additional information:

• that during their investigation the Society officer approached several plot holders for their version of events. The officer says some refused to comment but two provided statements which I have seen. Both those statements reported one of Mr C’s sons (it is not known if this is a reference to Mr B or his brother) shouting at the Chair and acting in a way the witnesses perceived as intimidating;
• the officer produced a report on the complaint, an abbreviated version of which formed the Stage 2 response to Mr B. The report contains details which cross reference the witness statements above. The report says the author did also see a short filmed clip of the incident but this only captured events after the Chair was walking away and so was not helpful. The officer thought the Chair may have come across as “a little authoritarian” but found no evidence he was “rude, aggressive or unprofessional”. The report’s author said they had found only one example of another fire being reported to the managing committee and this had been extinguished without further incident;
• the Society has commented that before sending the letter giving the Stage 2 response to the complaint, the committee was consulted either “orally or by email”. The Society has also confirmed that despite the Stage 2 response it chose not to continue with any sanction recommended against Mr C. It says that this followed a conversation between Mr C and the Chair (Mr B comments that Mr C has no recollection of any such conversation).
• the Society has commented that it receives very few complaints.

32. After I sent a draft of this decision the Society provided me with further information. This included two statements made by the Chair in direct response to the allegations contained in the complaint. I note in these the Chair rejected many of the allegations made about his conduct. For example, that he waved his arms or shouted at anyone, that his dog was not under control or that he failed to observe social distancing. He did acknowledge calling Mr C by the wrong name on two occasions but said he apologised for this at the time.

Findings

33. I will break my analysis of this complaint into three parts. First, the investigation of Mr B’s complaint on his own behalf and that of Mr C. Second, the application of a sanction imposed against Mr C further to that complaint investigation. Third, the response of the Council when alerted to the complaint.

The investigation of the complaint

34. I considered there was some good practice shown in the investigation of Mr B’s complaint by the Allotment Society. Its officer approached potential witnesses and viewed film which may have been helpful to the investigation. I found the investigation report showed the Society tried to bring a measure of objectivity to its investigation. It is unfortunate their report was not shared more fully with Mr B as a matter of good practice to demonstrate that.
35. However, there were deficiencies in the investigation with I consider justify a finding of fault.

• First, the Society decided to limit the scope of its investigation to the content of Mr B’s second email. I cannot see Mr B consented to this. The Society gave its reasons for not investigating the complaint about a small clique running the allotments and I make no criticism of that. But there were significant allegations made in Mr B’s first email which were never addressed in the investigation report. In particular the specific allegations the Chair had a dog that was not under control, did not observe social distancing and was dismissive when told he had mispronounced Mr C’s name. It is noticeable the Chair commented directly on all these matters but this evidence was not considered in the report.
• Second, while there is therefore a record the Chair was approached for his version of events, the Society’s responses to the complaint failed to make this clear, nor what weight they gave to his statements as opposed to those made by Mr B and Mr C.
• Third, the investigation did not consider if confusion over signage may have explained why Mr C lit a fire.

36. The injustice caused by these flaws is that of uncertainty, which we consider a form of distress. Because without these faults I cannot be satisfied the Society would have sent a letter to Mr C in the same terms at the conclusion of its Stage 2 investigation.
37. However, that is not the same as saying the Society would have found the complaint upheld. I find Mr B and Mr C’s version of events was disputed on key points by the Chair. And it would not be possible to uphold their complaint without evidence to support one version over another. On balance therefore it is unlikely any investigation carried out last year could have come to a clear view about exactly what happened on the day of the incident.

The imposition of a sanction on Mr C

38. It was only after Mr B complained, the Society decided to revisit the events which led the Chair to challenge Mr C. So, it was only after Mr C complained via Mr B the Society decided to impose a sanction. I do not consider this was appropriate because this indicated the sanction arose because Mr C complained and not because of his or his sons’ actions on the day in question.
39. This is not to say the Society was obliged to ignore any behaviour it believed put Mr C in breach of its rules. I am satisfied that when Mr C lit a fire and initially failed to extinguish it that was a breach of the rules. Even if Mr C made an understandable mistake given poor signage around the site, that would not have prevented him dousing the fire sooner. I am also satisfied the Society could reasonably point out to Mr C that Mr B and his brother were visitors to the site and needed authorisation to visit. While Mr B has quoted signage which explained children from the same house were not counted as visitors (and he lives with his parents) he quoted the language selectively. Because the sign went on to say all children should be “supervised at all times and remain on the plot”. This was clearly a reference therefore to younger dependent children of the plot holder.
40. But if the Society considered these matters needed further investigation it should have undertaken this separate to the complaint investigation. It should also have considered if this was appropriate given the letter of explanation Mr C had received the day after the incident. Because I note the Society did not think it appropriate at that time to issue a warning. The alleged conduct of Mr B or his brother was not mentioned in that letter, only the circumstances which gave rise to dispute.
41. I also note the Society sought to impose a sanction without having put the allegations of the behaviour of Mr B or his brother to him or Mr C. I am satisfied that behaviour formed part of its reasons for imposing the sanction as the explanation at the time referred not only to Mr C lighting a bonfire but also the ‘response’ when he was challenged on this. Further I note the sanction imposed does not appear in the rules. These can require a 14 day notice to be served in exceptional circumstances with a right of appeal. But not a ban subject to undertakings as the Society imposed with no right of appeal. Further, I note the Stage 2 response did not say what undertakings it expected Mr C to make.
42. This series of faults in the handling of this matter justify a further finding of fault therefore.
43. I recognise any injustice arising from this fault is mitigated by the knowledge the Society did not seek to enforce this sanction. It did not stop Mr C returning to his plot without giving any undertakings. But the sanction, or threat of sanction, created further distress as uncertainty.

The role of the Council

44. Finally, I have considered the response of the Council when alerted to Mr B’s complaint and our investigation. As I have explained above we consider complaints about allotments on Council owned land fall within our jurisdiction. As such we expect the Council to maintain some oversight of them.
45. This does not necessarily mean the Council must investigate complaints directly. But our published guidance on good administrative practice makes clear that we expect councils have oversight of those delivering services on its behalf. To some extent this happens at present. The Council ensures the Allotment Society has a satisfactory complaint procedure and other procedures. We do not find fault in it delegating investigation of complaints to the Allotment Society, as at present. But the Council is at fault because the current oversight does not go far enough. Specifically, the Council does not ensure:

• that it either investigates complaints if contacted by Allotment Society members direct or that it ensures they are signposted to this organisation having completed the Society’s own complaint procedure;
• that Society complaint procedures signpost dissatisfied complainants to its complaint procedure and/or to this organisation;
• it takes responsibility to see that a complainant receives a remedy if a complaint is upheld.

46. It is also disappointing in this investigation the Council took five months to provide a substantive reply to our enquiries. We accept there will sometimes be differences between our organisation and those we investigate about the scope of our investigations. In these circumstances we are always willing to discuss our approach with authorities. But we do not expect such disputes to add unnecessary delay to an investigation as happened here. The delay in this case was such that I consider it justifies a further finding of fault. It caused injustice to Mr B and Mr C as it added to their time and trouble in bringing this complaint.

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Agreed action

47. The Council accepts these findings. To remedy the injustice set out above it has agreed that within 20 working days of this decision it will:
1. ensure Mr B and Mr C receive a written apology for the distress caused by the actions of the Allotment Society as set out above and for the delay by the Council in answering our enquiries;
2. use its best efforts to try and ensure Mr B and Mr C also receive a written assurance from the Allotment Society that there is no ban on Mr C having visitors to his plot subject to compliance with the usual Society rules; that Mr C also receives an assurance there is no warning on his records which may have future implications;
3. ensure Mr C receives a payment of £100 to reflect the distress caused by the Society’s mishandling of the complaint and subsequent imposition of a sanction;
4. ensure Mr B receives a payment of £100 to reflect his time and trouble.
48. In addition, within three months of the decision on this complaint the Council has agreed to complete a review of its existing procedures and carried out liaison with Allotment Societies in its area to ensure the following:
1. that Allotment Societies are briefed on the Ombudsman’s view of our jurisdiction to investigate complaints which fall under their complaint procedures and that the Council has a responsibility to ensure an appropriate remedy is provided where a complaint is upheld;
2. that Allotment Society complaint procedures provide appropriate signposting to this organisation;
3. that Allotment societies in the Council’s area are signposted to our principles of good complaint handling available via our website;
4. that appropriate staff within the Council are briefed to ensure they provide appropriate signposting if contacted by someone who wishes to complain about a matter pertaining to the management of allotments in its ownership

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Final decision

49. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr B and Mr C. The Council accepts these findings. It has agreed action that I consider will remedy that injustice. So, I am satisfied I can complete my investigation.

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Investigator's decision on behalf of the Ombudsman