Summary: Mr X complains about how he was treated at the allotments he used, which he believes was at times unfair and discriminatory. We have concluded our investigation having made a finding of fault. The Council properly investigated Mr X’s allegations and found no evidence of unfair treatment, racism or discrimination. However, we found fault in the way the Council handled Mr X’s complaint. The Council has accepted our recommendations.

The complaint

1. Mr X complains about how he was treatment at the allotments he used, which he believes was at times unfair and discriminatory. Mr X says he encountered a series of negative incidents that left him feeling targeted and unsupported. Mr X would like the Council to take appropriate action against those who treated him unfairly.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke with Mr X and considered the information provided by Mr X and the Council. Mr X and the Council were offered an opportunity to comment on my draft decision considered any comments submitted before making a final decision.

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What I found

Allotments

5. 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. A council can manage allotments in its area or can instead jointly manage allotments with an allotment association.
6. In this case, the day to day running of the allotments is carried out by an allotment committee but the Council manages the allotments and tenancies.
7. The Council has allotment gardens rules and conditions issued to tenants. Under these rules, of particular relevance to this decision is rules provided regarding:
• The use of the allotment
• Harassment
• Termination
• Other general restrictions, including the use of parking.

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What happened

8. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place and this does not mean I have not considered all the information before me.
9. Mr X suffers from long term health conditions and says he saw the opportunity of an allotment as a way to improve his mental wellbeing. As such, he took up a tenancy for an allotment.
10. In June 2023, Mr X complained to the Council about a series of discriminatory and hostile incidents at their allotment, which he believed were racially motivated. This included:
• Tampering with his plot
• Being singled out for use of parking
• The removal of items from a shed
• The removal of a water system set up to assist with his accessibility needs.
11. In June 2023, the Council responded at Stage 1, advising Mr X that his complaint was currently under investigation, and it partially upheld his complaint.
12. As per the tenancy agreement, the matter was investigated by the Birmingham and District Allotments Confederation. This included interviews with both Mr X and the site secretary, as well as collecting written statements from other plot holders and site management.
13. Following the conclusion of the investigation by Birmingham and District Allotments Confederation, the Council issued its Stage 2 complaint response to Mr X. In the Stage 2 Complaint response, the Council concluded that it did not substantiate the claims made by Mr X regarding discrimination or unfair treatment, and informed him that it had issued a Notice to Quit.

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Analysis

Consideration of reports

14. As per the tenancy agreement, matters Mr X complained about were considered. This included interviews with both Mr X and the site secretary, as well as collecting written statements from other plot holders and site management. It was found that:
• There was no evidence of racial or discriminatory intent.
• Items Mr. X reported as stolen were removed by their rightful owner.
• Parking restrictions were applied fairly, with no favouritism towards others and that a parking bay next to Mr. X’s plot would interfere with site plans.
• There was no evidence that site management disrupted Mr. X’s efforts to cultivate his plot.
• The investigation revealed escalating verbal abuse from Mr. X towards site management, raising concerns about potential physical harm.
15. In light of the findings from the investigation, it is clear that the matters Mr X raised were thoroughly and appropriately. The process involved careful review of the facts, multiple interviews, and testimony from various individuals connected to the site. Given that the investigation found no evidence to support Mr X's claims of discrimination or unfair treatment, I am satisfied that the committee and Birmingham and District Allotments Confederation acted within its remit and fairly considered this matter.
16. As such, we will not intervene to offer a different view or reconsider the conclusions reached. The investigation was conducted in a fair and transparent manner, and the decisions made were based on the evidence presented.

Reasonable adjustments

17. The allotment committee appropriately considered Mr X’s circumstances when offering him a plot. The plot selected by the Secretary was chosen due to its suitability for Mr X's declared health conditions and proximity to the parking area, reducing the distance he would need to walk. Mr X was shown the plot before signing his tenancy agreement, and he appeared satisfied with the arrangement. It is noted that other available plots were either much larger, on steep inclines, or overgrown with brambles, making them less suitable for his needs.
18. Regarding Mr X’s installation of a water system, allotment rules clearly prohibit the use of hosepipes for watering crops, though they can be used to fill water butts. There is no evidence that Mr X sought permission for this modification or engaged in discussions with the Council about making reasonable adjustments to accommodate his accessibility needs. As such, the Council’s response and enforcement of the rules were consistent with established allotment policies.

Notice to Quit

19. The Council issued a Notice to Quit to Mr X following concerns over his behaviour, including verbal abuse and threats towards site management. Although Mr. X may disagree with the decision, this is not a matter the Ombudsman would consider, as it falls entirely within the Council's discretion. Our focus would be on whether there was any fault in the process.
20. The Council considered that Mr X had breached the terms of his tenancy agreement due to escalating incidents of verbal abuse and threats directed at allotment staff. These issues were raised during the BDAC investigation, which found that Mr X’s behaviour posed potential risks to others on the site. Based on these findings, the Council issued the Notice to Quit in line with the tenancy agreement. There is no evidence of fault in the process, and the decision was made in accordance with the established procedures.

Complaint handling

21. Mr X's complaint was upheld at Stage 1, but the decision lacked a clear basis for the findings. This may have led to confusion regarding the rationale behind the Council’s decision to uphold his complaint at Stage 1.
22. It is also noted that the Stage 2 response to Mr X did not address his concerns regarding racism and discrimination. While the Stage 2 review did not explicitly address these concerns regarding racism and discrimination, these issues were investigated thoroughly as part of the investigation. The lack of direct reference in the Stage 2 response could understandably leave Mr X feeling that his specific concerns had not been adequately considered or acknowledged. For the reasons set out above, I have made a finding of fault for how the Council handled Mr X’s complaints.

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Agreed action

23. To resolve matters, the Council will:
1. Apologise to Mr X for confusion and uncertainty caused as a result of how it handled his complaints. The apology should be in line with our published guidance on remedies.
2. Remind staff to provide clear rationale for decisions, and to ensure all complaint points have been addressed before issuing a response.
24. The Council will complete actions a and b within one month of the Ombudsman’s final decision.

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Final decision

25. I have concluded my investigation having made a finding of fault. Whilst I consider the Council properly investigated Mr X’s allegations and found no evidence of unfair treatment, racism or discrimination, I found fault in the way the Council handled Mr X’s complaint. The Council has agreed to my recommendations.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman