The Ombudsman's final decision
Summary: Mr B complained about the actions of an Allotment Association. The Council told him that it could not intervene. However, the Association is carrying out administrative functions on behalf of the Council, and as such the Council retains responsibility for the Association’s actions. The Council will review how it handles these matters and apologise to Mr B.
The complaint
Mr B complains that the Council: failed to consider his complaint that the Allotment Holders’ Association (the Association) had harassed and bullied him before eventually evicting him from his allotment and disposing of his possessions; and failed to ensure that it had a contract with the Association and misled him about this.
Mr B says the Council’s failures have caused him distress and frustration.
What I have investigated I have investigated how the Council dealt with Mr B’s complaints to it. I have not investigated whether it had a contract with the Association.
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) I appreciate that Mr B made the complaint to the Council about being bullied and harassed in 2019, and the Council referred him to the Ombudsman at that point. However, it also told him that it had no responsibility for the Association and Mr B only brought the complaint to the Ombudsman when he discovered that the Council might not have had a contract with the Association at the time of these events. As such, it is more likely than not that Mr B assumed that the Council had no part to play in the matter until that point, and so assumed that the Ombudsman could not help him. I have decided that Mr B had good reason not to come to the Ombudsman sooner.
The Ombudsman’s role and powers
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) 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)
How I considered this complaint
I considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken the comments of both parties into account before reaching my final decision.
What I found
Under the Allotments Act 1922, the Council has a responsibility for providing allotments. In this case, the Council has contracted out the running of some allotments and complaints about this to the Association.
In this case, the Council has a contract with the Association at the cost to it of £1 per annum, to provide allotments to the public as defined by the 1922 Act. I understand that the contract is between the Council and the Association, and there is no contract directly between the Council and Mr B. However a direct contract is not needed for the Ombudsman to investigate a complaint.
Where an Association takes an administrative action on behalf of the Council to deliver its duties, that action remains the Council’s responsibility and within the Ombudsman’s remit.
Mr B took an allotment. In summary, Mr B started having difficulty with the Association and felt that he and other allotment holders were being bullied and harassed. in 2019, Mr B complained to the Council about the Association. The Council initially asked him for details of this, but then told Mr B that he should take his complaint directly to the Association and get independent legal advice. Mr B continued to contact the Council about his difficulties with the Association. The Council reiterated that it had no remit in relation to the issues, and then asked him for more details so it could investigate his complaint. The Council subsequently made a final decision that it was unable to intervene because the contract was between Mr B and the Association, and the issues of bullying and harassment were best dealt with by the Police. It also referred Mr B to its complaints process and to the Ombudsman.
The Council’s contract with the Association is clear these are allotments as defined by the Allotments Act 1922, and so the Association is providing the allotment on the Council’s behalf. It was open to the Council to refer Mr B to the Association to deal with the issues he complained about. However, it was wrong to say that it had no responsibility at all for the Association’s action.
The Council told Mr B it had no remit and then asked him for further details about his allegations. I accept that the Council was trying to assist Mr B here, but Mr B may have found this contradictory.
The Council’s shortcomings caused Mr B frustration. However, we cannot say that Mr B would not have taken legal action as he was already threatening to do so in his correspondence with the Council. It would not have investigated his complaint while he was taking legal action. Mr B’s legal action against the Association is ongoing, and so it would not be appropriate for the Council to investigate the Association’s actions now.
Agreed action
The Council will within one month of the date of this decision, show the Ombudsman it has apologised to Mr B for the communications it sent to him that he may have found contradictory, and for the frustration this caused him.
The Council will within three months of the date of this decision, show the Ombudsman it has: reviewed how it handles complaints about allotment associations so that it retains responsibilities for the administrative functions carried out on its behalf; and circulated an updated policy or process to the relevant staff so all are clear on the Council’s responsibilities.
Final decision
I have completed my investigation. There was fault by the Council.
Parts of the complaint that I did not investigate We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended) Mr B has taken court action against the Association for how it dealt with him, and as part of that he has asked the court to look at whether the Council had a contract with the Association. The restriction on the Ombudsman’s remit, is to make sure he does not investigate matters being considered by the court. Mr B has not started proceedings against the Council, but the issues he has complained about are central to the court action against the Association. For that reason I have not investigated the issue of the contract or the Association’s actions taken on the Council’s behalf.
Investigator's decision on behalf of the Ombudsman