The Ombudsman's final decision
Summary: Mrs X complained about the Council’s decision to not backdate co-worker status for her which would make her eligible to take over the allotment she and her husband have been working on together for many years. We have found no fault in the way the Council considered this matter.
The complaint
The complainant, whom I refer to as Mrs X, complained the Council failed to consider individual circumstances relating to the registration of co-workers on an allotment plot she has worked on with her husband, whom I refer to as Mr X, the registered tenant, for over two decades.
They were unaware of the need to register a co-worker on the plot in order to be considered to take over the plot from a tenant. Mr X is suffering from dementia and the Council will not backdate co-worker status for her. This decision has caused distress, stress, and frustration.
The Ombudsman’s role and powers
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) We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 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 discussed the complaint with Mr Y, Mrs X’s son, who was dealing with the complaint on her behalf, and considered his views and paperwork he sent, including a copy of Mr X’s original signed tenancy agreement.
I considered information and documents the Council provided, including the 2012 allotments policy, the consultation questionnaire, and copies of letters sent to tenants.
Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
Background
Public consultation In 2009, the Council became a unitary authority, taking over the former district councils, along with different policies and procedures relating to the management of allotment sites throughout the county.
In 2011, a public consultation was held to propose a new county-wide allotments lettings policy. This was done through postal and online questionnaires during October and December 2011 and letters were sent to all allotment holders advising them of the consultation exercise. It sought their opinions, and also of those on waiting lists and the general public.
The responses were analysed, and a report was presented to Cabinet in September 2012 where it approved the formal adoption of the updated policy.
A letter was sent in December 2012 to all tenants advising them of the new policy where they would all be subject to the same terms and conditions. It highlighted the main changes and said it would issue its revised policy to all tenants including a revised standard tenancy agreement which they would be asked to sign.
Council’s allotment policy regarding co-workers The consultation questionnaire sent out in 2011 had a section on ‘Transfer of Tenancy’, stating “Previously a tenancy agreement was usually between the provider and one named individual even if he/she chose to share the allotment with a co-worker. Tenancy agreements were non-transferable and therefore could not be inherited by a co-worker upon the death of a tenant. The council is considering formalising the registration of co-workers. However, there are concerns that introducing a system of this nature may prevent those on waiting lists from gaining an allotment.”
The questionnaire specifically asked “Do you think vacant plots should be strictly allocated to people on the waiting list, or should there be a formal registration of co-workers?” The Council reported feedback for this question confirmed a general acceptance of the nomination of co-workers for an allotment plot. This was included as one of the main changes in the new proposed policy.
I reviewed the Council’s ‘Allotment Gardens Lettings Policy’ dated 2012. It stated “co-workers have no legal tenancy rights” and the “transfer of tenancy to co-workers will only be considered if the co-worker has been registered for a period of no less than three years or longer than the next person to be offered a plot on the waiting list.” A co-worker could be registered by submitting an ‘Allotment Co-worker agreement’, signed by both the tenant and the co-worker.
What happened Mrs X and her husband (Mr X) have held an allotment since 1995 and have been working on it together since. The tenancy agreement is in Mr X’s name.
In December 2021, Mr Y complained to the Council, on behalf of his mother Mrs X, after realising there was a process of naming co-workers on the plot. They had assumed Mr and Mrs X held equal allotment status, established over many years. Mr X’s heath is failing and Mrs X and Mr Y were getting his affairs in order when they discovered this was not the case, after speaking with other allotment holders.
Mr Y spoke to the allotments team explaining the situation and he was told as Mrs X did not have co-worker status, she would not have an automatic right to take over the plot when Mr X was no longer able to maintain it.
In his complaint to the Council, Mr Y asked the Council to use its discretion and consider backdating co-worker status to Mrs X to 1995 so she could be eligible to take it over if anything were to happen to Mr X. In his view, it would not be fair for her to lose it because of an administrative point and for not understanding how the tenancy agreement worked.
In its Stage One response, the Council said it recognised the importance of allotments for its tenants and the desire for plots to remain within families, however it had to balance this with giving other residents a fair chance to take over a plot when the opportunity arises. It had procedures to achieve this for family and friends of existing tenants to be able to take over plots when their tenancy ends and for new people to apply for the right to get a plot when one becomes available. It said if it agreed Mr Y’s request, it could set a precedent causing future issues and would impact on waiting list applicants.
The Council accepted Mr and Mrs X may not have understood the legality of the tenancy agreement, but in the interests of fairness to those on the waiting list, it did not think it was appropriate to backdate Mrs X’s co-worker application to the date Mr X’s tenancy started.
In January 2022, Mr Y escalated his complaint and said Mr and Mrs X had not been aware of the need to register as a co-worker; he recognised this was an error on their part, but he was able to get statements from other allotment holders to confirm Mrs X had been an active co-worker on the plot since 1995.
In March, the Council sent its Stage Two response after conducting a formal investigation. The report outlined the consultation exercise held in 2011 detailed above in Paragraphs 9 to 12 and considered its 2012 Allotments Policy. It determined it had consistently applied the principles within these and on its website, which promoted it offers plots on a “first come, first served basis”. It noted Mr and Mrs X had never approached the Council regarding a co-worker application as they were unaware of the process.
The Council held the view that Mr and Mrs X had opportunities in 2011 and 2012 during the consultation process with the letters sent during these, to question the allotment status of Mrs X. It acknowledged the independent evidence Mr Y had gathered to support his request and had considered previous decisions it had made relating to delayed co-worker applications.
It concluded the Council’s decision to not backdate co-worker status for Mrs X was in line with the terms and conditions within the policy which ensured all tenants were treated fairly. It did accept some fault in being unable to send a copy of the allotments policy applicable to 1995 upon Mr Y’s request.
In June 2022, Mr Y complained to the Ombudsman as he remained dissatisfied with the outcome. He highlighted it was an upsetting situation and he appreciated the Council had followed its policy but wanted it to exercise some discretion in this case.
In speaking to Mr Y, he said if Mr and Mrs X had received the letters, they would not have paid much attention to them as they had held the allotment for so long and would not think changes would affect them.
I have seen a copy of the tenancy agreement Mr X signed in 1995 and there is no mention about co-workers in it. I have not seen a signed copy of the revised agreement from 2012.
Analysis It is not my role to say if I agree with the Council’s decision, I can only consider whether there was any fault in the way it was reached.
The Council acted appropriately with its public consultation exercise and how it notified tenants of the changes within the new county wide allotment policy in 2012. Mr Y does not dispute letters were sent by the Council and explained why Mr and Mrs X may not have acted upon them. However, it is up to tenants to take action to protect their position if needed.
Mr X’s tenancy agreement from 1995 does not mention co-workers and the Council was unable to locate the allotments policy applicable at that time. I have not seen evidence that Mr X signed the new tenancy agreement in 2012 and agreed to the new terms. But due to the wording in the consultation questionnaire in Paragraph 13 above, it was unlikely there was provision for co-workers in the previous policy, and so seeing the missing documents would not change the outcome.
In a comment to my draft decision, Mr Y said he accepted the Council had followed its policy, but he felt the Council had failed to apply empathy and judgement in individual cases, especially when supporting evidence had been provided.
I recognise the upset caused to Mrs X and Mr Y by the Council’s decision; however councils have broad discretion on allotment administration issues. After reviewing the documents referred to in the Council’s Stage Two response, I am satisfied it considered available relevant evidence, acknowledged Mr Y’s views and reasonably explained how it reached its conclusion. I have noted the Council provided detailed and empathetic responses to Mr Y’s concerns. Its position is reasonable, it properly considered whether to make an exception to its policy in this case but opted not to. That was an option open to it. I do not find fault with the Council.
Final decision
I do not find fault with the way the Council made its decision to Mrs X’s request, and I have completed my investigation.
Investigator's decision on behalf of the Ombudsman