Summary: We will not investigate this complaint that the Council is responsible for damage caused to a headstone. This is because claims for damage need to be determined in court or by insurers.

The complaint

1. The complainant, whom I refer to as Mr X, says the Council is responsible for damage that has been caused to his parents’ grave. Mr X says the Council must accept responsibility and pay for the repairs.

Back to top

The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. The courts decide complaints about alleged damage.

Back to top

How I considered this complaint

5. I read the complaint and correspondence between Mr X and the Council. I considered the letters from the Council’s insurers rejecting the claim. I considered comments Mr X made in reply to a draft of this decision.

Back to top

What I found

What happened

6. Mr X reported to the Council that his parents’ headstone was damaged. Mr X did not provide any information about when or how the damage occurred. He asked the Council to investigate.
7. The Council visited the graveyard and sought advice from stone masons. The Council told Mr X there was nothing on site to indicate the Council, or its contractors, had caused the damage or done anything other than general maintenance. It said the masons had said the damage might have been caused by torsional stress. The Council noted Mr X had not provided any information about when the damage occurred and had not provided any witnesses.
8. The Council passed the claim to its insurers. The insurers rejected the claim and said the damage was probably caused by subsidence, intervention or torsional stress. It confirmed contractors worked on site and said Mr X could make a claim against the contractor.
9. Mr X says the Council has a duty to ensure graves are not damaged during maintenance or by any other activity such as vandalism. He has suggested the damage was caused by a heavy vehicle, probably driven by a contractor. Mr X also there is insufficient signage about where vehicles can drive in the graveyard and says this provides the contractor with a legal loophole.
10. Mr X rejects the view presented by the stone masons and says the Council is avoiding taking responsibility by using the stone mason’s opinion as an excuse. Mr X wants the Council to confirm it has a duty of care for any damage caused by the contractor. He says the Council must take responsibility and pay for the damage.

Assessment

11. I will not start an investigation because this is a matter for the courts. We do not act as an appeal body and do not determine claims for damages or make decisions about liability. It would be for the courts to decide if the Council has been negligent in the management of the graveyard and is responsible for the damage. Only the courts have the necessary expertise to determine liability and, if a court decides a council has been negligent, to decide what should be paid in damages. Alternatively, Mr X could make a claim on the contractors’ insurance.
12. Mr X says he intends to go to court if the Council does not pay for the damage, but he wants us to confirm that the Council has a duty of care for any damage caused by its contractor. The Council is ultimately responsible for the conduct of its contractors but, in this case, there is no evidence the contractor caused the damage. I appreciate Mr X believes the contractor is responsible but that is something he will need to prove in court or via the contractor’s insurance.

Back to top

Final decision

13. I will not start an investigation because the matter needs to be determined in court or through insurers.

Back to top

Investigator's decision on behalf of the Ombudsman