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Kirklees Metropolitan Borough Council (18 014 651)

Category : Environment and regulation > Cemeteries and crematoria

Decision : Upheld

Decision date : 17 Jul 2019

The Ombudsman's final decision:

Summary: Miss Y complains the Council wrongly laid down the gravestone of her grandparents. The Ombudsman finds the Council did not act in accordance with its own procedures or government guidance when inspecting the memorial and has no records to show how and why it laid down the gravestone. The Council has agreed to apologise and arrange for the headstone to be reinstated. The Council will also contact others similarly affected by the faulty inspections.

The complaint

  1. The complainant, whom I will call Miss Y, complains the Council did not act in accordance with government guidance when it ‘laid down’ the gravestone of her grandparents.
  2. Miss Y also raises concerns about the Council's decision to lay down approximately 80 other gravestones in the cemetery.
  3. Miss Y says the Council’s actions have caused her avoidable distress and time and trouble.

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The Ombudsman’s role and powers

  1. 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)
  2. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  3. 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

  1. During my investigation, I have:
    • Discussed the complaint with Miss Y and considered any information she submitted;
    • Made enquiries of the Council and considered its response;
    • Consulted the relevant procedures and guidance around memorial testing; and
    • Issued a draft decision and invited comments from Miss Y and the Council. I considered any comments received before making a final decision.

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What I found

What should happen

  1. The ‘Ministry of Justice’ published good practice guidance in 2009, which it later updated in 2014, entitled: ‘Managing the safety of Burial Ground Memorials’. I will refer to this as ‘the guidance’.
  2. The purpose of the guidance is to “… set out a sensible approach to assist burial ground operators to meet their legal responsibilities” and to “… make sure that remedial work to reduce any risk of serious injury does not cause unnecessary distress to bereaved families and others…”. It says that, “only when the memorial poses a significant risk, such as imminent collapse in a way that could lead to serious injury, does immediate action need to be taken to control the risk”.
  3. The guidance places importance on good record keeping: “The record of the risk assessment should be kept simple”. It says that operators need to consider keeping records to show that:
    • proper checks were made
    • those who might be affected were identified
    • significant risks will be dealt with, taking account of the number of people who might be exposed, and the likelihood of the risk; and
    • any precautions are reasonable, and the remaining risk is reasonable.
  4. At the time of the matters complained about, the Council had Memorial Safety Procedures (‘the procedures’) issued in 2009. These say the Council will:
    • identify hazards using a Health and Safety Executive (HSE) risk assessment to evaluate any risks and decide on precautions.
    • use visual and hand tests to check the safety of memorials. The Council will only use mechanical testing if necessary.
    • record any findings and implement them. The records will include details of risk assessments, as well as any visual and hand tests undertaken to individual memorials. The Council will also record any significant risks and the ‘reasonable precautions’ taken to ensure ‘the remaining risk is acceptable’
  5. The procedures confirm the Council will also:
    • ensure notices are displayed within the grounds. The notices act as advice that an inspection will be taking place. They also provide a safety warning for the public, as well as providing contact information for any enquiries.
    • issue press releases.
    • contact grave owners, where possible, when memorials are found to be unstable. If a grave owner is unhappy about the Council’s decision, they will be invited to witness a further inspection.
    • lay the memorial down immediately with a notice attached, but only if the memorial poses a serious risk. The Council will also attempt to contact the grave owner as soon as possible.
  6. The Council updated its procedures in 2018. These new procedures have emphasised the importance of communicating with those affected: “Regular communication will be maintained so that the general public, staff and members should be aware and understand each stage of the testing process”. The new procedures also make clear that supervisors and those carrying out the testing shall be appropriately trained.

What happened

  1. Miss Y complained to the Council, and then the Ombudsman, after finding in April 2017 that the headstone of her grandparents’ grave had been laid down by an organisation commissioned by the Council to undertake a safety inspection.
  2. When visiting the cemetery Miss Y found that many other headstones (around 80) had also been laid down.
  3. Miss Y says the headstone of her grandparents’ grave was not, in her opinion, unsafe. Miss Y says she has extensive professional experience in the field of health and safety, including the requirements of inspecting unsafe memorials. Each time she visited the grave, Miss Y says she applied a ‘push test’ to see whether the headstone was unstable. Miss Y says it never moved. She was therefore shocked to find the headstone had been laid down.
  4. On closer inspection, Miss Y says she found signs of tool marks on the bottom left-hand side of the headstone. In her opinion, this provided evidence that the Council had used force to lever the headstone down.
  5. Due to the absence of records, it is not possible to establish how and why the Council decided to lay down the headstone as it did.

Was there fault in the Council’s actions causing injustice to Miss Y and others?

  1. Miss Y says the Council did not act in accordance with government guidance or its own procedures when inspecting memorials. Its lack of record keeping means the Council cannot evidence what inspections took place and when, and what the conclusions of those inspections were. Further, the lack of record keeping means we cannot be certain that the Council:
    • properly assessed the risk posed by each memorial it inspected
    • undertook the necessary visual and hand tests
    • considered any significant risks and how members of the public may be affected by those risks
  2. This is fault. The failure to keep records of inspections means the Council cannot demonstrate that the affected memorials posed a serious and immediate risk to the public. Therefore, the Ombudsman cannot be certain the Council acted correctly when it laid down the headstones in question.
  3. In response to both Miss Y’s complaint and the Ombudsman’s enquiries, the Council accepted that its current programme of inspections require improvement. The Council confirms that it plans to draw up a scheme for future inspections and will tender and commission a new organisation to complete those inspections. The Ombudsman welcomes this proposal.
  4. While permanent headstone repairs are usually the responsibility of the grave owner, the Council has agreed in Miss Y’s case to fund the reinstatement of her grandparent’s headstone. This, it feels, is an appropriate remedy for the complaint.
  5. However, before reinstating the headstone, the Council explained to Miss Y that somebody would need to assume ownership of the grave as the current legal owner is the deceased (Miss Y’s grandmother). The Council said Miss Y would need to sign a Statutory Declaration to assume ownership. She declined on the basis that the terms of the declaration did not cover the circumstances in which she found herself.
  6. The Ombudsman’s role is to recommend a remedy which places the person affected back in the position they would have been, were it not for the fault. The Ombudsman welcomes the Council’s proposal to reinstate the headstone. However, I do not consider that Miss Y should be subject to any further time and trouble resulting from this.
  7. The Council has recently confirmed that it will transfer ownership to Miss Y without the Statutory Declaration because it is satisfied that she is the appropriate transferee. But in doing so, Miss Y accepts all future responsibility for the gravestone; a responsibility that she did not have before. Understandably Miss Y has some concerns about accepting ownership.
  8. In order to put Miss Y back in the position she would have been, were it not for the fault, the Council will complete the repairs without insisting on the transfer of ownership to Miss Y. However, it should record Miss Y as the named point of contact should there be any future testing or queries about the headstone.
  9. In line with S26D of the Local Government Act, the Ombudsman can recommend remedial action for others similarly affected. The Council will therefore cross-check the headstones which have been laid down against its records. Where there are other cases like Miss Y’s, in which headstones have been laid down without a documented reason, the Council will make efforts to contact the named individuals for each grave to relay what has happened and to discuss a suitable resolution. If the Council finds that it does not hold contact details for those affected, it will display a site notice in an obvious and accessible location within the cemetery.

Agreed action

  1. Within four weeks of my final decision, the Council has agreed to:
    • Apologise to Miss Y for the distress and avoidable time and trouble she has experienced as a result of the fault identified.
  2. Within twelve weeks of my final decision, the Council has also agreed to:
    • Arrange for the reinstatement of the headstone in question; and
    • Contact those similarly affected. If the Council is unable to contact all of those affected it will encourage contact through a site notice displayed at the cemetery.

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Final decision

  1. I have completed my investigation with a finding of fault and injustice for the reasons explained in this statement. The above agreed actions are an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman

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