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 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.
- Miss Y also raises concerns about the Council's decision to lay down approximately 80 other gravestones in the cemetery.
- Miss Y says the Council’s actions have caused her avoidable distress and time and trouble.
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)
- 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)
- 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)
How I considered this complaint
- 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.
What I found
What should happen
- 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’.
- 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”.
- 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.
- 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’
- 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.
- 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.
- When visiting the cemetery Miss Y found that many other headstones (around 80) had also been laid down.
- 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.
- 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.
- 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?
- 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
- Apologise to Miss Y for the distress and avoidable time and trouble she has experienced as a result of the fault identified.
- 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.
- 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.
Investigator's decision on behalf of the Ombudsman