Summary: The Ombudsman will not investigate this complaint about the Council’s decision not to allow the complainant to install a slab on a grave. This is because there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, whom I refer to as Mr X, complains that the Council will not allow him to place a memorial slab on his father’s grave.

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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 it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I read the complaint and the Council’s responses. I considered the cemetery regulations and email exchanges between Mr X and the Council. I saw a drawing of the proposed memorial and considered comments Mr X made in reply to a draft of this decision.

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What I found

4. The rules allow memorials that do not exceed 3’6” in height and a width of 2’6”. The rules do not allow kerb-sets, fencing or stones on any grave.

What happened

5. In June 2018 the Council confirmed to Mr X that kerb-sets are not permitted.
6. Mr X submitted an application for a ledger stone (a stone that lies flush to the ground) which would cover the grave. The Council rejected the application on the grounds that it is caught by the rule prohibiting any kerb-set, fencing or stone.
7. Mr X challenged the refusal. He said ledger stones were not mentioned in the regulations. The Council took legal advice and contacted stonemasons. The Council explained to Mr X that the advice it had received was that his proposal is caught by the restriction. It explained that the stonemasons had stated that the slab would require foundations and there was no guarantee it would not sink. This could create a trip hazard and cause problems for mowing and digging new graves. The Council said Mr X could install a headstone provided it did not exceed the maximum size. It said it would amend the wording of the regulations to make it clear that ledger stones are not permitted.
8. Mr X does not accept that the ledger stone would breach the rules and he does not accept it would create a Health and Safety risk. He wants the Council to approve his request. In his correspondence with the Council Mr X said he would take legal action if the Council did not accept his application.

Assessment

9. I will not start an investigation because there is insufficient evidence of fault by the Council. Mr X disagrees with the Council’s interpretation of the regulations. However, the Council has taken legal advice, contacted stonemasons and explained why it believes the ledger stone is prohibited. It has also given reasons for the restrictions and refusal. The Council has provided a fair response and acted appropriately. The fact that Mr X disagrees with the Council’s reasons does not mean the Council has done anything wrong. The Council’s interpretation of the rules is based on legal advice and I cannot say that that advice is wrong. And, the Council has taken professional advice from stonemasons regarding the potential health and safety implications. Mr X disagrees the stone would create a health and safety risk but it is not fault for the Council to accept the advice of professionals.
10. The Ombudsman does not act as an appeal body. He cannot intervene simply because a council makes a decision that someone disagrees with.

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Final decision

11. I will not start an investigation because there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman