Middlesbrough Borough Council (19 001 260)

Category : Environment and regulation > Cemeteries and crematoria

Decision : Upheld

Decision date : 09 Jan 2020

The Ombudsman's final decision:

Summary: Mrs Y complained the Council allowed her brother to scatter her parents’ ashes without gaining her authority. The Council was at fault. To remedy the injustice caused it has agreed to apologise, pay Mrs Y £300 to recognise the distress caused and refund payment for the remaining time on the vault lease. It will also review its procedures and provide training to staff to prevent the fault recurring.

The complaint

  1. Mrs Y complained the Council allowed Mrs Y’s brother to scatter her parents’ ashes without gaining her authority.
  2. Mrs Y said she has nowhere to visit to remember her parents and does not know where their ashes have been scattered, which she finds very upsetting.

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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. 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. I spoke to Mrs Y and made enquiries with the Council. I reviewed the information provided by both parties.
  2. I have referred to the Ombudsman’s guidance on remedies when making this decision.
  3. I gave the Council and Mrs Y the opportunity to comment on my draft decision. I considered the comments received before making my final decision.

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What I found

Background

  1. After her mother (Mrs A) died, Mrs Y and her family placed her ashes in an above ground family vault in 2001. The family bought a lease from the Council to use the vault for 25 years, costing £650.99. After her father’s (Mr A) death in 2007, the family placed his ashes in the vault. They had five surviving adult children, including Mrs Y, Mr B and Mr C.
  2. The Council accepts Mr B and Mrs Y were co-owners of the lease. Both Mrs Y and Mr B paid for the vault.
  3. Mr B died in 2017, leaving a wife (Mrs B), and adult children, including Miss E. Following Mr B’s death, his wife became his executor, which meant she became a co-owner of the vault with Mrs Y. Due to Mrs B’s ill health, her daughter, Miss E, took over Mr B’s affairs.
  4. In December 2018, Mr C and Miss E went to the cemetery and, helped by the Council, removed Mr and Mrs A’s ashes from the vault before scattering them.
  5. Mrs Y called the Council in late December, saying she was unhappy the Council had allowed the ashes to be scattered without her permission. The Council explained it had removed the ashes at Mr C’s request. As Mr C had been the applicant for Mr A’s funeral, it had believed this was a family decision.
  6. Mrs Y then made a formal complaint to the Council in February 2019. The Council responded, admitting that it was at fault for allowing the ashes to be scattered the ashes without getting permission from Mrs Y as a co-owner. It apologised and offered £300 to recognise the distress caused to Mrs Y. It also agreed to review its procedures to prevent the problem from happening again.

Findings

  1. As a co-owner of the vault, the Council should have contacted Mrs Y to check with her before removing the ashes. The Council’s lack of consultation with Mrs Y was fault. This has added to Mrs Y’s distress and upset during a difficult time with her relatives.
  2. While it is not possible to remedy the fault as the ashes are now scattered, the Council have recognised Mrs Y’s distress and offered to pay her £300 to acknowledge this. Although no monetary amount will change the position Mrs Y is now in, I have found as a recognition of the emotional impact, £300 is a suitable remedy. This payment would be in line with the Ombudsman’s guidance on remedies as a token recognition for the upset caused by the Council’s fault.
  3. However, Mrs Y has also paid for half of the vault lease which was due to last 25 years. Her intention and purpose in paying for this lease was to house her parents’ ashes. She is now unable to use the vault for its intended function.
  4. The ashes were scattered in 2018, with a further eight years remaining on the lease. I have calculated the cost of the lease itself to be approximately £26 per year. With eight years remaining, Mrs Y has effectively lost the use of the vault at a cost of £208. As she paid for half of the vault, to calculate her injustice, the Council would need to refund her £104 for the remaining years on the lease to remedy this injustice.
  5. The Council has also agreed to review its procedures to prevent recurrence of the fault. However, it has also said that its procedures were not followed by members of staff, which then led to the ashes being scattered. In order to stop the fault recurring the Council should provide training to its staff, either as a group or individually to ensure it is understood who should be contacted before ashes scattered.

Agreed action

  1. To remedy the injustice caused to Mrs Y, the Council has agreed within one month of this final decision to:
    • write to Mrs Y to apologise for the fault;
    • pay Mrs Y £300 to recognise the distress and inconvenience caused; and
    • pay Mrs Y £104 to refund her payment for the vault she can no longer use for its intended purpose.
  2. Within three months of the final decision, the Council will also review its procedures and provide training to its staff to prevent recurrence of the fault.

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Final decision

  1. I have completed my investigation to find the Council caused fault leading to injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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