Summary: The Ombudsman will not investigate this complaint about cemetery fees because there is insufficient evidence of fault by the Council.

The complaint

1. The complainants, whom I refer to as Mr & Mrs X, complain about the interment fees for a relative who the Council is treating as a non-resident.

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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)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I read the complaint and the Council’s responses. I considered information about the fees and comments Mr & Mrs X made in reply to a draft of this decision.

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What I found

5. The Council sets the fees each year. The Council sets the fees to cover the cost of providing the service. The fee for a non-resident interment is £592 (resident fee is £286). A resident is someone who was living in the borough when they died or they had lived in the borough within five years of the date of death. In a neighbouring borough the non-resident fee is £674 and in another borough the non-resident fee is £500.
6. There are separate fees for buying the exclusive right of burial and for the interment.
7. If someone is a non-resident but they have bought the exclusive burial right, and a resident spouse or child have already been buried, then the Council will charge the person the resident fee. This is known as the ‘special case’ rule.

What happened

8. Mr & Mrs X had a relative (Mr W). In 1994 Mr W bought exclusive burial rights. Mr W’s sibling was buried in the grave in 1998. Mr W lived in the borough until he was 83. He lived out of the borough until his death seven years later.
9. Mr W died in 2019. Mr W had asked for his ashes to be placed with his sibling in the grave he had purchased. Mr & Mrs X are responsible for arranging and paying for the interment. The Council explained the fee would be £592 because Mr W was not a resident.
10. Mr & Mrs X complained. They said the Council should charge the resident fee because Mr W lived in the borough his whole life apart from the last seven years. They also said that the Council should treat Mr W as a special case because his sibling is buried in the grave. They said the Council should not restrict the special case rules to spouses and children. Mr & Mrs X said the interment fee should be fixed when someone buys the burial rights.
11. In response the Council explained that the fees are set and agreed by councillors each year. It said the non-resident fee is correct because Mr W had lived outside the borough for seven years. It confirmed that the special rules do not apply to siblings and the interment fee is not fixed when the burial rights are bought. The Council apologised for a delayed response.
12. Mr & Mrs X disagree with the Council’s response. They want to pay the resident fee. They say the special rules should apply to siblings and that a failure to allow this is a breach of the Human Rights Act. They also say the residency rules are unfair. They say the fee should be fixed if someone buys the burial rights in advance and that the rules have stopped them carrying out Mr W’s wishes.

Assessment

13. I will not start an investigation because there is insufficient evidence of fault by the Council. It is not the role of the Ombudsman to set or change Council policies. The role of the Ombudsman is to check that the Council is applying the policies correctly. In addition, the Ombudsman does not act as an appeal body.
14. Mr W lived outside the borough for more than five years before he died. The policy says a person can only be treated as a resident if they had lived in the borough within five years of their death. The Council’s decision is consistent with the policy so there is no reason to start an investigation.
15. The special rules apply to spouses and children. Mr W does not have a spouse or child buried in the plot so this rule does not apply. The Council correctly explained that Mr W does not qualify under the special rules. If Mr & Mrs X think the special rules breach the Human Rights Act they would need to get legal advice or go to court.
16. Mr & Mrs X say the Council has not explained how it calculates the fees. But the Council explained it sets the fees to cover the cost of providing the service. In addition, the fees are within the broad range of fees set by other councils.
17. All the Council’s decisions are consistent with the policy. If Mr & Mrs X disagree with the policy they would need to lobby councillors for a change of policy. However, even if the Council decided to change the policy it is unlikely it would be applied retrospectively and may not affect the charge payable for Mr W.
18. Mr & Mrs X also complain about delayed responses from the Council. They expected a prompt response given the nature of the complaint. However, while the responses could have been quicker the delays were not excessive and the Council apologised. This does not need an investigation by the Ombudsman.

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Final decision

19. 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