Decision : Not upheld
Decision date : 28 Jan 2020
The Ombudsman's final decision:
Summary: Mrs B complains the Council planted a memorial tree next to her late brother’s grave at the request of their estranged sister. Mrs B says the sister adorned the tree with plaques and other items, which caused her, and her parents, distress. The Ombudsman does not find fault in the Council’s decision to plant the tree or in how it responded to Mrs B’s complaint.
- The complainant, who I refer to as Mrs B, complains the Council planted a memorial tree next to her late brother’s grave. She says the Council planted this tree at the request of her sister, who was estranged from her brother and the rest of the family. Mrs B says the sister then placed plaques and items on and around the tree, which were distasteful. She complains the Council gave conflicting answers about the reason for planting the tree. Mrs B asks the Council to move the tree.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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
- I considered the information Mrs B provided and spoke to her about the complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments.
What I found
- The cemetery is managed by the Council and has byelaws that govern, among other things, the nature of memorials placed in the cemetery.
- The byelaws say all memorials must be of hard imperishable stone, composite stone, granite, marble or slate. It says the height of memorials shall not exceed 3ft. Anyone wishing to place a memorial must apply to the Council.
- The byelaws say he word ‘memorial’ includes any headstone, monument, kerb, vase, tablet, footstone or other erection on which there is or is proposed to be placed any inscription or lettering.
- In May 2019 the Council planted a tree next to Mrs B’s brother’s burial plot. Mrs B was concerned about the type of tree and the possibility of its roots impacting on her brother’s plot. Mrs B also owns the plot next to her brother and says she would not have bought that plot if she had known the Council would plant the tree.
- In June 2019 Mrs B saw that someone had placed plaques and various other items on and around the tree. Mrs B says she knew at this point that her sister must have requested the tree. Mrs B says her sister had fallen out with the family, including her late brother. She says the sister planted the tree, not in memory of her brother, but to make a statement to the rest of her family and this has caused the family distress.
- Mrs B contacted the Council. She asked it to confirm:
- Who decided to plant the tree so close to the grave and how they got permission
- The rules for what can be put on and around a memorial tree
- How the Council will manage the tree roots to prevent damage to headstones on both plots
- To give a written guarantee the Council will take responsibility for any damage caused to the headstones
- I have looked into Mrs B’s concerns and separated my findings into two sections:
- Whether the Council is at fault for accepting the sister’s request to plant the tree in the first instance.
- Whether the Council is at fault in the way it responded to Mrs B’s complaints and its decision not to remove the tree.
Planting the tree
- I do not find the Council at fault in planting the tree. I have read through the Council’s byelaws. The byelaws place restrictions on memorials. However, memorials are clearly defined as set out above at Paragraph 7 and do not include trees. There is nothing in the byelaws that prevents the Council from planting trees. It is therefore at the Council’s discretion to consider any such request.
- The Council considered the request and decided a tree in memorial was acceptable. The tree did not breach the cemetery byelaws and would become part of the landscape. The Council has set out how it will maintain the tree, so it does not cause harm to any plots. It is not my place to question this as the Council has its own professionals with knowledge of maintaining trees.
- The Council did not tell Mrs B, when she purchased her own plot, that it was going to plant the tree. I do not find fault in this respect. The Council owns the land and, again, there is nothing preventing it from planting trees. The byelaws do not set out any requirement for the Council to give prospective plot owners notice of its intention to make changes to the landscape, regardless of the proximity to their plots. The Council says it had not yet decided to plant any trees when Mrs B purchased the plot.
- It is not clear from the documentation provided whether the Council was aware of previous incidents between the sister and the rest of the family. I have not made further enquiries on this point. This is because, whether the Council knew of the incidents or not, it remained at the Council’s discretion to decide whether to allow the tree. The Council has set out clear reasons for why it considered the request acceptable. It is not my place to criticise this decision.
- Neither the byelaws or any other regulations set out a duty for the Council to consult other family members or the owners of adjacent plots. It was, again, at the Council’s discretion to decide whether to consult anyone else. I would not expect the Council to routinely share details of who made request, without their consent.
- I understand the decision has caused distress to Mrs B and her family. However, I can only consider whether there is any fault in the Council’s actions. It is not the Council’s place to become involved or make judgements about disagreements within families. I can see no evidence of fault in how the Council considered the request or decided to plant the tree.
Response to complaint
- Mrs B says the Council has not properly responded to her complaint or answered her questions.
- I can see the Council responded to Mrs B’s questions in the first instance. Mrs B then raised further questions in her email response. She set out her concerns in detail in a further email. The Council’s Stage 2 response does not individually respond to each of her further questions. However, on balance, I do not find this is fault. This is because I consider the Council has responded to the key issues Mrs B raises.
- The fabric of Mrs B’s complaint is that the Council should not have agreed to her sister planting the tree, without first speaking to other members of her family. The Council has set clearly in its response that it did not consider the request unreasonable. It was at the Council’s discretion whether to allow the tree and it does not have any legal duty to consult with others. It is not appropriate for the Council to make judgements on disagreements between family members and it would not normally disclose details of such requests without the person’s consent.
- The Council met with Mrs B to discuss her concerns and acted to remove the items on and around the tree. It also acted to prevent items being place there in future.
- It is clear this is an emotive issue, in very difficult circumstances. However, again, I can only consider whether there is fault in the Council’s actions. I can see no evidence of fault in this case.
- The Council is not at fault in its decision to plant the tree or in how it responded to Mrs B’s complaint.
Investigator's decision on behalf of the Ombudsman