Decision : Upheld
Decision date : 02 Sep 2020
The Ombudsman's final decision:
Summary: Mrs C complained about the location of her late husband’s grave and the fact it is prone to flooding. She says the grave will only be dry for three months of the year and it is causing significant distress to her and her family. The Ombudsman finds the Council was at fault for its communication with Mrs C. However, we also found the Council has already offered a suitable remedy for the injustice caused by the fault.
- Mrs C complained about the location of her late husband’s grave and the fact it is prone to flooding. She says the grave will only be dry for three months of the year and it is causing significant distress to her and her family. Mrs C says if the Council had informed her about the problems with the grave, including its location, she would not have purchased it.
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)
- 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 C provided with her complaint. I made written enquiries of the Council and considered the information it provided in response. I have also considered the Ombudsman’s remedies guidance.
- I shared my draft decision with Mrs C and the Council and I invited them to comment on it.
What I found
- When Mrs C’s husband died in November 2019, she went to the Council offices to discuss where he could be buried. Mrs C was told about the family graves in the cemetery and she asked for her husband to be buried next to the family graves.
- Mrs C says the Council her told there was an available plot next to her husband’s brother’s grave. The Council says it did not tell Mrs C the available plot would be immediately next to her husband’s brother’s grave, just that it would be the closest available plot. Mrs C did not at any point see the potential location of her husband’s grave.
- On the day of the funeral, Mrs C says she was shocked to find out the location of her husband’s grave was much further away from the family graves than she thought. She also says her husband’s grave was full of water and as a result, she could not tend to it for weeks after he was buried.
- Mrs C complained to the Council in January 2020. She said the Council lead her to believe her husband would be buried immediately next to the family graves. She also complained the Council should have warned her about potential flooding.
- The Council responded to Mrs C’s complaint. It accepted there had been a misunderstanding about the location of the grave and apologised that Mrs C believed her husband would be buried closer to his family. In relation to the flooding, the Council said there was limited space in the cemetery and the only remaining spaces were those at the bottom of the cemetery which were prone to flooding. The Council accepted because the grave was holding so much surface water it did look unsightly. As a result of Mrs C’s complaint, the Council said it had updated its purchase form to advise people that during the winter months the land at the bottom of the cemetery lies wetter than usual and could lead to flooding.
- Mrs C was dissatisfied with the Council’s response and escalated her complaint to stage two of its complaints procedure.
- The Council issued its stage two response to Mrs C’s complaint. It again accepted there had been communication failures about the location of the grave and the potential for the grave to flood. It explained the cemetery was almost full and so Mrs C’s husband’s grave is as close as possible to the family graves. It said there were, and are, no alternative plots at the cemetery that could have avoided the potential flooding issue. The Council apologised unreservedly for its communication and said it would be asking officers to review procedures to ensure what went wrong in Mrs C’s case did not happen again. The Council also asked Mrs C what would resolve her complaint.
- Mrs C accepted the Council’s apology but asked for compensation and the grave costs to be waived. She also asked if any drainage could be installed near to her husband’s grave to avoid flooding in the future. The Council accepted its failures had contributed to the distress caused to Mrs C and her family and offered her £400. It also explained it could not install drainage where Mrs C’s husband is buried because of where the water table lies.
- Mrs C remained dissatisfied with the Council’s offer and referred her complaint to the Ombudsman.
- In response to my enquiries, the Council provided me with a map of the cemetery. Mrs C’s husband is buried roughly 30 metres away from the family graves. The Council has also explained that since March 2020, the grave has fully dried out.
- The Council was as fault for its communication with Mrs C. It should have arranged a meeting with her and shown her the available plot to avoid any misunderstandings about the location. It also should have warned Mrs C the available plot was prone to flooding. This would have enabled Mrs C to make a fully informed decision about where to bury her husband.
- I am satisfied the Council’s failings have caused significant injustice to Mrs C. It would have been a shock for her to find out on the day of her husband’s funeral that he was being buried further away than she first thought. It would have also been upsetting to see the level of water lying on the surface of her husband’s grave and that she could not tend to it for several weeks.
- In response to Mrs C’s complaints, the Council apologised unreservedly, confirmed it had amended its purchase form to warn people about the potential flooding and said it had spoken to officers to review its procedures to ensure it didn’t happen again. It also offered her £400 for the distress caused.
- Mrs C says £400 does not compensate her for the distress she suffered and is continuing to suffer. She says if she had known about the location and the potential for flooding, she would have chosen to bury her husband at a different cemetery. Mrs C explored moving her husband to a different cemetery with the Council, but it was agreed that it was too technical and would be even more distressing for her and her family.
- When our investigations show there has been fault by councils we aim to remedy personal injustice caused by that fault. Our key principle is that a remedy should, where possible, put someone back someone in the position they would have been in but for the fault we identified. We might recommend a symbolic payment to acknowledge the distress or difficulties someone has gone through.
- In Mrs C’s case, the Ombudsman cannot put her back in the position she would have been in but for the Council’s fault. Therefore, we would consider a financial remedy. The Council has already apologised to Mrs C. I consider the £400 the Council offered in response to Mrs C’s complaint to be a fair and reasonable remedy to acknowledge her distress and this is in line with the Ombudsman’s remedies guidance. I also welcome the service improvements the Council has already carried out to prevent reoccurrence of the identified fault.
- The Council has already apologised to Mrs C and taken appropriate steps to prevent reoccurrence of the identified fault. It should now make arrangements to pay the £400 to her for the distress she has suffered.
- I have completed my investigation. The Council was at fault for its communication with Mrs C. I am satisfied the Council has already offered a suitable remedy for the injustice caused by fault.
Investigator's decision on behalf of the Ombudsman