Summary: The Ombudsman will not investigate Mrs A’s complaint about damage to the fence around her parents’ grave. This is because it is reasonable for Mrs A to seek a remedy in court. Nor will he investigate the Council’s refusal to allow her to place a new fence around the grave as it is unlikely we would find fault.

The complaint

1. The complainant, whom I shall refer to as Mrs A, complains the Council’s grass cutting equipment damaged the fence around her parents’ grave. She asked the council to contribute to the cost of replacing the fence, but the Council has rejected this.
2. Mrs A also complains the Council told her to remove the fence and will not allow her to put up a new fence.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. 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 or continue with an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)

How I considered this complaint

6. I have considered the information provided by Mrs A. I have considered the information provided by the Council. I have also considered Mrs A’s comments and pictures in response to a draft of this decision.

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What I found

What happened

7. Mrs A placed a small fence around her parents’ lawn grave in 2012. She says a cemetery staff member gave her permission to do so.
8. In 2020 Mrs A’s daughter visited the grave and found the fence damaged. Mrs A says the Council’s grass cutting equipment had gone over the grave and damaged most of the fence. She complained to the Council.
9. The Council spoke to its ground maintenance staff, who said they did not cause the damage. It informed Mrs A it could not take responsibility for the damage as this may have been caused by other visitors or wildlife. The Council told Mrs A its policy does not allow permanent structures such as a fence in the grass lawn grave section. It also told her not to replace the fence.
10. Mrs A escalated her complaint with the Council. She said she was given permission otherwise she would not have put up the fence. Mrs A also said other graves had fences and memorials. She questioned why she was not allowed to do so.
11. In response the Council told Mrs A it had no records granting her permission to place the fence. It referred to its policy which does not allow non-breakable materials to be placed on the graves. The policy also says any items left are at the owner’s risk and the Council cannot be held responsible for any theft or damage to them however caused. The Council did not uphold her complaint and told Mrs A to remove the fence within six weeks. Mrs A remains unhappy with the Council’s decision.
12. In response to our enquiries, the Council acknowledged it has not enforced its policy for a number of years. However, it has installed new noticeboards at all its cemeteries to communicate the Council’s plans. It intends to write to all the owners of unauthorised memorials in the coming months and will enforce its policy more rigorously. The Council says it will remove unauthorised memorials and no fences are permitted on grass lawn graves.

Assessment

13. We will not investigate Mrs A complaint about damage to the fence around her parents’ grave. This is not a matter the Ombudsman can decide. Only the courts can determine whether the Council is responsible for the damage and liable to make a payment. It would be reasonable for Mrs A to go to court now the Council has rejected her claim.
14. While I understand Mrs A’s wishes to have a fence around the grave, the Council’s policy is clear. No memorials or fences will be permitted. It has confirmed its intentions to enforce its policy for all grave owners. This is a decision it is entitled to make. It is therefore unlikely we would find fault by the Council.

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Final decision

15. The Ombudsman will not investigate this complaint for the reasons given in the Assessment.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman