Summary: Mrs X complained about how the Council maintained one of its cemeteries and kept it safe for disabled users. The Council's inspection records and communication were flawed. This caused Mrs X uncertainty and distress. The Council has agreed to apologise to Mrs X.

The complaint

1. Mrs X complained about how the Council maintained one of its cemeteries and ensured it kept it in good order and safe for disabled users. In particular, she said the Council:
1. allowed memorials to fall into disrepair;
2. had not levelled graves;
3. allowed wildflowers to grow tall between graves;
4. overused chemical weedkillers between the graves;
5. refused her reasonable adjustment request to lay turf between the graves;
6. planted trees at entrances to grave rows, preventing access;
7. failed to properly oversee its ground staff and volunteers, allowing them to behave disrespectfully;
8. intentionally planted wildflowers on graves including her grandmother’s;
9. wrongly stated the cemetery was closed for new burials;
10. changed the cemetery to a nature reserve without consultation;
11. failed to properly record and memorialise who is buried in the graves or provide signs to them; and
12. would not allow her to place a memorial on her grandmother’s grave without paying for a permit;
2. Mrs X said the poor maintenance caused her distress and meant her husband, who is a wheelchair user, could not access the graves of family members. She says this breached his rights under the Equality Act 2010.

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What I have investigated

3. I investigated Mrs X’s concerns listed from (a) to (g). The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's Guidance on Remedies.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Cemetery maintenance

9. Cemeteries should be managed and operated in accordance with the Local Authorities’ Cemeteries Order 1977 (the Act), as amended by the Local Authorities (Amendment) Order 1986.
10. The Act says the authority:
• ‘may do all such things as they consider necessary or desirable for the proper management…of a cemetery’; and
• should keep the cemetery in ‘good order and repair’.
11. In 2005, the government issued its ‘Guide for Burial Ground Managers’ (the Guide). The Guide says it is for burial authorities to decide what type of environment they want in a burial ground. This can include formal lawn as well as wildflower areas. Burial authorities that choose to use some or all of a burial ground to encourage biodiversity should balance that aim with ensuring the safety of the public.
12. The Council says it cuts the grass in the formal areas of the cemetery on average every 10 days. It cuts grass in other areas twice a year to encourage natural growth.
13. The Council's website lists work it has carried out at the cemetery in the last three years to give it a ‘brighter future’. The website says some of those activities were to increase biodiversity.

Memorials

14. When a person wants to be buried in a cemetery, they or their family buy the right to that ground. Rights typically last for 50 years or less. The owner of the right can then place a memorial on the grave plot (with the relevant permissions).
15. The Act says burial authorities may carry out maintenance on any memorial in the cemetery. It can only remove a memorial where the right to bury has lapsed or where a memorial is, or will be, a risk to the public.
16. The Guide confirms the primary responsibility for memorial maintenance lies with the family who holds the burial right.
17. Guidance from the Ministry of Justice, ‘Managing the Safety of Burial Ground Memorials: Practical Advice for dealing with unstable memorials 2014’, states the main risk posed by memorials is that they become unstable and fall on people. The risk is extremely low. The guidance suggests authorities should focus on memorials that pose the greatest risk to the public. It recognises it is unfeasible to expect authorities to remedy all memorials in a burial site.
18. The guidance places importance on good risk management and record keeping. It says Council records should show it made proper checks, record memorials that are or may be at risk and include a timescale for when the next inspection will occur.
19. The Institute of Cemetery and Crematorium Management issued guidance that says burial authorities should inspect memorials at least every five years.

Levelling

20. The ground around newly created graves often settles for a time after burial and can become uneven. For this reason, the Act gives burial authorities the power to level any grave to the surrounding ground level where this eases maintenance.
21. The Council’s policy says it will typically only level graves for the first 12 to 14 months after it is first filled in. This is when levelling is most likely to occur and be most severe.

Equality Act 2010

22. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on disability. The Public Sector Equality Duty also sets out duties for such organisations to follow to stop discrimination.
23. The reasonable adjustment duty applies to any body that carries out a public function. Its aim is that, as far as reasonably possible, people who have disabilities should have the same standard of service as non-disabled people.
24. Service providers have to consider removing or preventing obstacles to people with disabilities accessing their service. If the adjustments are reasonable, they must make them.
25. In deciding if an adjustment is reasonable, a service provider can consider:
• how effective the change will be in avoiding the disadvantage the person would otherwise experience;
• how practical it is;
• its cost; and
• the organisation’s size and resources.

What happened

26. In April and May 2020, Mrs X complained to the Council about the condition of one of its cemeteries.
27. Mrs X was concerned large numbers of memorials were in disrepair including kerbstones that have broken apart. She said memorials were surrounded by uneven ground and weeds and wildflowers that grow to a significant height. She said this, combined with the poor condition of the memorials increased the chance someone would trip and was distressing for visitors to see.
28. In May, the Council responded. It said:
• it would take action on memorials that were a risk to public safety but otherwise responsibility lay with the person who owned the right to burial;
• the person who owned the right to burial at a grave was responsible for ensuring it was level. It would only level graves within the first 12-14 months of their being opened. It did not have the resources to level all graves;
• it had reduced use of chemical weedkillers since 2017 in line with its intention to use the cemetery as a place to increase biodiversity. It only used weedkillers as a last resort; and
• it was content the cemetery was in good order and maintained for public use.
29. In July 2020, Mrs X wrote to a councillor. She said the plants between graves were so high they made the graves trip hazards and prevented her husband from getting to gravesides. She explained her husband used a wheelchair and asked the Council to lay turf between the graves as a reasonable adjustment.
30. The Council said the wildflower planting scheme had benefits for the community and nature. It explained the space between graves was small due to the number of burials, so accessibility was an issue for everyone. It did not consider her request to turf the areas beside the graves was ‘reasonable’ and said the major paths in the cemetery were fully accessible. It was satisfied it met its duties under the Equality Act 2010.
31. In September 2020, Mrs X escalated her complaint. She reiterated her concerns about access for her husband and again asked the Council to lay turf between the graves. She also asked it to level them all.
32. The Council responded the same month. It reiterated it encouraged wildflowers as part of the Council's aim to eventually turn the cemetery into a nature reserve. It said it now provided wood chipping to provide clear paths to and around specific graves if families requested it.
33. In October, Mrs X complained to the Ombudsman. In addition to her complaints to the Council, she said contractors the Council hired placed cut logs on marked graves and behaved disrespectfully. Mrs X sent me a photograph which shows logs placed very closely to a grave, but not on top. She also said the Council planted trees at the ends of rows of graves, further preventing people with mobility problems from accessing gravesides.
34. In response to my enquiries, the Council said:
• it inspects memorials every year;
• it carried out an inspection of the memorials in mid-2019. It sent me a copy of its inspection record which included a plan of the cemetery and a handwritten note stating ‘areas checked- all; dangerous memorials found- none’;
• it introduced a new form for memorial inspections in 2020. The form ranks memorials by risk level and sets out what actions the Council take in response. Category one memorials should be made safe and laid down. Category two memorials need re-inspection or repair within twelve months. Category three memorials can be re-inspected in five years;
• it carried out maintenance in the cemetery in August and September 2019 and August 2020. This included strimming on all visits and application of weedkillers on some areas in 2019;
• it hired the contractors to carry out health and safety work. Its tree officers and cemetery manager monitored the contractors. Logs were stacked on unmarked areas. The Council was confident the contractors did not behave disrespectfully; and
• it did not intend to turn the cemetery into a nature reserve in the long-term as it said to Mrs X. It confirmed its goal was broadly to ‘increase biodiversity and habitat’.

Findings

Cemetery maintenance

35. The Council cannot improve the condition of memorials unless they are dangerous. The Council carried out an inspection in 2019 and found none were at risk. This was an appropriate action. However, the Council’s record of the inspection was poor. I do not consider the record shows it made proper checks. It also did not record if any memorials were likely to be a risk in the future or when the next inspection would be. This does not meet the standards set out in ‘Managing the Safety of Burial Ground Memorials: Practice Advice’ and was fault. This caused Mrs X uncertainty as she cannot be assured the Council properly inspected the memorials in 2019. The Council has since introduced a new form which complies with the guidance.
36. Cemeteries, particularly those in urban areas like the one Mrs X complained about, often experience significant variation in ground levels due to the number of burials. The Act gives councils the power to level ground around graves, but it has discretion to decide when. The Council’s policy states it will level graves 12-14 months after they are first filled as that is period when the most significant settling occurs. This ensures the Council reduces risks for members of the public walking on significantly uneven ground. There was no fault in its policy.
37. The Council is entitled to manage the cemetery as a biodiverse space. To do this, it planted wildflowers towards the back of the ground. At the height of their growing season, wildflowers and grasses can grow to a significant height. I appreciate this could be distressing and may pose a greater risk to people walking by the gravesides than formal lawn. However, wildflower meadows are an accepted use of cemeteries and the Council has an appropriate cutting schedule. I do not find fault with its maintenance plan.
38. The Council told Mrs X it intended to turn the cemetery into a nature reserve. It has since accepted this statement was incorrect. The management of cemeteries is an emotive matter and the Council's statement was fault. It caused Mrs X distress.
39. Mrs X is concerned the Council overused chemical weedkillers on the areas between graves and this means it is unable to plant turf, which she feels is more appropriate for a cemetery and safer for visitors. The Council has confirmed it reduced its use of weedkillers since 2017. Its records show it applied weedkillers twice during the summer of 2019. This does not suggest ongoing overuse and in any case, it is for the Council to decide how often it applied weedkillers. The Council was not at fault.
40. Mrs X says the Council failed to oversee workmen cutting branches in the cemetery and that they behaved disrespectfully. There is no evidence the workmen placed the logs on the graves, so I do not find fault with the Council.

Equality Act

41. We cannot question a council's decision if it is made without fault. The Council gave due regard to Mrs X’s reasonable adjustment request and was not at fault. It did not agree the request was reasonable as the density of burials meant formal paths between graves was not feasible. It would also be too costly to lay turf throughout the cemetery. It remained satisfied the main paths were sufficient to allow Mrs X’s husband to access most of the site and the wood chips could help him access gravesides if needed.
42. Mrs X has since complained the Council planted trees at the end of rows, further preventing people from accessing gravesides. The Council is not required to ensure every area of the cemetery is accessible to mobility impaired people. It assured itself the cemetery was sufficiently accessible via the main paths and offer of wood chips. The Council gave due regard to its duties under the Equality Act 2010 and was not at fault.

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Agreed action

43. Within one month of the date of my final decision, the Council will apologise to Mrs X for the uncertainty caused by its failure to properly record the 2019 memorial inspection and the distress caused by wrongly stating it intended to turn the cemetery into a nature reserve.

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Final decision

44. I have completed my investigation. I have found fault leading to personal injustice.

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Parts of the complaint that I did not investigate

45. I did not investigate part (g) of Mrs X complaint because I am unlikely to be able to make a finding. Mrs X said the Council intentionally planted the wildflowers, but the Council said it did not and they likely seeded on the graves naturally. I would not be able to resolve this through investigation.
46. I did not investigate parts (h) to (k) because I would not find fault with the Council. The Council correctly stated the cemetery is classed as closed because it is closed to the creation of new plots. Where space is available, people can be buried in existing plots.
47. The Council is entitled to choose the type of environment in its burial ground; one accepted use is to increase biodiversity. It does not have to consult on that decision.
48. Councils are only required to ensure they make and keep a plan of all the graves. They must allocate their resources carefully and the Ombudsman would not criticise a council for choosing not to undertake a large-scale project to identify the individuals buried, memorialise them and provide signage. In any event, it is not for the Ombudsman to tell councils how to spend their budgets.
49. The Ombudsman would not find fault with the Council for charging Mrs X for a permit for a memorial on her relative’s grave. This is because the Act says people cannot place memorials in a cemetery without permission from the burial authority. Section 15 (1) (b) sets out the burial authority’s right to charge a fee for giving a person the right to place a memorial in a cemetery. The burial authority may charge whatever fee they think appropriate.

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Investigator's decision on behalf of the Ombudsman