Summary: Mrs G complained about the way the Council dealt with the interment of her mother’s ashes. She complained the Council excavated the wrong place in the family plot. An officer then threatened her and tried to cover the matter up. The Ombudsman finds fault in the way the Council responded to Mrs G’s complaint. The Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Mrs G, complains that:
• the Council made a mistake about where in the family grave plot it dug a hole for her mothers’ interment. This led to the Council disturbing Mrs G’s grandson’s ashes. And not placing her mother’s remains next to her husband, which is what he will asked to happen;
• a Council officer then threatened her and sought to blackmail the family into accepting the position of the hole;
• the Council then wrongly recorded her mother’s ashes position in its records, to cover up its error.

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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’. 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)
3. 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

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs G;
• made enquiries of the Council and considered its responses;
• considered what the law says about interment and burial;
• spoken to Mrs G;
• sent my draft decision to Mrs G and the Council and considered the responses I received.

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What I found

Legal and administrative background

5. All burials must be registered in a burial register. The owners of the burial land must keep and store the registers. Councils own and manage most cemeteries. Citizens can buy graves in council run cemeteries. The owner buys the right of burial and decides who is buried in the grave. This is known as the Exclusive Right of Burial (EROB).
6. The Local Authorities Cemeteries Order 1977, which applies to local authority cemeteries, defines “burial” as including both “human remains” and “cremated human remains”.

Guide for Burial Ground Managers

7. This guidance is issued by central government. It says:

“Section 25 of the Burial Act 1857 makes it an offence to remove buried human remains without a licence from the Secretary of State. The [government] takes the view that a licence is required for any kind of removal or disturbance …”.

Liverpool City Council Bereavement Service

8. The Council says that in 2001 it centralised its Bereavement Services. Before then each of its cemeteries had its own system of burial.
9. In 2005, the Council introduced an electronic management system for recording cremated burial positions. Its procedure says:
• it enters each interment into the interment instruction field;
• before 2005 it did not record the position of cremated remains interments. But its procedure then was that the next position was used: i.e. start with position 1, then use position 2 and so on. This was generally correct. But if there was doubt it advised gravediggers to dig with care.

What happened

10. Mrs G is part of a large family. The family have a burial plot in one of the City’s cemeteries. Mrs G’s brother (whom I shall refer to as Mr E) is the owner of the EROB for the plot.
11. Before the events set out in this statement, the plot included two buried remains and two cremated remains. The latter were Mrs G’s father and her grandson. All of these interments preceded the Council’s 2005 introduction of its electronic management system.
12. Mrs G’s mother died in 2020. The executor of the will (Mr C) was another of Mrs G’s brothers. Mrs G says her mother’s will made clear that she wanted to be laid to rest next to her husband
13. Mr E, as the owner of the EROB, asked the Council to contact another sister (whom I shall refer to Ms F) about the interment, as he did not live in the City.
14. There was a delay after that in arranging the interment of Mrs G’s mother’s cremated remains, due to the restrictions introduced at the start of the COVID-19 pandemic. Later in the year, the funeral directors acting for the family sent the Council a Notice of Interment. This document does not mention a specific place for where the ashes should go in the grave.
15. Around 10 days after the Council received the Notice of Interment, it sent to the cemetery instructions for an excavation of the grave. I have seen this document. It correctly sets out the remains that were already in the grave (but not their positions). It gives an instruction for the cemetery staff to excavate ‘position 3’.
16. Two days later Mrs G attended the grave and saw the hole the cemetery staff had dug, which was on the left hand side of the plot. She says the hole was where the remains of her grandson were and not where her mother had wanted to be buried. She took a photograph and contacted the manager of the cemetery. He said Mrs G would need to speak to the registrar who had issued the instruction to open the grave (I shall refer to the registrar as Officer 1).
17. The following day Mrs G telephoned Officer 1. Mrs G says that during that call Officer 1:
• threatened her because of some information about an unauthorised historic opening of the plot. Mrs G described Officer 1’s tone as “hysterical”. She says he said: “you will accept the hole that is already dug or I will start a police investigation”;
• used distressing language to describe her deceased grandson and how he had died.
18. The Council has a note from Officer 1 setting out his recollection of what happened. This is undated, but the Council says Officer 1 made it a few days after the conversation. The note says:
• before Mrs G called, the funeral directors contacted the team to raise a potential problem with the interment;
• he contacted staff at the cemetery to confirm the position of the hole. The cemetery confirmed it had excavated the requested place and had not found any previous remains;
• when he spoke to Mrs G he explained he could not go into too much detail, as she was not the grave owner. But he advised her the cemetery staff had not uncovered any remains when opening the plot;
• in response to my draft decision, the Council asked that we note that Officer 1 denied the allocations set out in the first bullet point in paragraph 17. And he did not mean to cause intentional distress for the issue set out in the second bullet.
19. Later, in an interview for the Council’s complaint investigation, Officer 1 said:
• the Council could not have dug areas to identify the location of existing ashes, as that would be a legal matter; but
• it could have postponed the interment, at no extra cost, if that would have helped.
20. The Council has on file an email from Mrs F, from later in the day that Mrs G attended the cemetery. Mrs G says this was sent to family. The email advised the interment should go ahead. Mrs F advises she was aware Mrs G would not be happy. But the alternative was an investigation that would entail the police, with a possible loss of the fees, which the Council would refuse to refund. The funeral directors advised the Council to continue with the interment.
21. Mrs G did not attend the interment, due to her distress about what had happened. She notes that two other family members (including Mr C) also did not attend.

The complaint

22. On the same day that Mrs G spoke to Officer 1, she complained to the Council about:
• the cemetery digging the hole in the wrong place;
• her grandson’s ashes being disturbed; and
• Officer 1, and what she described as his threats.
23. The Council’s response to Mrs G’s complaint, at stage one of its procedure advised:
• its view was Officer 1 had followed the correct procedure;
• the request to excavate the grave differently would have had to come from the owner of the EROB;
• Officer 1 had used the official terminology in how he described Mrs G’s grandson’s remains.
24. Mrs G asked to escalate her complaint. The Council says that, due to an administrative error, it did not respond to the complaint until four months after Mrs G’s request. As part of the investigation, its officers spoke to several people. Its response:
• explained that “[a]ny previous ashes whose positions are unknown are nominally allocated the first places”. But trained officers always dug with care. That was why it had assigned position 3 for Mrs G’s mother’s remains;
• enclosed a grid diagram of plot locations that it said it used for cremated remains. This showed position 3 as on the upper right hand side of the grave plot;
• said the Council was obliged to take instruction about the burial from Mr E (and Ms F acting on his behalf) as he owned the EROB;
• said there was no evidence to suggest that Officer 1 was doing anything other than giving the facts of the situation in his telephone conversation with Mrs G.
25. Mrs G complained to the Ombudsman. In response to my enquiries, the Council advised:
• that it wanted to reiterate that, as Mrs G was not the EROB owner, it could not take instructions from her;
• after its gravediggers had excavated a plot, its process was that the position and depth was checked by another officer in its administrative team;
• it had no single standard process for burial across its cemeteries, due to the historical fact that they had used different systems;
• it sent me two different grid diagrams of how it numbered plots with cremated remains.
1. one of these was the diagram it had sent Mrs G in its stage two complaint response. It noted this was the system it used for “Cremated Remains Graves”; and
2. a different grid system that it described as its generic policy “to aid the recording of the placement of remains within full size graves”. This showed position 3 to be on the left hand side of the plot, below position 1.
26. I asked the Council for some clarification about the grid diagrams. This was because position 3 in the diagram I have called 2 (see paragraph 25), more closely matched where Mrs G’s photograph showed the hole to have been. This was confusing as the Council had sent diagram 1, not diagram 2, to Mrs G. In its response the Council:
• said in 2005 it had introduced these two standard matrixes;
• said: “[t]he explanation provided in the stage two response … was not incorrect however, it could have been more comprehensive per the response to the Ombudsman and this may have avoided confusion.“

• said it accepted a delay in responding to Mrs G’s stage two complaint. If offered her £100 in recognition of the frustration this will have caused her;
• sent me a revised procedure it had written for the burial of cremated remains.

Was there fault by the Council?

The hole’s position

27. The Council’s records show it correctly identified the number of remains in Mrs G’s family’s plot. But, as these all pre-dated the Council’s centralised system, its records did not record the position of the cremated remains. So it says it dug the hole in position 3, on the assumption the earlier remains were in positions 1 and 2. That was the correct approach to take (but see paragraphs 31-33). And there was nothing in the instructions the Council received from the funeral directors to suggest it needed to do anything different. So I see no fault in where the Council dug the hole.
28. Throughout the history of the complaint, the Council has been at pains to stress its gravediggers dig with care when excavating plots with remains that pre-date the standardised system. Mrs G’s view is the excavation did disturb her grandson’s remains. That belief understandably causes her much distress. But I have seen no evidence that the hole dug did disturb any previous remains.
29. Mrs G contacted the Council soon after she saw where the cemetery staff had dug the hole. I do not doubt Mrs G’s recollection of where in the plot the older remains were. But, as the Council correctly says, it could only make changes on the instruction of the owner of the EROB (or in this case, Ms F acting on Mr E’s behalf). They wanted to go ahead with the interment. So I see no fault in the Council doing so.
30. Mrs G says Ms F and Mr E felt compelled to go ahead, due to Officer 1’s threats. I shall consider that telephone call below. But I have seen the Council’s file and am satisfied the Council did properly communicate with the funeral directors, Ms F and Mr E. I cannot fault the Council for doing this.

The Council’s response to Mrs G’s complaint

31. In its complaint responses, the Council told Mrs G it used a standard system for numbering cremated remains plots. It sent Mrs G a grid system it said it used. One reason the Ombudsman decided to investigate Mrs G’s complaint was because the photograph she took of the hole’s location did not match where position 3 was in that diagram.
32. In response to my enquiries, the Council advised that in fact it uses two matrixes. This information is important, as the ‘new’ grid positions do better match where Mrs G’s photograph shows the hole was dug.
33. In response to my enquiries about this, the Council says its stage two response was not incorrect, but incomplete. But the Council only sent Mrs G one of the grave matrixes it uses. And the one it sent was not the correct one for the plot in question. So the omission amounted to wrong information. And it took several attempts before the Council engaged with the fact that Mrs G’s photographic evidence contradicted what it had told her. These are faults.
34. I also agree with the Council that its delayed complaint response is fault and am pleased to see that it has acknowledged this.

The conversation between Mrs G and Officer 1

35. Mrs G and Officer 1 do not disagree about the issues they discussed during their telephone call. Their differences are about Officer 1’s intent in discussing that information, Officer 1’s tone and manner, and whether he threatened Mrs G with involving the police.
36. It would have aided the Council’s position if Officer 1’s record was made at the time of the conversation. An explanation of what happened that is given after the events, either in a complaint response or during our investigations, can provide relevant evidence. But records made later inevitably rely on memories that fade. But, against that, I note that Mrs G complained soon after the conversation. And the Council says it was then Officer 1 completed his note.
37. There are significant differences in Mrs G’s and Officer 1’s accounts of how Officer 1 gave Mrs G the information, and his intent. But the written evidence is not sufficient for me to reach a finding of fault about this conversation. There is no recording of the call (the Council says its Bereavement Service does not have the technology to record calls). So I do not see further investigation would likely resolve this lack of evidence. I cannot uphold this part of Mrs G’s complaint.

Did the fault cause an injustice?

38. I have spoken to Mrs G and have understood the importance to her of the issues she raises in this complaint. And she continues to dispute the Council’s account of what happened. I have not upheld all her complaint. But that should not take away from the considerable extra distress that might have been avoided if the Council had provided accurate information in response to Mrs G’s complaint.

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Recommended action

39. I recommended that, within a month of my final decision, the Council:
• wrote to Mrs G providing an apology for the faults I have identified with the information it provided and the delay in responding to her complaint;
• pay Mrs G £300 as a symbolic recognition of the distress the wrong information will have caused her;
• also pay the £100 it has offered as a recognition of Mrs G’s frustration with the delayed complaint response.
40. The Council has agreed to my recommendations. Mrs G strongly disagrees with my recommendations. My view remains they are a suitable remedy for the injustice flowing from the fault I have identified.

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Final decision

41. I uphold the complaint. The Council has agreed to my recommendations. So I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman