Summary: Mr B complains the Council has not properly responded to his complaints about antisocial behaviour, large gatherings and breaches of regulations at a local cemetery. He says this causes distress to him and others when visiting. The Ombudsman does not find fault in how the Council responded the concerns raised.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council has not acted to tackle antisocial behaviour, large gatherings and breaches of regulations at the cemetery. He says the Council has not properly responded despite him making numerous complaints. He says this causes distress to him and others when visiting the cemetery.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
4. 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

5. I considered the information Mr B provided and spoke to him about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments before making a final decision.

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What I found

Antisocial Behaviour Powers and Cemetery Regulations

6. Antisocial behaviour is defined as ‘conduct that has caused, or is likely to cause, harassment, alarm or distress to any person.’ This is a broad subjective definition. However, the following examples of behaviours are likely to be considered antisocial behaviour if proved:
• Graffiti and vandalism
• Verbal and physical threats and harassment
• Animals not being kept under control
• Noisy, rowdy or inconsiderate neighbours
• Littering or fly tipping
• Street level drug dealing or drug use
7. The Council has certain powers it may use to tackle antisocial behaviour. Where it is identified that a person is cause antisocial behaviour it could serve a Community Protection Notice (“CPN”) on that person. This may include things the person needs to avoid doing or what they must start doing. The Council also has the power to make a Public Spaces Protection Order (“PSPO”). A PSPO can ban specific activities in certain areas, such as dog walking, and drinking in public areas.
8. I understand the Council has in place a PSPO that says dogs must be kept on leads in cemeteries. The Council’s website, last updated in October 2021, says it has decided to apply for a PSPO to address alcohol and substance misuse, and related antisocial behaviour in the local area.
9. The Council also has in place Cemetery Regulations, the most recent version of which is dated March 2021. The Regulations set out restrictions on the type and size of memorials, and what types of items people may adorn plots with. The Regulations say the Council will remove any items not in keeping with the cemetery. If so, it will make every effort to contact the owner to request removal first. If it cannot make contact, it will attach a notice to the offending item allowing the owner 14 days to remove it. If the owner does not remove the item, it will give a final 7-day notice, following which staff will remove the item.

Background

10. A loved one of Mr B is laid to rest in a local cemetery and he regularly visits. In July 2020 Mr B raised concerns with the Council as the owners of a neighbouring plot requested a larger headstone, which was outside the limit allowed in the cemetery regulations.
11. In October 2020 Mr B raised further concerns about antisocial behaviour in the cemetery. He was concerned about a large gathering in the cemetery of up to 200 people, during a time of coronavirus restrictions. Also, other instances of antisocial behaviour, including underage drinking, drug use, vandalism and dog fouling. The Council responded that police attended and managed the large gathering. It arranged a meeting between the Council, police and Mr B to discuss his concerns about antisocial behaviour generally.
12. The police agreed to drive by the cemetery at closing, when capacity allowed and the Council said it would explore options such as installing CCTV. However, it later decided that CCTV was not feasible.
13. Mr B told the Council that some plots were adorned with items that were not permitted in the cemetery regulations. The Council agreed and wrote to owners in November 2020, asking them to remove any items that did not comply. It said if owners did not remove the items, the Council would. The items remained, so in December 2020, the Council removed them and placed them in a cemetery building. However, the owners of the items forced entry to the building and returned the items to the plots.
14. The Council reported the incident to the police. It met with a community liaison officer from the police and decided to conduct a review of its cemetery regulations. Due to the sensitivity of the issue, it decided not to remove the items again until its review was complete.
15. The Council completed the review in March 2021. It changed the regulations to allow certain items. However, other items remained on the plots that still fell outside the regulations. Mr B raised further concerns about this. The Council wrote to plot owners in July 2021, again asking them to remove any items that did not comply with the regulations, or it would remove them. The items remained.
16. In October 2021 the Council sent a second letter to plot owners asking them to remove the items. It said it would remove any items still there at the end of the month. The owners did not remove the items.
17. The Council says that it has not asked owners to remove the items for now as it understands it is a sensitive issue, particularly over the Christmas period. It intends to issue a final reminder, in line with the regulations, in January 2022.
18. Throughout this time Mr B continued to raise concerns about antisocial behaviour in the cemetery, including incidents where the cemetery gates have been left open and antisocial behaviour taken place after dark. The Council said it reports any such incidents to the police and has changed its routine to close the gates at an earlier time. It said Council officers cannot address these issues alone and need the support of police. It said it did not have a dog warden in place but was looking to address this.

Findings

19. I have considered Mr B’s complaints about how the Council has dealt with the following issues:
• Antisocial behaviour
• Items in breach of cemetery regulations
20. I have not investigated the Council’s response to individual incidents in which large groups breached coronavirus rules, as it would be for the police to decide how to manage such gatherings, and if to take any action against those involved. I have also not investigated whether the Council should have had a dog warden in place. The Council said it was recruiting for this role. This is a personnel matter so not within our jurisdiction.

Antisocial behaviour

21. Generally, incidents such as drinking, drug use and vandalism are matters for the police. I accept it is not the role of council officers to individually investigate these incidents or challenge those involved, beyond reporting the incidents to the police.
22. The Council has some powers to tackle antisocial behaviour, for instance, through PSPO’s. These are discretionary powers. It is for the Council to decide when and where it might be appropriate to use these measures. I can only investigate whether it has properly considered the full range of powers it has available when responding to reports of antisocial behaviour.
23. I can see the Council already has a PSPO in place relating to keeping dogs on leads. It is also applying for a PSPO in relation to alcohol and substance misuse in the area generally. It is not clear whether any restrictions would include the cemetery. However, that would be a decision for the Council. In its response to my enquiries the Council says it has not yet explored a PSPO in relation to the cemetery with partners but is something it is looking at as an option.
24. I do not find fault in how the Council dealt with Mr B’s concerns about antisocial behaviour. Mr B first raised concerns about antisocial behaviour in October 2020. The Council responded to Mr B and arranged a meeting with him and the police. It has continued to liaise with police when incidents are reported. I can also see that it has consistently responded to correspondence from Mr B about issues in the cemetery.
25. The Council is continuing to consider its powers around tackling antisocial behaviour generally and in the context of the cemetery. Again, any decision on how it might be appropriate to use its powers is at the Council’s discretion. I cannot direct the Council to take any particular action and cannot see any fault in how it has considered the powers it has available.
26. Likewise, it is the Council’s decision whether to install CCTV in the cemetery. There are no laws or regulations that say it must do so. The Council has considered this and reached an informed decision not to do so, so I cannot find fault.

Items in breach of cemetery regulations

27. The Council initially took timely action to deal with Mr B’s complaint about items that breached cemetery regulations and removed the items. I understand there has been delay in taking action once those items were returned. However, I do not find that this delay was because of fault by the Council.
28. The Council has given clear reasons for any delays in addressing the matter. It has outlined that it is a sensitive matter and at each stage has considered the best way to proceed. Initially it undertook a review of the cemetery regulations. After the new regulations were in place it wrote to owners regarding those items that were still in breach of the regulations. It has written to owners again due to non-removal but decided not to take action before Christmas due to the sensitivity of removing items from plots. It says it will follow up on this in January 2022.
29. The Council should consider any complaints about breaches of regulations and decide how to proceed in a timely way. However, it can make its own judgements about how and when to address any enforcement of the regulations, based on its understanding of the issues involved. I therefore, on balance, do not find fault with the delays in dealing with this matter.

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Final decision

30. The Council is not at fault in how it responded the concerns raised.

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Investigator's decision on behalf of the Ombudsman