Summary: The Council’s failure to enforce its own policies about permitted memorials and use of grave space was fault. The Council also failed to properly respond to all parts of the complaint. The Council has agreed to apologise, meet part of the outstanding costs for the relocation of Mr X’s wife’s grave, and take action to improve its services.

The complaint

1. Mr X complains about how the Council dealt with his complaints about the actions of visitors to a grave next to that of his late wife. In particular, he says the Council failed to:
• enforce its own policies about permitted memorials and use of grave space
• deal properly with reports of anti-social and intimidating behaviour, and religiously motivated insults towards him and his late wife.
• properly investigate all parts of his complaint.
2. As a result, Mr X felt he had no choice but to seek the exhumation and reburial of his wife in a different grave. This caused him significant distress. It also resulted in a financial cost to him.

Back to top

The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

5. I spoke to Mr X’s representative and considered the information provided.
6. I made written enquiries of the Council and considered its response along with relevant law and guidance.
7. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
8. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Cemeteries – the law

9. The Local Authorities Cemeteries Order 1977 sets out the law about cemeteries.
10. It says it is an offence to create a disturbance or commit nuisance in a cemetery. (Local Authorities Cemeteries Order 1977 s18(1)(a-b))
11. The law also says that placing memorials needs permission from the relevant council officer. (Local Authorities Cemeteries Order 1977 Schedule 2(1))
12. The Guide for Burial Ground Managers 2005 gives guidance to councils about maintaining burial grounds.
13. The Guide recognises that decoration of graves and the surrounding area with informal memorialisation “may serve to commemorate the deceased in an individualistic way which brings comfort to the family concerned, but can appear garish and out of place for others, detracting from the intended ambiance of the burial ground.” It says councils should tell families of the deceased at an early stage what kinds of memorials are acceptable.

Cemeteries – the Council’s policy

14. The Council has cemetery rules. It provides a copy of these rules to people who purchase burial rights.
15. So far as is relevant to this complaint, the rules say:
• Visitors to cemeteries “shall conduct themselves in a quiet and orderly manner”.
• Tributes “should be confined to the 18” earth border at the head of the grave”
• “Footstones, kerb and border stones or other structures enclosing graves or parts of graves…are not allowed on any grave.”
16. The Council provides different types of grave within its cemeteries. The type relevant to this complaint is a lawn grave. This means the plots are covered with grass once the ground has settled after a burial. The Council then maintains the lawn.
17. The Council’s information to grave owners says “unauthorised items on grave spaces can and does set a wrong precedent…Families who purchase graves within the lawned section do so on the understanding of what is to be the proposed appearance.”
18. The Council also allows families to lease a memorial tree and plaque. The lease is for 10 years and can be renewed. The information provided by the Council to those leasing a tree says the “placing of materials around the tree must adhere to the ethos of the cemetery.”

What happened

19. Mr X’s late wife was buried in a cemetery managed by the Council in 2018.
20. In 2019, there was an interment in the neighbouring plot.
21. In June 2021, Mr X complained to the Council about the conduct of visitors to this plot. In particular, that they:
• Had installed various memorials outside the permitted grave area
• Consumed alcohol
• Acted in an intimidating way towards Mr X and his family
22. In July, the Council wrote to Mr X. It said that since March 2020, cemetery staff could not oversee breaches of the cemetery rules. This is because they were prioritising funeral services during the COVID-19 pandemic. It said it would investigate his concerns.
23. In late July, Mr X complained that the Council had not dealt with his complaint. He said that he felt the only alternative was to exhume and re-inter his wife in a different plot. He also complained that visitors had made comments about his late wife’s religion.
24. In August, the Council removed some unauthorised items from the grave and surrounding area. This included solar lights, bunting, and unopened cans of alcohol.
25. The Council wrote to Mr X. It said it could not restrict or monitor the attendance of visitors to graves. It said the cemetery rules did not restrict the types of memorials that can be placed but “these should be restricted to the permitted area of the grave or memorial.”
26. The Council agreed to arrange exhumation and reburial. It said it would waive the fees associated with this. However, Mr X would have to pay for a new coffin and moving the memorial.
27. In September, Mr X asked the Council to consider his complaint at stage two of the complaint procedure. He said the Council had not responded to all parts of his complaint.
28. In late September, the Council wrote to Mr X with its stage two response. It said the Council’s handling of the complaint at stage one was “reasonable and appropriate.”

My findings

Memorialisation and grave space

29. The Council’s decision to prioritise funerals during the COVID-19 pandemic was not fault. However, the Council committed to investigating Mr X’s concerns in July 2021 and it from this point I make findings.
30. Mr X says the Council failed to enforce its policies about permitted memorials and use of grave space. From the evidence I have seen, including photographs of the graves and surrounding area, this appears to be the case. As a lawn grave, any items placed at the grave should be limited to an area of 18 inches around the memorial stone.
31. Despite this, the plot had several memorials outside the 18-inch area, including a bench and a second stone at the foot of the grave as well as a significant quantity of informal memorialisation. In response to a draft of this decision, the Council provided evidence to show it gave permission for the bench. There is no evidence it gave permission for the additional stone at the foot of the grave or to the informal memorialisation. Nor that the Council took any action to remove it once Mr X complained.
32. In the absence of such evidence, I find the Council’s failure to enforce its policies since July 2021 was fault.
33. In responding to Mr X’s complaint, the Council said its rules did not limit the types of informal memorials families could place on graves. However, the rules do limit the space such memorialisation can occupy on lawn graves to the 18 inches around the memorial. Although none of the additions encroach on Mr X’s wife’s grave, I nonetheless find this caused him an injustice. The extent and scale of the memorialisation beyond the allowed 18 inches in effect surrounds Mr X’s plot. I accept that this affected his ability to visit his late wife peacefully. This is an injustice to Mr X.

Conduct

34. Mr X also complained about the behaviour of the visitors to the plot. In its response to his complaint, the Council failed to address the complaint that visitors made comments about his late wife’s religion that offended Mr X. The Council has a Public Sector Equality Duty to promote good relations between people who share a protected characteristic and those who do not. Failure to consider this part of the complaint was fault.
35. The evidence shows the Council was trying to navigate what is inevitably a difficult and emotional matter with sensitivity to both families. However, the Council did not fully address Mr X’s complaints.
36. It said it could not prevent visitors attending a grave. This misrepresents Mr X’s complaint. He did not object to people visiting. He complained about how they behaved when they did. The Council’s failure to address this part of his complaint at either stage of the complaint process caused Mr X avoidable frustration and time and trouble.
37. In responding to Mr X’s complaint, the Council did not comment on whether visitors to the cemetery were allowed to consume alcohol. It should have done so. However, the cemetery rules do not forbid this. Therefore, it seems unlikely the Council would have found this conduct breached the rules unless the visitors also failed to act in a “quiet and orderly manner”.
38. Mr X complained that the visitors’ conduct was anti-social behaviour (ASB). The Council’s records show it found that the conduct did not amount to ASB. However, it failed to communicate this conclusion to Mr X. This is fault. As a result, he was left with the impression the Council had failed to consider this aspect of his complaint.

Back to top

Agreed action

39. The proposal to exhume and re-inter his wife was Mr X’s. The exhumation and re-interment of a loved one is inevitably distressing. The Council agreed to waive the usual fees for the process. Mr X says he suggested it as a last resort after the Council failed to act. Were it not for this failure, he says he would not have felt the need to move the grave.
40. I have not found fault with the Council’s decision to dedicate its resources to conducting funerals during the pandemic. Once the Council investigated Mr X’s complaint, it was a relatively short time until Mr X proposed exhumation. However, I find the Council’s failure to enforce its policies and respond fully to Mr X’s complaint contributed to his sense that exhumation was the only choice. This is an injustice to Mr X.
41. Therefore, to remedy the injustice to Mr X the Council should:
• meet 30% of the extra cost of the new coffin and transfer of the memorial; and
• apologise to Mr X.
42. The Council should take this action within four weeks of my final decision.
43. The Council should also take the following action to improve its services:
• Remind relevant staff that policies and rules about permitted memorialisation at graves should be consistently enforced unless there are good reasons not to do so in a particular case.
• Remind relevant staff that in responding to a complaint, each element of the complaint should be addressed.
• Review and amend the cemetery rules and any information provided to families to ensure both families and staff are clear about what informal memorialisation is permitted and where.
44. The Council should tell the Ombudsman about the action it has taken within twelve weeks of my final decision.

Back to top

Final decision

45. I have completed my investigation. There is fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman