Summary: Mr X complains about the handling of his objections made to the Council’s Bereavement Services about a cremation. He says he objected to the cremation of a deceased family member based on his beliefs and cultural reasons. We have decided to uphold Mr X’s complaint because there is evidence of fault by the Council. We find this meant Mr X missed out on the opportunity to have his objections considered and escalated in a way that was in line with the Council’s guidance to staff. To remedy this injustice, the Council has agreed to apologise to Mr X, make him a payment and make several service improvements.

The complaint

1. The complainant, who I shall refer to here as Mr X, complains the Council:
1. failed to provide him with details of the cremation service for his son, Mr B. He says the Council carried out the service without his knowledge or consent. He said he called the Council on several occasions to get the details of the service, but its Bereavement Service refused to provide any details;
2. failed to address his objections to the cremation based on his own cultural and personal beliefs;
3. withheld his enquiries and objections from the Funeral Director and Medical Referee who authorises the cremation; and,
4. failed to have due regard to his right to respect for his private and family life under Article 8 of the Human Rights Act 1998. Mr X said this was because he and his side of the family were unable to attend the service.
2. Mr X says he and his side of the family were denied the opportunity to be involved in his son’s funeral, and that the cremation went against their beliefs and culture. He says the Council’s actions have significantly affected his mental health and wellbeing. He says he feels ignored by the Council and found the lack of compassion from the Council distressing.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as Funeral Directors. (Local Government Act 1974, sections 25 and 34A, as amended)
8. 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)
9. 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)

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How I considered this complaint

10. I spoke with Mr X about his complaint. I considered all the information and documents that Mr X and the Council sent to me.
11. I have considered the Ombudsman’s published guidance on “Principles of Good Administrative Practice”. This states good administrative practice includes:

• Being service-user focused: ensuring people can access services easily, and recognising and respecting the diversity of service users and adopting an inclusive approach
• Being open and accountable: this involves keeping proper and appropriate records, and being open and clear about policies and procedures and ensuring information, and any advice provided, is clear, accurate and complete. An example of this is: ensuring frontline staff are fully briefed and equipped to support service users to make informed decisions.

12. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Legal Background: Cremations

13. The key pieces of legislation that cover cremations, including the administration of crematoria by councils, are:

• The Cremation (England and Wales) Regulations 2008 (the Regulations): this sets out the procedural rules to be followed when a body is cremated; and
• The Cremation Act 1902 (the Act): this gives councils the power to create a crematorium, and sets out penalties for contravening the Regulations.

14. The Cremation (England and Wales) Regulations 2008: Guidance for cremation authorities and crematorium managers (published March 2022) provides statutory guidance on the Regulations for organisations and individuals involved in providing cremation services, which can include councils.
15. In this case, the Council is considered a crematorium authority under the Regulations. Mr X’s son’s cremation took place at a crematorium run by the Council and was arranged through its Bereavement Services.
16. Under the Regulations, an application for cremation must be made to the cremation authority by:
1. an executor of the deceased person; or
2. a near relative who has attained the age of 16.
17. Of relevance to this complaint, under the Regulations, “near relative” includes the parent of the deceased person.
18. The Regulations provide examples of the relevant forms that must be completed. When someone applies for a cremation, the crematorium paperwork should contain questions designed to prevent the cremation of a body without the knowledge of close relatives and executors. These questions are:

• Are you a near relative or an executor of the person who has died?
• Is there any near relative(s) or executor(s) who have not been informed of the proposed cremation’? If Yes, please give the name(s) and reason(s) why they have not been contacted
• Has any near relative or executor expressed an objection to the proposed cremation? If Yes, please give details.

19. Councils may only proceed with a cremation once approved by a medical referee.
20. Under the Act, it is a criminal offence to wilfully make false representations with a view to obtaining the cremation of any remains. Someone found guilty of this offence may face a fine or imprisonment of up to two years.

Article 8 of the Human Rights Act 1998

21. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to respect for private and family life (Article 8). The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
22. The right to respect for private and family life is a qualified right. This means it is a right where interference may be justified in order to protect the rights of others or wider public interest. Any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.

The Equality Act 2010

23. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
24. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
25. The ‘protected characteristics’ referred to in the Act include: race, religion or belief.
26. For the purposes of the Equality Act, ‘race’ includes: 

• colour
• nationality (including citizenship)
• ethnic origins
• national origins

27. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act or the Equality Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s rights in their treatment of them, as part of our consideration of a complaint.
28. In practical terms, councils will often be able to show they are compliant with the Human Rights Act or Equality Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.

What happened

29. In early 2021, Mr X’s son, Mr B, died. Mr B’s mother made the funeral arrangements with a crematorium managed by the Council.
30. Prior to the cremation, Mr X contacted the Council’s Bereavement Services at the crematorium several times. It is my understanding that Mr X consistently asked for details of the service during these calls.
31. Initially, Council officers told Mr X that the cremation had not been booked yet and he could contact the Service periodically to confirm details of the service once arranged.
32. The Council’s Bereavement Service received the cremation application paperwork, including the form completed by Mr B’s mother. This stated:

• no other near relative or executor had not been informed of the proposed cremation;
• no near relative or executor had objected to the proposed cremation; and,
• a handwritten instruction from the Funeral Director said it would be a private funeral meaning no details of the cremation were to be given out.

33. Mr X instructed a solicitor who wrote to the Funeral Director. This said Mr X had been unable to see his deceased son due Mr B’s mother. The letter asked the Funeral Director to confirm whether burial or cremation was to take place. It stated Mr X objected to a cremation taking place. It is my understanding that the Council did not receive a copy of this letter until Mr X complained.
34. Mr X called Bereavement Services again. However, the Officer said the Service was no longer able to give Mr X details of the service. This was because the Funeral Director had provided instructions that the service was private and no details were to be given.
35. Mr X called the Bereavement Services again the day before the service, but it again refused to provide details.
36. Mr X discovered online that the cremation had taken place.
37. Mr X complained to the Council. He said he was distressed and upset because Bereavement Services had repeatedly failed to provide him with details of the service. He said the Service was aware that Mr X was Mr B’s father and still withheld the details. He attached a copy of the letter his solicitors had sent to the Funeral Director, which stated he objected to the cremation. He asked the Council to explain why he had been prevented from attending the service as this was causing him stress and anxiety.
38. A few days later, Mr X contacted Bereavement Services. He said he was unhappy with the lack of information provided.
39. Mr X made a further complaint to the Council. He said Bereavement Services staff at the crematorium were rude to him when he called and refused to respond to his request for information.
40. A few weeks later, the Council replied to Mr X’s complaint. It said it had acted on the instructions of the Funeral Director who acted on behalf of Mr B’s mother. It said:

• Council Officers had correctly complied with the Funeral Director instructions not to provide details of the service;
• it had not received the letter to the Funeral Director;
• once the Council received the cremation application form, it passed this onto the Medical Referee to sign off. It explained that one of the functions of the Medical Referee was to confirm whether or not they were satisfied the applicant was a near relative or executor and the application form had been completed in accordance with the Regulations; and,
• it said that it was the Medical Referee’s responsibility to resolve any potential issues with the application form with the applicant and Crematorium Manager. However, the Council said the application form said no objections had been made so the Medical Referee authorised the cremation. The Council provided Mr X with copies of the completed cremation application form and medical referee form.

41. Mr X replied to say he was not satisfied with the Council’s response. He said the Council denied him the opportunity to object. He asked the Council to tell him what action it would take now that it had a copy of the letter to the Funeral Director.
42. In November, Mr X complained to the Council’s Chief Executive. He said the Council’s Complaints team had refused to respond to his complaint because Mr X had started taking legal action. It is my understanding Mr X began making a claim for damages against the Council’s insurers, but this was not pursued and this did not lead to court action. Mr X said he no longer had a solicitor and wished to resolve matters through the Council’s complaints procedure instead of taking legal action. He complained that he had objected to the Council’s Bereavement Services prior to the cremation, but no action was taken.
43. The Council replied to say it had acted in accordance with the Cremation Regulations and would not take any further action regarding its work practices. It explained that Mr X’s complaint had been handed to the Council’s legal department as this was the appropriate course of action when Mr X said he was seeking legal advice.
44. Mr X replied and asked the Council to escalate his complaint.
45. In January 2022, the Council sent Mr X its final complaint response. It said the complaint had been independently investigated by a manager outside of its Bereavement Services. The Council did not uphold Mr X’s complaint. It said:

• as part of the investigation, the Manager had spoken with the Bereavement Services Manager and Bereavement Services Staff, reviewed all relevant correspondence and spoken with the Funeral Director and a different Council’s Bereavement Services team;
• Mr X had not explained how the Council’s refusal to disclose details of the service affected his Article 8 rights. It recommended Mr X seek legal advice on this;
• there was no evidence to suggest the Council had received Mr X’s objection letter to the Funeral Director prior to the cremation and Bereavement Services Officers who spoke with Mr X said they were not aware Mr X objected to the cremation taking place. Officers said, if they had been made aware of any objections, then they would have referred Mr X to the Bereavement Services Manager and asked him to put his objections in writing;
• the relevant legislation did not place a duty on the Council to report situations when objections are received to the Police. Rather, the expectation is the Council should consider doing so. It is my understanding that the Council did not report the situation to the Police because it had found Mr X had not objected to the cremation prior to the service taking place. It was satisfied the Medical Referee had checked and authorised the relevant paperwork ahead of the service;
• the Council was not responsible for seeking the approval of other family members before a cremation, including situations such as Mr X’s where the parents of the deceased are separated or divorced. Rather, if Mr X considered any statements in the application form to be false, it advised Mr X to report this to the Funeral Directors or the Police. It said it had found no failings in its processes and would not be making any changes to the way its processed cremation applications; and,
• it accepted that the refusal to disclose information about the service could be perceived as rude or abrupt as the refusal was potentially disappointing and concerned a particularly sensitive matter. It apologised if the refusal came across as rude or abrupt though this was not intended.

46. Mr X sent a further letter of complaint to the Council. Mr X complained the letter to the Funeral Director was not forwarded to the Medical Referee nor were his objections that he had made to the Council’s Bereavement Service. Mr X said this meant the Medical Referee was missing important information that could have affected their decision to authorise the cremation. He asked the Council to tell him why it was not reporting the matter to the Police.
47. Mr X said the Bereavement Service’s actions had caused him and his side of the family significant distress and anxiety. He said they had been denied the opportunity to attend the service and the cremation went against his beliefs. He said the failings in the Council’s processes had affected his mental health and wellbeing.
48. In March, Mr X complained to the Ombudsman.

Analysis – was there fault by the Council causing injustice?

49. Mr X complains the Council failed to provide him with details of the cremation service for his son, Mr B. He says the Council carried out the service without his knowledge or consent (part a of the complaint).
50. Based on the evidence I have seen, the Council was acting on the instructions of the Funeral Director who had been appointed by Mr B’s mother. When Mr X called to enquire about the service, a Council Officer called the Funeral Director to confirm whether the details could be shared. However, the Funeral Director confirmed the details should not be shared. Mr B’s mother had stated that the details of the cremation service should remain private and should not be disclosed. I do not find the Council at fault. The Council has explained the reasons why it was unable to provide details of the ceremony. This is in line with its internal process that staff should follow when a cremation is private (part a of the complaint).
51. I cannot comment on the actions of the Funeral Director. This includes the question of the legality of the Funeral Director adding information to the application form, which only the courts could decide on. I understand that Mr X is separately pursuing potential legal action against the Funeral Director.
52. I also cannot comment on whether an offence has been committed under the Cremation Act based on the application form. This is a matter for the Police. I understand Mr X contacted the Police about this and the Council was contacted by the Police because of this. In comments on my draft decision, Mr X explained the Police investigation is ongoing.
53. However, I can consider how the Council handled the information Mr X provided during his calls with its Bereavement Services. Based on the evidence I have seen, I find the Council at fault based on the following:
54. The Council told me that its Bereavement Services does not keep records of calls such as the ones received from Mr X. It had no call notes from when the calls took place detailing what Mr X said or the specific advice Officers had given him. This is fault. The Ombudsman expects councils to keep proper and appropriate records.
55. The Council Officers have recalled from memory the issues discussed during calls with Mr X. Officers have said they are certain that they did not receive any verbal objections from Mr X. However, I find the recollections of the calls are insufficiently specific and I am not able to confidently say they provide a full and accurate record of the calls.
56. Having weighed up the evidence, noting the lack of contemporaneous records of calls by the officers, I consider Mr X’s recollection of the calls is more likely to be accurate. I have considered how important the matter was to Mr X and his concerns about his son’s cremation service. Mr X’s position is that, in his initial calls with the Council, he raised concerns about the cremation and expressed concerns that Mr B’s mother was preventing him from attending the service. He told me a number of the calls were lengthy and detailed. He says that he raised objections about the ceremony during the initial calls.
57. The Council told me that when an objection or concern is raised about a cremation with its Crematorium office, the Officer receiving the call should record the date and time of the call, details of the caller and connect the caller with the Bereavement Services Manager to discuss any issues. In my view, Mr X’s calls fell within the scope of this guidance, particularly as the threshold to escalate potential concerns or objections from members of the public appears to be low. As Mr B’s father, Mr X falls within the definition of “near relative” under the Regulations. On balance, I find it likely that during these calls it was clear to staff that Mr X had concerns about the cremation, he was unhappy that he had not been provided with details of the service as father of the deceased and Officers should have considered referring his enquiry to the Bereavement Service Manager. The Council failed to do this, which is fault.
58. If Council Officers had referred Mr X’s concerns to the Bereavement Services Manager, it is my understanding that this would have led to the Manager discussing any concerns or objections with Mr X and making a record of these. The Manager would have invited Mr X to expand on any concerns. The Manager would have then invited the Funeral Director to respond to the concerns or objections before referring the matter to the Medical Referee as a matter of urgency. The Manager would have then likely agreed a plan of action with the Medical Referee and recorded this on the objection form. The Council failed to do this, which is fault.
59. Based on the evidence I have seen, Mr X contacted the Council several times asking for information and likely raising concerns before the cremation took place. This included a call to the Council’s Bereavement Services prior to the Medical Referee signing the form. I cannot say whether Mr X would have been able to attend the service if the Council had followed its process. However, I find that there were several missed opportunities where the Council could have taken action to alert the Medical Referee of the concerns of a near relative. Council Officers were aware that he did not know what was happening to his son. I find the Council failed to turn its mind to the fact there may have been grounds to contact the Medical Referee for advice, particularly as Mr X’s contact suggested the information provided on the cremation application form may require further inquiries. I, therefore, uphold part c of the complaint.
60. Mr X has explained to me that his objection to the cremation was based on his family’s culture and beliefs, which were connected to their national origin. These objections potentially relate to the protected characteristics of race and belief under the Equality Act, as well as Mr X’s right to respect for his family life under the Human Rights Act. If the Manager had spoken with Mr X, this would have given Mr X the opportunity to have his objections fully considered. I find Mr X missed out on having his concerns handled in a way that was in line with this process. I, therefore, uphold parts b and d of the complaint.
61. In my view, the Council’s guidance to staff on handling objections or concerns about cremations is insufficiently precise, which likely contributed to the fault identified above. For example, it does not specify what would qualify as a concern or objection that should be escalated to the Bereavement Services Manager or how to handle requests from near relatives who were raising concerns or may not have been notified of the cremation.
62. The Ombudsman would not expect callers, such as Mr X, to have to use the term “objection” for any concerns to be treated as such. I have noted the guidance to staff seems absent from the Council’s website and there does not appear to be any information available to the public about what to do if they have concerns or objections about a cremation. I have seen no evidence Council officers explained to Mr X the process for objecting during the initial calls.
63. In these circumstances and given the time sensitive nature of any such enquiries, I have recommended the Council review this guidance and consider publishing it on its website. This should explain who members of the public should contact when they wish to make objections or notify the Council they are a near relative who has not been informed of the service.

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Agreed action

64. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Mr X for the fault causing injustice; and,
2. make a payment of £300 for the distress and uncertainty caused by the missed opportunity to have his objections considered and handled in a way that was in line with its guidance to staff on raising concerns or objections about a cremation. I have considered the Ombudsman’s published guidance on remedies when recommending this payment.
65. Within three months of my final decision, the Council has also agreed to:

• review its guidance to staff to ensure it is clear how staff should handle concerns and objections from members of the public, including near relatives of the deceased. This should provide a clear escalation process and identify the action managers will take and the timeframes for completing actions. The Council should:
• consider carrying out an Equality Impact Assessment as part of this review to demonstrate how it has had due regard to its Public Sector Equality Duty given the protected characteristics that have potentially been engaged in Mr X’s complaint;
• consider giving examples staff may draw on that explain why cremations may be objected to based on someone’s racial background, religion or beliefs to ensure staff are alert to the diverse reasons why service users may object;
• given the time sensitive nature of any such enquiries, publish this guidance to staff on its website with details of who to contact so this is readily accessible to members of the public; and
• report back to the Ombudsman on the outcome of this review.
• establish a system for maintaining records of calls with members of the public who request information from its Bereavement Services, including when this is refused (for example, creating a call log with sufficient call notes of the information given and any decision made by the member of staff). The Ombudsman expects the Council to maintain robust records of key decisions, including refusals to provide information; and,
• share this decision with relevant staff in its Bereavement Service.

66. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

67. I have completed my investigation.
68. I have decided not to uphold part a of Mr X’s complaint. This is because I have not seen any evidence of fault by the Council.
69. I have decided to uphold parts b to d of Mr X’s complaint. This is because I have seen evidence of fault by the Council causing injustice. The above recommendations are suitable ways for the Council to remedy this, which the Council has agreed to.

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Investigator's decision on behalf of the Ombudsman