Summary: We have discontinued our investigation of this complaint, about disabled accessibility to a Muslim section of a cemetery. This is because we could not achieve anything significant by investigating further.

The complaint

1. I will refer to the complainant as Dr G.
2. Dr G complains the Council has failed to make reasonable adjustments to ensure disabled people can access a Muslim section of a cemetery.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, and/or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I reviewed Dr G’s correspondence with the Council.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. Dr G’s father died in May 2021 and was buried in a recently created Muslim section of a Council-run cemetery, which is on a steep hill. This section consists of a number of terraces which are built-out from the hillside to provide a level surface, with narrow access pathways in between them and around the graves.
7. Dr G, who is disabled and uses a wheelchair, pursued a complaint with the Council between November 2021 and April 2022. Dr G said it was very difficult or impossible for disabled people to visit graves in the Muslim section, due to the steep approaches and narrow gaps around existing graves, along with an absence of dropped kerbs and other obstacles. Dr G accused the Council of failing to consider its equality duty and making appropriate adjustments for disabled people.
8. In response, the Council explained it had commissioned a report into accessibility in September 2021, which had recommended some changes it was now considering, such as the creation of a drop-off zone near the Muslim section, the installation of dropped kerbs, and improvements to the disabled toilet.
9. However, the Council said it was unlikely it could make any practical to improve disabled access to the graves themselves. It explained the cemetery was 150 years old, and was designed and built at a time when the equality duty did not exist. The steepness of the hillside made accessibility very difficult, and because of a lack of remaining space in the cemetery, it had to use all available plots in the section for burials, and could not reserve this space for access instead.
10. After completing the Council’s complaints procedure, Dr G approached the Ombudsman in July 2022.

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Analysis

11. Councils have a duty in law to consider what adjustments they can make to allow disabled people to access its services, to the same level, or as close as possible to the same level, as able-bodied people. This duty is ‘anticipatory’, which means councils are required to consider in advance what kind of adjustments they may be required to make. And, if an adjustment is ‘reasonable’, councils must make it.
12. However, councils may lawfully decide not to make an adjustment if they consider it to be unreasonable. This may be, for example, because the adjustment is not practical, prohibitively expensive, or would not achieve the desired outcome.
13. With complaints about reasonable adjustments, we can criticise a council if it has failed to consider making an adjustment, not properly considered relevant information as part of its decision, or agreed to make an adjustment but then failed to do so.
14. What we cannot do, however, is make our own decision whether an adjustment is reasonable. This is a legal matter which only the courts can decide.
15. In this case, Dr G criticises the Council for failing to consider, and make, adjustments to the Muslim section, to allow disabled access to gravesides. However, in response to Dr G’s complaint, the Council has explained why it does not consider it likely that such adjustments will be practical, given the age and topography of the cemetery and the capacity issues it faces.
16. The fundamental disagreement therefore lies in what is ‘reasonable’. I cannot say the Council has failed to consider the adjustments Dr G seeks; and, while it could be said the Council should have commissioned the accessibility report sooner, I cannot see what difference this could have made to its conclusions.
17. This being the case, I do not consider there is anything significant further investigation by the Ombudsman could achieve. Any criticism we could make of the Council would not bring about the changes Dr G seeks; and the fundamental disagreement here, about the reasonability of the proposed adjustments, is a matter for the courts to decide.

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Final decision

18. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman