Summary: Mr X complains that within four months of purchasing a burial plot it was subject to flooding which was upsetting for his mother and the family as a whole. We found there was fault by the Council because information about potential flooding was not given to the family at the time it was bought, despite flooding previously. We recommended actions the Council should take and proposed a payment to the family for distress.

The complaint

1. Mr X complains that the Council sold a family burial plot to them knowing it was in an area of a cemetery that was prone to flooding. He complaints the issue of flooding has not been rectified.
2. He complains the issue stops his mother and other family members from visiting the grave and the matter is causing distress. He complains the plot was not fit for purpose.

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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. 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

5. I spoke to Mr X and considered his complaint and the information he provided. I asked the Council for information and I considered its response to the complaint.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Mr X’s complaint

7. In December 2022 Mr X’s family bought a family burial plot in a cemetery run by the Council in which his father was buried.
8. In March 2023 when the family went to visit, they found his father’s grave was flooded and under a significant amount of water. The flooding affected numerous graves in the same area. Mr X stated his mother and family were very upset at the state of the grave.
9. Mr X complained to the Council. He stated a council officer told him there was a problem with a pond on adjoining land, which was also owned by the Council. He stated, if the family had been told that the area was prone to getting waterlogged, they would have chosen a plot in another part of the site.
10. The Council apologised to Mr X and stated it was engaging a contractor to assess what temporary action it could take. It stated last year the organisation leasing the adjacent site had dug out an old pond to help alleviate the situation and the cemetery drains were flushed through to remove any blockages. The Council told the family, at the time they bought the plot there was occasional flooding but it drained away rapidly. It stated the current level of flooding was not evident. The Council stated when ground conditions allowed, it would carry out inspections on the adjacent leased land and find solutions for the longer term.
11. Mr X was dissatisfied with the Council’s response. He stated it was evident the council was aware of the issues when the plot was sold to them and he had it on good authority that the issue had existed for well over a year. He stated he had travelled to visit the grave and lay flowers and was unable to do this. His mother was also visibly shaken and upset.
12. The Council’s further response repeated its apology to Mr X’s family. It stated there had been no long-standing flooding issue and the current situation was the worst condition the cemetery had been in for many years.
13. The Council stated it was working to get to the bottom of what was causing the issue and to seek a long-term solution. It stated it had created a new temporary ditch to take water away and they would seek to take other measures when the ground was drier.
14. Mr X brought a complaint to us as he remained dissatisfied with the Council’s response. Mr X supplied us with a letter from another family who had a burial plot at the cemetery for over 20 years. The letter stated they were very much aware of flooding in the lawn area of the cemetery for several years.
15. Mr X complained that the Council sold the plot to them, knowing the area was prone to flooding. The Council should have told the family about the possibility of flooding when they chose their plot, and if they had done so, the family would have chosen a plot elsewhere in the cemetery.

What the Council told us

16. We asked the Council for details of past flooding in the area of the cemetery where Mr X’s father was buried and any complaints received about this.
17. The Council told us that there had been occasional flooding in the past, usually following heavy rainfall. It confirmed that in 2021 the cemetery suffered flash flooding during a very wet winter/spring. The Council supplied details of a complaint about flooding from August 2021. It provided photographs showing significant flooding at that time, similar in impact to that Mr X complained about in 2023.
18. The Council set out actions it had taken in 2021. At that time it had:
• Established that water from a neighbouring site ran onto the cemetery and agreed actions by the organisation leasing that site from the Council. This included clearing out a pond to allow it to hold more water and a proposal to install a bund/curb stones.
• Engaged a drain clearance company to clean the drains in the cemetery site. They removed 6-7 tonnes of debris from the drains and carried out some maintenance to inspection covers.
• Introduced regular gully clearance and maintenance.
19. In March 2023 flooding re-occurred at the cemetery. The Council stated it created a temporary ditch to alleviate some of the flood water and inspection it found further concealed drainage covers. The Council arranged for a drain company to return to carry out further maintenance on these.
20. The Council also contacted other land owners and ultimately carried out clearance work on a ditch outside of the cemetery site which carried away surface water from the site. The Council told us it planned improvements in ground conditions on neighbouring land and planned works to improve drainage on the western boundary of the cemetery site in summer 2023.
21. We asked the Council what Mr X’s family were told about the area when selecting their plot. The Council told us the Cemetery Custodian would have answered any general questions. Sometimes via a Funeral Director. It provided no evidence that the possibility of flooding in the area was discussed or disclosed.

Was there fault by the Council

22. We found that the Council was aware of the flooding issue before December 2022 in the area of the cemetery where Mr X’s family bought their burial plot. There is evidence of relatively recent significant flooding in 2021. There is no evidence the family were made aware of this when choosing a plot at the site. On balance, it seems likely to me, that had Mr X’s family been made aware of the drainage and flooding issues in that area, they would have selected a plot elsewhere. The failure to make them aware of the potential for flooding in the area they chose a plot was fault by the Council. This meant that the family could not make an informed decision and suffered the effect of the flooding.
23. I note that the Council carried out work to the drainage system in 2021 following the complaint at that time. However, in 2023 flooding occurred again and further work has been necessary to try and alleviate this. The Council found two additional inspection covers in 2023. This indicates that it was not fully aware of the drainage infrastructure at the cemetery; these were not part of the clearance works done in 2021. The Council stated that works to prepare graves in the past had also disturbed old clay land drains. It is not clear if the measures taken in 2021 and 2023 will successfully prevent flooding of graves in future and I note the Council is planning further works.
24. When our investigations show there has been fault by councils we aim to remedy personal injustice caused by that fault. Our key principle is that a remedy should, where possible, put someone back someone in the position they would have been in but for the fault we identified. In some situations we may recommend a symbolic payment to acknowledge the distress or difficulties someone has gone through.
25. In Mr X’s case, the Ombudsman cannot put his family back in the position they would have been in but for the Council’s fault. Therefore, we have proposed a financial remedy and made recommendations to ensure Mr X’s family is kept informed about the works being done and that in future, more thorough information is provided to families seeking a burial plot so they can make informed decisions.

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Agreed action

26. Within four weeks of my decision:
27. To recognise the avoidable distress caused by the flooding I recommend the Council pays Mr X’s family £1000.
28. The Council should continue the 2023 summer works it had planned to improve the situation and it should regularly keep Mr X’s family (and other affected families) up to date with the works being carried out to alleviate the flooding problems.
29. The Council should engage a suitably qualified engineer to survey the site / ascertain the causes of the flooding and ensure the current drainage system at the cemetery is properly understood. It should use the survey report to determine whether remedial work required to address the issues identified.
30. Until the Council is confident that a permanent solution has been implemented for the drainage issues, it should ensure that staff provide clear information about the potential flooding problem to any new families making enquiries about burial plots in the affected areas of the cemetery.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. There was fault by the Council. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman