Summary: Mrs X complained the Council failed to carry out checks when it received a request for a transfer of burial rights. The Council failed to check who owned the grave and confirm the person making the application was the closest surviving relative. The Council will apologise, pay for the distress caused and take action to prevent reoccurrence.

The complaint

1. Mrs X complained the Council failed to carry out reasonable checks on receipt of an application to transfer ownership of a grave plot.
2. She says this resulted in the incorrect transfer of the grave plot, the burial of other family members in the grave, the headstone being replaced and significant distress to family members.

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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 have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
6. Mrs X and the organisation 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

Law and guidance

7. A burial authority has the right to grant a person the exclusive right of a burial plot for a period of less than 100 years. No body or remains can be placed in or scattered on the grave without the consent of the owner in writing unless they are the remains of the owner of the grave. The owner of the plot or any relative of the person buried in the grave has the right to place and maintain a memorial or tombstone. (The Local Authorities’ Cemeteries Order 1977)
8. Effecting a legally sound transfer of ownership means ensuring it only transfers to the person(s) entitled. Confirming entitlement should involve requesting a grant of probate or letters of administration. Where these are not available a statutory declaration should be made by the lawful next of kin. (Transfer of rights, The Institute of Cemetery and Crematorium Management)
9. Our published guidance sets out the standards of administrative practice we expect from councils when we investigate their actions. We expect the Council to be open and accountable. This includes:
• Ensuring any information provided is accurate;
• Keeping proper and appropriate records; and
• Maintaining transparency.

What happened

10. Mrs X’s mother, Mrs A, bought a grave in October 1985 on a 99-year lease for one individual. Shortly after Mrs X’s grandmother was buried in the grave. Mrs A has since passed away in 2020.
11. The notice of interment for the grave stated the Council would need the grant of exclusive right of burial for a burial in the grave. Where it could not be provided it stated the ‘owner, next of kin or executor’ must complete a form of indemnity at the cemetery office.
12. The Council says in 1985 has paper records only. It says it would have issued a paper deed to the owner, assigned a grave number to the plot, and placed the name and address of the owner in a register at the cemetery.
13. In January 2022 Mrs X’s first cousin once removed (Ms B) contacted a funeral director. She asked them to bury Mrs X’s aunt (Mrs C) and uncles ashes in the grave. The funeral directors acted on behalf of the Council to arrange this. The funeral directors asked Ms B to complete an indemnity form as she did not have a grave deed.
14. The Council says Ms B was asked questions. She told it the grave was owned by Mrs A and Mrs C. She stated she was a relative of both owners as she was a granddaughter and great niece. The Council did not keep written documents confirming this declaration.
15. Ms B signed an indemnity form confirming the grave deed could not be found but she had the benefit of the deed in late January 2022. On the form she stated that she was the granddaughter of the original grave owner.
16. The Council granted Ms B ownership of the grave. The ashes were buried in the grave and Ms B replaced the headstone.
17. In response to Mrs X’s complaint the Council stated that it would amend its procedures to reflect the current guidance in place for Cemetery and Crematorium management.
18. Mrs X made a complaint to the funeral directors. They explained that in line with Council requirements they had asked Ms B to sign an indemnity form to confirm she had the benefit of the grave.
19. During the Ombudsman’s investigation the Council acknowledged it did not have a written policy in place for dealing requests to transfer grave ownership. It says it would ask for a copy of the grave deed issued. It says if this was unavailable it would ask the individual to complete an indemnity form and answer questions. The questions would include establishing if the grave owner was alive, whether there are surviving relatives and whether the individual was the most suitable person to claim the grave.

Findings

20. Ms B completed an indemnity form which stated she was the granddaughter of the owner of the grave. The Council did not carry out a check to confirm who the owner of the grave was. Had the Council carried out a check it would have confirmed that the owner of the grave was not the person Ms B stated was the owner and granddaughter of on the indemnity form. This is fault.
21. The Council says one of the questions it asked Ms B was if she was the nearest surviving relative of the owner. It states Ms B responded that Mrs A and C were the owners and that she was next of kin. It has explained, during this investigation, the funeral directors did not keep any evidence of these responses. The funeral director’s statement provides no indication they asked Ms B questions about her relationship with Mrs A. The Council’s failure to have any notes of its interactions with Ms B in arranging the transfer is fault.
22. In these situations, we consider making a finding on the balance of probabilities. Weighing up the comments and evidence that is available to decide what we think is more likely to have happened. I consider it more likely than not that questions around ownership and rights were not asked. The Council does not have a specific policy in place requiring funeral directors to check this information and the funeral directors have given no indication that they did.
23. I appreciate the Council’s position that Ms B provided incorrect information. If the Council had carried out these checks it would have been able to question whether Ms B was entitled to the grave and could give permission for further burials. I am not persuaded on balance that Ms B was aware the grave belonged to Mrs A nor that she would claim to be her nearest living relative.
24. Mrs X has been left angry and frustrated by what has happened to the grave following the transfer of rights. She does not believe these accord with her grandmother’s wishes. She has been left with the uncertainty that action could have been taken to prevent another family member from claiming ownership of the grave. This is an injustice.

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Agreed action

25. Within one month of the final decision the Council will:
• Apologize to Mrs X for its failure to check who the owner of the grave was and its failure to confirm that the person requesting the transfer was the closest surviving relative.
• Pay Mrs X £250 for the distress caused.
26. Within two months of the final decision the Council will:
• Establish a policy for the transfer of burial rights which reflects the current guidance available. It should share this policy with all parties responsible for the allocation of burial rights within the Council.
27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. I have completed my investigation. I have found fault leading to an injustice. The Council will action to address the injustice and prevent reoccurrence.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman