Summary: We will not investigate Mrs X’s complaint about the Council’s delay in processing her insurance claim and denying liability for damage to her parent’s graves which she claims was caused by the actions of its groundskeepers. It is reasonable for Mrs X to continue her claim with the Council’s insurers. If the insurers refuse her claim she can take her damage liability claim to court as it is a legal dispute only the courts can now decide.

The complaint

1. Mrs X complains about the general decline of the condition a cemetery. She also complains the Council has used a ride on lawn mower to cut the grass next to her parent's grave as opposed to using handheld machinery for those areas in line with its own policies. This is the second time the Council has damaged her parent’s grave. The previous claim for damage was settled in 2021. However the Council is refusing to admit liability despite the evidence she says she can provide.
2. Mrs X wants the Council to:
• admit it caused the recent damage
• pay for the repair
• apologise; and
• compensate her.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)

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How I considered this complaint

5. I considered information provided by Mrs X, including the Council’s responses to her complaint.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The core issue in Mrs X’s complaint is the allegation that the Council is liable for the damage caused to her parent’s grave. She has made a claim against the Council’s insurers for that damage.
8. The Council has accepted the clearance of cuttings and detritus from the cemetery pathway could have been better and it is spoken to staff about this.
9. I understand the Council delayed in processing Mrs X’s insurance claim and she says it is refusing to accept liability for the damage. We cannot determine claims of legal liability for property damage and settle this dispute so will not investigate. If the Council’s insurers deny liability, the route for Mrs X to pursue the finding of legal liability against the Council and her claimed losses from the incident is via the courts. The court process is a low-cost procedure open to anyone to make this kind of small claim.
10. It is reasonable for Mrs X to take her claim to court because they are the bodies able to make formal rulings on legal liability claims. And because they can make binding orders on the parties whereas we may only make recommendations.

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Final decision

11. We will not investigate Mrs X’s complaint because:
• it is reasonable for her to take her damage liability claim to court if her claim is refused. Only the courts can determine liability and make a binding ruling; and
• the court process can provide the outcomes she seeks from her complaint.

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Investigator's decision on behalf of the Ombudsman