Summary: Mr X complained the Council required him to temporarily move the kerb set on his relative’s grave to facilitate his father’s burial in the adjacent grave. The Council was at fault for not communicating its requirements properly. It was not at fault for its decision to require the kerb set to be moved. The Council will apologise to Mr X and make a symbolic payment in recognition of the avoidable distress and uncertainty caused by its fault.

The complaint

1. Mr X complained about matters related to his father’s burial in a pre-purchased family burial plot at a Council-run cemetery. He complained the Council required him to temporarily move the kerb set on his relative’s grave to facilitate his father’s burial in the adjacent grave which had costs associated with it. He also said there was enough space between his relative’s grave and the adjacent plot to allow its use without moving the kerb set.
2. Mr X said looking at his relative’s grave without a kerb set caused him distress during a difficult time. He also said he was left out of pocket as he had to pay for his relative’s kerb set to be moved and will need to pay to have it put back in place.

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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 significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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(1), as amended)

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How I considered this complaint

7. I spoke to Mr X about his complaint and considered the evidence he provided.
8. I considered evidence provided by the Council as well as relevant policy and guidance.
9. Mr X and the Council had an opportunity to comment on the draft decision. I considered any comments before making a final decision.

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What I found

Relevant policy and guidance

10. The Council publishes its cemetery rule book on its website which sets out general cemetery rules including information on allocation of graves, applications for memorials and the types and sizes of memorials allowed.
11. Our Good Administrative Practice guidance for councils sets out the transparent and open communication we expect to see in councils’ processes.

What happened

12. This section sets out the key events in this case and is not intended to be a detailed chronology.
13. Mr X’s family purchased a family burial plot when their relative passed away in 2008. In the following years, the Council agreed for families to install full kerb sets/memorials on graves. It also stopped pre-purchase of graves to preserve space for future use.
14. In 2017 Mr X’s family installed a full kerb set on their relative’s grave after the Council approved their application.
15. In May 2024 Mr X’s father passed away and was buried in the grave next to their relative’s grave. This necessitated the temporary moving of the kerb set.
16. Soon after Mr X complained to the Council. He said the Council:

• told him he could not use the grave next to his relative’s grave due to the kerb set because it could collapse into the neighbouring grave.
• had not mentioned that kerb sets would need to be removed from graves when utilising the plot next to it. Mr X said there was no mention of such a requirement in the Council’s cemetery rule book either.
• pushed him to make a decision quickly. He said he agreed for his relative’s kerb set to be rolled back to fulfil his late father’s wishes, for which he incurred a substantial cost.

17. In June 2024 the Council issued a stage one complaint response. In it the Council said:

• it was a requirement for kerb sets to be moved, rolled back or disassembled for burials adjacent to a full kerb set to enable access to the grave for health and safety reasons so that the weight of the kerb set did not cause the new grave to collapse. This was the case for any permanent, stone kerb set in any of the non-lawn grave sections of the cemetery.
• It recommended Mr X’s relative’s kerb set should not be replaced until his father’s grave had time to settle for 12 months to minimise the risks of it sinking into the adjacent grave and requiring work in the future.
• decisions needed to be made quickly to comply with faith-based burial rights to enable ground staff to prepare the grave safely and in time for the burial.
• upon receiving notification of the burial, staff inspected the pre-purchased plot to check suitability for use and to prepare the grave. This highlighted the kerb set on Mr X’s relative’s grave. In a telephone call between Mr X, the funeral director and the cemetery staff, Mr X was given two options - a second pre-purchased plot (one plot further along) could be used or the kerb set on his relative’s grave would need to be moved to use the adjacent plot.

18. Regarding the size of the kerb set and its communication, the Council said:

• staff recollected that Mr X’s late father visited the cemetery office on various occasions after their relative had passed away with information about memorials he wished to install. The Council said the cemetery staff advised Mr X’s father on the size and types of memorials permitted. It also said that a disagreement between Mr X’s father and the cemetery staff about cemetery rule book sizes led to a complaint to the Council in 2008.
• rules allowing full kerb sets were put in place in 2010 and Mr X’s family submitted an application to install a kerb set on their relative’s grave in 2017.
• while the approval for the kerb set was put into the Council’s database, the application paperwork (including dimensions and drawings) was disposed of after five years. Staff later became aware that the installed kerb set exceeded permitted dimensions but the Council decided not to pursue compliance due to the previous complaint over the memorial and because it was unable to evidence whether the correct or wrong dimensions had been approved.
• while the cemetery rule book set out terms and conditions that apply to grave owners, it did not cover all routine operational practices.
• it would ask staff to review the permit approval correspondence to ensure that the “requirement for moving existing memorials is explicit at the time of a permit being approved.”

19. In July 2024 Mr X asked the Council to escalate his complaint. He said if his relative’s kerb set was not the permitted size then the Council should not have approved it. He also said that if the Council had made them aware of the kerb set rules, their family would have only installed a headstone until all plots had been used. He asked the Council to make its permit approval process clear for other families.
20. The Council issued a stage two complaint response a few days later. It said it no longer held the original paperwork for the kerb set so it was unable to say how the oversized kerb set came to be. It reiterated that the size of the kerb set had no bearing on the need to move it to permit use of the adjacent grave and that it would have needed to be moved even if it was size-compliant. It also said that it would review the permit approval correspondence to make the requirement for moving existing memorials clear at the time of permits being approved for families’ consideration when planning memorials.
21. Mr X remained unhappy with the Council’s response and complained to us in March 2025.
22. In response to our initial enquiries, the Council said:

• it had no written documentation to support either the staff’s recollection of their various interactions with Mr X’s father about the memorial/kerb set nor Mr X’s assertions to the contrary about what was explained to his father.
• its standard operational procedure is for the removal of full kerb sets. To consider leaving kerb sets in place, it would need to carry out a dynamic risk assessment. It spoke to the cemetery staff who stated they were only aware of one grave in recent years where such an assessment resulted in the kerb set being left in place during a burial in the adjacent grave. This was in an older section of the cemetery where the kerb was edging only.
• sections of cemetery opened over the past few decades have been lawn grave sections with only mini-kerbs extending two feet from the headstone. Mini-kerbs do not need to removed for burials or interments in adjacent graves.

Findings

Size of the kerb set

23. The Council no longer holds detailed records to evidence why it approved a non-compliant kerb set in 2017 or if it accidentally permitted the wrong dimensions. However, the Council decided not to take any enforcement action, therefore Mr X has not been caused an injustice. Further, the Council said it would have needed to move the kerb set regardless of its size to facilitate Mr X’s father’s burial so the size of the kerb set did not play a part in the recent events that caused Mr X to complain to the Council.

Requirement to move kerb sets

24. It is not our role to say whether a decision made by the Council is right or wrong if it was made without any evidence of fault. The Council explained to Mr X that it was necessary to roll back the full kerb set for health and safety reasons and to allow safe access for the burial in the adjacent grave. It reiterated that this was the case for any permanent, stone kerb set in any of the non-lawn grave sections of the cemetery irrespective of faith. There was no fault in the way the Council made and explained this decision.

Communication

25. Mr X’s family installed the kerb set in 2017 and the Council’s records do not show exactly what was explained at that time.
26. The Council’s published cemetery rule book sets out information about the permitted dimensions of kerb sets amongst other rules but contained no information about the requirement of moving full kerb sets to use adjacent graves and the costs involved in doing so. The Council explained that its cemetery rule book does not cover all scenarios including routine operational practices. There is no evidence the Council provided any information about its requirement to move full kerb sets for burials in adjacent graves to allow Mr X to make an informed choice from the outset.
27. The Council’s complaint responses also stated that it would review its standard permit approval correspondence to make sure that the requirement for moving existing kerb sets was “explicitly” clear at the time of approving permits. This suggests there was no information in the permit approval correspondence regarding this. On the balance of probabilities, the Council did not communicate this information to Mr X and his family properly which was not in line with our principles of good administrative practice and was fault.
28. Mr X said his family would not have installed a kerb set if the Council had communicated its requirements at the time of their application. The kerb set was installed in 2017 and the Council has no written documentation of the staff’s interactions with Mr X’s late father about the kerb set. I cannot say, even on the balance of probabilities, what Mr X and his family would have decided at the time if the Council had made them aware of its requirements sooner. However, the Council’s poor communication has caused Mr X frustration and uncertainty.

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Agreed action

29. Within one month of this decision the Council will:
1. Apologise to Mr X for the avoidable distress and uncertainty caused by its fault. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology.
2. Pay Mr X £200 in recognition of the avoidable distress and uncertainty caused by its communication.
30. The Council will provide us with evidence it has complied with the above actions.

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Decision

31. I found fault causing injustice and the Council agreed to my recommendation to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman