Summary: Mr X complained the Council did not properly consider his application to place a memorial on a relative’s grave. The Council failed to properly consider how its regulations should apply to all sections of the cemetery, and so considered Mr X’s application incorrectly. This resulted in avoidable distress, for which the Council agreed to pay a financial remedy to Mr X. It also agreed to review the memorial rules for this section and the information it provides about permitted memorials.

The complaint

1. Mr X complained the Council did not properly consider his application for consent to erect a new memorial on a relative’s grave. He said the Council:
• wrongly refused his application and did not properly explain its reasons for doing so;
• did not tell Mr X of his right to complain or appeal about the decision;
• operated a discriminatory policy by not allowing upright headstones in certain sections of the cemetery; and
• would not provide evidence that it applied proper consideration and consultation when making this change to its regulations, such as copies of minutes of the meeting where it agreed the change.
2. Because of this Mr X said he experienced distress and uncertainty. He wanted the Council to:
• recognise its failings;
• amend its rules to allow the bereaved to place memorials at their own discretion; and
• approve his application to place a memorial on his relative’s grave.

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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. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
8. 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

9. I considered:
• information provided by Mr X and discussed the complaint with him;
• documentation and comments from the Council about Mr X’s memorial application and how it decided on its cemetery rules and regulations;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Remedies.
10. 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

Types of memorials permitted in Council cemeteries

11. Councils have discretion to set their own rules for erection of memorials and permitted memorial types, and to grant burial rights and rights to erect memorials in line with these rules. (Local Authorities’ Cemeteries Order 1977, Article 10 and Schedule 2)

The Council’s policy on memorials

12. When someone buys a grave plot within the cemetery, the Council issues them with a deed of grant, allowing them ‘exclusive right of burial’ as the owner of that grave. If that person applies for a memorial permit, the Council may also grant them ‘memorial rights’. This allows them to place a memorial on the grave subject to the Council’s rules about types and sizes of memorials. (Lambeth Cemetery Rules and Regulations July 2017, Section 2.6 and 2.7)
13. The Council’s general memorial regulations say the type and size of memorial allowed depends on the section of the cemetery, and may alter “from time to time”. It says full information is available from the cemetery office. (Lambeth Cemetery Rules and Regulations July 2017, Section 5.17)
14. The Council’s regulations for memorials on traditional kerb set sections and Muslim burial sections say one of the following memorial options must be agreed with cemetery staff when the funeral is arranged:
1. A headstone and full kerb sets covering the full grave area, with a cover slab, stone chippings or soil for planting, and wide flexibility allowed for style and colour.
2. A headstone and simple six feet by three feet pre-cast kerb set, filled with topsoil for planting, or stone chippings.
3. A headstone and the plot levelled with topsoil and sown with grass seed or a wildflower mix, with the option to install kerb sets later date if wanted.

(Lambeth Cemetery Rules and Regulations July 2017, Section 5.38)

15. The Council publishes information on its website which says it revised the regulations for Lambeth Cemetery in 2017, and it now only allows headstones on bases and traditional kerb-style full memorials in most sections. This also says a grave owner’s selected memorial mason will advise them on the sizes and types of stone allowed and will apply to the Council for the necessary permit to carry out the work.

The Equality Act

16. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
17. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The ‘protected characteristics’ referred to in the Act are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
18. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010.
• Advance equality of opportunity between people who share a protected characteristic and those who do not.
• Foster good relations between people who share a protected characteristic and those who do not.

The broad purpose of the public sector equality duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

What happened

The Council’s cemetery regulations

19. The Council said it agreed, around 2008 when the section was established, special rules for the section of the cemetery which contained Mr X’s plot. It said it agreed these rules with Organisation Y, a local place of worship, which also acted as a funeral provider for graves within the section. These rules said:
• All memorials will be a simple tablet or wedge, installed flat and flush to the surrounding ground at the ‘head-end’ of the grave, with limits on size.
• There will be no allowance for traditional or lawn memorials to be installed. No other form of memorial will be allowed other than that prescribed.
• It is the responsibility of the grave owner’s selected funeral director to ensure they are advised fully of the rules before burial. Funeral directors are required by Lambeth Burial Authority to advise of the cemetery regulations to allow their clients to make an informed decision. Lambeth Council only takes responsibility for the rules stated and has no control over the information, or lack of information, provided by third parties.
20. The Council said it no longer held any records about its decision to agree the rules for this section in 2008, or any consultation that may have happened at the time.
21. In 2017, the Council reviewed the overall regulations for Lambeth Cemetery and agreed new rules which were still in place at the time of my investigation. The report of the delegated decision which agreed these rules said:
1. The Council assumed this to be the first such review since the 1970s or 1980s, and it had not adequately enforced the previous regulations.
2. The purpose of the review was to “offer users increased options and respond to the high level of demand for the installation of full kerb sets and more traditional memorials”. In particular the changes would be beneficial to the Muslim community, which was “highly restricted as to the type of memorial” allowed within its designated cemetery sections. Mr X’s plot is within a designated Muslim section. The report says the changes would bring improvements including “removal of unnecessary restrictions”, “increased choice for grave owners”, and “standardised treatment for all grave owners”.
3. The Council did not carry out a formal consultation but did consult closely with Organisation Y, which was fully in support of the proposed changes. In fact it says it was Organisation Y that requested the Council relaxed restrictions on memorials in Muslim sections.
4. The Council did not complete an Equalities Impact Assessment (EIA) for the changes but did complete a form to explain why it did not complete an EIA. The report says “the revised regulations contain only minor service changes which increase the options available for the bereaved…the only target demographic which is in any way affected (the Muslim community) have been consulted with and positive changes made to the regulations reflecting their desire for increased memorial options".
22. The Council said it no longer held records of supporting documentation for this delegated decision report. It did not have a record of its informal consultation with Organisation Y, or a copy of the form it completed to explain why it did not complete an EIA. It said this was because none of the staff who worked in the Council’s bereavement team during the 2017 review still worked in the team at the time of my investigation.

Mr X’s memorial application

23. Mr X bought a grave plot within Lambeth Cemetery in the early 1990s for the burial of a close family member and the Council allowed him to place an upright headstone on the grave. In December 2020, another close family member of Mr X’s died. The following day Mr X applied for another grave plot in Lambeth Cemetery, and the Council granted him exclusive right of burial for the grave. Mr X said he applied for the grave plot via his funeral provider, Organisation Y, not the Council.
24. Five days after his application, and two days before the burial took place, Mr X signed a ‘memorial waiver form’. This set out the memorial rules for the section containing the grave plot, including those described at paragraph 19. Mr X said he did not properly read this because it was a difficult time. He said he had also assumed the rules would be the same as when he arranged his other relative’s burial in the early 1990s.
25. Four months later Mr X approached a memorial mason to enquire about a memorial for the grave. Mr X said the mason told him Council rules would not permit him to place an upright headstone “on religious grounds”. The Council said two weeks after this it posted Mr X a copy of his deed of exclusive right of burial with a copy of the Lambeth Cemetery Rules and Regulations July 2017.
26. Nearly four months after this, Mr X contacted the Council and Organisation Y to ask why he could not have the memorial he wanted. Organisation Y told Mr X the rules were imposed by the Council, and it did not have a say in the matter. Mr X asked the Council if he could appeal its decision, and it told him there was no appeal process for memorial applications. Mr X then put in a complaint the same day.
27. In its response to the Ombudsman’s enquiries during our investigation, the Council said it would now allow Mr X to have his requested memorial.

My findings

The Council’s 2017 review of its cemetery regulations

28. The section of the Council’s 2017 cemetery regulations described at paragraph 14 contradicted the memorial rules described at paragraph 19, which the Council said it agreed in around 2008. The Council said the 2008 rules still applied to Mr X’s grave plot when he bought it in 2020, which is why it included the 2008 rules in the waiver form he signed. The Council said the 2017 rule changes described at paragraph 21 applied to the cemetery in general but not to Mr X’s section, because of the pre-existing agreement made in 2008 with Organisation Y.
29. However, as described at paragraph 21, the report about the 2017 changes said that same organisation specifically asked the Council to relax memorial restrictions in sections including those which contain Mr X’s plot. It also said the changes would ensure “standardised treatment for all grave owners”. Furthermore, when Mr X queried why he could not have the memorial he wanted, Organisation Y told him the rules were imposed by the Council, and it did not have a say in the matter. This suggests the reason the changes could not apply to this section was not because of the historic agreement with Organisation Y.
30. The Council said it could apply different rules to Mr X’s section even though it had not specifically covered these different rules in its 2017 regulations. It said this was because as described at paragraph 13, its regulations say types and sizes of permitted memorials “may alter from time to time”. If it is the case that the Council intended to use this regulation to vary its rules at any time, we would expect it to keep records of any differing rules and their rationale.
31. The Council provided no evidence it separately considered Mr X’s section of the cemetery as part of the 2017 review or made a considered decision to exclude it from the rule changes. The Council said it did not include the different rules for this section in its regulations because at the time of the 2017 review there were few available grave plots remaining in the section. I do not consider this to be a good reason for the Council not to give the differing rules for this section due consideration as part of its review. I also note the burial of Mr X’s family member took place over three years after the review. I therefore consider it unlikely there were so few plots left in 2017 that the Council would have considered the section too insignificant for consideration in the review. Indeed, by its own admission the Council does not know whether it considered the different rules for this section in the review. It said it no longer holds records of supporting documentation, and has since replaced relevant staff.
32. As described at paragraph 11, councils have discretion to set their own rules about memorial types. As described at paragraph 6, we cannot question whether an organisation’s decision about its rules is right or wrong, we can only consider whether there was fault in how it reached that decision. The Council’s report about the 2017 changes suggests it intended these to apply across the cemetery to enable a standard approach for all grave owners. The Council provided no evidence its 2017 review considered relevant information such as:
• why the new general cemetery rules could not apply to certain sections;
• consultation with relevant stakeholders for any section to which the new rules would not apply, such as existing grave plot owners within that section, and;
• an Equality Impact Assessment to ensure it had given due regard to reflecting equality considerations in the design of the regulations.
33. On the balance of probabilities, I am satisfied the Council did not give due consideration to how the changes would apply to this section of the cemetery when it carried out its 2017 review. This was fault.

The Equality Act

34. Mr X said the Council’s policy for the section in which his grave plot lay was discriminatory. The Ombudsman can find an organisation at fault for failing to take account of its duties under the Equality Act, which are described at paragraphs 16, 17 and 18.
35. The Council did not keep records of its justification for not completing an Equality Impact Assessment (EIA) as part of its 2017 review. I consider decisions about permitted burials and memorials to be an emotive and potentially contentious subject, particularly where a council decides to impose more restrictive rules for certain religious communities. Given the significant link between burial / memorial practices and religion or belief, I would expect the Council to have good justification for not completing an EIA. I would also expect it to have kept a record of this justification, especially for a decision taken within the last six years. I do not consider the Council’s explanation that it does not hold these records because it has since replaced relevant staff to be a good reason not to have kept a record of this. The Council failed to provide evidence that it properly considered its duties under the Equality Act, particularly in relation to the differing rules for this section of the cemetery. This was fault.

How this impacted Mr X

36. The Council said that where applicants chose to use the section Mr X chose in 2020, they were required to adhere to rules set out in the waiver form. However, it provided no evidence it gave Mr X the opportunity to make an informed choice to use this section rather than another section to which the 2017 rule relaxations did apply. I am satisfied the Council automatically gave Mr X a grave plot in that section because he had selected Organisation Y as his funeral provider. As described at paragraph 19, the Council’s 2008 rules for this section said it was Organisation Y’s responsibility to ensure Mr X was fully aware of the memorial rules before the burial took place. As described at paragraph 3, where an organisation is acting on behalf of a council, we can investigate complaints about those actions. Even if the Council decided to delegate certain activities to Organisation Y, it held ultimate responsibility for ensuring clear and correct information was provided to grave owners.
37. I recognise Mr X made assumptions about permitted memorials based on historic events that took place some time ago. By Mr X’s own admission, he did not read the information in the waiver form. I accept this was a difficult time for him to take in this information. I also recognise the need to sign the forms close to the funeral may have been unavoidable in this case. However, there is no evidence the Council published any information to make clear that more restrictive rules were in place for this section of the cemetery, either in its 2017 regulations, or on its website. This was fault.
38. The 2008 rules set out in the waiver form contradicted the 2017 regulations that applied to the cemetery in general. These separate historic rules were also at odds with the reasoning set out in the Council’s report of its decision to impose the 2017 rules. I cannot say the Council’s failure to properly consider its 2017 review caused Mr X an injustice. This is because I do not know if the rules would be different if the Council had properly considered this. Even on the balance of probabilities, I do not know what rules should have applied in Mr X’s case, as there was a lack of clarity about how the 2017 changes applied to these sections. In response to my enquiries, the Council said this section of the cemetery was now full and so the differing rules were no longer in use.
39. Had the Council properly considered this section of the cemetery as part of its 2017 review, I consider it likely it would have made any differing rules clearer within its website, regulations, and staff guidance. It is likely this would have enabled Mr X to make an informed choice. If the Council had made the rules clearer and given Mr X opportunity to choose an alternative, I am satisfied, on the balance of probabilities, he likely would have done so. Therefore, even if the rules applied in Mr X’s case were correct, he did not get the opportunity to make an informed choice, and is now unable to do so. This caused him avoidable uncertainty and, had the Council not agreed during, my investigation to permit the memorial Mr X had requests, would have also caused him avoidable distress.

Council’s complaints process

40. Mr X said the Council did not tell him of his right to complain or appeal. Mr X directly asked the Council if he could appeal its decision about the memorial. The Council correctly told him there was no specific appeal process. However, it did not direct him to its complaints procedure, despite it being clear he was dissatisfied and seeking a route to pursue his concerns further. This was fault. However, Mr X did complain to the Council the same day and the Council dealt with this quickly through its complaints procedure. Therefore, I do not consider the Council’s failure to properly direct him to its complaints procedure caused him any delay or injustice.

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Agreed action

41. Within one month of my final decision the Council will:
1. Apologise to Mr X for the faults identified.
2. Pay Mr X £150 to recognise the avoidable distress caused to him while he did not know what the correct outcome of his memorial application should be.
3. Contact Mr X to arrange its approval of his requested memorial, as it agreed in response to my enquiries.
42. Within three months of my final decision the Council will:
1. Review how its 2017 cemetery regulations should apply to Mr X’s section of the cemetery. As part of this review, the Council will consider whether it needs to complete an Equality Impact Assessment or consult with relevant stakeholders, such as existing grave plot owners within the section.
2. Following its review, explain any rule changes to people who have bought a grave plot within the two affected sections since the 2017 regulation changes were implemented.
3. Review the information it provides about permitted memorials on its website, or when people make memorial applications or enquiries, to ensure people are aware of any restrictions and alternative options before they decide to buy a grave plot.
4. Review its record retention and disposal policy for decision making about cemeteries and crematoria.

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Final decision

I have completed my investigation. There was fault by the Council which has caused Mr X avoidable distress. The Council agreed to our recommendations to remedy this injustice, and review its memorial rules for this section and the information it provides about permitted memorials.

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Investigator's decision on behalf of the Ombudsman