Summary: Ms X complained her sons grave is prone to flooding, she believes the water may be contaminated. She is not satisfied with the Council’s response to her complaint. The Council is at fault for failing to investigate the complaint thoroughly and failing to explain this to Ms X. This has caused Ms X unnecessary distress.

The complaint

1. Ms X complained her sons grave is prone to flooding, making it impossible to visit when it does. This has caused Ms X emotional distress. Ms X wants to know if the Council surveyed the area before buying the land and whether it knew about the risk of flooding when she bought the grave. She would also like to know if the water is contaminated and what the Council can do to drain the site.

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The Ombudsman’s role and powers

2. 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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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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What I have and have not investigated

4. I am investigating how the Council responded to Ms X’s complaint, the action and explanation it has provided. I am not investigating the Councils acquisition of the cemetery or the sale of the plot to Ms X, information is provided for background.

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How I considered this complaint

5. As part of the investigation, I have considered the complaint and the documents provided by the complainant, the documents provided by the Council and its comments in response to my enquiries. I have also considered relevant government guidance.
6. Ms 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

Government guidance

7. The Environment Agency has published guidance on protecting groundwater from human burials. There are several measures for minimum good practice to protect groundwater. These include not using land liable to flooding for human burials, ensuring the grave is above the anticipated annual groundwater level and burials not to take place within 30 metres of a spring or watercourse.

What happened

8. I have summarised below the key events; this is not intended to be a detailed account.

History of the site

9. The Council sought to acquire former agricultural land for use as a cemetery in 1996, using its Compulsory Purchase Order (CPO) Powers.
10. In 1996, a public inquiry took place. The accompanying report stated the ‘ground conditions would allow all-year round burial… and would provide a pleasant location for visiting relatives.’ The report recommended confirmation of the CPO.
11. In 1997, the Secretary of State agreed with the inspector’s report, accepted their recommendations and confirmed the CPO. It was satisfied the land was suitable.

Ms X’s complaint about flooding

12. Ms X arranged for her son’s body, Mr S, to be buried in the cemetery following his death in 2014.
13. In 2024, Ms X complained to the Council. She said her sons grave flooded sporadically over a few years but it had recently got worse. She said it is impossible to visit her son when the ground floods, she wears wellington boots but still sinks into the mud and struggles to take flowers to the grave. This has affected her mental health and caused significant distress.
14. Ms X worries the ground water is contaminated as it ‘bubbles up’ towards the surface. She said groundsmen at the cemetery advised her a natural spring is underneath her sons grave. She wants the Council to investigate. She would also like to know if the Council did a survey on the land before buying, and whether it knew about the potential flood risk before selling the graves.
15. The Council issued a stage one response at the end of March 2024. It said the borough had experienced unprecedented weather since October 2023. It explained the land is shale based and not free draining which means pools of water form and take time to dissipate. The Council said it had reviewed the matter and there was nothing it can do to aid water flow from the site and hoped as the weather dried, the matter would resolve itself. The response did not comment on the water bubbling up from the ground or the underground spring. The Council confirmed it completed a survey before it built the cemetery. Ms X was not happy with the response and asked for a stage two investigation.
16. The Council issued a stage two response in the middle of April. It upheld the stage one and reiterated the previous response.
17. Ms X complained to the Ombudsman in late April. She was not satisfied the Council properly considered her concerns or provided satisfactory answers and solutions.

The Ombudsman’s enquiries

18. In response to my enquiries, the Council explained the history of the site as set out above and provided accompanying documentation.
19. It said it is aware the land holds water and there is potential for all parts of the site to be affected by flooding. The Council said it does not routinely record details of flooding and it is rare for flooding to take place above ground. Flooding usually depends on the weather and severe flooding of the site only happened since Storm Babet in Autumn 2023.
20. The Council explained flooding is more an issue when digging graves. It said it uses special equipment to remove water from the grave space if needed. This is standard practice in other cemeteries within the borough.
21. The Council said it did not know the plot was prone to flooding when it sold it to Ms X.
22. I asked the Council to explain what it meant by the recent reviews it carried out, as referred to in its complaint response to Ms X. The Council told me it inspected the site as part of a wider scheme to reduce the impact of flooding in the area. The operational management team inspected the area and found no visible obstructions. To reduce the impact of flood water, the Council increased the depth of the land drains outside the cemetery to hold flood water and increase capacity.
23. I explained Ms X is concerned the water from Mr S’s grave may be contaminated. The Council said it does not routinely test flood water for contaminants.

Analysis

Ms X’s complaint about flooding and the Council’s response

24. Ms X had several queries within her complaint to the Council. The Council’s complaint response provided some answers but with limited detail.
25. Ms X wanted to know if the Council did a survey before buying the land for use as a cemetery. The Councils complaint response said it completed a survey before building the cemetery and it dug test holes. The Council gave more detail in its response to the Ombudsman as set out above. While I do not expect the Council to go into this detail in its complaint response, it could have explained there was a public inquiry before the Secretary of State agreed to the CPO. The Council’s complaint response was limited.
26. Ms X wanted to know what the Council has already done, or can do, to prevent the area from flooding. In its complaint response, the Council said it had reviewed the matter and could not do anything to help. It did not explain what it meant by this. It was only in response to my enquiries the Council provided further information.
27. The Council response to Ms X’s complaint was limited, this is not best practice. This caused Ms X avoidable worry and distress which the Council could have lessened by explaining what work it had done.

Visiting the cemetery

28. Ms X said when the grave floods, she cannot visit her son. In response to my enquiries, the Council said the cemetery is open throughout the year, regardless of weather. This may be the case, but Ms X said even wearing wellington boots it is difficult to get close to Mr S’s grave. She described the grave side as a ‘mud bath’. She struggles to leave flowers and make the area nice for her son. Ms X considered the Council could do more to make it easier and safer to visit the graves which sometimes flood, for example, putting boards down. There is no evidence the Council has considered what it can do to ensure safe access to the site and allow visitors to mourn with dignity. This is fault. Not being able to visit Mr S’s grave when it floods causes Ms X distress.

Ms X’s complaint about testing the water

29. Ms X said she is concerned the water which ‘bubbles up’ from her sons grave, which the groundsmen told her is potentially from an underground spring. She is concerned the water is contaminated. The Councils complaint response does not address this. The Council is at fault.
30. In response to my enquiries, the Council said it does not routinely test the water for contaminants. It did not say if it has done so since Ms X raised her concerns.
31. Considering Ms X has brought the possibility of contaminated water to the attention of the Council, and considering the guidelines from the Environment Agency, I would expect the Council to investigate this further and explain this to Ms X in its complaint response. Its failure to do so is fault. This has caused Ms X distress; she worries about the impact the water will have on her sons remains and the surrounding area.

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Agreed actions

32. Within four weeks of the final decision, the Council agreed to:
• Apologise to Ms X for the distress caused by the failure to fully address all parts of Ms X’s complaint in its response.
• Consider what action, if possible, it can take to allow safe and dignified visiting at Mr S’s grave, and any other graves affected by potential flooding.
• Confirm it considered the Environment Agency guidelines on protecting groundwater at cemeteries and determined whether action is required.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation. The Council is at fault for a poor complaint response, failing to consider improvements to enable safe and dignified access to the grave side and failing to investigate if the groundwater is contaminated.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman