The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint the Council has failed for many years to properly maintain and repair a wall near his relative’s grave. There is no evidence of fault or injustice in the last 12 months. We will not investigate the earlier period because Mr X used his legal remedy against the Council and complains late.
The complaint
Mr X complains the Council has failed to properly maintain and repair a section of cemetery wall next to a relative’s grave. Mr X says in April 2016 stones from the wall were loose and fell onto the ground near the grave. The Council’s repair work left the wall in a dangerous, unstable, and unsightly condition. Mr X says in August 2020 he visited and found the wall had been rebuilt but not to the same height. Mr X says by this time he had made a claim at court against the Council but this was withdrawn in March 2021. His solicitor advised the claim was not sustainable and he should accept the Council’s position. Mr X also says there was a sunken area of land affecting the grave and one nearby and there was discussion about levelling the ground.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6)) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
I have considered Mr X’s information and comments. The information includes details of a court case. I have considered photographs within Mr X’s information and supplied by the Council. The Council has provided the ‘notice of discontinuation’, 12 March 2021, regarding Mr X’s County Court claim. I have considered the law.
My assessment
I will not investigate this complaint for the following reasons: There is no evidence of fault or injustice in the last 12 months which is within the Ombudsman’s jurisdiction. The Council is required to keep the cemetery in good order and repair which includes buildings, walls, and fences (Local Authorities Cemeteries Order 1977, regulation 4). Mr X ended his legal case on advice from his solicitor who was satisfied the Council had provided evidence the wall was repaired and in reasonable order (letter 4 February 2021). The photographs show the section of wall lowered and in good repair. The Council tells me it has not received a complaint from Mr X since the court case.
The Ombudsman cannot lawfully investigate a complaint where a person has used a legal remedy (see paragraph 3 and 4 above). Mr X claimed at the County Court that the Council had breached its duty of care to maintain the wall which was not safe for cemetery users. He sought an order requiring the Council to repair the wall. This means we cannot investigate the period of the court case which includes 2020 to March 2021.
The period before the Court case is outside the Ombudsman’s jurisdiction because Mr X complains late, outside the permitted period of 12 months (see paragraph (see paragraph 5). I will not exercise discretion to investigate because Mr X could have complained sooner. It would not be a good use of limited public resources to investigate.
Final decision
The Ombudsman will not investigate Mr X’s complaint the Council has failed for many years to properly maintain and repair a wall near his relative’s grave. There is no evidence of fault or injustice in the last 12 months. We will not investigate the earlier period because Mr X used his legal remedy against the Council and complains late.
Investigator's decision on behalf of the Ombudsman