The Ombudsman's final decision
Summary: We will not investigate this complaint about alleged damage by the Council to the complainant’s parents’ grave memorial. There is not enough evidence of fault to warrant an investigation. It would also be reasonable for the complainant to take the matter to court.
The complaint
Mrs X says the Council damaged her parents’ headstone with a mini grave digger, but it has denied it and has said the damage was caused by vandals.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 there is not enough evidence of fault to justify investigating, (Local Government Act 1974, section 24A(6)) 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)
How I considered this complaint
I considered information provided by Mrs Z and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council rejected Mrs Z’s claim for damage because there is no clear evidence it was caused by council staff. Without evidence, we could not decide it was the Council which caused the damage to the headstones. I recognise Mrs Z’s belief it was the Council because its staff may have been using a digger nearby, but we cannot make the same assumption. Therefore, there is not enough evidence of fault to warrant an investigation.
The role of the Ombudsman is to consider the Council’s administrative actions. It is not our role to say whether the Council’s actions caused damage to the headstones or if it was negligent.
I appreciate this is a very sensitive and personal matter for Mrs Z. However, the matter can only be determined by a court as a question of liability for the damage. Therefore, it would be reasonable for Mrs Z to take the matter to court.
Final decision
We will not investigate Mrs Z’s complaint because there is not enough evidence of fault to warrant an investigation. It would also be reasonable for Mrs Z to take the matter to court.
Investigator's decision on behalf of the Ombudsman