Unsafe memorials in cemeteries

This briefing paper deals with the position in England and Wales except where otherwise stated.

Memorials in cemeteries

Memorials, in this context, are sometimes referred to using a number of different terms including headstone, tombstone and gravestone.

Accidents in cemeteries

The issue of memorial safety was brought to a head following cases where memorials toppled over and caused injuries, sometimes fatal, to members of the public. In particular, the death of a child in Yorkshire in 2000 highlighted the problem of unstable memorials.

Responsibility for maintaining memorials

Responsibility for maintaining individual memorials generally remains primarily with those who erected them. Local authorities, acting as burial authorities, have general powers of management in relation to public cemeteries. This includes power to take any action necessary to remove a danger which arises because of the condition of a vault, tombstone or memorial. Burial authorities also have a duty of care under health and safety legislation and under the principles of occupier’s liability.

Local authority testing of memorials

In the light of concerns about public safety, many local authorities started to carry out an inspection programme in order to identify unsafe memorials, and to ensure that they were made safe by whichever method they considered appropriate. In many cases this involved the use of a mechanical test instrument.

The inspections resulted in some memorials being laid flat or cordoned off, and relatives were notified that they must pay to make them safe. This sometimes caused distress to bereaved relatives who felt that the graves were being desecrated and some argued that the tests themselves were making the memorials unsafe.

In 2006, the Local Government Ombudsman and the Public Services Ombudsman for Wales expressed the view that “it should not be necessary for burial authorities to lay down grave memorials on any large scale”. The Ministry of Justice reiterated the need for great sensitivity and careful planning in the way that work relating to memorials was undertaken.

Guidance on managing the safety of memorials in cemeteries

In January 2009, the Ministry of Justice published guidance, Managing the safety of Burial Ground Memorials. This sets out good practice on the standard expected in the risk management of memorials in all types of burial grounds, public or private. The guidance states that the risk of any injury is extremely low and that any precautions should be proportionate to the level of risk. The routine use of mechanical test instruments is not recommended.

The Institute of Cemetery and Crematorium Management (ICCM) has also published guidance. In 2009, following the publication of the Ministry of Justice guidance, the ICCM indicated two dilemmas for burial authorities that it considered would need careful consideration by those with a responsibility for health and safety matters.

A revised British Standard 8415, Memorials within burial grounds and memorial sites, specification, was published on 26 July 2018.

How to complain

The Local Government and Social Care Ombudsman has published a factsheet, Safety testing in cemeteries and graveyards controlled by councils, together with details about how to complain for people who believe that there has been some fault in the way the council has acted.

Scotland

Legislation and policy for burial matters in Scotland are devolved to the Scottish Government. At present there are no general regulations in Scotland specifically governing the erection of headstones.

The Burial and Cremation (Scotland) Act 2016 (the 2016 Act) gives Scottish Ministers power to make regulations for or in connection with the management, regulation and control of a burial ground by a burial authority.

In 2018, following a Fatal Accident Inquiry into the death of an eight-year-old boy who died after a headstone fell on him at a Glasgow cemetery, Sheriff Ruxton recommended that the Scottish Government should develop and publish national guidance on memorial safety in cemeteries, for use by local authorities in Scotland. This guidance is being developed in advance of the burial ground regulations to be made under the 2016 Act. It expected that the guidance will be published early in 2019 (an indicative timescale only).