Watford Borough Council Memorial safety check and repair

Background

Historically, health and safety concerns in cemeteries have focused on the risks arising from grave digging. However, in recent years there has been increasing attention on the stability of memorials and the risks that these present to all cemetery users. This has been highlighted by 3 fatal accidents to children from falling memorials, the most recent being July 2000. HSE has enforcement responsibility for all cemeteries apart from those located in churchyards, for which the local authority (LA) has enforcement responsibility.

Accident data

To date, HSE is aware of 10 accidents to members of the public in cemeteries due to unstable memorials, 3 of which have been fatal. Most of these accidents have been to children and consequently some have led to high media interest and official correspondence.

Who has duties under HSW Act for cemeteries?

Primary responsibility for health and safety in cemeteries lies with the burial authority in control of the cemetery. This may be the LA, church or private company. There are over 3,300 burial authorities in the UK. Burial authorities are required to control the risks associated with cemeteries for which they have responsibility. Whilst burial authorities have overall responsibility for the safety of the cemetery, including the risks arising from unstable memorials, they do not own the memorials. The owners of the memorial will be the grave owner - normally the family of the deceased. However, in many cases there may no longer be an identifiable owner.

Legal

Where burial authorities are employers, the duties under HSW Act remain clear. The burial authorities retains duties towards its staff and responsibilities towards members of the public and other contractors who visit the cemetery. The Management of Health and Safety at Work Regulations 1999 require all employers to assess the risks to employees and non employees which arise out of the employer’s undertaking. Therefore, burial authorities are under a legal duty to assess the risk from all cemetery structures (including memorials) and work activities in their cemeteries, and ensure that the risk is controlled.

Local Authorities Cemeteries Order

In cases of immediate danger, burial authorities in England and Wales are empowered under the provisions of the Local Authorities Cemeteries Order 1977 (LACO) Article 6(1) to take immediate action to make safe dangerous memorials. However, burial authorities are prohibited from taking direct action to remove an unstable memorial which presents no immediate risk without following the strict procedures laid down in the LACO. This involves posting public notices and seeking the permission of the owners (if they can be identified) before taking action. For work on consecrated areas, the burial authorities have to apply to the bishop of the diocese in which a cemetery is situated . Under the provisions of LACO, the burial authority can remove any unauthorised memorials and charge a fee. In Scotland, the burial authorities operate under the Burial Grounds (Scotland) Act 1855, but use the LACO as a good practice guidance.

Ownership of memorials

A member of the public has to apply for the right to erect a memorial and has to submit an application to the burial authority under LACO. The application must detail the proposed memorial’s material, design, inscription and size and details about how it is to be fixed. Burial authorities are permitted to grant the right to place and maintain a memorial on such terms and conditions they think proper.

They can enter into a maintenance agreement with the family as they see proper. Over 50% of authorities grant exclusive right of burial for 99 years or more and most Scottish authorities grant perpetuity. Eighty-seven per cent of permissions to erect a memorial are then tied to the same period of time as the exclusive right. As a result, authorities lose touch with the grave owners either due to their relocation or death, and the authority ends up paying for the making safe and repair of memorials.

HSE accepts that burial authorities are not the owners of the memorials and the responsibility for ongoing maintenance of individual memorials rests with the grave owners or other person granted the right to place and maintain a memorial on a grave space. Burial authorities have the powers to take action where memorials constitute a risk to cemetery users, and reclaim costs. Therefore, it is in the burial authorities interest to set up procedures to avoid losing contact with the owners of the memorials.

Where contact has been lost, burial authorities still have the responsibility to manage their cemeteries to maintain safety, and this includes management of memorial areas to ensure the safety of cemetery users.

Research

In 1998, two industry organisations, the Confederation of Burial Authorities (CBA) and the Institute of Burial and Cremation Administration (IBCA) carried out detailed research on the management of memorial stability by LAs. The research highlighted the following issues:

• many authorities are not dealing with the problem of potentially dangerous memorials.  They do not have inspection procedures for memorials within their cemeteries, and the majority do not inspect memorials within closed churchyards.  Many are simply taking a 'quick fix' approach
• the research identified that many of the less serious accidents were caused by memorials that had been installed relatively recently, within the last 30 years
• a majority of authorities do not carry out any basic competency checks on memorial masons, and many do not check that the installation of memorials is to a recognised standard, e.g. National Association of Memorial Masons Code of Working Practice
• over 50% of authorities experienced problems with unauthorised memorials.

Guidance

The guidance, Management of memorials was published in the IBCA journal December 2000 edition. HSE contributed in developing the guidance and it is in line with HSE’s practices. The guidance recommends that:

• burial authorities have clear safety policies in place, which set out their standards for management of memorial stability
• staff are trained to carry out inspection of unstable memorials
• an initial inspection is carried out to identify any memorials posing an immediate danger to the public. Memorials identified as falling into this category must be dealt with. A fuller inspection is then carried out to ensure that memorials in cemeteries are safe and that actions taken are properly recorded and maintained
• an ongoing inspection programme is drawn up and implemented for large cemeteries, ie an inspection every 5 years or a rolling programme seems to be a reasonable approach. The frequency of inspection will depend upon the age, size and condition of the memorial, and this is for the burial authorities to decide as part of their assessment and review procedures
• if memorials are in immediate danger of falling, then cemetery management should take immediate action by either: laying them down; structurally supporting them; cordoning them off; or carrying out immediate repairs. In addition, warning signs should be considered throughout the cemetery
• burial authorities can specify that all memorials are dowelled to the foundation of the memorial to enhance stability, or require specific designs to enhance stability
• the right to erect and maintain a memorial is granted for a shorter period for new memorials (30 years). The right is issued on condition that the memorial is inspected once every 5 years, and renewed only when any repairs found necessary are carried out. If the owners of the memorial fail to make the necessary repairs, the right is deemed to be terminated.

Testing of memorials

Responsibility rests with the burial authorities to decide what criteria they use to test the structural safety of memorials in their cemeteries. It may be appropriate for burial authorities to seek advice from structural engineers, other competent persons, such as the Institute of Cemetery and Crematorium Management, Confederation of Burial Authorities, Institute of Burial Authorities and National Association of Memorial Masons, before deciding what safety methodology needs to be adopted.

There are currently proprietary tools available to test the memorial stability, such as a topple tester which tests for unstable memorials with a force of 35kg. The German standards recommend the use of a topple tester, but memorials in Germany are more suitable for this kind of testing. Burial authorities may consider using a topple tester, but the topple tester is not suitable for war memorials, crosses, angels etc. It is only suitable for memorials which are above one metre high and are tablet form. Burial authorities need to consider the suitability of testing methods to their local conditions.

Conservation

Burial authorities have to be aware of any conservation orders which apply to their cemeteries. A conservation order may apply to structures within the cemetery, including memorials. Cemetery management could be in breach of the conservation order by laying flat an old memorial, without subsequently repairing it and returning it to its original condition.

In April 2001, the Select Committee on Environment, Transport and Regional Affairs published a report on cemeteries, in which it was recommended that HSE needs to act with greater sensitivity towards the historical and cultural aspects of cemeteries. HSE’s view is that heritage and amenity considerations need not be in conflict with health and safety. HSE has discussed issues relating to safety of listed structures and buildings with English Heritage, but there have been no discussions on the issue of memorial safety. However, HSE has discussed the impact of conservation orders on memorials with individual LAs, and has advised that if a listed memorial is unsafe then it must be securely cordoned off until it can be repaired safely. This may temporarily affect the overall aesthetics of the cemetery, but the risk of serious injury or death cannot be left unattended just because a conservation order exists.

However, in light of the Select Committee’s report, the Services Sector will be liaising with English Heritage, Cadw Welsh Historic Monuments and Historic Scotland, to ensure that a clearer understanding is established.

Consecration

Any maintenance work within consecrated areas requires a faculty, ie an application to the bishop of the diocese in which a cemetery is situated.

Advice for Inspectors

Burial authorities must carry out the necessary assessment of the cemeteries which they manage. The method used to secure the safety of memorials is a matter for the burial authority. When enforcement action relating to memorial safety is considered, inspectors are encouraged to take into account:

• the interests of the relatives who own graves
• the concern about the risk posed by unstable memorials
• the interests of those already injured or bereaved by falling memorials
• public concern about the amenity and aesthetic value of cemeteries.

To be effective in its central coordinating function, the Services Sector (via ELOs in LA enforced sector) should be informed about all INs which take place, particularly those which deal with sensitive issues, such as conservation.

Future work

The Institute of Burial and Cremation Administration (IBCA) are working on training standards pack. The IBCA is also looking to develop a memorial masons registration scheme, and HSE will be contributing to these.