The Ombudsman's final decision:
Summary: The Council was entitled to decide dogs should be kept on leads in all areas, as part of its social distancing measures during the Covid-19 pandemic. However, the Council’s explanations of its dog control powers were confusing and contradictory, which is fault. This did not cause a substantive injustice to the complainant, but the Council has agreed to ensure officers properly understand the orders on which its powers are based.
- I will refer to the complainant as Mr K.
- Mr K complains the Council has decided to introduce a borough-wide ban on exercising dogs without a lead, as part of social distancing measures during the Covid-19 pandemic. Mr K complains this is disproportionate.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’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)
How I considered this complaint
- I reviewed Mr K’s correspondence with the Council, the orders relating to the control of dogs in the Council’s area, the Council’s scheme of delegation, and some legal advice it received.
- I also shared a draft copy of this decision with each party for their comments.
What I found
- Under normal circumstances, public areas in the Council’s geographical jurisdiction fall into one of three categories – areas where dogs are not allowed at all, areas where dogs must be kept on a lead, and areas where dogs may be exercised without a lead. The Council has explained there is both a Dog Control Order (DCO) and a Public Spaces Protection Order (PSPO) from which these rules arise.
- There is an additional power arising from these orders, which allows Council officers to require a particular dog to be placed on a lead, even in areas where this is otherwise not required, if they consider it is causing a nuisance or disturbance. For ease of reference I will refer to this as the ‘by direction’ power. Officers can issue a fine to people who fail to comply with such an instruction.
- After the first UK lockdown was announced in March 2020, the Council publicised that it now required all dogs to kept on a lead, including in the areas they were normally allowed to be off leads. This was to ensure the maintenance of social distance, by preventing the need for owners to approach other people to retrieve their dog.
- The Council has explained that, to enforce this rule, it is relying on the ‘by direction’ power.
- Mr K submitted a complaint to the Council on 19 May. He asked the Council to explain the legal basis for this change, and whether this had come from a reclassification of the areas defined under the PSPO. Mr K pointed out there had been no public consultation on the change, if so.
- The Council responded on 3 June. It explained it had introduced the temporary rule to support social distancing, and while it had “expanded” the ‘dogs on leads’ area, it had not been necessary to undertake a public consultation. The Council said its legal advice had confirmed it could issue fines during this period.
- Mr K replied on 15 June. He said he was still confused about the legal basis for the change in rules. Mr K highlighted the PSPO had a duration of three years and was due to expire in October, and that the ‘by direction’ power only applied to dogs which were causing a nuisance. Mr K said this was not necessary for well-behaved dogs.
- Mr K reiterated he was not clear if the areas defined under the PSPO had been changed, and if so, this should have been preceded by public consultation. He said he considered the new rule disproportionate, and that it was “distracting” the Council from other, more effective, measures, such as pavement-widening.
- The Council emailed Mr K on 30 June. It said the PSPO was due for consultation soon, ready for implementation in October. The Council quoted directly from the order, and said the “legal premise” was that dogs without leads could cause their owners to breach social distancing measures. It said the rule would remain in place as long as it was needed.
- Mr K contacted the Council again on 1 July. He quoted from the gov.uk website, and said its guidance was simply that people should consider putting their dog on a lead if they were near other people. Mr K repeated his argument that well-behaved dogs did not need to be restrained to respect social distancing, and said it was still not clear what legal basis the Council was relying on. Mr K also said the Council had not addressed his point about pavement-widening.
- Mr K chased the Council for a response on 27 August. On 1 September, it replied. The Council explained how its Dog Control Order applied to the area, and said that officers would rely on the ‘by direction’ order to require all dogs to be placed on leads.
- The Council said it had similar powers under the PSPO, and although officers would likely rely on the DCO if they needed to enforce the rule, it would be for them to decide the most appropriate action. The Council also explained its enforcement officers had no role in transport planning, and vice versa, and so could not address Mr K’s point about pavement-widening.
- Mr K emailed the Council again on 3 September. He repeated his previous arguments, and pointed out the advice from the Mayor of London and a dog charity was that it was at the owner’s discretion whether their dog needed a lead. Mr K asked the Council when it would change its rule to reflect this. He also said his point about pavement-widening was to “contrast the vigour” with which it had approached the dog control matter.
- The Council replied to advise Mr K he would need to contact its complaints team if he wished to pursue the matter further.
- After Mr K did, the Council sent its final response on 9 October.
- The Council said it was satisfied it had answered Mr K’s complaint properly. It said it recognised the affect the rule had on dog owners, and that some owners would comply without the threat of enforcement action. However, the Council said public protection remained a critical consideration.
- The Council said its DCO was “enforceable under powers granted to the Council” under its PSPO, and this was the legal basis for the current rule. It explained it would maintain the rule until it considered it safe to relax it. The Council said the decision had been made in agreement with its Lead Member for Climate Change, Equalities and Leisure, and suggested Mr K approach her directly with his concerns if necessary.
- The Council referred Mr K to the Ombudsman if he wished to pursue his complaint further.
- The Ombudsman’s role is to review authorities’ adherence to procedure when making decisions. If the authority in question has followed the correct procedure, considered all relevant information, and given clear and cogent reasons for its decision, we cannot criticise it. We do not make decisions on authorities’ behalf, nor seek to replace the professional judgement of their officers with our own, and we cannot uphold a complaint simply because a person disagrees with the authority’s decision.
- In this case, Mr K argues the Council’s decision to require all dogs to be placed on leads is disproportionate. He says well-behaved dogs do not need to be restrained at all times in this manner.
- However, while I acknowledge Mr K’s reason for disagreeing, the Council has given a clear explanation for why it believes the rule is necessary. It considers unrestrained dogs increase the risk of Covid-19 transmission, because owners may come into close contact with other people should they need to retrieve them. And for this reason, it considers social distancing will be best served by requiring all dogs to kept on a lead. This is a decision the Council was entitled to make, and it is for not for me to substitute this with my own view.
- I note Mr K has highlighted guidance from the Government, Mayor of London, and animal charities, in support of his view the Council’s stance is overzealous, and that a universal ‘on leads’ rule is not required. But none of this guidance is statutory, and the Council is not obliged to follow it. It does not prevent the Council from coming to its own view which rules are appropriate.
- There is, therefore, no fault in this element of Mr K’s complaint. However, there are some other points where I consider the Council has been at fault.
- First, the Council’s explanations for where it derives its power from have been contradictory and confusing. In its correspondence with Mr K, it has variously said the power comes from a DCO; or from a PSPO; or from both a DCO, and a PSPO, acting in conjunction with one another. I therefore asked the Council to explain clearly what orders it has, and their implications.
- In its response, the Council accepted its previous responses had been unclear. It now explained there was a DCO, introduced in 2013, which was superseded by a more recent PSPO. But both orders contained the same provision – the ‘by direction’ power, allowing officers to require any individual dog to be placed on a lead, where officers consider it to be disruptive. The Council confirmed any enforcement action it took would be under the PSPO, but said, to date, it had not actually had to do so.
- Second, and in connection with this, the Council’s explanation for how it introduced the changed rule has also been unclear. In particular, in its first response to Mr K of 3 June, it said it had “expanded” the area in which leads were required under the PSPO. As Mr K has pointed out, for the order to be varied this way, there are several steps the Council must first take, including a public consultation.
- But, as I understand it, this is not correct. The Council has not changed the areas designated under the PSPO; rather, it has effectively decided to use its ‘by direction’ power proactively, by treating all dogs as a potential nuisance, rather than as a reactive, case-by-case power. The Council has not varied the PSPO, but is interpreting a pre-existing rule in a different way. This means there was no requirement for the Council to put it to consultation.
- Again, I recognise Mr K disagrees with the proportionality of this measure, but it is not for me to comment on this. Either way though, I would expect the Council to have given Mr K a clear explanation for how it is using its powers. Instead it has contradicted itself several times, and informed him it had varied the PSPO, when it had not. I consider this amounts to fault.
- However, and although Mr K was entitled to a clear explanation, there is no suggestion he was unclear what the Council was actually requiring of dog owners, nor of the potential consequences if he failed to comply. So, although I recognise the Council’s confusing responses caused Mr K some frustration, I do not consider this represents a significant injustice.
- Separately, I have also asked the Council to explain the decision-making process behind the rule change.
- The Council has told me the decision was made by officers, using their delegated powers. The officers sought legal advice to confirm they could use the ‘by direction’ power to issue fines in this way. The Council has provided me a copy of the correspondence which contains the legal advice; although I cannot describe this in detail, as it is legally privileged information, I am satisfied it supports what the Council has told me.
- I note, however, the Council has also said (in its final complaint response) the rule change was made with the “agreement” of the relevant Council Member.
- Again I find there is a contradictory element to the Council’s responses here. I have reviewed the Council’s scheme of delegation, which explains which decisions must be made by Council Members, and those which may be delegated to officers. I can see nothing in the scheme which appears to formally preclude an officer from making a decision of this type, and so I cannot say the Council should not have permitted it here.
- But, beyond the Council’s comment in its final response to Mr K, I can see no further evidence officers sought the agreement of the relevant Member. I cannot explain this contradiction on the current evidence.
- For the same reason I have given previously, I consider this to be fault, but I do not consider it represents a significant injustice to Mr K. Either way, I am satisfied the Council was entitled to decide to introduce this rule change, and it has made both the rule, and its potential consequences, clear. I do not consider the Council’s confusing responses have made any substantive difference, either to Mr K or other local dog owners.
- This being the case, I do not propose any personal remedy here. However, I remain concerned at the difficulty the Council has had in providing a clear explanation here, and it appears this may have arisen from confusion amongst its own officers about the Council’s powers. I recommend a service improvement to this effect.
- Within one month of the date of my final decision, the Council has agreed to circulate a reminder to staff in the relevant teams, explaining clearly what current dog control powers it has, which orders they arise from, and the change it has made to introduce the current, expanded ‘leads by direction’ rule.
- I have completed my investigation with a finding of fault which did not cause injustice.
Investigator's decision on behalf of the Ombudsman