Chorley Borough Council (18 016 458)

Category : Environment and regulation > Licensing

Decision : Upheld

Decision date : 12 Jul 2019

The Ombudsman's final decision:

Summary: Mrs X complained about how the Council processed her home boarding and dog day care licencing application. The Council was at fault for not telling her she needed to apply for a new licence and for not being clear about the purpose of its visit following an allegation about her. However, it did not delay in processing her licence application. The Council has agreed to pay Mrs X £150 to remedy the injustice caused to her by its faults and will consider how it sends renewal reminders to licence holders.

The complaint

  1. Mrs X complained about how the Council processed her home boarding and dog day care licencing application. She said this resulted in a delay in getting her licence which meant she could not run her business for over a month, resulting in financial hardship.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)

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How I considered this complaint

  1. I discussed the complaint with Mrs X.
  2. I made enquiries of the Council and considered the evidence provided including emails and text messages sent to Mrs X and its response to her complaint.
  3. I referred to the Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018 and the supporting procedural guidance issued by the Department for Environment, Food and Rural Affairs, July 2018 (the Guidance).
  4. Mrs X and the Council both had the opportunity to comment on my draft decision.

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What I found

  1. Any person providing home boarding or day care for dogs in England must have the correct animal licence issued by their local council. The Government introduced new regulations in respect of these licences in October 2018.
  2. When the council receives a new application or licence renewal it must:
    • consider whether the applicant is a fit and proper person to carry out the activity and meet the licence conditions;
    • inspect the premises to assess if it meets the licence conditions; and
    • ensure the applicant pays the correct fees.
  3. The Guidance says councils should aim to make licence decisions on new applications within ten weeks of receiving them. If a person is renewing an existing licence it says:
    • councils should contact licence holders in writing three months before their licence expires to tell them they will need to renew it; and
    • licence holders must apply for a renewed licence ten weeks before their current licence expires.
  4. All licences issued must have a star rating ranging between one to five stars based on the results of their inspection. This star rating must be listed on the licence by the Council. A business has twenty-one days from the issue of the licence to appeal the star rating, or after making improvements, they can request a reassessment. Council’s should notify businesses of their appeal rights after inspection.

What happened

  1. Mrs X provides day care and home boarding for dogs. Her licence was due to expire on 31 December 2018.
  2. In November 2018, the Council received an allegation that Mrs X had injured a dog after clipping it. The Council’s Animal Welfare Officer, Officer A, contacted Mrs X to arrange a time they could visit to discuss this with her. However, they did not tell Mrs X the purpose of the meeting was to discuss an allegation they had received. As Mrs X’s home boarding licence was due to expire on 31 December 2018, she believed the arranged meeting was for the inspection.
  3. Mrs X cancelled one of the arranged meetings with the Council because of a family emergency and illness. She messaged Officer A asking to reschedule the “inspection” visit. This eventually took place on 24 December 2018.
  4. Officer A visited Mrs X with a colleague. Officer A told Mrs X the Council needed to deal with the allegations it had received before it could complete the inspection. The officer said they needed to speak to their manager about whether they could issue a new licence because of the seriousness of the allegation. Mrs X told Officer A, that she had evidence to prove the dog’s owner had agreed to her clipping it. She agreed to send this to Officer A.
  5. Mrs X emailed Officer A later that day. She explained she had taken legal advice about the person who alleged she had injured the dog after clipping. She said she did not want to provide evidence to the Council until after she had spoken to her solicitor and apologised for holding up the investigation.
  6. On 31 January 2018, Mrs X sent a complaint to the Council about Officer A’s visit. She was unhappy with what Officer A had said at the visit and that the Council had failed to:
    • tell her who had made the complaints;
    • show her any evidence to support the complaints; and
    • send the renewal forms for her licence.
  7. Mrs X spoke to the Council at the start of January. It told her she needed to complete a new licence application because of the new legislation. Mrs X said she returned this application to the Council on 7 January 2019.
  8. The Council responded to Mrs X’s complaint on 8 January 2019. The Council apologised to Mrs X that it did not make her aware the visit in December was to discuss allegations made against her. However, it said the visit was necessary to make her aware before she put in a new licence application.
  9. Mrs X was unhappy with the Council’s response and did not agree with how the Council described Officer A’s visit. Over the next two weeks, Mrs X sent the Council three further emails; she said the Council had sent other boarding services renewal forms and said Officer A was part of a hate campaign against her. On 25 January 2019, she told the Council she was having to turn customers away because it had not renewed her licence.
  10. The Council sent its final response to Mrs X’s complaint on 28 January 2019. It said:
    • the Council was not legally obliged to send out reminders for renewal; however, it accepted a reminder would usually be sent;
    • that the lack of reminder did not prejudice Mrs X getting a new licence as she should have known her licence was due to expire; and
    • Officer A acted appropriately in how she conducted her investigation.
  11. Mrs X was unhappy the Council’s complaint investigation had not considered the allegations made against her. The officer investigating the complaint explained the complaint investigation was separate to her licence application. However, they needed to understand the allegations against Mrs X, in order to consider whether Officer A’s response was reasonable and proportionate.
  12. The next day, Mrs X contacted Officer A to arrange the inspection. Officer A agreed to visit on 5 February 2019.
  13. Mrs X tried to email her evidence disproving the allegation about dog clipping to the Council, but it failed. She arranged to meet with the Council the following week to share it in person. Mrs X said this was the first time the Council was clear what the allegations about her business were and who made them.
  14. Officer A emailed Mrs X the following day and said, after reading through the evidence provided, the Council would not be taking further action about the allegations made.
  15. The Council sent Mrs X a letter issuing her new licence on 19 February 2019. The licence did not specify Mrs X’s star rating and the accompanying letter did not explain Mrs X’s appeal rights.

The Council’s response to enquiries

  1. The Council said the new legislation meant it had to make changes to its case management system and its licencing templates. Because of this it did not have the resources to send out renewal reminders to all establishments. The Council accepts it could have publicised this more effectively by putting information on the website.

My findings

  1. The Guidance says councils should advise licence holders, three months before their licence expires that they will need to renew it. Although this is not a must, the Ombudsman expects councils to have good reason to divert from guidance. The Council’s lack of resources is not a good reason. The Council usually sends renewal reminders, therefore it diverted from its usual process without telling licence holders or otherwise publicise this change in practice. In addition, because of the new Regulations, licence holders were unable to renew and had to apply for a new licence. The Council did not tell Mrs X this. The Council was at fault.
  2. If it were but for the fault, it is likely Mrs X would have applied for her new licence in time. However, Mrs X knew her licence was due to expire, and she was also aware of the new Regulations. The Regulations state the licence holder must make their application to the council within ten weeks of expiry. Therefore, the Council’s fault did not unavoidably lead to Mrs X being without a licence for six weeks. The Council has apologised for not sending a reminder.
  3. The Council did contact Mrs X before her licence was due to expire to arrange a visit. However, the Council failed to tell Mrs X the purpose of the visit was to discuss allegations it had received about her, rather than inspect her business for licence renewal. Even if the Council did not want to discuss the allegations on the telephone it should have made it clear to Mrs X the purpose of the visit was not an inspection. That was fault. This caused Mrs X avoidable worry and confusion. The Council has apologised for the confusion and accepted it should have made Mrs X aware it was not an inspection before the visit.
  4. If the above faults had happened in isolation, then an apology would be enough to remedy the injustice caused. However, the combined fault has added to Mrs X’s uncertainty, confusion and worry about the renewal of her licence.
  5. When Officer A visited Mrs X in December 2018, Mrs X said she had evidence to disprove the allegation she had injured a dog while clipping. She did not provide this evidence to the Council until 12 February 2019. Although Mrs X delayed in providing her evidence to the Council, the Council did not actively investigate this allegation or return to Mrs X to get the evidence. That was fault. However, this fault did not cause Mrs X an injustice. She could have provided the evidence sooner, and once she provided it, the Council concluded its investigation the next day.
  6. The Guidance says councils should aim to issue licences within ten weeks of application. The Council received Mrs X’s licencing application 7 January 2019. The Council did not contact Mrs X to arrange the inspection until she contacted it at the end of January 2019. The Council could have contacted Mrs X sooner, but it decided her application and renewed her license within six weeks of her application. The Council was not at fault.
  7. The Guidance states councils must include star ratings on licences and should inform businesses of their right to appeal star ratings after inspection. The Council did neither. That was fault. However, these faults did not cause Mrs X an injustice. The Council issued Mrs X a licence to run her business and she has not stated she wishes to appeal the Council’s star rating but to have a reassessment.

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Agreed action

  1. Within one month of my final decision, the Council has agreed to:
    • Pay Mrs X £150 to remedy the confusion and worry caused by not sending a renewal reminder and failing to tell her the purpose of its visit.
    • Send Mrs X a new licence including her star rating included and ensure she is aware of how to request a reassessment and her right to appeal.
    • Consider the best way to issue all licence holders a renewal reminder three months before their licence expires as recommended in the Guidance.
    • Review the notification letters sent to businesses following appeal to ensure they contain the information required as set out in the Guidance.
  2. The Council should report back to the Ombudsman in one month with evidence of the action it has taken.

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Investigator's decision on behalf of the Ombudsman

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