Summary: Mr B complained the Council misled him about what he had to do to meet the licensing requirements and lied to him about what was required. The Council gave Mr B only one option to meet the licensing requirements despite the fact there were other options available. That is fault and leaves Mr B with some uncertainty about whether some of his costs could have been avoided. A payment of 50% of Mr B’s costs, a payment to him for distress, an apology and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Mr B, complained the Council lied to him when telling him he had to build a new, additional aviary in his shop to meet the licensing requirements and bullied him into completing the work when it was not necessary.
2. Mr B says because of the Council’s actions he had to spend £1,000 on an aviary he did not need and he lost out on income while he built the second aviary.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with an organisation’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

5. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

7. Animal activity licensing process: statutory guidance for local authorities
8. Local authorities can grant animal activity licences to an individual to carry out licensable activities that involve animals.
9. A licensable activity includes selling animals as pets.
10. Once a local authority receives an application to grant or renew a licence, it must appoint a suitably qualified inspector to visit the site of the licensable activity. All inspectors must be suitably qualified.
11. An inspector must assess if the site is likely to meet the license conditions. As part of this, the inspector must prepare and submit a report for consideration after their inspection, in accordance with regulation 10 requirements of the Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018.

What happened

12. Mr B had a licence to sell birds in 2023. A licensing officer visited Mr B to carry out an annual inspection in May 2024. Following that inspection the licensing officer emailed Mr B to tell him about 14 points that needed addressing before the Council could issue a licence. The email told Mr B he must introduce a new aviary to allow for birds to be acclimatised.
13. Mr B began building a new aviary. The Council checked progress on 13 May. Mr B spoke to a Council officer on 5 June when he says he asked whether he needed to erect a new aviary. Mr B says the officer he spoke to told him he had to follow what the licensing officers had said. The Council does not have a record of that telephone conversation.
14. Once Mr B completed construction of the aviary a Council licensing officer visited again on 17 June. The Council then contacted Mr B on 2 July to ask him to pay the licence fee.
15. Following contact from Mr B’s MP the Council confirmed its licensing officers had told Mr B he must introduce a new aviary to allow for birds to be acclimatised. The Council told the MP Mr B had not asked for further advice about how that could be interpreted. The Council said Mr B had chosen to purchase a new aviary when he could have used equipment he already had which officers had observed on site.
16. Mr B paid the licence fee on 16 October and the Council issued a new licence.

Analysis

17. Mr B says the Council misled him into believing he had to build a new aviary in his shop to meet the licensing requirements. Mr B says the Council bullied him into completing the work when it became clear it was not necessary as after he built the new aviary Council officers asked him what he intended to do with the old one. Mr B says Council officers therefore lied to him.
18. In contrast the Council says when its licensing officers visited in 2024 it was Mr B that said he would build a new aviary. The Council says its officers did not tell Mr B to do that and nor would it have been the role of its officers to tell Mr B about how to meet the licensing requirements.
19. There is a dispute between Mr B and the Council about what its officers told him at the licensing visit in 2024. I have therefore considered the available documentary evidence. The first piece of evidence I have considered is the licensing officers’ notes of the visit to Mr B in 2024. That note, in the section referring to acclimatisation of animals, says:
• ‘To introduce new aviary.’
20. The Council says where comments are recorded on that form they are to reflect what the applicant says. However, I am not satisfied that is the case because other parts of the document refer to the officers giving Mr B advice in the same column. Given the wording used on the form I do not consider it is clear whether Mr B said he would build a new aviary or whether officers told him he had to.
21. That is not the only evidence available to me though. I also have a copy of an email on 8 May 2024 to Mr B from the licensing officer following the visit. The email starts out by saying the matters covered in the email are ones which must be addressed before the Council can issue a licence. The email then lists the issues and the action Mr B needed to take. For the acclimatisation issue, which is the issue for which the new aviary was discussed, it says:
• ‘6.1 animals must be allowed to acclimatise before being offered for sale. Where animals are obtained for sale to a specific client it may be acceptable for the animal to be sold immediately.
22. It then goes on to say:
• ‘you must introduce a new aviary to allow for birds to be acclimatised and record all dates and durations of the acclimatisation periods.’
23. The Council says it accepts it could have worded that section of the email more clearly as there were options Mr B could have taken other than installing a new aviary. The Council says though Mr B could have clarified that with officers and did not do so.
24. I do not consider that section of the email is unclear. The use of the word ‘must’ satisfies me it is worded as an instruction from officers. If, as the Council now says, Mr B had voluntarily offered to install a new aviary I would have expected the email to say something similar to: ‘you said you would install a new aviary.’ Given the wording in the email it is not surprising Mr B did not believe he had any option but to install a new aviary.
25. The Council says Mr B could have resolved the situation himself by querying the matter with officers. Despite the fact that, in my view, the email is clear and there would have been no need for Mr B to seek clarification, I am satisfied Mr B did speak to a Council officer on 5 June. That was an opportunity for the Council to tell Mr B there were options other than installing a new aviary and I have seen no evidence it did so.
26. I further note on 15 July 2024 in an email from the Council to Mr B’s MP it said:
• ‘the advice given was that he must introduce a new aviary to allow for birds to be acclimatised and record all dates and durations of the acclimatisation periods. Mr B didn’t seek further advice from us as to how that could be interpreted and chose to purchase a whole new aviary, when he could have utilised equipment he already had, that was observed by the officer at the time of the original inspection.’
27. I note this email is clear it was Council officers that advised Mr B to he needed a new aviary rather than Mr B saying that was what he intended to do. I also note the email suggests licensing officers can provide applicants with advice about how to meet the licensing requirements, despite what the Council said in its response to my enquiry. I would also expect licensing officers to offer advice where appropriate.
28. I am therefore satisfied the Council told Mr B he had to introduce a new aviary and did not give him any alternative options. I am further satisfied the Council knew there were other options Mr B could have taken and failed to share that information with Mr B. That is fault. Because of that fault Mr B went to the expense of installing a new aviary when he did not necessarily have to do so. I could not say though officers had lied to Mr B as he suggests. Rather, I consider the information the Council gave Mr B was incomplete and misled him.
29. Mr B says because of the Council failing to properly advise him he had to pay £1,000 to build a new aviary when he did not have to do so. However, I am satisfied the reason the discussion about the aviary came about was because the setup Mr B had in place did not satisfy the licensing requirements. I therefore consider Mr B would have had to make some changes to the setup in his shop irrespective of the advice the Council gave.
30. When discussing his complaint with me Mr B also said he could only have undertaken limited work with the existing aviary because he did not have much room to alter it, although he would have tried. I therefore do not consider I could recommend the Council refund Mr B the £1,000 he spent on the new aviary as he may have had to spend that anyway if he could not alter the existing aviary. Alternatively, he could have incurred significant costs to amend the existing aviary.
31. In those circumstances I consider a suitable remedy would be for the Council to apologise to Mr B and pay 50% of the costs of the new aviary, which is £500. That is to reflect Mr B’s uncertainty. I also recommended the Council pay Mr B an extra £100 to reflect the distress he has experienced. I further recommended the Council remind licensing officers when making recommendations to applicants following a visit they make sure all the options are properly outlined. The Council has agreed to my recommendations.
32. Although Mr B says he lost money while he installed the new aviary as he could not sell any birds I could not make any recommendation around loss of income. That is partly because I cannot speculate about what income Mr B would have earned during that period. However, I am also satisfied Mr B would have had to carry out some works to the shop before gaining the license as the arrangements he had in place did not comply with the licensing requirements. That would necessarily have meant he would not have been able to sell any livestock. That was not because of fault by the Council. I also note there was a delay in Mr B paying the licensing fee so the Council could issue the licence. Again, that was not due to fault by the Council.

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Action

33. Within one month of my decision the Council should:
• apologise to Mr B for the distress and uncertainty he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr B £600; and
• remind licensing officers that when providing advice to applicants they ensure they tell applicants about any options available.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman