Summary: Mr X complains about the Council’s decision not to issue a community protection notice (CPN) against the owner of a dog who Mr X says has attacked his dog, and him, several times. The Ombudsman finds fault with the Council as it applied the wrong thresholds when considering whether to issue a CPN. We have made recommendations.

The complaint

1. Mr X complains about the Council’s decision not to issue a community protection notice (CPN) against the owner of a dog who Mr X says has attacked his dog, and him, several times. Mr X also complains the Council has not issued a single CPN even though it received 450 complaints about dogs in five years.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I spoke with Mr X and considered the information he provided.
6. I made enquiries with the Council and considered the information it provided.
7. I sent two draft decisions to Mr X and the Council and considered their comments.

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What I found

Dealing with irresponsible dog ownership: Practitioner’s manual (October 2014)

8. The manual aims to assist practitioners in local authorities in dealing with dog-related incidents that are brought to their attention, using the powers contained within the Anti-social Behaviour, Crime and Policing Act 2014.
9. The aim is to encourage responsible dog ownership and reduce other incidents involving dogs, through early engagement and education, and overall to prevent problems becoming more serious and so reduce the number of dog bites.
10. The manual sets out that a community protection notice (CPN) is a notice used for low- level incidents involving dogs, such as owners failing to control their dog and causing nuisance to others/other animals.
11. The test for a CPN is set out in the manual. The behaviour has to:
• be having a detrimental effect on the quality of life of those in the locality;
• be persistent or continuing in nature; and
• be unreasonable.
12. An authorised person may issue a CPN if satisfied, on reasonable grounds, the above are met.
13. The test covers a wide range of incidents involving dogs, including dogs straying, dogs showing signs of problematic behaviour and potential aggression problems.
14. The manual states CPNs provide a statutory tool that can be used in cases of irresponsible dog ownership. CPNs can address behaviour that has a negative effect on anyone in the community. For example, in cases of dogs out of control in a park, alarming visitors to the home, straying and causing damage, or even a dog that distresses, even injuries other animals.

What happened

15. In March 2019, Mr X made a report to the Council about a dog attack. He reported his dog had been attacked by another, Dog A. Mr X told the Council his dog had been bitten twice by Dog A and there had been other incidents where Dog A had tried to bite his dog.
16. The Council’s animal warden team investigated the report. The team discussed the report with the owner of Dog A. The team decided there was not enough evidence to take legal action, to issue a formal warning, or a simple caution.
17. The Council mediated between Mr X and the owner of Dog A to try and put in place an arrangement where both parties would walk their dog at separate times.
18. In June 2019, Mr X made a complaint about the animal warden team’s decision to take no further action. He also reported Dog A had again tried to bite his dog.
19. The Council responded to Mr X’s complaint in July 2019. The Council repeated its position that there was insufficient evidence to prove the case in court. The Council said it needed evidence of the injuries caused and independent corroboration of the incident. The Council said it also needed this evidence to issue a formal warning or simple caution as the Council had to be able to take the matter to court if they were refused.
20. In October 2019, Mr X reported a further two attacks involving Dog A. Mr X told the Council he had CCTV footage of one of the incidents. He said the footage showed Dog A running uncontrolled from the park towards him and his dog.
21. In November 2019, the Council wrote to the owner of Dog A to advise it was taking no further action.
22. In April 2020, Mr X reported another dog attack by Dog A. He told the Council his dog had been bitten and his wrist was also injured during the incident. Mr X provided the Council with a photograph of the injury. Mr X also told the Council he believed the Council should have issued a CPN as the threshold as set out in the practitioner’s manual was reached.
23. At the end of April 2020, the Council told Mr X there was conflicting evidence. It said that based on the evidence available, there was no realistic possibility of achieving a positive result in court. The Council said there was insufficient third-party eyewitness statements of the incident.
24. The Council also confirmed it had not watched the CCTV footage provided by Mr X in October 2019. The Council said it had considered the still images from the CCTV footage but said the images were not useable. There is no evidence the Council made any other attempts to access the footage.
25. The Council said it had considered issuing a CPN but decided the incident did not warrant such action.
26. Mr X made a complaint, which the Council responded to in June 2020. The Council said it had considered the evidence provided by Mr X but said there was no third-party evidence to support any legal action. The Council also said it did not investigate issues such as dogs not being under adequate control, such as being on a lead.
27. In response to our enquiries, the Council said it did not have enough evidence to measure against the test set out in the practitioner’s manual. The Council said to use the test, it needs to have evidence relating to the specific event. The Council said with conflicting evidence, it was not satisfied Mr X’s allegation could be proved.
28. Mr X made a freedom of information request asking the Council to set out how many CPNs it had issued in response to reports about dog attacks. The Council provided the information requested which showed that it had never issued a CPN, despite receiving 450 complaints about dogs over five years.

Analysis

29. The practitioner’s manual sets out that a CPN is a notice used for low level incidents involving dogs, such as owners failing to control their dog. The test for a CPN is that the behaviour has to:
• be having a detrimental effect on the quality of life of those in the locality;
• be persistent or continuing in nature; and
• be unreasonable.
30. Therefore, the test as set out in the practitioner’s manual is quite low. It does not require the evidence be sufficient to prove an attack took place. The Council may issue a CPN if it is satisfied the threshold is met on reasonable grounds.
31. The evidence shows Mr X has reported at least five incidents involving Dog A since March 2019. Mr X also submitted CCTV footage which he said showed Dog A being out of control.
32. The Council said it did not watch the footage but reviewed the stills of the footage. The Council said the still images were not of sufficient quality to be used as evidence.
33. Mr X said the footage showed Dog A being out of control. CCTV footage can be considered third-party evidence as it is an unbiased account of what happened. Given the availability of this evidence, it is disappointing the Council did not make more effort to review the evidence. I appreciate the Council reviewed some still images, but this will not be the same as watching the footage as it can given the viewer a better impression of what happened.
34. The Council said it needed independent third-party corroboration of the incident and evidence of any injuries to issue a formal warning or simple caution. It said without these, there was no realistic possibility of achieving a positive result in court. However, this is not a requirement to issue a CPN as set out in the practitioner’s manual.
35. The Council also said there was not enough evidence to measure against the CPN test set out in the practitioner’s manual. It is for the Council’s to decide whether there were reasonable grounds to issue a CPN after consideration of the threshold set out in the practitioner’s manual. However, in this case, the Council said it was not satisfied Mr X’s allegation could be proved. This threshold is higher than what is set out in the practitioner’s manual.
36. Therefore, the Council appears to have put in place a higher threshold than set out within the practitioner’s manual. This means the Council has not applied the correct test when it considered whether to issue a CPN in response to Mr X’s reports about Dog A. The test is whether there are reasonable grounds the behaviour reported is having a detrimental effect on the quality of life of those in the locality, be persistent or continuing in nature, and is unreasonable.
37. It is acknowledged the practitioner’s manual is not statutory guidance. However, we expect councils to adhere to the guidance unless there are good reasons for it to deviate. The Council has not given any reasons for why it has not followed the guidance.
38. The fault identified has caused Mr X an injustice. This is because I cannot say, even on balance, what decision the Council would have made had it applied the correct test when considering whether to issue a CPN.
39. I also considered the fault identified is likely to have caused an injustice to the wider public. This is because the evidence suggests, as the Council has never issued a CPN in five years, the Council has likely consistently applied the wrong test when dealing with reports/incidents involving dogs.
40. In my draft decision, I made recommendations for the Council to reconsider Mr X’s case and ensure it applied the correct test as set out in the practitioner’s manual. I also asked the Council to review all complaints/reports about dog attacks/incidents received within the past 12 months. I asked the Council to reconsider the matter in line with the practitioner’s manual.
41. In response to the draft decision, the Council said it was not possible to reconsider Mr X’s case or review cases received within the past 12 months. This was because a CPN is issued in relation to a live issue as the Council must be satisfied the behaviour is persistent or continuing in nature. The Council said it could not issue a CPN retrospectively.
42. I accept the Council’s points. Therefore, I have changed my recommendations to reflect this.

Agreed action

43. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Apologise to Mr X for the faults identified and the injustice caused.
• Pay Mr X £100 to recognise the uncertainty caused by applying the wrong test when it considered his reports.
44. The Council will complete the above within four weeks of the final decision.
• The Council will review its policies and procedures and consider if more specific guidance can be issued to relevant staff regarding the threshold for issuing a CPN. It is recommended the Council ensures its policies and procedures are in line with the test set out in the practitioner’s manual.
45. If after its review, the Council makes changes, it will provide the Ombudsman with a copy of its new policy and procedure If the Council decides not to make any changes to its policies or procedures, the Council should provide its reasons why.
• The Council should make its policies and procedures for investigating incidents involving dogs available on its website.
46. The Council will complete the above within three months of the final decision.

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Final decision

47. I find fault with the Council as it applied the wrong test when considering whether to issue a CPN. The fault caused an injustice to Mr X and the wider public. The Council has accepted my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman