Summary: Mr B complained that the Council failed to adequately signpost a dog exclusion zone with the result that he was threatened with a fine or prosecution. He also says the Council delayed in deciding whether to prosecute him and failed to respond to his emails. We find no fault in the way the Council advertised the dog exclusion zone but there was an unacceptable delay in it deciding whether to prosecute Mr B. The Council has offered a satisfactory remedy for the distress and anxiety caused by this.

The complaint

1. Mr B complains that the Council failed to adequately signpost a dog exclusion zone with the result that he was threatened with a fine or prosecution. He also complains that the Council delayed several months in deciding whether to prosecute him and failed to respond to his emails causing him distress and anxiety.

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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. 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

4. I have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
5. Mr B and the Council 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

Background

6. In 2017 the Council introduced several Public Space Protection Orders (PSPOs) for dog control in the borough. The orders replaced bye-laws requiring a person in control of a dog to comply with conditions including:
• dogs being excluded from certain areas;
• dogs to be kept on lead in certain areas; and
• the immediate removal of dog faeces.
7. Failure to comply with a PSPO is an offence which can be dealt with by a fixed penalty notice (FPN) of £100 or by prosecution.
8. Until 2020 the Council enforced the PSPOs itself. But, in March 2020, it decided to enter into a 12 month pilot agreement with Company X to deliver enforcement services. The arrangement was intended to start in April 2020 but, because of COVID-19, it was put on hold. The Council says that, after the initial national lockdown ended, its parks, open spaces and beaches were inundated with visitors. This resulted in an increase in antisocial behaviour with some individuals committing low-level environmental crimes such as dog fouling and littering. Members of the Council were concerned about this and directed officers to request that Company X approach enforcement robustly and with zero tolerance from the start of the scheme.
9. The pilot scheme began on 1 July 2020 and, by mid October 2020, Company X had issued over 1200 FPNs. 416 of these related to dogs in exclusion zones.
10. Non-payment of an FPN is not an offence in itself. The issue of an FPN gives the recipient the opportunity to avoid the possibility of prosecution for failing to comply with a PSPO by paying the fixed penalty in the time allowed. If they fail to pay the penalty they can be prosecuted for the offence. However, the offence is not committed if a person has a reasonable excuse for not complying with the PSPO. The Council’s stance was that it was not a reasonable excuse for the recipient not to have noticed the signs advising of the PSPO.
11. Once issued with an FPN, the recipient could appeal to Company X who had the power to uphold the fine or approve the appeal. Company X would normally grant a payment extension as part of the appeals process.
12. In the case of non-payment or an unsuccessful appeal the procedure was that Company X would process prosecutions on behalf of the Council. If the recipient entered a not guilty plea the case would be referred to the Council’s legal team for a decision on whether to proceed to trial or discontinue the case. However, cases like Mr B’s and cases where fines were not paid were not progressed by Company X.
13. The Council says the robust, zero tolerance approach to issuing FPNs was a change from its usual approach which was based on engagement and education with enforcement being a last resort. As a result of the new approach, the Council received many complaints. It was concerned the pilot was not working out as expected and, at a meeting in November 2020, Members of the Operational Management Committee decided to terminate the arrangement.
14. After the Council gave Company X notice to terminate the arrangement, it was made aware of the outstanding cases. By this time, many of the cases (including that of Mr B) were many months old. The Council decided not to prosecute these cases because of the termination of the pilot scheme and significant delays in the court process because of COVID-19. It decided it would not be in the public interest to divert resources from other priorities to prosecute relatively minor environmental offences in view of the pandemic.

Key facts

15. On 21 July 2020 Mr B was issued with an FPN for breaching a dog exclusion order on a beach. He contacted Company X on 24 July 2020 to appeal saying he had inadvertently strayed into the dog exclusion zone.
16. Company X responded asking for the reasons Mr B wished to dispute the FPN. Mr B explained he has walked the same route for many years believing he was outside the dog exclusion zone. He said he was at the low tide mark and was unaware that the dog exclusion zone extended out that far. He referred to the Council’s newsletter from April 2020 which described the exclusion area and the Visit Fylde Coast newsletter which contained a map of the exclusion zone. He said neither of these referred to the seaward extension. He said the first he had heard of the extension out to low tide was when he was stopped by the enforcement officers.
17. On 29 July 2020 Company X wrote to Mr B explaining his representation had been rejected. It said that, after reviewing his comments and the evidence available, it was satisfied the FPN was issued correctly. It said there was adequate signage and the exclusion zone had been in place for several years and extended all the way out to the tide. It confirmed that, if Mr B wished to dispute the notice, he had a right of appeal to the Magistrates court. As a gesture of goodwill, it extended the payment date to 15 September 2020.
18. Mr B responded stating he would present his defence to the court and asking Company X to issue a summons.
19. Having heard nothing further, Mr B wrote to Company X again on 14 August 2020 stating he would like to present his case to the court. Company X responded on 17 August 2020 stating that, if the FPN remained unpaid, Mr B would automatically receive a court summons. Mr B responded the same day stating he did not want a payment extension but just wished to put his case to the Magistrates. He said the delay was causing further stress. Company X responded the same day confirming the payment extension had been removed. It said Mr B would receive two reminder letters and then a court file would be automatically generated.
20. On 27 August 2020 Mr B wrote to Company X saying he had not yet received the first of the warning letters. He said it was over five weeks since the FPN was issued and Company X was delaying the process to cause further stress. He sent a further email on 7 September 2020. Company X responded the following day confirming Mr B must await the court summons.
21. On 22 September 2020 Mr B sent a further email to Company X stating he wished his court attendance date to be sent by registered and signed for post.
22. Mr B’s case was one of those included in the Council’s decision not to prosecute. The Council wrote to him on 3 December 2020 to notify him of the decision.

Analysis

Failure to adequately signpost the dog exclusion zone

23. The Council says it is the dog owner’s responsibility to check on any exclusion zones. But Mr B says the Council failed to provide clear instructions and signage.
24. Mr B says he believed he was well outside the dog exclusion zone when walking on his usual route along the beach as he was at the low tide mark. The enforcement officers told him the exclusion zone ran all the way out to the low water mark. Mr B says he had never heard this before. When he got home he checked all the available information. He says none of the Council’s newsletters mentioned the exclusion zone extending to the low water mark. He says he contacted the Council’s dog warden and asked them to verify the map and zone area details. He says they admitted the map was confusing as it showed the dog exclusion zone to be on the raked sand and made no mention of the seaward extension. However, they did say the seaward extension was on the Council’s website. Mr B visited the website but the page was unavailable.
25. Mr B says that, as he was walking along the low tide mark, he would not have seen the signage which is only visible to people approaching the beach from the promenade area. He says that, after he raised these concerns, additional signage was added.
26. The Council says that, when the PSPO’s were implemented in 2017, signage was introduced clearly indicating areas from which dogs were excluded. The signage was approved by a PSPO working group which included Council officers and Members, representatives of the local dog walking community, the Kennel Club, the Dogs Trust and other relevant stakeholders. It says the signage is reviewed and refreshed periodically as part of routine patrols and inspections. In addition, the requirements of the PSPO’s are regularly promoted via the Council’s website, social media and in the local press. The Council says the specific requirements of the beach dog exclusion zone (that dogs are excluded from Good Friday until 30 September) are promoted annually ahead of the commencement date and continually throughout the season via social media posts to ensure residents and visitors are aware of the restrictions.
27. The Council says that, before the pilot scheme began in 2020 signage highlighting the seasonal beach exclusion zone was already in place along the promenade and at access points onto the beach. The signage was reviewed and refreshed and additional large flexi board signs were added on entrance points either side of the pier and attached to fencing either side of the pier. The Council introduced flags on the beach in August 2020.
28. The Council could have placed signage on the beach sooner than it did. However, it is the dog owner’s responsibility to make themselves aware of the restrictions and I am satisfied the Council adequately advertised the dog exclusion zone by signage together with information on its website, in newsletters, in the local press and on social media.
29. I find no fault in the Council’s failure to specifically state that the dog exclusion zone extends to the low water mark. This is implied. The beach extends to the low tide mark. So, the dog exclusion zone covers the whole beach between the jetty and the slipway regardless of whether there is a high or low tide. The information clearly states that dogs can be freely exercised to the north of this zone and the south of this zone. Nowhere does it state that dogs can be exercised beyond the high watermark. This is a bathing beach and the purpose of the dog exclusion zone is to prevent dog fouling on the beach and maintain clean bathing water. Clearly, if dogs are entering the beach, even along the low tide mark, this could affect the quality of the water.

Delay in deciding whether to prosecute

30. The Council accepts that, because Company X failed to make it aware of the outstanding cases, it took over four months to decide that it would not prosecute Mr B and notify him of this decision. The Council acknowledges this was an unacceptable delay and that it is accountable for that delay.

Failure to respond to emails

31. Mr B says Company X failed to respond to his emails. However, I am satisfied from the evidence that Company X did respond to Mr B’s emails apart from his email of 22 September 2020. This email simply asked for notice of the hearing to be sent to him by registered post. So, it did not require a response. I therefore find no fault in this regard.

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Agreed action

32. The Council has offered to make a formal apology to Mr B in recognition of the stress and anxiety caused by the delay in deciding whether to prosecute him. It should do this this within one month of this decision.

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Final decision

33. I find the Council was at fault in that it delayed in reaching a decision on whether to prosecute Mr B, causing him distress and anxiety.
34. I do not uphold the remainder of Mr B’s complaints.
35. I have completed my investigation on the basis that the Council has offered a satisfactory remedy for the injustice caused by the delay.

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Investigator's decision on behalf of the Ombudsman