Summary: Dr B complains the Council has not taken any action following a dog attack on him and his young child. Dr B says both he and his child were injured and is concerned it may happen again to others. The Ombudsman finds the Council at fault for not considering whether the use of its powers to tackle antisocial behaviour was appropriate in this case.

The complaint

1. The complainant, who I refer to as Dr B, complains the Council has not acted on his complaint about a dog attack. He says the dog bit him and his child, Y, on the street outside a café. Dr B says both he and Y, who is a toddler, were injured. He says the dog was aiming for Y’s neck and is concerned that had he not intervened, it may have led to serious injury or fatality.

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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 considered the information Dr B provided and spoke to him about the complaint, then made enquires of the Council. I sent a copy of my draft decision to Dr B and the Council before making a final decision.

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What I found

Law and Guidance

6. Antisocial behaviour (“ASB”) is defined as ‘behaviour by a person which causes, or is likely to cause, harassment, alarm or distress to persons not of the same household’. An example of ASB may include any situation in which animals are creating a nuisance or peoples’ behaviour associated with the use of animals is deemed as antisocial. This includes uncontrolled animals, stray dogs, barking, fouling, and intimidation by an animal.
7. Councils have a general duty to take action to tackle ASB. But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation. Councils can use their powers under the Anti-social Behaviour, Crime and Policing Act 2014, which include:
• the power to issue community protection notices (“CPN”);
• the power to make a public spaces protection order (“PSPO”);
8. Councils can issue CPN’s to prevent ASB which is having a negative effect on the community's quality of life, and which they decide is unreasonable. CPNs require the behaviour to stop and, where appropriate, require the recipient to take reasonable steps to ensure it is not repeated. Failure to comply is an offence and may result in a fine or a fixed penalty notice.
9. A council may also make a PSPO, if it is satisfied that activities carried on in a public area are detrimental to local quality of life, or if it is likely the activities will have such an effect. The PSPO should specify the area and the activities to which it applies.
10. If a complaint has been made about a dog to a council, it can issue a CPN. CPNs provide a statutory tool that can be used in cases of irresponsible dog ownership where informal non-statutory methods have proved unsuccessful. They can require the person responsible for the dog (usually the owner) to stop or control its behaviour. CPN’s are usually issued to deal with minor incidents and can order the responsible person to:
• stop doing something, such as letting the dog into children’s play areas
• do specified things, such as muzzle the dog or require it to be on a lead in public
• take specified steps to get specific results, such as attending dog training classes or repairing a fence to prevent the dog leaving the property.
11. A PSPO can also place restrictions on a public area including:
• requiring dogs to be on a lead in a specific public area
• limiting the number of dogs a person can walk at one time
• requiring owners to clean up after their dogs
• preventing dogs from being in a children’s play area
12. The Dangerous Dogs Act 1991 prevents people keeping dogs belonging to types bred for fighting. It restricts other types of dogs, which present a danger to the public. It describes when a dog can be regarded as ‘dangerously out of control’, including where there are grounds for believing it will injure a person, whether or not it actually does so.
13. Councils have the power to seize specified breeds of dangerous dog. However, where the dog is not a specified breed but is ‘dangerously out of control’, it would be for the police to investigate.
14. The Health and Safety at Work etc Act 1974 sets out the general duties that :
• employers have towards employees and members of the public
• employees have to themselves and to each other
• certain self-employed have towards themselves and others

Background

15. In mid-2021 Dr B was with his family on a high street. There is a café on the street, which has an outside seating area. The café is dog friendly and has an attached dog grooming business. Several dogs were outside the café, including one belonging to the owner, which was on a lead tied to a post. Dr B says the owner’s dog was large and aggressive. He says about twenty minutes before the incident, he saw the owner slap the dog strongly across the face, which made it even more aggressive.
16. I can see from video footage that Y moved towards the outside seating area. The incident itself is blocked from view, but there was barking, and Dr B ran into to pull Y away. Dr B says the dog attacked Y and was aiming for their neck. Dr B managed to get in the way but was bitten on the hand.
17. Dr B says he took his son to the car, then returned to speak to the owner. He said what had happened was very dangerous and that he had a dangerous dog. Dr B says the owner was sarcastic and did not care. He said the owner was drinking alcohol with his friends.
18. Dr B attended the hospital and was treated for the bite. On arrival home, Dr B’s partner discovered Y was also bitten on the upper arm. They took Y to hospital for treatment. Dr B says that had he not gotten in the way, the dog would have bitten Y’s neck and that would likely have caused serious injury or death.
19. Dr B reported the incident to the police, the RSPCA and the Council. The police took statements from Dr B and his partner. The police investigation has not yet concluded. Dr B does not know if the RSPCA took any action. The RSPCA would only investigate from the point of view of abuse to the animal.
20. An officer at the Council consulted with its licensing team and contacted the café owner. The officer found there was no licensing action the Council could take, and it was a matter for the police and RSPCA, so closed the case.
21. Dr B challenged the Council’s decision. He said there were a long list of health and safety issues related to the case. It was a public pavement belonging to the council. He said the Council had given the owner permission to have tables outside, where dogs were free to attacked children walking past. He asked the Council to take action such as:
• Give the owner a strict warning
• Fine the owner for his dangerous actions
• Not allow the café to have dogs inside or outside
• Take away permission to have tables outside
• Enforce closure of the café for health and safety concerns
22. The Council obtained and reviewed video footage of the incident. It wrote to Dr B again to say the case remained closed.
23. Dr B made a formal complaint. He said the Council had not investigated what was a serious dog attack. He said the Council’s environmental health and health and safety teams had not taken any action to protect the public.
24. The Council responded that its health and safety team only enforce health and safety workplace activities. It said in this instance the owner was sitting at a table near the dog and was not carrying out any workplace activities. It said the owner had permission to have the tables outside and there was no action its licensing team could take. It said it did not have powers to deal with dangerous dogs and the police were the appropriate organisation to investigate the incident.
25. Dr B escalated his complaint to stage two of the Council’s complaint procedure. He reiterated that it was a serious incident in which Y could have been seriously harmed or killed. He again asked the Council to take action, such as not allowing the owner to have dogs around the café.
26. The Council contacted its community safety team and dog warden service to see whether it had any further powers in relation to the incident. The animal warden service confirmed it did not have powers to deal with dangerous dogs and it would be a matter for the police.
27. The Council responded to Mr B at stage two of its procedure and did not uphold his complaint. It said again that it was a matter for the police.

Findings

28. I do not find fault in how the Council considered its powers under health and safety and licensing law. However, I find fault, as I cannot see evidence the Council considered the full range of powers available to it, including ASB law.
29. Health and safety law is focussed on workplace activities. Licensing is primary concerned with serving alcohol. I understand that dog grooming is part of the business, which means dogs are often outside the premises. However, dogs are a constant presence in public streets, and it is not unusual for cafés to allow dogs in their outdoor seating areas. In this instance the dog belonged to the owner and may well have been on the premises during the day, regardless of the nature of the business. Therefore, I would not have expected to see the Council look to prevent dogs being on or outside the premises, in general, under any health and safety or licensing laws.
30. I accept the police is the primary organisation responsible for investigating incidents of this nature. The police have powers under the Dangerous Dogs Act, whereas the Council do not. However, the Council does have powers to tackle ASB, including where it involves animals.
31. I asked whether the Council considered its ASB powers. The Council said it decided it was a matter for the police rather than an ASB issue. The correspondence it has provided shows its animal warden service said it did not have powers to deal with dangerous dogs. However, I cannot see any evidence the Council considered whether the incident amounted to antisocial behaviour, and if so whether it had powers to respond to this, such as through a CPN on the individual, or a PSPO for the wider area. I also note the Council’s ASB policy is solely related to its tenants and housing. However, the law does not restrict the Council to only acting on ASB in that context.
32. I cannot say whether the Council should use its ASB powers. It would be for the Council to decide what, if any, response is appropriate in the circumstances. However, I recommend the Council review its decision and consider whether any further action is appropriate.

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Agreed action

33. The Council has agreed to, within a month of this decision:
• Apologise to Dr B for not considering its full range of powers to respond to the incident
• Review its decision, taking into account its powers in line with ASB legislation. Decide whether to use any of these powers in response to the incident. If so, proceed with that course of action and update Dr B. If not, provide Dr B with a clear explanation for why it does not consider the use of those powers is appropriate in the circumstances.

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Final decision

34. The Council is at fault for not considering whether the use of its powers to tackle antisocial behaviour was appropriate in this case.

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Investigator's decision on behalf of the Ombudsman