Summary: Mr Y complained about the Council’s inadequate response to an outbreak of a disease amongst wild birds at one of the Council’s parks. He is also unhappy with the time taken for the Council to respond to his complaint. We have not found the Council at fault.

The complaint

1. Mr Y complained about the Council’s inadequate response to an outbreak of a disease amongst wild birds at one of the Council’s parks. He was also unhappy with the time taken for the Council to respond to his complaint.
2. Mr Y, who has an interest in wild birds, said he was distressed and inconvenienced by the Council’s response as he acted to rescue ill wildlife and remove dead birds from the lake.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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 have considered the information provided by Mr Y and the Council’s complaint response before making this decision. I wrote to Mr Y and the Council with our draft decision and gave them an opportunity to comment. I considered the comments received before making this final decision.

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What I found

Background

6. The Animal and Plant Health Agency (APHA) has written guidance for land-owners and managers on dealing with the outbreak of disease among wild birds, including on how to diagnose, manage and prevent it.
7. This guidance explains the signs of the disease. It says the APHA does not test for the disease in wild birds. It instead says diagnosis can be based on observation of potentially affected birds.
8. The disease in this case largely affects water birds who collect food from silt at the bottom of water. APHA’s guidance gives preventive measures and responses to stop recurrence of an outbreak or lessen its effects. Suggested measures aim to keep water levels high and reduce levels of silt. They include ensuring water circulation and adequate levels, managing plant life, removing affected silt and promptly removing dead birds for safe disposal.
9. The guidance also refers to the option of wildlife centres, with prior agreement, treating affected birds, saying this can be effective if caught early. However, if the disease is not caught early the guidance says humane veterinary euthanasia may be used.
10. The guidance also suggests other more intensive environmental treatments for park settings, warning they are more expensive including drainage, removal of silt, deepening the water course and improving circulation and aeration.

What happened

11. Mr Y is a wildlife enthusiast who reports and rescues sick birds at a Council owned park with a large lake. Following an outbreak of disease in 2018 amongst birds in the park, Mr Y complained to the Council about its response in January 2019.
12. The Council responded to Mr Y’s complaint in May. It said the summer of 2018 had been one of the hottest and driest on record with less rainfall than usual. It explained that consequently water levels at the lake had dropped, probably leading to the outbreak. It said it had taken it some time to respond to the outbreak but had learnt from what had happened to improve how it worked in future.
13. With reference to the APHA guidance it said it had kept water levels at the lake as high as possible, started to improve water quality, tried to remove dead birds as quickly as possible and trained more staff to do so in future.
14. The Council also outlined why it had not taken all of the actions suggested in the APHA guidance. The reasons were varied and included detailed explanations relating to each proposed action. These included:
• the size of the lake;
• cost to the public purse;
• likelihood of success at reducing the spread of the disease;
• the practicality of each option, for example of live birds being caught by park officers.
15. The Council said it was unlikely treatment for sick birds would work. It said there was no cure for the disease. It would be difficult and possibly traumatic to catch and treat sick birds. They were quite likely to need to be humanely killed anyway. Treatment would not prevent them re-catching the disease. It explained it was therefore not practical to treat affected birds.
16. Mr Y responded, criticising the Council’s response in June. His response included reference to wild birds in other areas which had been treated for the disease and had recovered and set out his reasons why the Council should act. He referred to research that treatment could lead to full recovery of birds from the disease.
17. The Council provided its final response to not uphold Mr Y’s complaint in September 2019. It said further testing had confirmed the cause of the disease, and it was continuing to monitor the situation. It referred Mr Y to the Ombudsman.

Findings

18. It is not for the Ombudsman to decide what action should be taken when there is an outbreak of disease in a wild bird population. The Ombudsman’s role is to consider whether the Council followed relevant policy and guidance when dealing with the situation. Providing the Council considered relevant policy and guidance to inform its decisions, we cannot criticise those decisions.
19. In this case, the Council reviewed the APHA guidance and decided which actions to take to reduce the spread of the disease. It has explained its reasons for not following each action set out in the guidance. This included explaining why it considered treatment of affected birds was impractical in its view.
20. As the Council has acted following consideration of the options available, there is no fault in how it made its decision on its response to the outbreak of disease in wild birds. While Mr Y disagrees with this and considers information given to be incorrect, there was no fault in how the Council came to its decision.
21. I have also found no fault in the Council’s complaint response. While the Council did take a long time to respond to Mr Y’s complaint, it also took the time to fully investigate the matter and reflect on the issues raised, including learning to improve future responses. I have seen no evidence to suggest Mr Y was chasing the Council for its response, or he was caused any other significant personal injustice by the time taken for the Council to respond.

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Final decision

22. I intend to complete my investigation to find the Council was not at fault.

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Investigator's decision on behalf of the Ombudsman