The Ombudsman's final decision
Summary: Mr X complained that the Council has failed to establish an effective and legal dog control on two areas of land in its area and has failed to enforce the Public Spaces Protection Order in place. We found the Council was at fault in only allowing consultation responses on the proposed variation of the PSPO to be submitted online. However, this did not cause Mr X an injustice as he submitted comments.
The complaint
Mr X complains that the Council has failed to establish an effective and legal dog control on two areas of land in its area and has failed to enforce the Public Spaces Protection Order in place. As a result, there have been an unacceptable number of dog attacks on him and on wildlife causing him distress.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
What I have and have not investigated I have investigated events which took place between July 2022 and July 2023 when Mr X complained to us. The Ombudsman will not normally investigate complaints about events which took place more than 12 months before someone complained to us unless we decide there are good reasons to do so.
Mr X has complained about the way the Council handled the variation of a Public Spaces Protection Order (PSPO) in May 2022. These events took place more than 12 months before he complained to us. I have therefore considered whether to exercise discretion to investigate them.
Following public consultation, the Council varied the PSPO in place on the two areas of land Mr X refers to. In May 2022 it published the PSPO on its website and displayed it on the affected land. In July 2022 the Council decided to merge this PSPO into the existing Borough-wide PSPO and carried out further consultation. Even if there was fault in the May 2022 process, this would not have caused Mr X an injustice because the second process considered whether to maintain or extend the restrictions set out in the May 2022 PSPO and Mr X had a further opportunity to comment. For these reasons, I do not consider there are grounds to exercise discretion to investigate the earlier events.
How I considered this complaint
I have considered all the information provided by Mr X, made enquiries of the Council and considered its comments and the documents it provided. I also considered information available on the Council’s website including the minutes of the Cabinet meeting held in October 2022 and a recording of the meeting.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legal and administrative background The Anti-social Behaviour Crime and Policing Act 2014 Councils have a range of powers they can use to tackle antisocial behaviour which are set out in the Anti-social Behaviour Crime and Policing Act 2014 (‘the 2014 Act’).
Public Spaces Protection Orders A council may make a public space protection order (PSPO) to stop individuals or groups committing antisocial behaviour in a public space if it is satisfied the behaviour is having, or is likely to have, a detrimental effect on local quality-of-life. PSPO’s can place restrictions on a public area including: requiring dogs to be on a lead in a specific public area; requiring owners to clean up after their dogs; or preventing dogs from being in a children’s play area.
A council can issue a fixed penalty notice for failing to comply with a PSPO.
The 2014 Act says the council that made a PSPO may vary it by: increasing or reducing the restricted area; altering or removing a prohibition or requirement included in the order; or adding a new prohibition or requirement.
However, it may only do so if it is satisfied that activities carried out, or likely to be carried out, in a public place: have had, or are likely to have, a detrimental effect on the quality of life of those in the locality; are, or are likely to be, persistent or continuing in nature; are, or are likely to be, unreasonable; and justify the restrictions imposed.
Section 72 of the 2014 Act states that a council, in deciding whether to make a PSPO or whether to extend or vary a PSPO, must carry out the necessary consultation and publicity and the necessary notification. The council must consult the local police, any community representatives it considers appropriate and the owner or occupier of land within the restricted area. The council should publish the text of the proposed order or variation and notify the parish council.
Community protection notice Councils can use a community protection notice (CPN) to stop someone committing antisocial behaviour which spoils the community’s quality-of-life. CPN’s can be used in cases of irresponsible dog ownership where informal methods have proved unsuccessful. They can require the person responsible for the dog (usually the owner) to stop or control its behaviour.
A CPN is usually issued to deal with minor incidents, including when a dog strays, damages property or shows it is capable of aggression.
A CPN orders the responsible person to: stop doing something, such as letting the dog into children’s play areas; do specified things, such as muzzling the dog; or take reasonable steps to get specific results, such as attending dog-training classes.
The Equality Act 2010 The Equality Act 2010 makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Act. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
The ‘ protected characteristics ’ referred to in the Act are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
Public sector equality duty The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to: eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010; advance equality of opportunity between people who share a protected characteristic and those who do not; and foster good relations between people who share a protected characteristic and those who do not.
The broad purpose of the Public Sector Equality Duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
Background
Mr X frequently visits two areas of recreation land in the Council's area. I will refer to these areas as Area A and Area B. Mr X has frequently raised concerns with the Council about dog control on both areas of land.
The public space protection order on the land A PSPO was in force in Area A and Area B requiring dogs to be put on a lead when directed to do so by an officer authorised by the council (‘dogs on lead by direction’).
An incident took place when a dog fatally injured a swan in Area A. Following this, the Council varied the PSPO for dog control at Area A to require dogs to be kept on leads at all times in parts of the area. The existing control for dogs on lead by direction was maintained on part of the site. The Council also varied the PSPO for dog control at Area B to require dogs to be kept on leads at all times. The Council published the revised PSPO on its website in May 2022 and later displayed notices at various places across the sites.
In July 2022 the Council proposed to create one PSPO for the whole Borough by extending the Borough-wide PSPO which was due to expire in January 2023 to include Area A and Area B. It consulted on the proposed variation during July and August 2022 seeking the public’s views on dog control across the Borough and in more detail in Area A to decide whether to maintain or extend the current restrictions. Mr X submitted detailed comments and other residents also commented.
In the consultation, the Council explained that an extension of the restrictions would only be considered where there was clear evidence of significant antisocial behaviour, for example dog attacks. It also explained that historical data and evidence would be reviewed when making any decisions and the legal test outlined in the 2014 Act must be met.
Following the end of the consultation period there was a Scrutiny Commission meeting to scrutinise the Cabinet report which included the consultation responses.
Shortly afterwards a Cabinet meeting was held for it to consider the report which sought approval of the Notice of Intention and of the proposed PSPO. The report included background papers which set out the number of reported incidents over the previous three years, a summary of the consultation responses and a detailed consultation response submitted by Mr X.
The Cabinet had to decide whether to maintain or extend the current restrictions in Area A after considering the evidence set out in the background papers. The options were: Option 1 - to maintain the existing restriction of dogs on leads by direction on the playing fields section of Area A; or Option 2 - to extend the restriction of dogs on leads to include the playing fields.
At the meeting, the Chair of the Scrutiny Commission presented a report setting out the Commission’s findings on the matter and its recommendation. The Cabinet discussed the issues and members were invited to ask questions. In response to a question, the Chair of the Scrutiny Commission confirmed that the Commission considered Option 1 to be the most appropriate course of action and felt that the introduction of dogs on leads in part of Area A had had a positive impact on the area. However, they considered that dogs on leads on the playing field part of Area A was not required. The Chair explained that members of the Scrutiny Commission had had lengthy discussions on this point.
The Leader of the Cabinet explained that, to impose a restriction, the Council must be satisfied that it was necessary to prevent a detrimental effect on the quality-of-life of those in the locality and the restriction must be proportionate to the behaviour it was seeking to prevent.
The Chair of the Scrutiny Commission explained that the Commission was satisfied that only one of the incidents reported met the threshold of antisocial behaviour as set out in the 2014 Act.
There was some discussion over the two options, but Cabinet Members voted unanimously in favour of Option 1. The Cabinet resolved to approve the Notice of Intention and gave the Head of Regulatory and Community Safety, in consultation with the Lead to Remember for A business Support, delegated authority to make the PSPO after the 28-day notice period if there were no objections and to amend and make the order if only minor alterations were required.
The implementation timetable set out in the Cabinet report stated that, if Cabinet approval was granted, and following the call-in period, the timetable would be: a notice to make an order and a draft PSPO would be published with a 28-day notice period to allow for comments on the proposed PSPO; the comments would be reviewed and a decision made on the terms of the PSPO; if no objections were received, the order would be made as drafted; if there were minor objections, or a need for alterations, officers would amend and make the order; if there were major objections, a further Cabinet report would be written for a decision at Cabinet to revise or not and progress with the PSPO; and the PSPO would then be published on the Council’s website and in paper format with an implementation date.
There was then a ‘call-in’ period which lasted until 21 October 2022. During this period the decision could be called-in by councillors if they were dissatisfied with it and a meeting of the Scrutiny Commission would then be arranged to consider the call-in.
There was no call-in of the decision. So, the Council published a Notice of Intention to vary and extend the PSPO on its website and displayed paper copies at sites where changes were proposed. The Notice outlined the details of the proposed variations in red ink and stated that a draft of the proposed order was available for inspection on the Council’s website together with further details. The Council sought the public’s views on the proposed changes and asked for comments to be submitted via an online survey.
At the conclusion of the consultation period, officers reviewed the responses which included a spreadsheet submitted by Mr X showing a high percentage of non-compliance with the dogs on a lead requirement in Areas A and B. The lead officer prepared a report for the Head of Regulatory and Community Safety and the Lead Member for Business Support. The report attached the consultation responses.
Having considered the report and reviewed the consultation responses with the Lead Member for Business Support, the Head of Regulatory and Community Safety was satisfied that no substantial changes were required and that there were no major objections so the decision made by the Cabinet to extend and vary the PSPO could be implemented.
The PSPO was sealed on 6 January 2023 and published on the Council’s website and in paper format in areas where changes had taken place.
Analysis Mr X is dissatisfied with the Council's decision and considers there was fault in the process.
Online consultation Mr X says the Council was at fault in requiring members of the public to respond to the consultation via an online survey. This format did not accept images, so he was unable to include information he wanted to submit in the form of a report he had previously submitted to the Council which contained essential images.
PSPO guidance for councils issued by the Local Government Association says councils should use a range of means to reach out to potential respondents, some of whom may be unable to feedback in certain ways, for example online. In addition, under the public sector equality duty, the Council should have due regard to the effect of its actions on people with protected characteristics.
I find the Council was at fault in only allowing consultation responses via the online survey. It should have allowed people to also respond by other means such as by post or by carrying out a face-to-face survey of users of the land. Failure to do so may have prevented some people with protected characteristics from responding to the survey. However, I do not consider this caused Mr X an injustice as he was able to respond to the survey in some detail, albeit he was unable to attach his previous report.
Mr X says the Council stated that submissions displaying personal information would be visible to members of the public when they were posted on its website. In reliance on this information, he deliberately included his email address so other members of the public could request a copy of the report that he was unable to include with his online submission. However, the Council removed his email address from his submission without his permission.
I find no grounds to criticise the Council in this regard. It has responsibilities under the Data Protection Act 2018 not to disclose personal information to third parties. While Mr X was misled by the Council’s statement that submissions displaying personal information would be visible to members of the public, the Council was entitled to advise people responding to the survey that any personal information may be inadvertently disclosed. In any event, I do not consider any injustice was caused by this. Mr X was able to submit information for consideration by the Council which was the purpose of the consultation.
Submissions in response to the notice of intention Mr X says officers also interfered with his submissions in response to the notice of intention in October 2022 by imposing constraints on the amount of information he was allowed to submit.
The Council allowed Mr X to submit one email instead of responding via the online survey because he wished to submit a large amount of information. Four days before the consultation was due to end, the Council sent Mr X a further email stating that his submission should only contain evidence gathered after the closure of the initial consultation stage as all evidence that he had previously submitted had been considered. I find no grounds to criticise the Council for requiring that responses to the notice of intention should only include new information obtained since the previous consultation. Mr X submitted a lengthy email which was attached to the report for the Head of Regulatory and Community Safety and the Lead Member for Business Support.
Mr X says his submissions were ignored in favour of an officer’s opinion which was unfounded.
The Cabinet report referred to the additional evidence put forward by Mr X to support an extension to the restriction on the playing field area of Area A. The report stated that, in the officer’s opinion, most of the listed incidents could be classed as a ‘near miss’ or ‘typical animal behaviour where dogs have approached wildlife, but no injuries were caused’. The report explained that, while these incidents against wildlife were unfortunate and saddening, the guidelines for the 2014 Act state that restrictions in a PSPO must be justified and proportionate and the purpose of the Act is to protect the community against antisocial behaviour.
Mr X disagrees with the officer’s opinion which he says is unsupported. He says this was misleading to the Cabinet. However, the officer was entitled to put forward their view. In addition, all the evidence was available for Cabinet members and Scrutiny Commission members to reach their own view on the matter. The minutes show they considered this point and concluded that only one report met the threshold of antisocial behaviour. This was a decision they were entitled to reach.
The Council’s decision Mr X considers the Council should have imposed a requirement for dogs to be kept on leads at all times throughout the entirety of Area A and Area B. He also says the Council disregarded the wishes of members of the public as most of those who responded were in favour of dogs being kept on leads at all times.
Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
In making its decision, the Council followed the correct process as set out in section 72 of the 2014 Act. It properly consulted members of the public and the consultation responses were included in the Cabinet report which was considered by the Scrutiny Commission before being put to Cabinet for a decision. The responses to the Notice of Intention were then included in the report to the Head of Regulatory and Community Safety and the Lead Member for Business Support.
So, I am satisfied the consultation responses, including detailed responses from Mr X, were considered. The Council is not obliged to make a decision based solely on the number of responses in favour of a particular outcome. This is only one of the factors it should consider. It must make a decision based on all the information before it, including the responses from statutory consultees as well as members of the public, and based on whether the legal test for varying the PSPO was met.
The LGA guidance says that using a scrutiny committee to examine the draft order and challenge proposed ways forward acts as a further element of democratic accountability and helps to ensure that decisions made are sound and transparent. The Council complied with this recommendation.
In the absence of administrative fault in the decision-making process, there are no grounds to criticise the Council’s decision.
It was open to Mr X to challenge the order by making an application to the High Court. The 2014 Act provides that a challenge may be made by an individual who lives in the restricted area or who regularly works in all visits that area. An application may be made on the grounds that the Council did not have the power to make the order or variation, or to include particular prohibitions or requirements; or that the proper process had not been followed.
Enforcement of the Public Spaces Protection Order Mr X says the Council has failed to enforce the PSPO. He says he has seen many dogs off leads despite the ‘dogs on leads at all times’ signs and no action has been taken. He also says he has seen no officers monitoring dog control in Area A or Area B.
Mr X also says the Council has failed to act on his reports of loose dog attacks, one of which involved an attack on him. He says that, between July 2022 and May 2023, he reported at least 34 loose dog attack incidents but there was no meaningful response to most of those reports.
Mr X says he repeatedly reported one particular dog owner over a period of many months. The Council eventually issued a fixed penalty notice and a community protection notice warning but only after he supplied details of the dog owner’s vehicle and home address together with photographs of the owner and his dogs. He says that, without this, the Council would have taken no action. Mr X says he has gathered photographic and video evidence of other loose dog attacks which he has frequently offered to the Council, but officers have never once requested that evidence.
I have seen evidence that Mr X reported many incidents to the Council between July 2022 and July 2023. Officers logged the incidents but, in most cases, decided no action was necessary because they did not meet the requirements of the PSPO. This was a matter for officers’ professional judgement and a decision they were entitled to reach.
The Council has provided evidence that its officers have visited the site on several occasions during this period. It says Rangers employed by contractors also patrolled the two sites when resources allowed. Rangers can advise but they do not have enforcement powers. Enforcement therefore relies on Council officers however they have limited resources and have to cover the whole borough.
While I appreciate Mr X considers the officers should visit areas A and B more frequently, the Council must prioritise use of its resources. It is entitled to decide how frequently officers should visit the sites to monitor dog control issues.
The minutes of the scrutiny commission discussion show that it discussed the fact that enforcement of the PSPO would rely on complaints for targeted enforcement in problem locations because the PSPO applies across the whole borough and staff resources would be limited.
I do not uphold this aspect of Mr X’s complaint.
Final decision
I find the Council was at fault in only allowing consultation responses to be submitted online. However, I do not consider this caused Mr X an injustice.
I do not uphold the remainder of Mr X’s complaints.
I have completed my investigation on this basis.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman