DEFRA guidelines on strays ‘could really do better’
NOW THAT the green light has been given for the for the handling of stray dogs to be transferred away from the police to local authorities in England and Wales from April 2008, Local Authorities in England and Wales are – or should be – gearing up to put procedures in place to embrace their new responsibilities.
As reported last week, the change, made at the behest of DEFRA, comes as part of the Clean Neighbourhoods and Environment Act, the bulk of which was enacted two years ago. However, the removal of responsibility from the police for stray dogs – particularly ‘out of hours’- was delayed due to arguments over the funding for local authorities to provide a 24-hour dog warden service.
DEFRA has issued a Guidance Document to Local Authorities, explaining their responsibilities and outlining the best ways of dealing with stray dogs. Undoubtedly, some LAs will manage the system better than others, as they may have better dog warden services, better funding and a clear policy on stray dogs. However, there are many other local authorities that fall far short of this ideal and some have been known not to employ dog wardens of animal officers in any capacity.
Other LAs may well put the whole stray dog collection service out to private tender rather than operate it ‘in house’ – and this may even leave to existing dog warden and animal collection services being put out to private tender. The key issue now is that with the removal of the police from the equation, LAs are required to run a 24-hour stray dog service. Whether this can be achieved in any shape or form is unclear, but the guidance optimistically outlines how this could be achieved…
The guidance kicks off by saying that they cover the ‘expectations of the legal duties that rest with local authorities in England and Wales with respect to stray dogs,’ as enshrined in the Environmental Protection Act 1990 (referred to as the 1990 Act) and the Environmental Protection (Stray Dogs) Regulations 1992 (known as the 1992 Regulations), the Control of Dogs Order 1992 (the 1992 Order) and ‘other matters related to the control of dogs.’
The guidance goes onto state it includes references to animal welfare conditions as set out in section 9 of the Animal Welfare Act 2006 - which imposes a statutory duty of care on all owners and keepers to provide for the welfare needs of their animals – "a duty of care")- and the kenneling standards published by the Chartered Institute of Environmental Health, entitled Model Licence Conditions and Guidance for Dog Boarding Establishments.
It adds: ‘It is intended that this guidance is considered alongside the legislation. It has been prepared for local authorities, including other persons contracted to work on their behalf, and other organisations or people working in partnership with local authorities in connection with the collection, or detainment of stray dogs.’
Possibly the most contentious area of the whole stray dog problem is addressed early on in the guidance, which states: ‘Section 68 of the Clean Neighbourhoods and Environment Act 2005 will be commenced on 6 April 2008. It removes from legislation references to the police seizing stray dogs and the duty to accept any brought to them.’ However, the police retain duties with regard to dealing with dangerous dogs and dogs found to be worrying livestock. Authorities and the police are told that they ‘should maintain a working relationship so that such issues can be dealt with effectively.’
It also makes clear that the police have a duty to inform the public about the change in the law: ‘In order to inform the public about the arrangements for stray dogs the police are expected to advertise in police stations any information given to them by local authorities such as locations where strays may be taken and any phone numbers for officers or information, with particular reference to out of office hours contact and the cover provided’.
It continues: ‘This means that from April 2008 local authorities will be solely responsible for discharging stray dog functions. In short, the minimum requirement of the extended duty is that where practicable local authorities provide a place to which dogs can be taken outside normal office hours (referred to in this guidance as an ‘acceptance point’).’
It is clear that DEFRA expect LAs to discharge their responsibilities by informing the public of the change in the law: ‘It is possible that the public will continue to contact the police in relation to stray dogs. Authorities are therefore strongly recommended to supply their local police stations with relevant details such as phone numbers and addresses of acceptance points, especially those that operate outside office hours. It is strongly advised that posters detailing new provisions should be placed at any collection point no longer used to accept stray dogs in the area, and all other places that are relevant to changes in provision.’
According to the introduction to the guidance, Government has allocated an extra £4 million a year I- which included in the revenue support grant - to fund the local authority costs of the extended duty in England and Wales. However, it very tellingly states, that, despite the extra funding: ‘Local authorities are not expected to provide a round-the-clock call out service.’ (OUR DOGS’ italics).
Appointment of an officer
Local authorities must appoint an officer for the purpose of discharging their stray dog functions. Whilst these functions can be delegated to other persons, the appointed officer retains overall responsibility for ensuring that the authority’s stray dog functions are discharged correctly.
The guidance adds, however: ‘Authorities may find it practical to appoint a senior officer… but to delegate the day-to-day responsibilities to dog wardens or other persons such as a contractor. If responsibility is delegated the officer should ensure they have appropriate training and skills.’
Seizure of stray dogs
On the matter of actual strays themselves, the guidance makes the interesting legal point that ‘There is no statutory definition of a stray dog.’ It goes onto state: ‘ However, any dog found in a public place, or private place where it should not be, which appears to be without its owner and not under the control of its owner or a person representing them, may be seized and detained as a stray dog by an appropriate person.
‘Where an officer finds in a public place a dog he believes to be stray, he shall (where practicable) seize and detain the dog. However if the dog is on land or premises which is not a public place, the officer must first gain the permission of the owner or occupier of the land or premises.
Authorities are told that they must publicise the phone numbers of relevant officers so that the public can report stray dogs. Authorities are advised to publicise such phone numbers as widely as possible including on their website and at local police stations.
Out of hours facilities are covered, but remain somewhat vague: ‘Authorities are not required to offer a night-time call-out service to seize and detain stray dogs seen or found by the public. However, contact numbers for out of hours cover should be widely publicised to enable ‘finders’ to take a dog to an acceptance point. As a minimum this should include websites, police and authority offices and acceptance points (past and present). The responsibility for functions can be delegated to third parties. Authorities are expected to provide the most cost effective service possible.’
No mention is made of what the ‘finder’ is supposed to do with the dog if the acceptance point is not open 24 hours a day – and few kennels, even those contracted to councils to take in stray dogs, operate a 24 hour service. If the finder was, say, to ‘hold on’ to the dog overnight – as some have been advised to do by the police and other agencies in the past, under the current arrangements – then they are, technically, guilty of ‘theft by finding’.
Does this mean that a responsible citizen who fins and wants to and in a stray dog – being mindful of its welfare, especially under the Animal Welfare Act – might be encouraged to break the law? The guidance remains worrying silent on this point.
The guidance is quite clear and helpful on matters relating to the identification of dogs. As well as citing the law that all dogs must wear a collar with a name tag, it goes into some detail about microchipping and, encouragingly, tattooing: ‘Due to the prevalence of permanent identification methods, such as micro-chipping and tattooing, local authorities are advised to be adequately equipped to identify micro-chipped or tattooed dogs and that dogs are scanned at the earliest possible opportunity. Scanners/ readers employed by authorities should be compatible with as wide a range of formats as possible.
‘In respect of tattooed dogs officers can contact the National Dog Tattoo Register for registered owners’ details. It is also advisable that scanners can be accessed by waste management teams and where practicable direction is given on checking dead dogs removed for identification.’
Identifying the owners of prohibited type dogs
The 1991 Dangerous Dogs Act and prohibited ‘types’ of dog are are covered in some detail: ‘The ownership of four types of dog is prohibited under section 1 of the 1991 Dangerous Dogs Act (as amended 1997). The dogs covered by the ban are of the type known as either: the Pit Bull Terrier, the Japanese Tosa, the Dogo Argentino or the Fila Brasiliero. Such breeds can be difficult to identify and therefore it is recommended that all officers have access to the guidance on identifying these types of dog which can be found at the DEFRA website.
It adds that ownership of the listed types of dog is permitted only where the dog is registered on the Index of Exempted Dogs and it is kept in compliance with the requirements of the Index. Exempted dogs have to be neutered, tattooed, and microchipped, and have to be on a lead and muzzled at all times.’
‘Where officers suspect and/or identify a prohibited type of dog which is on the Index (by either a tattoo and/or microchip) they can, if necessary, contact the Index of Exempted Dogs to help identify the owner of the dog….In addition officers will need to contact the local police force who will want to consider what further actions are necessary against the owner under the Dangerous Dogs Act.
‘Where officers identify a prohibited type of dog which is not on the Index of Exempted Dogs (i.e. is not microchipped and tattooed) they will need to contact the local police force who will want to consider what action is necessary under the 1991 Dangerous Dogs Act.’
The guidance continues outlining the procedures and existing laws on the seizure, holding and return of stray dogs to their owners. However, matters become less straightforward when a finder requests to keep a stray dog that he or she has handed in. The guidance states: ‘Any person who finds and takes a stray dog to the local authority can request to keep the dog under section 150(2) of the 1990 Act. The Regulations specify that if the finder requests to keep the dog he must give his name and address to the officer. The officer must make reasonable attempts to contact the owner to give him reasonable opportunity to collect the dog.
‘The Regulations also require the officer to determine whether the finder is a suitable person to keep the dog. The officer must inform the finder verbally and in writing that he is obliged to keep the dog (if unclaimed by the owner) for at least one month and that failure to comply with that obligation is a criminal offence. The maximum penalty on summary conviction is level 2 on the standard scale.
The whole fuzzy, grey area of who is or is not the owner of a dog that was handed in as a stray and then re-homed is addressed, but it is clear that the guidance makes no hard and fast rules on the matter: ‘The Act does not purport to deal with the civil law on ownership in this context. The Finder has a duty to keep the dog for 28 days after taking possession of it, however they do not become the legal owner of the dog. The officer should make clear to the finder that if a person claiming to be the rightful owner of the dog – and can prove it – requests the return of the dog, then the finder may have to relinquish his custodianship. Disputes over ownership would be subject to the usual civil common law principles governing possession and title. Relinquishment might be required at any time and would not be governed by section 150(3) – the intention of which is simply to prevent a finder abandoning or turning the dog loose to become stray again.
‘An authority is entitled to sell or give a dog to a person or other party if the original owner has not reclaimed the dog. However, the intention is not that the recipient (where not the original owner) is charged the prescribed amounts before a dog is released.’
Disposal of stray dogs
The guidance goes on to detail the ‘disposal’ arrangements, making it clear that the dog’s welfare must be paramount in the officer’s handling of the matter:
‘If a stray has not been collected by its owner after seven days, the officer may under section 149(6) dispose of the dog:
• by selling it or giving it to a person who will in his opinion care properly for the dog;
• by selling it or giving it to an establishment for the reception of stray dogs; or
•by euthanizing it in a manner to cause as little pain and suffering as possible.
‘Euthanasia should only be considered after all other avenues have been explored to save the dog by re-homing. It should be noted that banned breeds cannot be re-homed. Euthanasia must only be effected by a veterinary surgeon and in a manner causing as little pain and suffering to the dog as possible.’
‘Ancillary issues’ are dealt with in Part 2 of the guidance. Dog theft is touched upon, and was included largely at the behest of the anti-dog theft organisation Dog Theft Action.
The guidance states: ‘Authorities will be aware of the intrinsic link between lost, stolen and stray dogs, but should note the distinction between reporting lost property and reporting a stray.
Whilst the local authority is responsible for strays, the police are responsible for recording reported lost property, including dogs, and also dog theft, which is a criminal offence. Local authority officers will record details of any reported stray dog, but they should also advise owners of lost or stolen dogs to file a report with the police. With respect to abandoned dogs, kennels or welfare organisations should be contacted to see if they could rehome the dog.’
Dead dogs are also covered and the officer is given clear guidance in this respect: ‘In the event that officers find a dead dog they should make every attempt to establish the identity of the dog and its owner and, where appropriate, give the owner the opportunity to collect the dog. If practicable dead dogs should be scanned to identify the owner.’
On further ancillary issues, the guidance becomes rather prescriptive and makes plenty of well-meaning suggestions, on education and other matters…
48. Education is a key element in reducing the number of stray dogs and dangerous dogs and protecting the welfare of animals. It is therefore important that officers consider the most effective methods for how they can promote and raise the profile of responsible dog ownership within their area. This may include visits to national/local dog welfare or dog owning organisations, kennels and schools in their area. Officers should publish any information on responsible dog ownership on their website.
49. Authorities should consider whether there is a need to offer subsidised or free neutering; particularly authorities with high numbers of stray dogs in their area. Many dog welfare organisations, charities and kennels offer free or subsidised neutering, so authorities are advised to contact any such organisations in their area to establish whether they can come to a local agreement.
The onus of ensuring dogs are permanently identified is with the owner themselves, but as a tool for reducing the number of strays authorities. should consider the benefits of offering discounted or free micro-chipping, perhaps in conjunction with local dog kennels or welfare organisations.
Authorities are strongly advised to ensure that anyone involved in discharging their stray dog duty is adequately trained to do so. Training should be provided by a reputable and accredited trainer.
For authorities with minimum budgets developing a partnership approach with local kennels and welfare organisations will be key to addressing problems with stray dog in the locality, particularly in areas with high numbers of strays. Authorities should seek to develop protocols with any bodies that play a role in dealing with stray dogs. Authorities should explore the benefits of working with other local authorities in the area; authorities in Hampshire have established such a partnership. Contracts should be reviewed regularly to ensure service delivery is of a consistently high standard and that tendering is competitive.
Authorities are expected to provide a cost effective service, which can often be delivered through appropriate use of third-party kennels. Tasks can be delegated to other parties, however it should be noted that overall responsibility rests with the officer appointed at section 149 of the 1990 Act.
It is at the discretion of the local authority whether council owned kennels or private councils under contract are used to fulfil this duty, however they are expected to comply with the Chartered Institute of Environmental Health’s Standards.