First-tier Tribunal (General Regulatory Chamber)

NCN: [2024] UKFTT 600 (GRC)

 Case Reference: WA/2024/0001/ALI

First-tier Tribunal

General Regulatory Chamber

Animal Welfare

 

Heard: Determination on the papers

 

Heard on: 7 May 2024

Decision given on: 9 July 2024

Before:

JUDGE FINDLAY

Sitting in Chambers

 

 

Between

 

VERA GOLDRING

Appellant

and

 

LONDON BOROUGH OF LAMBETH

Respondent

Judge Findlay:

 

Decision:

 

The appeal is Dismissed.

 

The decision dated 6 December 2023 to refuse the Appellant's dog breeding licence application under the Animal Welfare (Licensing of Activities Involving Animals)(England) Regulations 2018 ("the Regulations") is confirmed.

 

REASONS

 

1.    I agree with the parties that this appeal is suitable for determination on the papers in accordance with rule 32 of The Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, as amended. I have considered two bundles comprising 550 pages.

Legislative Framework

2.    The relevant legislation appeals at pages 370 to 409 of the bundle. The statutory guidance: Dog breeding licensing: statutory guidance for local authorities (updated 1 October 2023) ("the Guidance") appears at pages 411 to 453 of the bundle.

3.    Regulation 4(2) of the Regulations provides that when a local authority has received an application in writing for the grant of a licence to carry on breeding dogs the local authority must-

(a) appoint one or more suitably qualified inspectors to inspectors to inspect any

premises on which the licensable activity or any part of it is being carried on, and

(b) following that inspection, grant a licence to the operator in accordance with the

application if it is satisfied that:-

(i) the licence conditions will be met

(ii) any appropriate fee has been paid in accordance with regulation 13,and

(iii) the grant or renewal is appropriate having taken into account the report

submitted to it in accordance with regulation 10.

 

Regulation 4(3) provides that a local authority must attach to each licence granted

(a) the general conditions, and

(b) the relevant specific conditions.

 

Regulation 4(7) provides that:-

In considering whether the licence conditions will be met, a local authority must take account of the applicant's conduct as the operator of the licensable activity to which the application for the grant or renewal relates, whether the applicant is a fit and proper person to be the operator of that activity and any other relevant circumstances.

 

Regulation 4(8) provides that:-

A local authority must not grant a licence to an operator, or renew an operator's licence, in any circumstances other than those described in these Regulations.

 

Regulation 4(9) provides that:-

All licences granted or renewed in relation any of the licensable activities are subject to the licence conditions.

 

The "licence conditions" are defined as both the general conditions which are contained in Schedule 2 and the relevant specific conditions which, in the case of licences for breeding dogs are contained in Schedule 6.

 

Regulation 14 provides that:-

A local authority must have regard in the carrying out of its functions under these Regulations to such guidance as may be issued by the Secretary of State.

 

The Guidance states that:-

"It is expected that all businesses will meet and maintain minimum standards....

To grant a new animals activities licence for breeding dogs, you must check that businesses meet all of the minimum standards in this guidance."

 

Grounds of Appeal

 

4.    The Appellant appeals under regulation 24 and submits the following points:

a)    She disagrees with the interpretation of some facts and some of the findings.

b)    Everything that is required to be done will be done in due course.

c)    The Inspector provided a list of faults, that she needed to correct divided into urgent (with deadlines) and non-urgent (without deadlines). Those marked as urgent she dealt with promptly. The refusal included issues arising from issues where no deadlines had been given or were not on the list at all.

d)    Paxton Vets failed to honour the contract she had with them and situations arose through no fault of hers. She made regular payments for a Health Plan subscription on her dogs. The paid plan included flea and worm protection, yearly medical examinations and all vaccinations. She was surprised when she saw the report about missing vaccinations and other procedures. She found out that Paxton Vets lost the registration details for her dogs and they had no idea how this could happen. She had to give Paxton Vets the documents again to help them restore the data. Basically Paxton Vets entered into a contract, got paid, lost her details and failed to honour the contract. She lodge a copy of a letter from Paxton Vets.

e)    Some events referred to are counted more than once as different reasons.

f)     The vast majority of the time her dogs are outdoors and not in cages. They play actively in the garden and inside the house. Although she has taken care to create a safe environment in advance - force majeure injuries can only be avoided by keeping the dogs in cages.

g)    The injured dog visited the doctor the same day, got x-rays, and then went through the full course of prescribed procedures for which she paid almost £4,000. The injured dog spent most of its time in the cage with soft bedding and isolated from other dogs. She would go out of her cage to go to the toilet in the garden, and when she wanted it, she would be taken in arms to be petted and calmed down. After 2 weeks Paxton Vets offered expensive, late and sub-optimal treatment. She consulted a more qualified veterinary doctor who advised that after 2 weeks the dog is no longer a candidate for surgery, the bones are aligned and a cast is the best solution  for a young dog. Only after 3 months of treatment Paxton Vets recognised/applied the procedure recommended and the fracture started to heal. To protect themselves and mask professional incompetence and prioritise getting more money for treatment instead of optimal treatment, Paxton Vets reported her to the RSPCA.

h)    She was upset by the dog's trauma and intimidated by Paxton Vets. She feels like she is being made to make excuses for something that was not her fault.

i)     She achieved Canine First Aid Level 2 (VTQ) on the 5 December and is planning to get a Level 3 certificate in dog breeding.

j)     She stopped microchipping puppies without a certificate when told she should not do so.

k)    She installed thermometers post-inspection.

l)     The reference to 'food aggression' refers to particularly tasty food like omelette or raw meat. Good quality dry food is available to the dogs at all times which means the dogs are never starving. It is a known fact that if food is very tasty dogs will demand food even when they are already full. They may overfeed which could trigger the cycle of 'eat - throw up - keep eating.' Dogs often want things that are not good for them and decisions must be made on what is in the dog's best interests. Her dogs are at an optimal weight and in good physical shape.

m)  The fact that all her papers were handwritten has served her poorly. The comprehensibility of handwritten notes is not up to the standard of readability and she is ready to revise and structure all of her handwritten documents into an easy-to-read format even though handwritten documentation is allowed.

n)    In relation to there being no procedure and training in the use of PPE there were no points on the list of things that needed to be corrected about this.

o)    She started keeping records and documenting cases of pain, suffering, injury or disease when he first learned about the requirements of how to get a licence. However, from that point onwards there were no incidents to record.

p)    She only planned on having three breeding bitches in one year.

q)    Not all dogs sleep in cages. Some want to sleep in a cage because they feel calmer, and some want to sleep with others. Some want to sleep in something other than a cage. The key point is that dogs not only have enough bedding, but plenty of spare bedding when some bedding is washed. She has as many as two beds for each dog.

r)     Regarding 'procedures need expanding' and 'procedures must be in place for dealing with dogs that show abnormal behaviour' these were not on the list of things that needed to be corrected.

s)    There have been no sales since she learned about the requirement to keep records of sales which was after she decided to apply for a licence.

t)     She agreed and confirmed that she would not breed puppies unless she got a licence. She does not understand why this part was marked as one of the reasons for refusal. It is either a mistake or because she was misunderstood (English is not her first language).

5b

Grounds of opposition

5.    The Respondent submits the following points:

a)    At the time of the inspection, and also post-inspection, the Appellant failed to meet the minimum standards required to be the holder of a dog breeding licence, and that the Respondent's decision to refuse the Appellant's application for a dog breeding was and remains the correct decision.

b)    The are numerous ways in which the Appellant failed to meet the minimum standards required, including:

          i.        The Appellant was previously breeding and advertising puppies for sale without a licence.

         ii.        No suitable training had been undertaken by the Appellant. A minimum of an OFQUAL regulated level 2 qualification or clear evidence of knowledge and experience is required to meet the minimum standard. The Appellant could not and remains unable to meet this minimum standard.

        iii.        The Appellant admitted to illegally implanting microchips in puppies in breach of the Microchipping of Dogs (England) Regulations 2015. The cost of attending a microchipping course or paying the vet to microchip were said to be prohibitive.

        iv.        There were reports of food aggression being dealt with incorrectly, and the Appellant admitted to separating the dogs, rather than increasing the resource. Competition between the dogs was also witnessed at the inspection as human company was constantly sought.

         v.         Written procedures were lacking or did not contain enough detail.

        vi.        The Appellant has no procedure or training in the use of PPE.

      vii.        The Appellant was unable to provide records from their current vet, Paxton Vets.

     viii.        The Appellant was not trained as a canine first aider (although she has now obtained Canine First Aid Level 2 (VTQ) Certificate).

        ix.        The vaccinations of the Appellant's dogs were not up to date.

         x.         The Appellant did not provide separate beds/crates for each dog.

        xi.        The Appellant did not provide records of sales available for inspection.

      xii.        Healthcare records for the dogs were limited.

 

c)    The Appellant was given extensive assistance prior to the inspection.

d)    The Appellant submitted none of the required and expected written procedures with her application form for a dog breeding licence.

e)    The Appellant was provided with a pre-inspection documents to assist her with the required procedures and record-keeping.

f)     Despite the assistance and support provided, the Appellant still produced written procedures which were sparse, lacking in detail and required expanding.

g)    Non-compliance with the minimum conditions was highlighted throughout the Inspection Report and there was serious non-compliance when procedure and policies were required.

h)    It is the responsibility of the Appellant to read and understand the Guidance and to demonstrate on inspection that she could meet all the minimum requirements.

i)     The comments and key points in the Inspection Record provide some guidance but it was still the Appellant's responsibility to demonstrate the minimum standards were being met.

j)     There is no evidence that Paxton Vets were at fault in relation to the vaccination of the Appellant's dogs and it is her responsibility to ensure that her dogs are up to date with their vaccinations.

k)    There were multiple failures to meet the minimum standards as set out in the Inspection Report.

l)     The Inspection Report identified the factual findings found on inspection and correctly identified how these failing showed that the minimum standards were not met and which particular general and/or relevant specific conditions and related Guidance were not met.

m)  The follow-up documentation received from the Appellant on 13 November 2023 was still well below the required minimum standards.

n)    The evidence demonstrates that the Appellant is not a fit and proper person to hold a licence under regulation 4(7) of the Regulations. This evidence includes the multiple failures to meet the minimum standards, the Appellant's conduct of previously breeding and advertising puppies for sale without a licence and illegally implanting microchips in puppies.

o)    The Appellant raised financial issues which gives rise to concerns that the Appellant does not have the financial capability to maintain a dog breeding licence.

 

Conclusions

6.    I find that the Regulations require that a person breeding three or more litters of puppies in any 12 month period and any person breeding dogs and advertising a business of selling dogs requires a licence.

7.    I find that if the Respondent as a Local Authority is not satisfied that the licence conditions will be met and/or it is not satisfied that it is appropriate to grant a licence having regard to the Inspector's report then it must not grant the licence.

8.    I find that it is the responsibility of the Respondent as a Local Authority to ensure that individuals are refused a licence who apply for a licence and who do not meet the statutory requirements to be granted a licence.

9.    I find that the Appellant lodged an application for a licence to breed dogs at the address named in the application on 5 September 2023.

10. I find that Ms Newitt is a RCVS registered veterinarian employed by the City of London Animal Health and Welfare Service. On 24 October 2023 she attended the Appellant's property with Ms Moran, the authorised Inspector for the Respondent. Ms Petersen, Animal Welfare Officer in the Animal Welfare department, was present for the first half of the inspection.

11. I find that the inspection on 24 October 2023 identified that not all of the minimum standards required to grant a new licence for breeding were being met. Those minimum standards are set out in the Guidance.

12. The Inspector's report dated 4 December 2023 appears at pages 217 to 276 and stated that the issuing of a licence was not recommended. The Inspector's report was thorough and detailed and I have attached weight to it. It covers all the conditions as required and gives detailed reasons for the findings.

13. I have attached weight to the witness statement of Ms Newitt (pages 288 to 294). She is a professional, undertook a thorough inspection and is in a knowledgeable position to give an opinion.

14. I find that Ms McMahon-Adie, Assistant Animal Health Inspector, communicated with the Appellant and provided detailed advice and assistance to her. I have attached weight to her witness statement at pages 130 to 135. I find that Ms McMahon-Adie checked the application and completed a pre-inspection document to assist the Appellant with the required written procedures and record keeping. She sent an email to the Appellant and included a link to the Guidance and attached the pre-inspection document.

15. I find that the procedures submitted with the Appellant's email of 20 September 2023 comprised brief post-it notes and some typed procedures within the email that were brief and undetailed.

16. I find that the Appellant was informed by email on 21 September 2023 what written procedures were required and that they needed to be comprehensive and contain detail.

17. I find that the Appellant was informed what written procedures were required in an email dated 6 October 2023 (pages 175 and 176) and attached to that email was a list of all the records that needed to be kept. The Appellant was informed that before the inspection she should check that all her records were in place and could be shown to the Veterinary Officer and the Animal Health Inspector during the inspection. The Appellant failed to do this which resulted in the findings in relation to the written procedures.

18. I find that Ms McMahon-Adie held an extended telephone call with the Appellant on 6 October 2023 during which each of the written procedures was discussed and examples provided. The written procedures submitted by the Appellant appear at pages 154 to157, in her emails of 20 and 22 September 2023 (pages 150 to 152 and 165 to 167) and on the wall board (page 161). The subsequent written procedures appear at pages 187 to 204.

19. I find that the written procedures submitted by the Appellant were inadequate as provided little detail despite being offered a clear example of what was required (page 163) and being given advice and assistance.

20. I find that a new applicant must meet all minimum requirements. I find on the basis of the evidence that there were numerous incomplete and missing procedures and a number of licencing conditions were not met.

21. I find that the Appellant did not meet the general licence conditions of Part A of the Guidance, namely: 4.2, 4.3, 5.5, 5.8, 6.1, 7.1, 8.3, 9.1, 9.4, 9.6 and 9.14.

22. I find that the Appellant did not meet the specific licence conditions of Part B of the Guidance, namely:  2.6, 2.8, 4.1, 5.3, 6.8 and 6.13. In reaching my decision I have attached weight to the Inspection Report.

23. I find that the decision to refuse the licence was correctly made taking into account the following:

a)    The Appellant was breeding and advertising puppies for sale without a licence.

b)    The Appellant had no suitable qualifications and had undertaken no suitable training.

c)    The Appellant was implanting microchips in the puppies herself despite not being trained to do so as per requirements of The Microchipping of Dogs (England) Regulations 2015 ("the 2015 Regulations").

d)    The reports of food aggression were incorrectly dealt with.

e)    Written procedures were inadequate.

f)     The Appellant was not trained as an animal first aider

g)    The dogs' vaccinations were not up to date.

h)    Separate beds or crates for each were not provided.

i)     There were no records of sales.

j)     The healthcare records were limited.

24. The Appellant submitted that she was provided with a list of faults that she needed to correct, divided into urgent (with deadlines) and non-urgent (without deadlines). Those marked as urgent she dealt with promptly. The refusal included issues arising from those where no deadline had been given or were not on the list at all. These points are of no assistance to the Appellant. The onus is on the Appellant to ensure she satisfies the conditions to be granted a licence. I find that the responsibility was on the Appellant to follow the Guidance and demonstrate at inspection that all the minimum conditions could be met. The lists provided by the Respondent's officers were provided to assist the Appellant to satisfy the conditions which she did not do. The assistance provided by the officers does not override the requirement to show that the conditions will be met.

25. Regulation 4(7) provides that when considering whether the licence conditions will be met, account should be taken of the applicant's conduct as the operator of the licensable activity to which the application for the grant or renewal relates. I find that the breeding and advertising for sale without a licence and the practice of implanting puppies in contravention of the 2015 Regulations is evidence that the Appellant is not a fit and proper person to be the operator of a licence and supports the decision to refuse the licence.

26. I find that the dogs were not up to date with their vaccinations and it does not assist the Appellant that she had a contract with Paxton Vets. She seeks to place the blame on Paxton Vets but the responsibility was hers.

27. I find that the Appellant successfully completed the Canine First Aid Certificate level 2 (VTQ) Training on 5 December 2023 (page 77). This does not assist the Appellant in view of the number of conditions not met. The Guidance states that to grant a new animal activities licence for breeding dogs a business must meet all of the minimum standards in the Guidance. It does not assist the Appellant that she met some of the minimum standards.

28. The Appellant installed thermometers post-inspection. This does not assist the Appellant for the reasons as set out in the previous paragraph.

29. It does not assist the Appellant that there were conditions found not met which were not mentioned in the Inspection Record dated 24 October 2023 and where no deadline had been given (pages 83 and 84). The responsibility is on the Appellant to ensure that the application was complete and comprehensive and that she could demonstrate that the conditions would be met. The onus was not on the Respondent to ensure she did this. The Respondent provided aid and assistance above and beyond what was usually provided and the Appellant did not follow the guidance provided. The Appellant recognised the work that had been done in assisting her in her emails of 7 and 11 October 2023 (pages 179 and 185). She recognised, also that much was missing from the paperwork (page 185).

30. The Appellant submitted that there may have been faults with her written procedures because English is not her first language. This does not assist the Appellant because the Respondent provided clear and extensive advice and assistance as acknowledged by the Appellant.

31. I find that an RSPCA officer found that the dog called Nuissy was not free of any sign of pain, injury, disease or suffering on 20 April 2023 (page 104). It is of no assistance to the Appellant to blame her vet and state she spent £4000. I find it highly unlikely that the RSPCA officer would have made this finding if it were not supported by the evidence and it was the responsibility of the Appellant to ensure the care of Nuissy was such that there was no pain or suffering.

32. The Appellant submitted that everything that was required to be done would be done in due course. For a licence to be granted the respondent had to be satisfied that the conditions will be met. The declaration by the Appellant that everything that needed to be done would be done in due course is not sufficient to demonstrate that the conditions will be met.

33. The Appellant has asserted that the Respondent relied heavily on there being no written procedures submitted with the application form and this was unfair. This does not assist the Appellant. The Guidance states that written procedures are required to be in place and the written procedures provided by the Appellant are inadequate

34. I find the Respondent correctly refused to grant a licence having found that the licence conditions will not be met. Accordingly, the appeal is dismissed and the decision is confirmed.

Signed: Judge J Findlay                                                          Date: 7 May 2024