Unreasonable refusal to return impounded dog—placement of dog in another home or threat to do so
A rare breed of dog originally owned by an owner who left for overseas, was left in the care of the owner’s parents. The Council was advised of the fact and in whose care the dog was placed. About one month later the parents left for a few weeks’ holiday, leaving the dog with a tenant in the owner’s house, believing that knowing the house, the dog would not ‘fret’. Two days later a Council employee came to collect the dog after complaints were received about the dog’s barking. The dog was not there and had not been at this address for the previous month.
The next day when the Council employee returned, the tenant requested information about who had laid the complaints. This was declined. A third visit was made by the Council representative during which she ‘read from a piece of paper’. The tenant was reportedly unable to read or write ‘but had learned to sign his name’. When asked to sign a form, he complied. He then learned that his signature authorised the Council employee to take the dog. Despite his protest, the dog was removed. On their return, the owners tried to locate and recover the dog. They wrote to the Manager of the Animal Welfare Centre requesting details of the dog’s removal, a list of dates of recent complaints, and advising that the dog was now overdue for medical treatment. The Manager replied that the removal had been agreed to by the tenant ‘who had possession of the dog’, no names were to be provided, and advice was given that any medical details should be given to himself or another named person ‘so that the appropriate medical history of the dog can be relayed to the current owner’.
Approximately two weeks later the complainant learned that the dog had been placed in Turangi, some 300 miles away. In the meantime the complainants had obtained the name and telephone number of the ‘new owner’ from the Council and commenced negotiations to have the dog returned. A complaint was made to the Ombudsman.
The Ombudsman was advised that the dog had been returned, and boarding or transportation fees were being paid by the Animal Welfare Centre. The information requested of the Council was no longer required, and the matter was considered to be resolved by the complainants. The file was closed accordingly.
A similar complaint was received from another dog owner within days of the above complaint. In this case, a dog control officer was reported to have visited the home of the second complainant, allegedly saying that the Police had received complaint that a child had been bitten and a kitten killed by the dog. This complainant advised that there were many dogs in the street of similar appearance, so the family requested proof of the incident. This was not forthcoming, and the owners gained the impression that ‘the only option left for us was to surrender the dog or else the Police would be called in to kill the dog on the spot.’
The next day the complainants telephoned the Police enquiring about any complaint being received, to learn that none had been brought to its attention. The Council, also telephoned by the complainant, provided the same response to the question. A visit was made by the family to the Animal Welfare Centre and a lengthy discussion took place, which included a request by the family for the dog to be returned. This was refused and they were advised the dog would be given to a new owner the next day.
In this case the Ombudsman requested that the Council not place the dog in another home until his investigation had been concluded. A full report was received 12 days later which conveyed a somewhat different version of events. The complaint against the dog received by the Council was that the dog chased the complainant’s cat and kitten onto the complainant’s property. When the complainant’s son ventured out of the house to rescue the cat and kitten, the dog rushed at her son in an aggressive manner causing the son to return indoors. According to the Council the surrender of the dog was voluntary, the owner signing over the dog. This was described later as: ‘… mutually agreed upon because of the fact that the dog was overly confined, inadequately exercised, inadequately attended to and hyperactive because of the inadequacies.’ In its report, the Council advised:-
At no stage did the dog owner suggest that Council had acted unreasonably and had this been so any objections would have been considered as appropriate. Neither was any objection made to the Dog Control Officer at the time of the signover.
The Ombudsman sought further information from the Council and the complainant in light of this report. He also considered the Dog Control and Hydatids Act 1982 in section 52(1) obliges dog owners to keep their dogs under control at all times. Section 52(4) states that, if in the opinion of any person in any public place a dog is likely to cause annoyance or distress to any person, they may seize or cause the dog to be delivered into the custody of a dog control officer. That officer is empowered to either cause the dog to be returned to its owner or to be impounded.
The Council also cited section 56 of the Act and advised:
…Section 56 of the Dog Control and Hydatids Act 1982 gives a person powers to destroy a dog which is seen attacking a person, stock or poultry. Councils Animal Welfare Division view the dog owner’s behaviour in a serious light as does Section 56 of the Act.
In the Animal Welfare Divisions experience it is far more preferable to deal immediately with a problem of this nature than to allow second or third chances, and so avoid the occurrence of a similar or more serious incident in the future.
The Ombudsman noted that the Council was using Section 56 of the Act as the basis of its dealing with the matter. However, as the Ombudsman understood the situation, the dog was seen to rush at a child and to chase a cat and a kitten, neither of which fall into the definition of ‘any person, stock or poultry.’ It therefore did not appear that section 56 powers could apply.
The Council was asked to indicate its preparedness to release the dog if fencing facilities were provided. The complainants were asked whether they still wished to have the animal returned and if they were prepared to fence a portion of their section in the near future. The Ombudsman was advised by the Council that it was concerned about the ‘behaviour’ of the dog, which was seen to be deteriorating due to the ongoing confinement. The dog owner then advised the Ombudsman that he no longer wanted the animal.
The Ombudsman discontinued his investigation into this complaint, advising the Council by telephone the same day as the complainant’s call, of his decision so that Council could take the necessary action to put the animal out of its misery as soon as it was possible to do so.
A distinctive aspect of this complaint was the vast difference of view of the interactions which took place. The Ombudsman suggested to the Council that it might be worthwhile to consider enlisting the assistance of an interpreter in any future situations of this kind. In addition the availability of brochures about individuals’ rights in these events in other languages might be useful.
Comment
Complaints about dogs often result in strong emotional involvement on both the owner’s and complainant’s part, and are difficult for Councils to deal with. As these complaints show, Council action is sometimes outside statutory authority. While a resolution to the first complaint was possible, delays occurring in the second investigation not only prevented the dog being placed elsewhere, but resulted in a change of circumstance which made it necessary for the dog to be destroyed.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.
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