The new Animal Activities Licensing regulations in perspective

The Animal Care College – caring for people caring for animals

Introduction

Just like the new Animal Activities Licensing regulations (AALs), this article is divided into several sections, the first of which is to give the background while the second outlines the demands of the new regulations for all those involved in professionally caring for animals under licence.  There follows three short sections which deal with the specific areas of boarding cats and dogs (which covers kennels, doggie daycare and home boarding), breeding dogs and pet vending (which used to be termed a pet shop licence).  On the way I will indicate some of the anomalies and try to simplify some of the complexities.

But first I would ask all who are affected by these new regulations to ensure that they read all the requirements and the guidance of their particular sectors – in particular the Procedural Guidance which has been written for those who will be carrying out the inspections.  There has been much written and posted on social media websites by those who have picked out particular demands without taking the guidance fully into account and the result has been unnecessary anxiety. Some have also been contacted by their local authorities (some of whom have also misread the legislation and guidance) and have assumed, unnecessarily, that they are being singled out for legal action when the true situation is often that the local authority’s Environmental Services Department and/or their Licensing Officers only want to hold exploratory talks.  Remember that no one yet knows how all this is going to come together. Yes, there are further demands which will be made upon those licensed but most are not unreasonable and where they appear to be there will almost always be room for negotiation.  The important thing is to stay calm and be polite in all written and verbal communications remembering that it is in no one’s best interest to go to arbitration or to court.  You can download all the documents at www.cfsg.org.uk and clicking on the Guidance for Licensing Regulations 2018 towards the bottom of the homepage.

Background

There have been attempts to introduce controls on those caring for animals professionally for many years and a number of Acts of Parliament have been enacted beginning with the Pet Animals Act back in the 1950s, the Animal Boarding Establishments Act in 1963, several attempts at controlling dog breeding (none of which can be considered successful), Acts relating to performing animals and to riding establishments all of which culminated in the Animal Welfare Act of 2006 which was introduced by the Department of the Environment Food and Rural Affairs (Defra) and which came into force in April the following year.  This was key legislation for the UK in that it makes accountable anyone responsible for a pet animal or animals so that pet owners along with those not currently licensed such as groomers and trainers can be charged with an offence of not caring for a pet animal properly.   ‘Caring’ is defined as ensuring that the welfare needs of pet animals are being fulfilled and those needs are listed as: suitable environment; suitable diet; suitable housing (with or apart from other animals); protection from pain and suffering, injury and disease and be allowed, as far as is reasonable, to exhibit normal behaviours.  (I always include ‘reasonable’ because ‘normal’ behaviour for a pet may include mating, barking, chasing, biting and scratching and these are behaviours for most households, and businesses for that matter, are not acceptable.  It also rightly suggests that as far as dogs are concerned, training and socialisation is important).

The 2006 Act continued the powers of local authorities to ’make provisions for promoting the welfare of animals’. This is a phrase that enables them to introduce standards against which the businesses could be measured so they could take action against any infringement. To help local authorities understand the broader demands of welfare, working groups were established to recommend what have become known as Model Licence Conditions (MLCs) in each of these areas. The first MLCs were established by the British Veterinary Association but it was not long before the panels which discussed them were comprised of not just veterinarians (later from the British Small Animal Veterinary Association) but by representatives from the animal care industry, animal welfare charities and local authorities which were nominated by the Charter Institute for Environmental Health (CIEH).

Secondary legislation has been long delayed

The original intention of the 2006 Act was that secondary legislation would soon be introduced to consolidate the Act’s requirements which would be statutory rather than advisory.  The reason for this was that as MLCs themselves were only advisory, whatever local authorities may have implied, they were not legally enforceable in themselves and this made any challenge to them a long and complicated process.  What is more, local authorities could change, amend or add to them as they wished. Most local authorities have usually been sensible, flexible and rational and applied reasonable standards: others were cash strapped and did not carry out their responsibilities very well while, at the other end of the scale, some added to the MLCs imposing sometimes unreasonable restrictions and demands on businesses.

There was a good deal of optimism when the 2006 Act was brought in but the financial pressure brought about by the 2008 financial crisis put a great deal of Defra’s work on hold and in the meantime the various pet animal lobby groups began to press for an updating of the MLCs on the basis of the ‘needs’ of pet animals as outlined in the Act rather than the construction and administration of the business upon which the old MCLs had focused:  the work on the Boarding of Cats was completed in 2014 and on dogs in 2016.  For the record I represented the Pet Care Trust (now the Pet Industry Federation) on the dog and cat boarding MCLs published in 1995 and the MCLs for boarding cats in 2013.  In the meantime the Kennel Club established its Assured Breeders Scheme (ABS), which has since been accredited by the UK Accreditation Service (UKAS), as the three attempts at introducing legislation to control the mass breeding of puppies, although partially effective in some local authority areas, was being almost entirely ignored.  This has been controversial and not entirely accepted by breeders for a number of reasons. These range from the practical, the economic, the restrictive and the simply emotional (under the requirements of UKAS the scheme has to apply to any breeder whether they breed pedigree or crossbred dogs and many breeders of pedigree puppies object to this). Whatever those reasons the scheme has not been as acceptable or successful as the Kennel Club hoped although the AALs may give the scheme a boost due to the status given to it by the UKAS accreditation, for breeders may be happier with the ABS inspection.  They will still have to be licensed by the local authority but they are likely to accept ABS certification which is integrated into the regulations.

In 2015 George Eustice was appointed Minister of State at Defra.  Coming from a farming background he had a particular interest in animal welfare and soon announced that he would be implementing the secondary legislation allowed for in the 2006 Act.  In passing it is worth noting that he has made and continues to make, progress in improving farm animal welfare too.  His department launched a series of consultations and the result has been the establishment of legislation which places the MLCs on a statutory footing.  The administration will still be in the hands of local authorities but they may not change the provisions: the intention is to ensure a level playing field throughout England.  Control of pet animals is devolved so that Wales, Scotland and Northern Island have introduced or are in the process of introducing similar legislation but there are likely to be many anomalies for some years to come because the different parliaments jealously guard their independence and authority and in any case have different priorities.

The new regulations are statutory not advisory

The first thing to appreciate is that from October 1st, 2018 there are statutory requirements to which all businesses subject to licence (this now includes home borders and doggie daycare but not pet sitters or dog walkers) must comply.  These requirements are accompanied by guidance on the implementation which can be subject to review and amendment.  The first review period is likely to be in 2023 when Defra believes that enough evidence as to the effectiveness of the regulations will be available.  In the meantime it is possible, though I would hope not probable, that some businesses may be affected by local authority inspectors who may be overzealous in applying the standards to the letter rather than the spirit of the regulations by not taking a sensible and reasonable approach to improvement. Please heed my advice in the early paragraphs of this article.

A totally new innovation is that each business will be rated by the local authority officer/inspector using a star rating system. The regulations specify a minimum standard but also set out ’higher’ standards which, if achieved, will enable the business to negotiate a longer licence period than the one year which is mandatory for those that achieve a minimum standard.  Defra says that these high standards are reasonable and achievable although my view is that as far as dog breeders, home borders and kennels are concerned this is unduly optimistic. A further complication is that these higher standards are divided into two areas the first of which is what is essential in order that the business may be classed as ‘high standard’ and the second set out aspirational standards although these are in fact optional. They are highlighted in the guidance with the ‘essential’ being typeset in blue and the optional being typeset in ‘red’. There is also provision for the local authority to outsource the inspection to a qualified person or organisation accredited by the United Kingdom Accreditation Service such as, for dog breeders, the Assured Breeders Scheme (ABS).

General guidance

The first section of the new legislation sets out the general requirements for the issue of a licence but before going into the detail let us look at the specific reasons why a licence may not be granted or withdrawn.  These are:

  • the licence conditions are not being complied with
  • there has been a breach of the regulations
  • information supplied by the licence holder is false or misleading
  • it is necessary to protect the welfare of an animal

It is important to keep these in mind as you read this article and as you go through the general and specific conditions which are attached to a licence.

What and what is not a business

The general conditions apply to all licensees. They begin by specifying what constitutes a business under the regulations and for most businesses this is quite straightforward because they have been established to make a profit and provide an income.  There are complications as far as the breeding of dogs is concerned because a significant proportion of hobby breeders would argue that they should not be classed as a business but some of the definitions clearly encroach on their activities even though the general guidance makes it clear that dog breeding should be assessed differently to pet vending and boarding. I will come back to this later.

The general conditions for boarding kennels, catteries and pet vending begin by covering the usual licence display, administrative requirements and records which are expected of any business.  They continue with an outline of the basic ‘needs’ of animals in general terms and most follow the advice provided by the long-established MLCs with additional detail.

It is essential for business owners and managers to download the regulations and guidance notes for their particular activities and to go through them carefully.  Like any bureaucratic rubric they appear more complicated than they actually are so it is important not to skim through them and understand each section thoroughly. They are freely available on the Canine and Feline Sector Group’s website (www.cfsg.org.uk) and there are links within each publication which will take you directly to the various schedules in the legislation itself. There is inevitably a great deal of repetition but each set still needs to be studied carefully.

Procedural guidance notes the local authorities

What appears not to have been mentioned in any coverage of the regulations that I have seen is the very important material contained in the ‘Procedural guidance notes for local authorities’.  This is a goldmine of information for anyone who is affected by the new regulations because it sets out the criteria to be used by what are called ‘Suitably qualified inspectors’ when they are assessing any business. For instance it defines the qualifications required for inspectors.  In the past few years it has been usual to send an ‘inspector’ who is a formally qualified Licensing Officer rather than somebody from the Environmental Health Department. All too often they knew little about animal care and welfare but the new regulations require ‘certification in inspecting and licensing animal activities businesses, a veterinary surgeon with the relevant continuing professional development (CPD) record (they are not qualified without that CPD record) and, until October 2021, if they can show evidence of at least one year of experience in licensing in inspecting animal activities businesses’.  You are entitled to ask whether the person assessing your premises is sufficiently qualified.

This publication also explains the way in which inspectors should calculate risk, the star rating system and the way in which the standards are assessed.  Read in conjunction with the regulations for your animal related activity it reveals a great deal of important background information. It would not surprise me if, although those that come to inspect premises will have a copy of the appropriate regulations and guidance, they may not have read the procedural material so make sure that you have it to hand during any discussion. As an example, buried in the rubric it makes clear that as far as ’risk’ is concerned it should be based on the ‘principle of proportionality commensurate with the nature and size of the business’. This allows a degree of flexibility for small businesses which is likely to present lower risks and this would almost certainly affect home boarding, small catteries and hobby breeders.  There also appears to be the provision that if a business has continued satisfactorily for many years without problems then this should to be taken into account when the ‘risk’ is being assessed.

Also be aware that the inspector may vary the ‘conditions’ of a licence on their own initiative so do not be afraid to challenge any statement which implies that ‘I have no choice’ or ‘my hands are tied’ if those conditions are not specifically set out in the regulations.

One thing which is not made clear is how much time can be allowed for updating and/or refurbishment if any major structural changes are required but provision is in place for application to what is called a First-tier Tribunal (this is an integral part of the court system of the UK which was created in 2008 as part of a programme to rationalise the tribunal system which previously consisted of 20 or so different tribunal structures).  It is clearly unreasonable to expect major reconstruction within a very limited timeframe and anyone placed in this position should certainly appeal.  Local authorities do not like appeals for they are time-consuming and expensive so this should almost certainly give grounds for you to negotiate a sensible arrangement.

Incidentally, the appeals process is also set out in detail in the local authority procedural guidance document which is not included in the species specific publications which further indicates how important it is for you to have a copy of this publication.

Dog and cat boarding

The main demands of the new regulations are not significantly different from those that most kennel and cattery owners already have in place.  The main differences are that owners and managers are now required to have written procedure sheets and policies for each aspect of their business and that there are stricter demands for the training of staff in welfare, handling, behaviour, cleanliness and hygiene, feeding and food preparation, disease control and the recognition and first aid treatment of sick animals.  The minimum demand is for an OFQUAL regulated Level 2 qualification but inspectors should also accept ‘clear evidence of knowledge and experience’, a sensible grandfather clause which should give kennel owners and managers flexibility.

Having read through the publication carefully I do not think that there is anything specified that is in itself unreasonable.  Problems are most likely occur when at kennels constructed some years ago an inspector starts to measure areas and heights within bedding and exercise areas but there is guidance in the conditions which suggests exercise regimes can be put in place in order to overcome any such difficulties.

Home boarding

Home boarding definitely comes under the heading of ‘small business’ and although anyone accepting a fee for caring for the dogs of others must be licensed and adhere to the highest standards within their environment, one would expect local authorities to take into account the ‘proportionality’ discussed in the Procedural Guidance for Animal Activity Licensing.  Unlike hobby breeders, home borders will be required to apply for a licence and there are penalties for those who do not.  I am aware that there are some home borders who take in dogs and ‘farm them out’ to friends and neighbours.  This is covered in the regulations and is, rightly, just as unacceptable as dog breeders trying to get round the breeding legislation by providing another address for any litter over two in any one year.

Pet vending

For most pet shops which sell animals, little has actually changed and most responsible pet shops will already have written procedures for care, emergencies and training in place. These will now have to be seen to have been updated each year and if they are not now in place they should be written because they are mandatory from October 1st 2018. One change is that there will be an expectation that third-party sellers of pets should source their animals from a supplier which fulfils the requirements of the regulations. It may be that the occasional litter from a supplier will not be affected but there is an implied responsibility to ensure that all animals are bred, whether for direct sale or resale, in circumstances which fulfil the demands of the 2008 Animal Welfare Act.  Where a supplier supplies animals on a regular basis there is a possibility, even a likelihood of them running a business and therefore they themselves should be licensed if their annual profit exceeds £1000 or otherwise satisfy some or all of the conditions of a ‘business test’ as set out by HMRC in their nine badges of trade (in my opinion, the best explanation of badges of trade can be found at https://www.accountingweb.co.uk/community/blogs/pd-tax/the-badges-of-trade-approach-eugene-blaney-v-hmrc and they are well worth reading carefully).

Very few high street pet shops sell puppies these days but there are some trading kennels which sell puppies that will be affected to a significant degree not just on their own premises but through the regulations both for sale and for breeding which will now apply much more rigorously to their suppliers.  To complicate the issue the government have very recently requested information from stakeholders as to whether they should bring in legislation to ban third-party sales of puppies and kittens altogether so the landscape surrounding puppy and kittens sales may change radically in the next year or so.

Dog breeding

This publication has caused immense concern and controversy among hobby breeders because in an attempt to plug all the loopholes in previous dog breeding legislation the regulations are almost Kafkaesque in their complexity. This is in part due to the ‘business test’ outlined above because the simple assumption that anyone who breeds three or more litters a year is in business is complicated by the ‘badges of trade’.  Because previous attempts to regulate dog breeding have been so unsuccessful it is understandable that the parliamentary draughtsman have more forcefully highlighted the business test which, incidentally, was included in previous versions of dog breeding legislation but largely ignored.

Most pedigree dog bitches average four or five puppies in each litter and in most cases a record of expenses, which would include stud fees, showing, veterinary fees, food and all the rest and would clearly show that the activity was a hobby not a business. But there are some circumstances (a Labradors bitch might have a litter of ten puppies which might be sold for £800 each so someone with a kennel of five or six bitches could be making a profit on two litters in any given year and there are also breeds such as Bulldogs who may only have small litters but where each puppy may be sold for several thousand pounds).  However these are the exception rather than the rule and the vast majority of hobby breeders do not, in my view, have anything to worry about.

Breeders, whether they be hobby breeders or businesses should keep good records and these will show whether they are or are not making a profit. Remember that the dog breeding guidance to the regulations makes it quite clear that it ‘is intended to assist inspectors in determining whether or not an activity may be subject to the regulations noting that ultimately there will be an element of judgement required’.  To me this is a clear indication that local authorities and their inspectorate are expected to be sensible and flexible in deciding whether a breeder requires a licence or not.  There has been much discussion that the mere fact that a breeder advertises a litter for sale will automatically mean that they are subject to regulation. This is not the case because the number, frequency and/or volume of sales are taken into account in determining whether it is a business or not. The occasional advertisement would not be enough on its own to attract the need for a licence. In any case, if a profit is being made then it is only right that anyone who is running a business fulfil the requirements of the legislation.

Those who are hobby breeders and do not (or have no intention of) breeding more than two litters in any year have no need to contact their local authority or to ask their advice.  Neither should they be afraid to advertise the occasional litter or appear as a hobby or ABS breeder on a website.  Use phrases such as ‘Hobby breeder has two surplus puppies available’. Clearly it is sensible to keep good records of income and expenditure which will show that they are not a business and it will be up to the local authority to challenge that assumption.

Read the rubric

Finally, I I cannot emphasise too strongly that it is essential for all those likely to be affected by the new legislation to download copies of the publications relating to them and I emphasise this includes the Procedural Guidance for Animal Activity Licensing.  They should be read carefully and calmly for if you have been running a business successfully then there is absolutely no need to panic.  This does not mean that there will not be problems in negotiating with some local authorities but you should remain calm, responded reasonably, check credentials and be prepared to stand your ground and go to appeal or tribunal if necessary.

David Cavill is a Fellow of the Royal Society of Arts and of the Institute of Directors, Studies Coordinator of the Animal Care College (www.animalcarecollege.co.uk) and is the publisher of Our Dogs.  He has managed a very large boarding kennels and cattery and owned a small kennel and cattery and is often consulted by kennel owners and managers.  He has written books on breeding and showing and edited, revised and finally rewrote Sheila Zabawa’s Running Your Own Boarding Kennels, published by Kogan Page now, in its fourth edition.  He was for 20 years a Board member and brfiefly CEO of the Pet Care Trust (now the Pet Industry Federation). He administers National Registers for dog trainers and canine behaviourists, groomers, boarding kennels and catteries and pedigree dog breeders as well as a series of information sites for the public which include http://www.iboarddogs.uk, www.igroomdogs.uk, http://www.itraindogs.uk  and http://www.ibreedpedigreedogs.uk

 

 

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