Animal Health and Welfare Enforcement and Penalty Notice Guidance

Executive summary

The aim of this Guidance is to set out the functions with regards to the enforcement of animal health and welfare legislation to ensure a fair and proportionate approach and use of Penalty Notices.

The objectives of this Guidance are as follows:

• To ensure domestic animals where a commercial element is involved, are protected from harm and their welfare needs are met
• To ensure the processing of animal licence applications is undertaken in a fair and proportionate manner
• To set out the process for determining if appropriate enforcement action should be taken and
• To set out the process for issuing Animal Penalty Notices.

Introduction

This guidance is intended to provide guidance for officers, businesses and members of the public on the principles and processes that will be applied when enforcement action taken by the Authority due to non-compliance with licence conditions or animal welfare and health legislation.

This Authority follows the principles laid down in the Regulators' Code published under the Legislative and Regulatory Reform Act 2006 and those principles are incorporated into the Authority’s Statement of Enforcement Policy and are considered when investigating complaints, responding to service requests, carrying out inspections, and reviewing and granting licences. This Guidance seeks to provide awareness and understanding of the regulatory and process through education and working in partnership with other organisations. 

Our Objectives

This guidance aims:

• To ensure domestic animals, where a commercial element is involved, are protected from harm and their welfare needs are met.
• To ensure animal licence holders are treated in a fair and proportionate manner
• To set out the process for the determination of appropriate enforcement action and
• To set out the process for the issuing of Animal Penalty Notices under The Animals (Penalty Notices) Act 2022.

Review

The Authority will keep this guidance under review against any changes to statutory guidance or legislation.

The Authority will ensure decisions on enforcement options including the issuing of Animal Penalty Notices for non- compliance with licence and/or legislative requirements, are made in accordance with this guidance, North Tyneside’s Statement of Enforcement Policy and any statutory guidance relevant to animal licensing activity or fixed animal penalties.

Animal Licensing

Licences are required for zoos, keepers of dangerous wild animals and for specific animal activities undertaken through a business activity. Conditions protect the welfare of animals and public by:

• Ensuring that any person who carries on, attempts to carry on, or knowingly allows a licensable activity to be carried on, holds a licence
• Ensuring the licence holder is not disqualified from holding a licence in accordance with legislative requirements
• Ensuring that the five animal welfare needs introduced by the Animal Welfare Act are upheld in any decision
• Ensuring the safeguarding of any children or vulnerable persons in contact with a licensable activity

• Ensuring that each application is considered on its own merits.

   

The Animal Welfare Act 2006 sets the five welfare needs of animals as 

• The need for a suitable environment
• The need for a suitable diet
• The need to exhibit normal behaviour patterns
• The need for suitable housing
• The need to protect from pain, suffering, injury and disease.

Enforcement Decision Process

Enforcement action for non-compliance will be based on the risk of harm and culpability of the offender. The assessment of risk, harm and culpability will be based on current legislation and any relevant statutory guidance. 

Where the investigating Enforcement Officer believes that formal action may be required the appropriate steps will be taken in accordance with the Authority’s Enforcement Policy. Details of the process for animal penalty notice is set out in section 14. 

Principles of Good Enforcement

When discharging its duties in relation to animal health and welfare, the Authority will follow the principles of good enforcement set out in the following: 

• Regulators Compliance Code.
• North Tyneside Statement of Enforcement Policy.
• The Police and Criminal Evidence Act 1984 (as amended).
• Criminal Procedures and Investigations Act 1996.
• Regulation of Investigatory Powers Act 2000.
• The Animals (Penalty Notices) Act 2022.
• Statutory guidance on the use of penalty notices for Animal Health and Welfare Offences. Department for Environment, Food & Rural Affairs (DEFRA).
• Animal Welfare (Licensing of Activities involving animals) (England) Regulations 2018
• Animal Welfare Act 2006 Animal Activity Licensing Process: Statutory Guidance for local authorities, DEFRA.

The statutory guidance on the use of animal penalty notices gives the circumstances and specific offences where an officer, on determining beyond reasonable doubt, can issue a fixed penalty notice.  Payment of the Penalty Notice removes the liability for the offence and there will be no criminal record.

Enforcement actions are determined by legislation and guidance which includes the Government’s animal activity licensing process guidance and statutory guidance on the use of penalty notices for animal health and welfare offences. The Authority must be able to justify any action based on ensuring the following principles are met:  

Proportionate: reflecting the nature, scale and seriousness of any breach or non-compliance. 

Fair and objective: based on the individual circumstances of the case, taking all available relevant facts into account. 

Transparent: communications will be easy to understand, with clear reasons being given for any enforcement action taken. 

Consistent: undertaken by well-trained investigators to ensure consistency in the interpretation and enforcement of legislation. The Authority will work with other regulatory agencies and share and develop good practice. 

Accountable: undertaken in a responsible manner that has a clear purpose.

Dealing with Complaints / Licensing Enquiries

The Animal Welfare Team will respond to animal welfare enquiries complaints and from residents, businesses and licence holders. Complaints are investigated on a risk-based approach.

Regulatory and Enforcement Options

The Authority’s decision on the appropriate level of enforcement will be made based on options available to it by legislation, statutory guidance and the Authority’s Statement of Enforcement Policy. 

The actions or options available for complaints and licensing regime will be considered on a case-by-case basis. 

One or more actions may be taken depending upon the circumstances. The table below lists the actions or enforcement options available to the Authority when investigating complaints, contraventions or licencing breaches. The table indicate in what circumstances such actions may be considered. One or more actions may be taken dependent upon the culpability of offender, and harm caused to animal or .

ACTION	GENERAL CIRCUMSTANCES
No Action	Where formal action may not be appropriate.  In such cases, customers may be directed to other sources of advice and support.
Informal Action and Advice includes verbal advice and advisory letters	Where it may be appropriate to deal with the issues through informal action and advice.  In such cases, business or activity will be reviewed.
Service of Notice requiring works or specific legal requirements	Where an animal welfare concern requires remedial action to address, there is the option for a section 9 Animal Welfare Act 2006 Improvement Notice to be issued as well as a Variation or Suspension Notice.  Where there is a lack of confidence or there is positive intelligence that the responsible individual or company will not respond to a pre-formal approach.  Where standards are extremely poor and the responsible individual or company shows little or no awareness of their statutory requirements, the welfare needs of animal(s) in their care or responsibility for traceability of animal involved in food chain or disease control.  Where the person has a history of non-compliance with the Authority and/or other relevant regulators.
Variation / Suspension of licence	Where there are changes to the operation of the licensable activity which require action to be taken for the welfare of animals to reduce the numbers of animals kept or suspend and remove animals. This may be due to loss of accommodation or staff etc.
Suspension/ /Revocation of Animal Licenses and Approvals	Where the person responsible, licence holder or applicant is not a ‘fit and proper person’ due to offences set out in schedule 8 of Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018 or other relevant circumstances, application for licence can be refused or for licence holder, licence revoked. In these circumstances, the Authority considers them unsuitable to operate a licence and/or where there are serious breaches of the licensing conditions suspension or revocation of licence is possible.
Simple Caution	Where an offence is less serious and the person who has committed the offence has admitted their guilt.
Animal Penalty Notice	As an alternative to prosecution where an individual or company has committed a relevant offence as set out in 1(3) of Animals (Penalty Notices) Act 2022.
Prosecution	Where the authority consider that the offence is not suitable to be dealt with by way of an Animal Penalty Notice or is not available for the type of offence. Consideration on prosecution is number of offences / penalty notices  over  a 3 years , offenders’ culpability, the  seriousness of offence, and mitigating circumstances.

Informal Action

Informal action includes: 

• Offering advice/education;
• Giving verbal and written warnings;
• Negotiating agreements between complainants and other residents or businesses;
• The negotiation of specific conditions with licences; and
• The minor non-compliance of licence conditions not impacting welfare will lead to low star rating and reduced licence period and increased inspection. 

It is generally considered appropriate to take informal action in one or more of the following circumstances: 

• The act or omission is not serious enough to warrant formal action;
• From history of previous interactions with the business, it can be reasonably expected that informal action will achieve compliance with the law;
• The consequences of non-compliance will not pose a significant risk. 

Animal Penalty Notice  

The issuing of an Animal Penalty Notice may be used as an alternative to prosecution for certain animal health and welfare offences as set out in the guidance ‘Statutory guidance on the use of penalty notices for animal health and welfare offences’ under the Animals (Penalty Notices) Act 2022.

A Penalty Notice issued under the 2022 Act gives an individual or body corporate (such as a company or charity) the opportunity to avoid prosecution for a criminal offence by paying a fee. Payment of the Penalty Notice does not require an admission of guilt and will not result in a criminal record. 

There is no right of appeal against the issue of a Penalty Notice. Non-payment of a Notice may result in the Authority prosecuting the original offence based on whether it would be appropriate to do so. 

Penalty Notices are intended to be used where a person is considered to have committed a relevant offence listed below:

• an offence under regulations made under section 2(2) of the European Communities Act 1972 which the Secretary of State considers relates to animals or animal products.
• an offence under the Dangerous Wild Animals Act 1976.
• an offence under section 19 of the Zoo Licensing Act 1981.
• an offence under the Animal Health Act 1981.
• an offence under the Animal Welfare Act 2006 or under regulations made under section 12 or 13 of that Act.
• an offence under the Wild Animals in Circuses Act 2019.

To issue a Penalty Notice the Authority must be satisfied beyond reasonable doubt that a person has committed an offence. The Authority must then decide if it is appropriate to issue a Penalty Notice  based on the factors set out in section 4(2) of the Animals (Penalty Notices) Act 2022 and statutory animal penalty notice guidance as follows:

1. the seriousness of the conduct to which the proposed notice relates (the ‘relevant conduct’)
   1. the duration of the relevant conduct
      1. any evidence of intention behind the relevant conduct
      2. any evidence of previous acts or omissions by the person similar to the relevant conduct
      3. any action taken by the person to eliminate or reduce any risk of harm resulting from the relevant conduct
      4. any action taken by the person to remedy or mitigate any harm resulting from the relevant conduct
      5. whether the person reported the relevant conduct to the enforcement authority or constable
      6. the conduct of the person after the relevant conduct is drawn to their attention by the enforcement authority or constable.

The level of penalty imposed is based on the factors above and on the maximum fine that can be issued on conviction for the relevant offence if less than the maximum fine permitted by the Animals (Penalty Notices) Act 2022 namely £5000. See the tables at Appendix 1.

Decision to issue Penalty Notice, Payment and Offender Liability 

Penalty Notices give a person issued with such a Notice the opportunity to discharge any liability to conviction for the relevant offence by the payment of the amount specified in the Penalty Notice. The amount specified in a Penalty Notice may not exceed whichever is the lesser of £5000 or the maximum fine for which a person convicted of the relevant offence is liable to pay on summary conviction. The amount is reduced by 50% if the fine is paid within 14 days. 

The decision to issue a Penalty Notice and the resulting fine will be determined by the investigating officer and countersigned by a senior officer.

Each decision to issue a Penalty Notice will be considered on its own merits based on the offence, culpability and mitigation circumstances in line with DEFRA‘s statutory animal penalty notice guidance, and the ‘Code for Crown Prosecutors’ issued by the Director of Public Prosecutions and the Authority’s Enforcement Policy and the Regulator’s Code. 

The enforcement action and the penalty amount for the Notice will be authorised by the Director of Public Health in consultation with the Cabinet Member for Public Health and Wellbeing, Director of Resources and Head of Law considering the relevant animal health and welfare legislation offences. 

The Director of Public Health in consultation with the Director of Resources will determine any investigatory costs that may be deducted from the Penalty Notice sums received prior to payment to the Governments consolidated funds.

The Penalty Notice will include the following information: 

• Name, address and contact details of offender
• Description of offence; date, time and location and description
• Evidence summary
• Penalty decision: penalty amount and due date
• Rights and Responsibilities: There is no right of appeal. On payment there is no liability for the offence. Non-payment can lead to prosecution.

Setting of Amount of Penalty for Animal Penalty Notice 

The amount of penalty is determined by:

• Maximum fine available for the offence: This would be £5000 or less if the relevant offence on conviction carried a maximum fine of a lesser amount.
• Culpability and Harm
• Aggravating and Mitigation Circumstances. 

The Animals (Penalty Notices) Act 2022 and statutory guidance set out a two staged approach for the amount of penalty.

Stage 1 sets out additional factors to consider when determining the culpability and harm caused. The fine is then set using tables in the guidance for culpability, harm and maximum fine for the offence on indictment which is attached in Appendix 1. Harm and culpability factors, as well as the consideration of the intention are set out in section 4(2)(a) and 4(2)(c) of Act respectively is provided in  statutory animal penalty notice guidance. 

Stage 2 allows an adjustment of the level of fine based on aggravating and mitigating circumstances. Factors for consideration are given in the statutory Animal Penalty Guidance and in section 4(2)(b), (d), (e), (f), (g), and (h) of Animal (Penalty Notices) Act.

Stage 1 Assess Culpability and Harm

The Animal Penalty Guidance lists harm factors to consider when assessing the seriousness of the offence and the culpability factors in determining the intention behind conduct as set out in table 2 and 3. 

Table 2 Showing the Factors to Consider In Determining Culpability

Low Culpability	Low-Medium Culpability	Medium - High Culpability
Well-intentioned but incompetent care. Momentary or brief lapse in judgement. Involved through coercion, intimidation or exploitation. Mental health disorder or learning disability.	Failure to follow good practice to ensure the needs of an animal has been met. Not followed statutory guidance to ensure that animal health rules have been met. Disregard for rules regarding responsible ownership. Not sought veterinary advice. Unaware of up-to-date statutory guidance. Operating without a licence	Deliberate disregard for welfare of the animal (including by failure to seek treatment). Deliberate attempt to avoid duty of care of animals. Deliberate breach of animal health rules Deliberately avoiding operating under a licensing scheme. Prolonged or repeated incidents of animal health (breaches). Deliberate disregard for the disease control principles including standstill requirements. Deliberately ignored requirements regarding. responsible ownership and keepership of kept animals. Ignoring previously issued advice or guidance. Obstructive behaviour. Obstructing an inspector or investigator. role in organised illegal activity level of planning Involvement of others through coercion, intimidation or exploitation.

Table 3 Showing Factors to Consider In Determining Level of Harm 

Greater Harm

Lesser Harm

Greater detriment to the physical or mental wellbeing of animals Greater detriment to the health of the animals Greater detriment to consumer Greater impact to the food chain Greater impact to public health Greater impact to local or national biosecurity Greater risk of spreading disease Greater risk to public health Greater risk to public safety No animal traceability or significant period lack of traceability Prolonged period without microchipping. Lesser detriment to the physical or mental wellbeing of animals Lesser detriment to the health of the animals Lesser detriment to consumer Lesser impact to the food chain Lesser impact to public health Lesser impact to local or national biosecurity Lesser risk of spreading disease Lesser impact to public health Lesser impact to public safety Shorter period of lack of animal traceability Shorter period without microchipping.

Where an offence does not fall into a harm or culpability category, other factors may be considered but justification for this decision must be given in writing. The fine is then obtained using tables A1.1 to A1.6 in Appendix 1.

Stage 2 Aggravating and Mitigating Circumstances

The fine determined from stage 1 can then be adjusted for any aggravating and mitigating circumstances.

Aggravating factors considered that could lead to increase in fine are as follows:

• evidence of previous acts or omissions by the person similar to the relevant conduct
• distress caused to others
• failure to comply with current court orders
• offence committed on licence or post sentence supervision
• publicised or promoted animal cruelty including via the use of technology
• ignored warning or professional advice on current offence
• declines to obtain professional advice
• animal required intervention to bring under control
• financial gain from the offence committed
• number of animals involved
• duration of the relevant conduct
• poor conduct by the person after the relevant conduct is drawn to their attention by the enforcement authority or constable
• threatening or abusive to staff or inspectors and investigators
• poor record keeping. 

Mitigating factors which may be considered when reviewing fine are:

• no evidence of previous acts or omissions by the person similar to the relevant conduct
• action taken to eliminate or reduce any risk of harm resulting from the relevant conduct
• action taken to remedy or mitigate any harm resulting from the relevant conduct
• offender reported relevant conduct to the enforcement authority or constable
• good conduct by the person after the relevant conduct is drawn to their attention by the enforcement authority or constable
• inability to pay
• offender has a mental health disorder or learning disability
• offender has been given an inappropriate level of trust or responsibility
• offender sought and implemented professional advice. 

Statutory Notices

Notices will normally be served where: 

• non-compliance of licence condition impact on welfare of animal
• there is a lack of confidence that the individual/company will respond to an informal approach
• there is a history of non-compliance with informal action.

Realistic time limits will be attached to Notices and wherever possible these will be agreed in advance with the person or business on which they are served. In some circumstances, requests for extension of time can be made. These should be made in writing to the Officer issuing the Notice, prior to the expiry date, explaining the reason for the request. 

Statutory Notices may also be served in conjunction with prosecutions and civil penalties. Accompanying every Notice served will be notes explaining the appeal procedure, schedules where appropriate and each Notice will include Officer contact details. 

Where a Notice is not complied with by the expiry date, a prosecution may be considered appropriate. 

Simple Cautions

The use of Simple Cautions is advocated by the Home Office in situations where there is evidence of a criminal offence, but the public interest does not require a prosecution.  An additional alternative will be the issuing of Animal Penalty Notices.

A Simple Caution may be used for cases involving first time, low-level offences where a Simple Caution can meet the public interest. Decisions to issue Simple Cautions must be made in accordance with the Director of Public Prosecutions' Guidance on Charging. 

Before a Simple Caution can be given, it is important to try to establish: 

• The views of the victim about the offence, where appropriate
• The nature and extent of any harm or loss, and its significance, relative to the victim's circumstances
• Whether the offender has made any form of reparation or paid compensation. 

A Simple Caution must be accepted in writing by the offender (or officer of a limited company which is the alleged offender), who is then served a copy of the caution. A second copy is held as the official record. Failure to accept a Simple Caution leaves the Authority with an option to instigate legal proceedings instead. 

Simple Cautions are viewed as valuable enforcement tools because they can be cited in court if the same person or organisation, within three years of the original offence, commits similar offences and typically both save officer time and reduce the burden placed upon the court system. 

Prosecutions

Prosecution will be reserved for where one or more of the following circumstances apply: 

• It is warranted by virtue of the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender
• There have been repeated breaches of legal requirements, and it appears that business proprietors or members of the public are neither willing nor able to deal adequately with the causes of the offence
• There has been a reckless disregard for animal welfare
• There has been failure to comply with a legal notice, or a repetition of a breach that was subject to a simple caution, or failure to pay a Fixed Penalty Notice within the permitted payment period
• There is a blatant disregard for the law
• False information has been supplied wilfully, or there has been an intent to deceive, in relation to a matter which gives rise to significant risk
• Officers have been intentionally obstructed in the lawful course of their duties. Where Inspectors are assaulted, we will seek prosecution of offenders. 

In all cases, alleged offenders will be invited to send written comments or explanations for consideration.

Fees And Charges

The Licensing Authority is permitted to recover costs for regulatory effort including external veterinary visits when setting fees for animal licensing and for regulatory efforts in the administration of fixed animal penalty charges.

Fees for animal activity licensing are set to recover the costs of administration and enforcement of animal licensing activity. There are two fees, one for the determination of the application and one for the maintenance of the licence. 

The Animals (Penalty Notices) Act 2022 introduced fixed penalty notice as an alternative to prosecution for non-compliance with relevant offences. The fines are up to £5,000. The methodology for setting of penalty charge is set out in Appendix 1 with tables A1.1 to A1.6 giving the level of fine that can be applied based on culpability, harm and maximum fine for the offence as set by legislation. 

Variation of Fees and Charges

The fees and enforcement action charges will be reviewed annually as part of the Authority’s budgetary process and will be published on the North Tyneside website at www.northtyneside.gov.uk.

Any minor variations to the guidance for determining of penalty will be updated and available to view on the North Tyneside website.

Payments

Details of payments required will usually be issued via an invoice however payments by phone using credit or debit card can be made.

Refunds

There is no refund of Licensing fees as there is staged process of fees to reimburse for officer time. Fees are charged as an application fee and as a licence fee.

There are no refunds or appeals process for Animal Penalty Notice. If the penalty notice is unpaid, the local authority may then proceed to prosecution. 

Complaints Procedure

The Authority will process and enforce the licensing requirements and all other relevant animal licencing legislation to protect animals and the public. 

The investigation of complaints will be on a risk-based approach and will follow the principles of enforcement. All parties on completion of the complaint will be informed of the outcome. If any party is not satisfied with the outcome, they can register a complaint using the Authority’s corporate complaints procedure via email cmlo@northtyneside.gov.uk, or by writing to:

Customer and Member Liaison Office
North Tyneside Council
Quadrant
The Silverlink North 
Cobalt Business Park
North Tyneside
NE27 0BY
 

Appendix 1 Determination of Penalty Charge for Animal Welfare and Health Fixed Penalty Notices

The determination of a penalty charge is given in the legislation and statutory guidance for animal and welfare offences. Determination is based on the Following:

• culpability of the offender,
• harm caused by offence, and
• maximum fine for offence set by legislation. The fixed penalty notice has a maximum penalty of £5000 or a lower level dependant on maximum fine set for offence on conviction. 

The maximum penalty for the offence can be set at no greater than £5000, or less if the offence fine on conviction is set at a lower value. 

Tables A2.1 to A2.3 give fixed penalty starting point, and range up to maximum penalty for harm, based on culpability and offences where on conviction the same offence is more than £5,000.

The tables are used to determine the starting point and range of the penalty notice amount.

Table A1.1 Fixed Penalty Notice Charge for Low Culpability where on conviction fine more than 5000.

Harm factor	Starting point	Minimum amount	Maximum amount
Lesser harm	£400	£350	£1000
Greater harm	£750	£600	£1250

Table A1.2 Fixed Penalty Notice Charge for Low to Medium Culpability where on conviction fine £5000 or more.

Harm factor	Starting point	Minimum amount	Maximum amount
Lesser harm	£1500	£1250	£2000
Greater harm	£2000	£1500	£3000

Table A1.3 Fixed Penalty Notice Charge for Medium to High Culpability where on conviction fine is more than £5000.

Harm factor	Starting point	Minimum amount	Maximum amount
Lesser harm	£2500	£2000	£4000
Greater harm	£3500	£3000	£5000

Offences on Conviction where fine is £5000 or less, the maximum penalty is determined as a percentage based on culpability and the level of harm as shown in tables A1.4 to A1.6.

The tables A1.4 to A1.6 are used to determine the starting point and range of the penalty notice amount. The starting point and range are calculated by using the stated percentage of the maximum fine on conviction as below:

Table A1.4 Penalty for Low Culpability where conviction fine £5000 or less.

Harm factor	Starting point	Minimum amount	Maximum amount
Lesser harm	8%	7%	20%
Greater harm	15%	12%	25%

Table A1.5 Penalty for Low to Medium Culpability where conviction fine £5000 or less

Harm factor	Starting point	Minimum amount	Maximum amount
Lesser harm	30%	25%	40%
Greater harm	40%	30%	60%

Table A1.6 Penalty for Medium to High Culpability where conviction fine is less than £5000.

Harm factor	Starting point	Minimum amount	Maximum amount
Lesser harm	50%	40%	80%
Greater harm	70%	60%	100%