Know your rights when the inspector calls
Published 25/11/2015 | 02:30
Our legal expert advises on what to do when you have a grievance with how an inspector acts on your farm.
Question: I am a small suckler farmer and I find that I am frequently selected for inspection under some scheme or another. I have had some positive and some very negative experiences with inspecting officers. It feels like a David v Goliath situation when the inspectors arrive on farm - is there anything that can be done when an inspector does not act appropriately when carrying out on farm inspections?
Reply: At least 3pc of farmers must be inspected under the Animal Identification and Registration requirements for cattle and 3pc for sheep and goats, 5pc of active participants in the Beef Genomics scheme and 5pc of REPS, AEOS and GLAS.
Under CAP simplification measures being introduced by Agriculture Commissioner Phil Hogan, the minimum rate of on-the-spot inspections may be reduced from 5pc to 1pc in certain circumstances.
Cases can be selected randomly and by risk. The regulations require that between 20pc and 25pc of cases are selected randomly from the entire population and the remaining cases are selected by risk. Risk factors should be relevant and effective. This 'risk' should be notified to the farmer before the inspection is carried out.
There are definite procedures which must be followed by the inspecting officers.
For all matters relating to individual schemes, farmers should consult the handbooks provided by the Department. The guide sheets provided for the Basic Payment Scheme (formerly Single Payment Scheme), greening and other scheme also include some helpful information.
Notice of Inspections
When you apply to the BPS, you accept that you can be subject to announced and unannounced inspections. For all unannounced inspections the inspecting officer must explain to the farmer the procedure being followed for the inspection. Farmers should note that they have the right to be represented by another person, for example, an agricultural consultant, if they are not comfortable dealing with the inspectors.
Agriculture Minister Simon Coveney has stated that the EU regulations which govern the relevant payment schemes allow the Department of Agriculture to give notice for land eligibility and cross-compliance inspections but not those related to animal identification and registration, food, feed, and animal welfare.
Notice for inspections should not exceed 14 days. For inspections involving cattle and sheep identification and registration, the maximum advance notice is 48 hours.
No advance notice may be given for inspections related to feed, food and animal welfare.
Where it is considered that the purpose or effectiveness of any type of inspection may be jeopardised by giving notice, the inspection will take place on an unannounced basis. From the farmer's perspective this may well seem unfair as there is no information provided on what this means. However, unannounced inspections should not be used for land eligibility and other such matters that cannot be amended by the farmer on short notice.
For TAMS, the notice given is normally 24-48 hours, while for GLAS/REPS and AEOS there is no requirement for notice.
Charter of Rights
Although the Charter of Farmers Rights agreed between the Department of Agriculture and the farming organisations has made strides to benefit the farmer, if the department does not comply with the Charter there is very little the farmer can do to enforce it. The Charter states:
If the inspecting officer cannot locate anyone on the farm when they arrive to complete an unannounced inspection they will leave and return another day. On their second visit, should nobody be present the inspection officer will ring the applicant and proceed to conduct the inspection.
The inspecting officer will provide the applicant/agent with inspection notice information, explain the nature of the inspections and, if possible, how selection was made (ie risk vs random).
Inspection staff will be provided on an ongoing basis with guidance on the need to treat the farmer with the utmost respect and fairness;
Inspections will not delay payment where there are no outstanding farmer issues;
Where the only outstanding issue is completion of the cross compliance inspection, payments will not be delayed;
On the day of the visit, the farmer/representative of the farmer, if present, will be provided with a preliminary inspection report which will include a preliminary notice of findings.
A farmer who has had a penalty imposed under designated schemes set out in the schedule to the Agriculture Appeals Act, 2001 may appeal that decision to the Agriculture Appeals Office. Appeals must be lodged within three months of the date of the Department's decision letter.
Despite the minister's statement that there is a comprehensive appeal system in place, this process has taken a number of years in many cases and for most farmers they simply cannot wait that long for their payments. It's time the Agricultural Appeals Act was reviewed to properly protect farmers from inappropriate outcomes on inspection.
It is important to note that applicants to the EU agricultural schemes have a right of recourse to the High Court within 21 days of the decision being notified to them. Also, if you are concerned that the Department is exercising bias or not following procedures in reaching a decision, you may have a right of judicial review to the Courts.
Theresa Murphy is a barrister based in Co Galway