Farm Ireland
Independent.ie

Wednesday 15 August 2018

Advice: Alleviate fears of inspections by reading up on procedures

 

Calls have been made for a full review of the Department’s inspection process.
Calls have been made for a full review of the Department’s inspection process.
Minister for Agriculture, Food and The Marine, Michael Creed pictured at todays Press Conference outlining the 2018 Budget measures. Photo: Colin O'Riordan

Theresa Murphy

The recent blueprint on the future of the Common Agricultural Po­l­icy has been flagged as aiming to simplify the food subsidy system and remove more bureaucracy.

It sets out that more power will be divested to individual member states to set out the control measures, and penalties, that apply to the system.

The moves have been welcomed by many in the farming sector as many farmers are familiar with the fear that comes rightly or wrongly when the inspectors from the Department of Agriculture come knocking on the door.

The new schemes also have an inspections requirement that must be fulfilled.

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.

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.

It is always useful to know in advance the procedures that inspecting officers should follow, plus it can help alleviate concerns when you know the format it should take.

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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 schemes also include some helpful information.

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.

Announced / unannounced inspections

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

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 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.

However, because of the requirement that a control report must be signed by the applicant of his/her agent, it is implicit the applicant is present during inspections.

Charter of Rights

The Charter of Farmers Rights, which was agreed between the Department of Agriculture and the farming organisations, has made strides to benefit the farmer during inspections. Unfortunately, it is limited by the fact that it is not a binding agreement for the Department. If the Department officers chose not comply with the charter, there is very little the farmer can do to enforce the promises made by the Department.

In 2016 the High Court considered some elements of the charter and decided that the following was of particular importance:

* if the inspecting officer cannot locate anyone on the farm when they arrive to complete an unannounced inspection, they should leave and return another day. On their second visit, if nobody is ­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);

* Department 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.

Solicitor John Cuddy from Loughrea, Co Galway, says: "The 2016 O'Connor Case has restated very important rights that were disregarded in that case and I am noticing more often than not were disregarded in many inspections up to now. In particular, Mr Justice White stated the Department failed to have regard to the right of the applicant to receive all decision making documentation prior to deciding to take an appeal in order to make the best case possible.

"To the best of my knowledge, the Department are still not providing farmers who have been penalised with all of the decision making documentation prior to electing to take an appeal which is in breach of the applicant's constitutional rights."

Appeals

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. A Notice of ­Appeal form can be downloaded from www.agriappeals.gov.ie/ publications/appealprocedures andforms/.

There are further guidelines provided in relation to the appeals process and the schemes that are included in this appeals process in the Appeal Procedure Summary available from the above address.

Despite statements 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.

Earlier this year, Agriculture Minister Michael Creed said the programme for government had provided for a review of the Agriculture Appeals Act 2001 to "ensure the independence and efficiency of the office in dealing with appeals from farmers".

The committee tasked with the review include Paud Evans, former Principal Officer at the Department of Agriculture; Padraig Gibbons, former Chair of Connacht Gold, and Chair Niamh O'Donoghue, former Secretary General at the Department of Social Protection.

Mr Creed said he expected the report - including recommendations on the legislation, governing and the future of the Agriculture Appeals Office - to be on his desk by the end of this year.

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.

The Role of the Ombudsman

If you feel you have been unfairly treated or are not satisfied with the decision of the Department in relation to a complaint, it is open to you to contact the Office of the Ombudsman.

By law, the Ombudsman can investigate complaints about any of the Department's administrative actions or procedures as well as delays or inaction in your dealings with them. The Ombudsman cannot investigate where legislation gives you a right of appeal against the decision of the public body to an independent appeal body.

It is therefore questionable whether a decision of the Department of Agriculture which can be appealed through the process set out in the 2001 Agricultural Appeals Act, which includes schemes like the Basis payment scheme etc, can be investigated by the Ombudsman in relation to findings by the Department officer resulting in penalties being applied.

In some cases, the Department is telling applicants of their right to appeal to the Ombudsman when the reality is an appeal should be made to the independent appeals board.

In some cases, this can cause difficulties for farmers as by the time it is dealt with, they are often out of time to take it to the appeals board.

This article is intended as a general guide only. You should seek individual legal advice in relation to your circumstances.

Theresa Murphy is a barrister based in Galway


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