Advice: Ombudsman an impartial option for farmers in dispute with Department
There is an onus on the Department of Agriculture to treat customers with fairness as well as upholding the applicable regulations when carrying out an inspection and applying penalties.
The Department of Agriculture's Customer Complaint Procedure includes the following:
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"If you feel that you have been unfairly treated or are not satisfied with our decision on your complaint, it is open to you to contact the Office of the Ombudsman. By law the Ombudsman can investigate complaints about any of our administrative actions or procedures as well as delays or inaction in your dealings with us."
If you are dissatisfied with the decision of the appeals officer in the Independent Appeals Board but do not wish to appeal to the High Court, you can appeal the decision to the Office of the Ombudsman.
The Ombudsman cannot investigate a complaint if it is made more than 12 months after you initially complained or became aware of that action, unless there are very special circumstances.
To make a complaint to the Ombudsman you can do so by completing the complaints form available from www.ombudsman.ie. It is very straightforward and you should not need professional advice to do so.
If the Ombudsman finds in your favour then he can recommend to the Department that they act to put things right. Although the Ombudsman can make recommendations to the Department to do something, it is only the High Court that can force the Department to take a particular action.
You are not bound to go to the Ombudsman prior to taking legal action. This process can take up to a year and even more in some cases.
Your local office should be the first point of contact if you discover your payments are not being made around the time that most payments are released to farmers. It may be that your application was selected for inspection or irregularities were identified during inspection. It could also be as a result of failure to satisfy stocking rates.
The Agriculture Appeals Act gives every applicant who is dissatisfied with a decision the right to have that decision referred to an appeals officer in Portlaoise.
A notice of appeal must be lodged within three months of the date that you receive the letter telling you about the decision. After that, an appeal will only be accepted in exceptional circumstances.
The notice of appeal should contain a statement of all the facts that you wish to make known in the appeal. If you have any evidence in support of your case you should send that with the appeal.
On request of the farmer, the appeals office must provide an oral hearing. At that stage applicants can represent themselves or be represented by another person, including agricultural consultants or legal advisors.
If dissatisfied with the decision of the appeals officer you can appeal directly to the High Court on a point of law. In deciding what is 'a point of law' for the purpose of an appeal to the High Court, legal advice should be sought.
It is essential that, having received notification from the appeals office of an unsuccessful appeal, that you urgently seek legal advice if you intend to appeal the matter further. The reason for the urgency is because the High Court only allows 21 days for this appeal.
I would recommend that all correspondence with the Department and appeals office is carried out by letter and that copies of these are kept for the appeals process.
It is also important to seek advice from a competent ag consultant or solicitor who understands this area of law.
You should also closely note the time limits applicable to ensure your appeal/issues can be dealt with.
Theresa Murphy is a barrister based in Ardrahan, Co Galway
Case study 1: Farmer medically unfit to work wins appeal over transfer of GLAS contract
A man complained to the Ombudsman when the Department of Agriculture, Food and the Marine refused to allow him transfer his Green, Low-Carbon, Agri-Environment Scheme (GLAS) contract to another farmer.
He wanted to transfer his GLAS contract to the person taking the lease of his land. However, the Department said that it could only transfer the GLAS contract to a member of the man’s family.
GLAS provides that: “Contracts are non-transferable except in the case of:
1. Certified serious illness;
2. The transfer of an entire holding subject to prior approval of the Department;
3. Death of the participant”.
The Department has a policy of only permitting the transfer of a GLAS contract to a family member. However, the terms and conditions of GLAS do not limit transfers to family members only.
As the man had a certified serious illness, it appeared that he met the conditions necessary to transfer his contract.
The Ombudsman asked the Department to review its decision.
The Department reviewed the case, and due to the exceptional circumstances of the man’s medical conditions, it agreed to permit the transfer.
Case study 2: Department backs down on demand for €25,000 repayment of premiums on flooded land
A man complained to the Ombudsman that the Department of Agriculture, Food and the Marine (the Department) sought to recover over €25,000 from him following the flooding of his land in Kerry. The man had received the money through the Afforestation Grant and Premium Scheme to cover the cost of establishing a forest.
The Department inspected the man’s land and approved his grant in 2004. The forest was destroyed by severe flooding in 2009. When he realised the extent of the damage, the man contacted the Department in 2010 looking for advice about what he should do.
The Department stopped his payment and did not make a decision about how it was proceeding for nearly three years. In January 2013, the Department demanded repayment of the grant of over €25,000, in full, within one month.
The land is surrounded by canals which form part of a local drainage network. The local authority is responsible for maintaining the drains feeding this network. The local authority stopped draining the canals around 2009 because of damage caused by the floods. The local authority said that it could not maintain the local drainage network each year because of budget restrictions. The drains on the man’s land were satisfactory but could not work properly because the local drainage network was not being maintained.
The Department said that the reasons it demanded repayment were that:
■ The trees had been removed by the man from the land;
■ The man had not said in his original application that his land was subject to flooding;
■ It considered that the man was aware of the risk of flooding and that it was his responsibility to comply with the conditions of the scheme;
■ It was unreasonable for the man to rely on the actions of the local authority to comply with his obligations and that this was the reason why force majeure did not apply in this case.
The man appealed the Department’s decision and provided evidence that the flood destroyed the trees and caused damage to his land. The local authority confirmed that the severe rainfall, high tides and excessive amounts of material in the drainage channel had prevented proper drainage which was outside the man’s control. (Subsequently a Department official confirmed that the trees had been removed as a result of the flooding).
The Ombudsman discovered that the South Western Regional Fisheries Board had written to the Department in May 2004 advising it that part of the site may be subject to flooding.
This was before the Department approved the grant in August 2004. The man told the Ombudsman that he had no knowledge of the Board’s report.
A Forestry Inspector from the Department had visited the man’s land in May 2013 and said that it was a case of force majeure. However this was overturned by the Department in December 2013. The Department defines force majeure as ‘circumstances outside the farmer’s control which s/he could not have foreseen and which s/he, as a prudent farmer, took all reasonable precautions to avoid’.
The Department said that circumstances which are accepted as constituting force majeure include ‘a severe natural disaster gravely affecting the holding’s agricultural land’.
The Ombudsman considered that the Department had granted the man’s application in the knowledge that his land may be prone to flooding, and that it was now trying to hold the man responsible for something about which he was unaware and over which he had no control.
The Ombudsman asked the Department to review the man’s case, particularly with regard to the force majeure provision. The Ombudsman considered that the available evidence indicated a natural disaster that was outside the man’s control.
In the circumstances the Department agreed to review its decision and decided not to recover the amount of €25,000.
Case study 3: Farmer loses appeal but receives payment retrospectively after changes to BVD rules
A man complained about the 100pc penalty imposed on his 2016 Beef Data and Genomics Programme (BDGP) application.
The penalty had been applied because, in error, one calf out of 150 calves born on the farm that year had not been tagged and tested within the required 20 days. He considered the penalty to be excessive.
The Department said that under the BDGP scheme, all participants were required to be fully compliant with Bovine Viral Diarrhoea (BVD) Regulations.
These require that animals be tagged and tested within 20 days of birth and have samples sent to designated laboratories as soon as possible thereafter. Failure to do so would result in no payment being made under BDGP in the following year. In this case, the animal was not tagged and tested until 46 days after birth so no payment was issued to the man in 2017.
However, changes had recently been made to the BVD Regulations which were being applied retrospectively.
As the man was in compliance with the revised BVD Regulations, payment would issue to him shortly - provided he met all other requirements of the scheme.
The Ombudsman found that the Department had applied the terms and conditions of the BDGP Scheme correctly at the time the application was processed. He also noted that due to the changes in the BVD Regulations, the man would now be paid.
Case study 4: Farmer wins AEOS appeal
A farmer’s representative accidentally omitted to include a claim for ‘Species Rich Grassland’ on his AEOS application. As a result of the error he was losing an average of €2,500 per annum in payments.
He sought to have the application amended and was refused. His appeal was also refused on the basis that there was no provision for amending AEOS applications under the terms and conditions of the scheme
EU Regulation 2419/2001 provided for the establishment of a single integrated administrative and control system for agriculture aid schemes.
There is provision for amendments in cases of ‘obvious errors’ on applications. On foot of our enquiries the Director of the Agriculture Appeals Office reviewed this case. She decided that that there had been an ‘obvious error’ in this instance and granted the appeal.
As a result the farmer will now be paid for the Species Rich Grassland.
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