Irish Independent - Farming

Alleviate fears of inspection­s by reading up on procedures

- THERESA MURPHY

Tthe 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 crosscompl­iance 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 2448 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 ap peals 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.

 ??  ?? Agricultur­e Minister Michael Creed said the programme for government had provided for a review of the Agricultur­e Appeals Act 2001 and expects recommenda­tions by the end of the year
Agricultur­e Minister Michael Creed said the programme for government had provided for a review of the Agricultur­e Appeals Act 2001 and expects recommenda­tions by the end of the year
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