A Co Down farm business that won a judicial review against DAERA has now received full direct payments going back to 2015, but remains in dispute with the Department around other costs related to the case.

As revealed in last week’s edition (dated 14 November), Barnwell Farms in Greyabbey took the case after top officials in DAERA decided to go against the recommendation of an independent panel at a Stage 2 review.

The case centred on a decision to exclude the original claimant, Mr Michael Calvert, from the scheme in 2015 under active farmer rules.

He had suffered a back injury in 2013 which forced him to sell his cattle, so when the new CAP system became operational in 2015 he was mainly growing grass for sale.

Having been excluded, he sought a Stage 1 review (by DAERA officials) in 2016, which proved unsuccessful. However, at Stage 2 review the independent panel found in favour of Barnwell Farms. By then, Mr Calvert had passed away, with the running of the farm taken on by his nephew, Robert Calvert.

While the Calvert family assumed the case was now resolved, DAERA decided not to accept the decision of the independent panel. A judicial review followed, and in the High Court, Judge Mrs Justice Keegan found in favour of Barnwell Farms.

There wasn’t the funds to invest in cattle. The farm was being driven out of active farming

Speaking to the Irish Farmers Journal, Robert Calvert explained that the family had been determined to fight on, partly in memory of his uncle. “Even when he was very ill I remember him telling us to leave no stone unturned, as they were basically calling him a liar. He saw it as an abuse of power,” he said.

With hefty legal bills, no farm payments and no outside financial support, accounts for the business show it sustained significant financial losses.

“There wasn’t the funds to invest in cattle. The farm was being driven out of active farming,” said Robert.

He confirmed that payments have now been made in full for the years 2015 to 2019 (totalling £85,628), and in addition, 2020 payments have been received.

However, after five years of emotional and financial stress on his family and especially his aunt, they remain unhappy with an ex-gratia payment from DAERA.

That payment is to cover consequential losses such as lost interest on payments, and comes to £4,077. It is based on compound interest at the Bank of England rate, plus 1%. A further £500 was also paid to cover “miscommunication” in the case.

Barnwell Farms argue that interest rates paid by farmers on overdrafts and loans have probably been closer to 7% in recent years, so a more reasonable ex-gratia payment would be £20,000.

It is also understood that while DAERA have covered a proportion of the Calvert family’s legal costs, there is still a shortfall of approximately £22,000.

Below inflation

The family has been supported throughout by Strangford MP Jim Shannon, who argues that the ex-gratia payment made by DAERA is unacceptable.

“It seems quite wrong that DAERA Permanent Secretary Dr Denis McMahon believes that a below-inflation payment of £4,077 is an appropriate interest rate.

“This is equivalent to a £2 single cup of tea per day since May 2015,” he told the Irish Farmers Journal.

Question marks over the review process

The Barnwell Farms case is not the first time that a claimant of farm direct payments has ended up in the High Court after DAERA went against the view of an independent panel at Stage 2 review.

In a high-profile case that dated back to a pollution incident in late 2011, the UFU funded a judicial review brought by former president Ian Marshall. He had a 55% penalty applied to his single farm payment due to an intentional breach of cross-compliance rules.

In February 2017, a High Court judge ruled that the original DAERA decision-making process was “unlawful”

However, Marshall argued that it was a negligent breach, so the penalty should have been between 1% and 5%. An independent panel at Stage 2 review found in his favour, and recommended the penalty be changed.

But DAERA decided not to take that advice, and continued to apply the intentional penalty.

In February 2017, a High Court judge ruled that the original DAERA decision-making process was “unlawful”, and told the Department to review the case. After doing that, DAERA decided that its original decision was correct.

The UFU then sought a second judicial review, although this was eventually dropped when DAERA finally accepted the view of the independent panel.

Total legal fees in the Marshall case are thought to have run to over £300,000.

Changes proposed

In the meantime, DAERA was making changes to its review of decisions process for area-based schemes. Citing the length of time it was taking to reach final decisions, in April 2018 it introduced a new arrangement, dropping the independent panel, leaving a single stage review by a case officer from the Department.

That prompted another legal challenge by the UFU by way of a judicial review.

Both sides settled out of court later that year, agreeing that the Stage 2 independent panel should be retained, but with some conditions attached. Those included that users of the panel are charged an increased fee of £200 (a fee due to be reviewed) and that the final decision on an individual case rests with the Department.

So it remains the situation that the only option for a claimant unhappy after a Stage 2 review is to seek a judicial review through the High Court or, if the applicant believes procedures have not been followed correctly, to take the case to the NI Public Services Ombudsman.

Wrong process

Strangford MP Jim Shannon believes the independent panel is an important part of the DAERA decision making process.

The next step in any appeal being a costly judicial review is the wrong process given its limitations

He said: “The attempt by DAERA, whilst the NI Assembly was dissolved, to eliminate them in late 2017/2018 was quite wrong. Equally, the next step in any appeal being a costly judicial review is the wrong process given its limitations, including its inability to consider the actual farming evidence. Post-Brexit, this all needs to be properly addressed.”

Back in 2016, the Department confirmed that 810 applicants were rejected for not meeting active farmer requirements. It is understood that since 2015, a total of 64 active farmer cases have made it to a Stage 2 review.

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