“I have just received a letter from the Department to advise me that I have suffered a penalty to my Basic Payment Scheme (BPS) payment this year. It appears that the Department carried out an eligibility and cross-compliance inspection while I was away and is going to apply reductions to the area claimed as a result of that inspection. Surely they should have contacted me and given me an opportunity to explain my case? I fear that my payment is going to be held up later this month.”

Every farmer applying under the BPS should have received a helpsheet/terms and conditions booklet for the 2015 BPS earlier this year. The terms and conditions detail procedures to be followed at inspection. There are further provisions regarding notification procedures contained in the Farmers’ Charter, which was re-negotiated earlier this year. However, it has been my experience when representing clients at appeals that the Department of Agriculture has little or no regard to the charter on the basis that EU legislation and the terms and conditions of the scheme take priority.

The terms and conditions provide that in submitting a BPS application, applicants agree to permit officials or agents of the Department to carry out on-farm inspections, with or without prior notice, at any reasonable time. Thus, the Department was entitled to carry out the inspection in your absence.

Where inspections are not notified in advance, the inspector will explain the inspection procedure to the applicant or their representative and satisfy himself that the applicant or their representative fully understands it. If the applicant cannot be present, they can be represented by a person of their choice. There is no provision to allow the inspection to be postponed until the applicant is present, as was the case under the 2013 Single Payment Scheme.

There are further provisions regarding notification procedures contained in the charter. The charter provides that a maximum of 14 days’ notice may be given for land eligibility and cross-compliance inspections involving SMRs other than those related to animal identification and registration, food, feed and animal welfare. The charter further provides that if the Department decides that giving notice may interfere with the purpose or effectiveness of the inspection, they are not obliged to give notice.

EU legislation

From an EU legislative viewpoint, Article 25 of Commission Regulation (EC) 809/2014 allows unannounced inspections to be carried out where giving advance notice may jeopardise the purpose or effectiveness of the inspection.

This mirrors to an extent the provisions in the Farmers’ Charter. The Farmers’ Charter provides that the operation of a number of schemes in the charter is governed by EU law/national law and that the charter cannot grant rights which would affect or change the operation of those laws. However, the contents of the charter should be relevant as it mirrors the provisions of EU legislation. Consequently, the Department should be able to justify why it carried out the inspection unannounced.

The EU legislation provides that for on-the-spot checks concerning livestock aid applications or payment claims under animal-related support measures, the announcement shall not exceed 48 hours, except in duly justified cases. This also applies for on-the-spot checks concerning cross compliance. The Department would be justified in having unannounced inspections in relation to these checks.

The normal procedure is for the Department to send out a letter notifying you of the result of the inspection and giving you 21 days to apply for a review to the district inspector. In terms of what time limit applies for the Department to respond, the charter provides that where contact is by letter or email, the Department will aim to respond within a maximum of 20 working days.

The charter provides that where this is not possible, an interim response will be issued within 10 working days with the date when you can expect a full response.

Unfortunately, it can take a couple of months to get a decision. Thereafter, it is open to you to appeal that decision to the Agriculture Appeals Office, who will assign an appeals officer to the case and set up a date for an oral hearing if same is requested. Thereafter, even if you are successful the Department can appeal that decision to the director of the Agriculture Appeals Office and generally the Department does not pay out until that appeal has been determined.

If the appeal is rejected, the applicant can appeal to the Director of the Agriculture Appeals Office where there has been a mistake made in relation to the law or facts of the case. The applicant may apply to the High Court to revise a decision on a point of law or apply for judicial review of the decision where they feel they have been unfairly treated.