In around 40% of cases that made it to Stage 2 of the review of decisions process for area-based schemes, an independent panel ruled either partially or fully in favour of the applicant, analysis of relevant data shows.
The figures, obtained by Strangford MP Jim Shannon by way of a series of freedom of information requests, show that since 2014-2015, nearly 300 cases have been taken to a Stage 2 review.
Of these, in 82 instances the independent panel agreed with the arguments presented (either in writing or orally) by a claimant and recommended that the review be upheld in full. In a further 29 cases the panel concluded that the review be partially upheld.
In total, there were 30 instances since 2015 when the panel fully upheld a review
However, in the review of decisions process, the final decision has historically rested with DAERA. Our analysis shows that in over one-third of these cases the Department did not accept the view of the independent panel.
In total, there were 30 instances since 2015 when the panel fully upheld a review, only for DAERA officials to not accept that recommendation, and stick with its original decision. There are also an additional 13 cases where the panel partially upheld the review, but this was not accepted by DAERA, and a further six where the panel fully upheld the review, only for the Department to only partially accept these recommendations.
In her judgement, Justice Keegan ruled in favour of Barnwell Farms, stating that there was an obligation on the Department to explain why the analysis of this panel was not followed
Given the recent judgement in the judicial review taken by the Co Down-based Barnwell Farms, Jim Shannon believes that there is an argument to look again at these cases, and in particular those where the Department rejected the view of the independent panel.
As reported in the edition dated 14 November, Barnwell Farms sought a judicial review after finding itself in this situation. In her judgement, Justice Keegan ruled in favour of Barnwell Farms, stating that there was an obligation on the Department to explain why the analysis of this panel was not followed.
Only last month, Agriculture Minister Edwin Poots told MLAs at Stormont that he will not be going against the view of the independent panel.
The information obtained from DAERA shows that there are currently nine recent instances where the panel has ruled in favour of the applicant, that are still “under final consideration” by the Department.
In terms of the split of cases taken to Stage 2 review since 2014-2015, a total of 64 were disputes around “active farmer” status, 41 related to young farmer payments and 66 involved cross-compliance penalties due to breaches of statutory management rules (SMRs).
By contrast, nearly 80% of reviews sought relating to the young farmers’ payment, were rejected by the panel
That leaves over 100 other cases across a wide range of issues including land eligibility, duplicate fields and the NI Countryside Management Scheme.
Applicants who sought a review of a decision around “active farmer” status were most likely to have their case upheld by the Independent Panel. Nearly two-thirds of these were upheld at Stage 2 review. By contrast, nearly 80% of reviews sought relating to the young farmers’ payment, were rejected by the panel.
Commenting, Jim Shannon said that he appreciated the helpful and detailed responses to his requests provided by the Department.
However, he also believes that the information provides further weight to his argument that the decision to change the review process in 2018 was flawed.
In that change, DAERA decided to drop the Stage 2 review, which prompted a legal challenge by the UFU. In the end, the UFU and DAERA settled out of court, agreeing that the panel should be retained, but with some conditions attached. It was a legal challenge that cost the UFU over £100,000.
The analysis of the data obtained by Shannon highlights that around 20% of cases taken to Stage 2 were fully or partially upheld by the panel
But in their 2017 consultation document proposing the change, DAERA partly justified dropping the independent panel on the basis that only 10% of reviews “derive benefit from access to an external panel”.
The analysis of the data obtained by Shannon highlights that around 20% of cases taken to Stage 2 were fully or partially upheld by the panel, and either accepted in full, or in part, by the Department. If we add in those cases that were upheld (in part or in full) by the panel, but rejected by DAERA, this figure rises to nearly 40%.
As yet it is not clear whether claimants who had a positive outcome from the Stage 2 review, subsequently turned down by DAERA, will be looked at again.
It is understood that a draft survey has been circulated by Jim Shannon’s team to farm lobby organisations and local agricultural consultants in an attempt to establish who these people are, and whether they want to come forward. The survey also asks about “live” cases that remain unresolved going back to when area based payments were first introduced in 2005.