A new Review of Decisions process for area-based schemes in NI is to be brought forward in 2021, a senior DAERA official has confirmed.
Giving evidence to the Stormont Agriculture Committee last Thursday, DAERA head of area-based schemes Dr Jason Foy told MLAs that he hopes to have legislation in place by the end of 2021 that will mean the decision made by an Independent Panel is final.
At present, farmers unhappy with a DAERA decision can appeal, with their case initially considered by Department officials at Stage 1 of the process. If the applicant remains unsatisfied, they can proceed to the Stage 2 Panel.
However, under current legislation, DAERA can chose to reject the recommendations made by the Independent Panel.
“It is a very frustrating and demoralising process and leaves many farmers wondering why go through this at all,” suggested committee chair Declan McAleer. He pointed out that the remaining course of action is a potentially very costly Judicial Review of the decision in the High Court, so most farmers walk away at this point.
Last November, Agriculture Minister Edwin Poots told MLAs that he would not be going against recommendations made by the Panel, and he has now instructed officials to bring forward legislation to change the process.
“The Independent Panel will be making the decision, and we would then be implementing whatever that decision would be,” Foy told MLAs.
He said he hopes to do a process of consultation and stakeholder engagement this spring, and following that, legislation will be drafted for consideration by the committee.
In the meantime, there are some issues to work through. The first is how to deal with “live” cases. Out of 44 claimants who appealed to a Stage 2 review in the last three years, 20 had a recommendation in their favour from the Independent Panel. Of these, 11 have been accepted by DAERA, one partially accepted, leaving eight “still under consideration”, explained Foy.
“I don’t want the committee to form the impression that we are necessarily going to reject those – that is not the case. We consider each very carefully, and we just need to ensure that the recommendation is in keeping with the regulations that govern the schemes,” responded Foy to a question from Newry and Armagh MLA William Irwin.
Mid Ulster MLA Patsy McGlone probed the DAERA official further, enquiring if these eight cases could be held back until new legislation is in place. However, Foy pointed out that other cases are likely to come forward in 2021, so the Department will have to consider how to transition in the new regime.
“I am quite mindful of unintended consequences, and a perception of unfairness. It is something we have to think through properly and carefully,” he responded.
There are also those historic cases where the Independent Panel recommended in favour of an applicant, but this has not been upheld by DAERA.
“It is an issue we are aware of, and something we will be considering as we bring forward the legislation. It is a question we will have to resolve one way or the other, but I don’t know the answer,” Foy told Fermanagh and south Tyrone MLA Rosemary Barton.
One suggestion put forward is that there is an argument to look again at cases since March 2017 (when there was no Minister at DAERA).
But either way, if claimants want their cases re-assessed they should approach their farm lobby organisation or agricultural consultant in the first instance.
Legal basis for future decisions
While DAERA is now working to bring forward new legislation that will make the decision of the Independent Panel final, it is important to note that those decisions must still be in keeping with existing regulations, Jason Foy told MLAs last Thursday.
It could mean that future members of the Independent Panel will have to be from a legal background. “That is something we will have to consider,” he responded to a question raised by south Belfast MLA Clare Bailey.
The Green party MLA also queried why DAERA had brought in a new Review of Decisions process from 1 April 2018 that dropped the Stage 2 panel in favour of a single stage process conducted by a DAERA official. Later in 2018 that was challenged by the UFU in a Judicial Review. Ultimately, the two-Stage process was retained.
“The review was instigated at the request of the Minister [Michelle McIlveen]. The rationale was a fairly high dissatisfaction at the length of time the process was taking,” explained Foy.
However, while he claimed that the aim was to create an improved single stage review, he was clear that the decision to drop the Independent Panel was taken by officials, after Minister McIlveen had left her post, and Stormont was suspended.
‘We get it wrong’ admits DAERA official
In two recent cases brought to a Judicial Review in the High Court (the UFU on behalf of former President Ian Marshall; and Greyabbey-based Barnwell Farms), the judge ruled in favour of the claimant. Those cases left DAERA with a significant legal bill, and having to reimburse outstanding single farm payments.
“The Department has no desire to be involved in a Judicial Review process any more than an applicant farmer,” Jason Foy told MLAs last week.
“I fully accept there are cases where we do get it wrong. We try to minimise the number of instances where that happens,” he added.
DAERA don’t have to pay interest
Getting through the current Review of Decisions process could take a number of years. Where a significant proportion of direct payments are held back by DAERA, this has a major impact on the viability of a farm business.
In some cases, DAERA do make an ex gratia payment, although there is no legal requirement for the Department to pay interest on payments that are refunded, Jason Foy told Strangford MLA Harry Harvey.
“The standard we have used is the same standard applied to any debts recoverable from farm businesses, which is the Bank of England base rate, plus 1%,” he said.
Shannon raises audit concerns
Strangford MP Jim Shannon has written to the Comptroller and Auditor General in NI, Kieran Donnelly, to suggest that he undertakes an investigation into the amount of money spent on judicial reviews.
As revealed in the edition dated 5 December 2020, five recent court cases involving DAERA ended up costing the taxpayer in the region of £300,000. In addition, three of these cases involved the UFU, and they have unrecovered costs of around £231,000, while in the fifth case involving Barnwell Farms, the Greyabbey based business still has unrecovered costs of over £22,000.
In his letter, Shannon also questions why the issues surrounding the judicial reviews do not seem to have been given much consideration by the DAERA Departmental Board, the body that manages the running of the Department.
In a review of published minutes since January 2017, Shannon indicates that he is “astonished” that there was only one solitary reference to these court cases, and no mention of any lessons learned.