New legislation to give decision-making powers to the independent panel at Stage 2 of an appeals process will apply to new schemes DAERA brings forward in future, Agriculture Minister Edwin Poots has confirmed.
Responding to correspondence received from the chair of the Stormont Agriculture committee, Declan McAleer, Minister Poots said that farmers will retain the right to review a decision taken by his Department.
On historic appeals where DAERA did not accept recommendations made by the independent panel at the second stage of the process, he said that officials will consider how to deal with these cases as work progresses on new legislation.
Officials will also consider whether new evidence could be presented by an appellant to the independent panel.
That is something most farm lobby groups had pressed for in their submissions during a recent mini-inquiry into the appeal process by the Stormont Agriculture committee, and a position endorsed by the committee in the letter to Minister Poots.
Back in 2018, following a Judicial Review brought by the UFU after DAERA had proposed dropping the independent panel, an agreement was reached between both sides, with the panel retained, but farmers only able to submit new evidence in exceptional circumstances.
The initial correspondence from the Stormont committee in March 2021 also raised some wider issues, including the need to simplify the information provided to farmers who appeal a decision, and to provide more support for the mental health and well-being of appellants.
“I have instructed my officials within the Review of Decisions team to ensure that information provided to the appellant is presented in an understandable manner,” responded Minister Poots.
He added that he recognised the mental health impact of the process and has told officials to consider signposting any farmer involved in an appeal to Rural Support.
Meanwhile, Ulster Unionist agriculture spokesperson Rosemary Barton has welcomed the proposed changes to the appeals system giving decision making powers to an independent panel.
“Other bodies, like the Planning Appeals Commission for example, do not have their decisions reversed following the opinion of the independent panel, so why should appeals by farmers be subject to such discrimination?” questioned the Fermanagh and south Tyrone MLA.
Three options for Minister on historic cases
As revealed in an article in the edition dated 24 April, there are 114 cases since area-based payments were introduced in 2005, where the recommendation of the independent panel was not followed.
In total, the sums involved are estimated to be in the region of £2.4m.
While the Minister has told officials to bring forward new legislation that will give decision making powers to the independent panel, the law cannot operate retrospectively.
If these historic cases are to be looked at again, it will have to be as part of a voluntary scheme.
There are three potential options for Minister Poots:
1) He can choose to do nothing. Given his long-held view that the Department should not go against the recommendations of the independent panel in farmer appeals, this is unlikely to be his first preference.
2) He could pay out all 114 cases to a maximum sum (eg £5,000). With the majority of cases likely to involve monies below £5,000, the total cost of this would probably come to less than £500,000. That compares to well over £500,000 spent in recent years by DAERA, the UFU, and the Calvert family (Barnwell Farms) on legal costs for five judicial reviews relating to area-based schemes. Of these, DAERA lost two, and settled three, while running up a cost to the taxpayer of over £300,000.
3) He could chose to insist that the estimated £2.4m is paid in full to the 114 appellants. That may be met with some resistance from his senior officials, and potentially leave the Minister isolated if auditors and politicians question the payout.
As suggested on page 4 of the 1 May edition of the Irish Farmers Journal, perhaps there is merit in paying out all cases up to £5,000. But where an appellant still wants to pursue an historic claim worth more than £5,000, they could potentially have their case re-assessed, but on the understanding that they would come forward and be willing to contribute £1,500 towards the cost of a review panel.