Business clinic: RPA inspection penalties – should I appeal?

This month, Farmers Weekly’s experts give advice on appealing against RPA penalties, insuring young drivers, managing cashflow and farm developments with minimal impact.

Read more from our Business Clinic experts

Q I have just received a letter from the Rural Payments Agency saying that on their last inspection they found problems with my cattle passports.

Apparently I was late making various notifications to them which is true but this was due to me having to cope with other problems on the farm.

As I had a similar problem last year they are reducing my SPS payment by 9%, which is going to cause me problems. The letter refers to an appeal but is it worth it? Do I need solicitors or can I do it myself? How long is it going to take?

A This unfortunately is an increasing problem. Recent statistics showed a 50% increase in cross-compliance breaches from 2012 to 2013. As a result, total penalty deductions of £2.33m were applied in 2013. The most common failure relates to cases such as your own – cattle ID and registration/records.

It sounds as if the correct figure has been applied. A deduction of 3% for one breach of non-compliance will be multiplied by three if there is a repeat breach in the following year, giving the deduction of 9%.

I would suggest you treat this paperwork as a priority in future as the penalties will continue to escalate, ultimately being considered intentional, leading to very significant deductions.

Peter Cusick
Head of agriculture
and food,
Thrings
Solicitors

The appeal process may not require a solicitor although you may wish to consider one if the case involves complex facts and/or the interpretation of law.

In addition, you would need to balance the costs of employing a solicitor against the amount in dispute to ensure those costs were proportionate.

The first step in the procedure is to submit a complaint to the RPA. There is a suggested form on its website. You need to set out the basis of your case and other matters such as the impact the decision has had on your business and the outcome you seek.

In our experience the RPA will acknowledge your complaint promptly but the actual time to get a decision is variable.

If the outcome of the first review is unsatisfactory, then you may refer your complaint first to the Complaints Resolution Team and thereafter to the Complaints Review Team.

They say they will endeavour to make a decision within 30 working days. If you are still unhappy then you can ask the Appeals Team to review the case using Form CA1 (there is also a £100 fee which is refunded if your appeal is successful).

There is then a further right of appeal to the Independent Agriculture Appeals Panel. The panel makes a recommendation to the minister. The final decision is made by the minister who can reject the panel’s findings.

It is difficult to give you an estimate of how long this can take but you are definitely looking at months (and probably many months), not weeks, if you go right through to the minister’s decision.

Thereafter the minister’s decision can be challenged, within three months, by a judicial review. A judicial review is a legal examination of the way an official decision is reached.

This is an important decision and you are likely to seek legal advice before embarking upon such a course. Again key issues will be the complexity of the matter and the amount at stake.

Clearly it is important for you to understand whether you have grounds for any appeal. Cattle ID cases are usually difficult to challenge in my experience and I note you accept you were out of time in respect of some of the paperwork. You also refer to “other problems on the farm”.

I am not clear why those arose or how they affected your ability to undertake the paperwork but it is worth mentioning that sometimes obligations may be excused if the default occurred because of something unexpected and outside of your control (force majeure). However, it is narrowly construed.

Unprecedented weather conditions or flooding might be an example, so if you were referring to such problems then it may well be worth asking the RPA to review the matter on that basis.

The information provided in these articles does not constitute definitive professional advice and is provided for general information purposes only.