JOINT COMMITTEE ON AGRICULTURE AND FOOD díospóireacht -
Wednesday, 3 Dec 2003

Vol. 1 No. 26

Agriculture Appeals Office Annual Report 2002: Presentation.

Chairman

I welcome Mr. Paul Dillon, director of the Agriculture Appeals Office; Ms Marion O'Brien and Mr. Gary O'Donnell. We have invited them to the meeting to discuss the annual report of this office, which was recently published. Copies of the report have been circulated to members. This is the first report of the Agriculture Appeals Office, which was established in May 2002.

I draw Mr. Dillon's attention to the fact that while members of the committee have privilege, the same privilege does not extend to him. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House, or an official, either by name or in such a way as would make him or her identifiable.

I apologise for the delay in commencing the meeting, which was caused by the taking of votes in the House. This meeting must end by 2.30 p.m. for Question Time in the Dáil. I call on Mr. Dillon to make his presentation.

Mr. Paul Dillon

I am pleased to have the opportunity to appear before the committee to discuss the first annual report of the Agriculture Appeals Office. I hope we can answer members' queries satisfactorily.

The Minister for Agriculture and Food established the Agriculture Appeals Office in fulfilment of a commitment given in the Programme for Prosperity and Fairness. This commitment, which was endorsed in the protocol on direct payments to farmers, was that the Government would set up "on a statutory basis in accordance with the principles of natural justice an independent, accessible and properly resourced appeals unit whose remit would include all the FEOGA schemes paying directly to individual farmers". It was decided to use the social welfare appeals office as the template for the new Agriculture Appeals Office. The social welfare appeals system had, at that stage, been in operation, on a statutory basis, for ten years and was working well.

The Agriculture Appeals Act was passed by the Oireachtas in July 2001. Arrangements were then made to recruit a director, secure a premises and put the appeals structure in place. Transitional arrangements were also needed to ensure that there was a smooth handover to the new statutory system. In May 2002 the Minister for Agriculture and Food signed the Agriculture Appeals Regulations 2002 setting out the procedures to be used in dealing with appeals. These regulations came into effect on 13 May 2002, the date on which the Agriculture Appeals Office was established. It was also the date of my appointment as director of agriculture appeals. There are now ten appeals officers and four support staff assigned to the Agriculture Appeals Office which is located in Portlaoise, County Laois.

Much of what is in the annual report is self-explanatory and, given the time constraints, I do not propose to comment on all of its contents. In order to make the annual report more useful, we decided it would have to contain more than an account of our activities for the year. For that reason, we have given examples, on pages 12 to 15, of some of the appeals dealt with during the year. We have also made recommendations to the Department on page 16. These are based on the appeals officers' findings in various cases. On the other side of the equation, on page 17 we have given examples of typical mistakes made by farmers that lead to penalties and subsequent appeals. Finally, for ease of reference, we reproduced the Agriculture Appeals Act and the relevant regulations.

From May to December of 2002, 518 appeals were received. The annual report gives the breakdown of this figure by scheme and by month. Given that the report covers a seven month period rather than a full year, I caution against drawing many conclusions from the figures. For members' information, I can advise that from January to the end of October 2003, 1,000 appeals were received. I expect the figure for the full year to be somewhere between 1,100 and 1,200.

Members will see that the REP scheme generated the largest number of appeals in 2002. A total of 36% of appeals received related to REPS. A bar chart is provided on page 8 of the report which shows the figures for scheme applications in 2002. There were almost 37,000 farmers in REPS in 2002. It might seem that the number of appeals generated by REPS is relatively high compared to, for example, the suckler cow premium scheme or the special beef premium scheme. It should be remembered, however, that REPS is different to these other schemes in that it is a five year contract between the farmer and the Department. In addition to the usual administrative requirements of the scheme, for example, notifying the Department when there are changes in the area of land farmed and submitting applications for payment every year, there are eight different measures in REPS where the farmer is required to abide by the commitments given in his or her agri-environmental plan. Each of these requirements can generate penalties if the farmer fails to comply with them.

The Agriculture Appeals Act 2001 guarantees the right to an oral hearing. If an appellant requests such a hearing, it must then take place. Even if the farmer does not request an oral hearing, the appeals officer may decide that one is necessary in order to deal with the case properly. Approximately half of the appeals dealt with in 2002 involved oral hearings and this trend is continuing in 2003. Oral hearings are conducted in private and in an informal atmosphere. Appeals officers have the power to take sworn evidence at oral hearings but this has not yet been necessary. Venues for hearings are chosen so as to be as close as possible to the appellants place of residence. However, it is necessary to group the hearings together in order to make better use of appeals officers' time. We are committed to dealing with appeals within 90 days. In 2002, the average was 71 days. We will continue to try to improve on this figure.

If a farmer is not aware of his or her right of appeal, how can he or she exercise that right? The most critical point of awareness is when a farmer is notified by the Department of the proposed penalty. All Department officials have been advised of the absolute necessity of advising farmers of their right of appeal at the same time as notifying them of proposed penalties. Since the establishment of the Agriculture Appeals Office, I have made presentations to practically all the staff of the Department of Agriculture and Food emphasising the role of the office and the importance of informing farmers of their right of appeal. Appeals officers will continue to monitor correspondence to farmers to ensure that they are being properly advised of their right of appeal.

Information leaflets and appeal forms are available from all local offices of the Department. The establishment of the office in May 2002 was announced publicly in the press. There was also a press announcement to coincide with the publication of the 2002 annual report. In addition, we receive regular feedback from the farming organisations through the protocol monitoring committee. Our website is now up and running and it carries the information leaflet and the appeals form as well as other useful information. We also operate a lo-call telephone number that can be used for all contacts with the staff of the Agriculture Appeals Office.

I hope my presentation has addressed some of the issues of concern to members. My colleagues and I will be happy to answer any further queries that members may wish to raise.

Deputy Timmins

I thank Mr. Dillon and his staff for appearing before the committee. I apologise for the fact that, due to the taking of the vote in the House, we are somewhat pressed for time.

I welcome the establishment of the Agriculture Appeals Office. I realise that those who work in the office do not have an easy task and are obliged to filter huge amounts of information. What is the position if a person does not submit his or her claim for a REPS or other payment in time for no reason other than he or she forgot to do so? The reply such a person usually receives is that the work of the office is subject to EU audit or that the matter is outside its control. Is it just a case of tough luck? I may have other questions to put to the delegation but I will forward them to Mr. Dillon at a later date.

Deputy Upton

I apologise because I must rush off to the House for Question Time. I thank Mr. Dillon for appearing before us today to make his presentation.

Mr. Dillion stated that in addition to a farmer requesting an oral hearing, an appeals officer may decide that one is necessary. Is there an absolute obligation for a farmer to attend a hearing requested by an appeals officer or can he or she state that they do not want a hearing. People may be nervous about or put off by oral hearings. Is there any restriction on who may accompany individual farmers? Are they allowed to bring along moral support?

Mr. Dillon also stated that appeals are dealt with within 90 days, which can be quite long for someone who is awaiting a result or outcome. I accept that he said that the office wants to improve on this figure. What would be the optimum time within which a response might be forthcoming?

Deputy Ferris

I welcome Mr. Dillon and his staff and commend them on the presentation and the work they have done. I recently had occasion to contact the office in respect of an appeal and I thank Mr. Dillon for the promptness it showed in dealing with the case.

It is good for farming that an appeals procedure is in place. Would it be acceptable for farmers to be accompanied to hearings by representatives of the IFA or some other farming body?

Mr. Dillon stated that the office has ten appeals officers and four support staff. Are these sufficient to deal with the workload of the office? It is an average of 71 days before the appeals procedure is exhausted and it is quite difficult for people who are in urgent need, particularly in current circumstances, to obtain their entitlements.

I again thank Mr. Dillon. I apologise that I must leave almost immediately to deal with a priority question I have tabled in the House.

Mr. Dillon

Deputy Timmins inquired about application forms being submitted late, etc. Every appeal is looked at separately and as sympathetically as possible. If we can find any ground for making an allowance in favour of the farmer, we will do so. The appeals office is bound by the same rules as the Department. The appeals officer must be able to stand over his or her decision. If possible, we use supports such as mislaid forms and so on to support a case. One must bear in mind that the appeals officer must have regard to the terms and conditions of the scheme under EU regulations. We treat all cases as sympathetically as possible.

Deputy Upton asked about oral hearings. The appellant has the right to be represented at an oral hearing, as provided for in the Agriculture Appeals Act. A person can attend the hearing, say nothing, and allow his or her representative to put the case. We have met farmers who do not want to attend oral hearings. We are reluctant to say, carte blanche, that he or she does not have to attend because the appeals Act also provides that the appeals officer may question the appellant directly if he or she so wishes. That provision was included to prevent an appellant hiding behind a barrister or lawyer. We would prefer that the farmer attend the oral hearing in every case. We have come across some farmers who were unable to attend and we accept that. Such farmers are entitled to send a representative to the hearing. There is no limit to the number of people he or she can bring to the hearing. A farmer can bring more than one person if he or she so wishes. We have come across cases where the farmer brings a family member and a solicitor or a family member, a solicitor and local representative from the farm organisation and so on. We do not have a problem with that. What we look for is a balance between the number of people on the Department side and the number on the farmer’s side.

On appeals dealt with in 90 days, the Minister was clear when setting up the appeals office that there should be no undue delays in that area. Currently, we have ten appeals officers and the number of appeals are rising. I am satisfied we currently have enough appeals officers to deal with the cases in hand. I have agreed with the Department of Agriculture and Food that we will reconsider if extra resources are required. The Department and the appeals office are happy to work on that basis. There is also the possibility that the number of appeals may decrease given the changes regardingsingle payments and so on. Many of theschemes with which we are now dealing will disappear.

I would be delighted if we could deal with all appeals within six weeks. We are working towards that. I do not know if we will be able to do it in 2003; we will have to wait and see the outcome. While we currently have sufficient staff in place to deal with the number of appeals received, that is likely to change.

Senator Coonan

How independent is the appeals office? In my experience, it appears reluctant to go against departmental decisions. Will Mr. Dillon outline the procedures for appeals? I understand that the farmer can first appeal to the Department of Agriculture and Food and then to the appeals office. How many appeals have been upheld by the appeals office? Has the Ombudsman overturned any decisions made by the appeals office?

Farmers are finding themselves in very worrying situations. I am aware of cases where farmers have been put out of business because premiums were not paid to them. Such situations put enormous stress on farm families for many years. Farmers whom I have met have found a reluctance on the part of the appeals office to go against the regional director of the Department of Agriculture and Food. How independent is the appeals office? This facility is vital to the farming community and needs their confidence if it is to succeed.

Senator Scanlon

I welcome the representatives from the appeals office. I have attended a number of oral hearings with farmers from Sligo. The appeals office is to be praised for its work. I have been involved in a number of cases where the appeals office overturned the regional manager's recommendation. During the hearings farmers are treated with great respect; their cases are teased out and in all the cases in which I have been involved the farmer has been successful. I compliment that office on its work. It was excellent idea to set up this body. Senator Coonan pointed out that farmers face many problems. However, some of them are not of their own making. It is good they have this service available to them.

When the appeals officer visited Sligo to hear the cases in which I was involved the farmer received a fair hearing and obtained a fair result.

Senator Coonan

On a point of clarification, I never said farmers were not being properly treated. I did not make such an allegation. I respect the appeals board.

Deputy Carty

I, too, welcome the representatives and compliment them on a job well done. I endorse Senator Scanlon's remarks. While I do not want to go down the road of making the appeals office redundant, farmers would be saved a great deal of trouble if page 17 of the submission were compulsive reading for every applicant for every scheme. Pages 12 to 16 are well laid out and illustrate the kind of problems that can arise.

It is good that farmers have an opportunity to explain their case. Most of the elderly farmers in my constituency are unable to put their case in writing. However, their treatment by the board is second to none. I compliment the representatives in that regard.

Senator Callanan

I will be brief. I welcome the representatives and the director to the committee. One can express pleasure with the Oireachtas decision to establish this committee. We can equally say with some satisfaction that those individuals from the farming community who have used the system are pleased with it.

The submission clearly sets out the figures for appeals granted and those overturned by the Department. Those figures illustrate the need for the appeals board.

I acknowledge that the appeals overturned by the board are justified and that the Department saw fit to make changes when required to do so as a result of appeals. The recommendations to the Department arising from appeals cases are worthy. If it is necessary to propose that this committee support them then I readily propose we do so. They make common sense.

On Page 17 it is stated that one should keep boundary fences stock proof? What is stock-proof? I ask that as a farmer. It also refers to maintaining hedgerows and to failure to amend plans to reflect changes in the farming system. That is an administrative problem. It further states, on farm investment schemes, that one should not proceed with work before the Department of Agriculture and Food has given written approval. What is a reasonable time to await departmental approval in writing?

Chairman

I, too, compliment the appeals board on its great work. As Senator Callanan said, this initiative came about by way of recommendation of our previous committee. Members on all sides of the House drove this initiative with the Minister and his officials and it has been successful. I have heard nothing but praise from farmers in my constituency. Farmers know that certain times of the year are difficult ones, be it lambing or calving time, and that one can overlook submitting ones forms.

I am aware of the number of REPS problems members come across. Certain appeals officers and REPS officers feel that if a bush falls down or a paling post breaks, that the farmer should be on hand at all times to have these rectified. With the scarcity and high cost of labour, farmers do not have the time to examine fences daily. I know of farmers who lost enormous amounts of money because common sense did not prevail. I compliment the organisation on its application of common sense.

Mr. Dillon

We are happy to hear the positive feedback from members. Senator Coonan asked about the number of appeals that are allowed. In 2002, almost 20% of appeals were allowed, 8% were partially allowed and the Department revised its decisions after the appeal in almost 10% of cases. Therefore, farmers got something in approximately 36% of the cases.

Senator Callanan

They are big winners.

Mr. Dillon

We disallowed 55% of cases. This gives an idea of the rate of appeals that are overturned.

I was asked how independent the organisation is. The legislation states that every appeals officer is independent. This means the decision of an appeals officer cannot be influenced or changed either by the Department, or by me, as director, unless new evidence comes to light or an error was made in fact or law. After that, a person must go to the High Court to change the decision of an appeals officer. From a legislative and practical perspective, they could not be more independent. The Minister used the example of the social welfare appeals office when establishing this office. Everyone accepted that it had operated independently in its ten years of operation. We deal with similar schemes where individual payments are made to persons that must meet certain terms, conditions and obligations. The Agriculture Appeals Act is closely related to the social welfare appeals Act. I am satisfied that we are fully independent. We have the right to overturn a decision and our determination is binding on the Department.

Senator Callanan asked for my view on stock-proof boundaries. The Department approaches this by asking whether it is possible for livestock to move through it.

Senator Callanan

I asked this question against a background where different stock-proof norms might apply. For example, while a boundary may be stock-proof for a herd of cows, it might not be for three year old bullocks. It is a niggling issue and I hope the common sense mentioned today might apply in such cases. It is difficult to determine a stock-proof fence.

Chairman

It is more difficult in west Cork than in other parts of the country.

Mr. Dillon

While a farmer may be satisfied that his fence is stock-proof and his animals do not leave a field, another farmer's animals may break into the field. Farmers that only stock sheep may have fences that are adequate for sheep, yet they could be in trouble if sheep from a neighbouring farm are on their land on the day of an inspection. We always approach this with a degree of common sense. In disputed cases we have occasionally visited the location to examine it.

I was asked what is regarded as a reasonable time to notify a farmer. The protocol on direct payments has time limits in it for dealing with applications. As I do not have the information available to me, I cannot tell the committee how long the Department has to deal with an application under farm investment schemes. However, I suspect it is based on approximately 12 weeks between the making of an application and approval. I may be open to correction on this.

Senator Callanan

The Chairman knows how long it takes to process a planning application through a local authority. Sometimes the application under this scheme can take so long that the time the farmer expected to commence work on the scheme is exceeded. I would like Mr. Dillon to take up this issue with the Department.

Mr. Dillon

We have already taken up such issues with the Department. For example, dairy farmers are under pressure in the spring when cows are calving and while the farmer may have applied for the grant, it is not approved. We have raised such issues with the Department where we feel farmers have been harshly treated.

Senator Callanan

When REPS was first introduced it sought to cut everything and leave only one tree growing every 200-300 metres. This destroyed the countryside and the scheme was changed and then changed again. The correct thing to do is difficult to define. Common sense is a marvellous thing.

Chairman

We all have a part to play in this. There are probably people who do not know this appeals board is in place.

Deputy Carty

Is this document available to the public? We should recommend that the Department furnish this document to every herdowner. Herdowners receive a great deal of other material that is not half as relevant as this.

Chairman

I will ask the clerk to the committee to contact the Department to examine whether this can be done. It is vital that there are good services. In many cases, people will only approach politicians seeking to have a problem resolved when they are in dire straits. It is vital that we spread the word about appeals officers and the fine job they are doing.

Senator Coonan

The delegation has told us that approximately one third of farmers will get something from the appeals process. I hope that when we discuss this again this will have increased to at least two thirds. Farmers who find they have to go to the appeals board do so because of genuine mistakes they make. I do not believe a high percentage of farmers are trying to con the system. This should be examined as farmers who are denied their payments are often in dire straits. I hope the Agriculture Appeals Office will be talking about two out of three rather than one out of three at our next meeting.

Chairman

Are there any further comments?

Mr. Dillon

We are delighted with the feedback we are receiving from the committee today. This was the first annual report of the Agriculture Appeals Office and it pertains to its first year in operation. It is an important time for us to raise awareness of the office and to be seen to be doing what it was set up to do, namely, to provide a proper appeals service for farmers.

Chairman

On behalf of the committee, I thank Messers Dillon, O'Brien and O'Donnell for attending. I wish the office well and I am sure the officials will be available to attend a meeting again.

Mr. Dillon

Certainly.

Chairman

I am certain the Agriculture Appeals Office will hear from us in the interim regarding our constituents' problems. I hope the office keeps up its good work.

Sitting suspended at 2.41 p.m. and resumed at 2.43 p.m.