I appreciate that but it is not always what they demand. If they are the paymasters in that area we have to follow. Some 3,000 people who did not even sign the forms but simply sent them away were fined and appealed last year. The IFA and ICMSA should ensure that help is there for people who need it.
Negotiations are ongoing with the farming representative organisations about the precise terms to govern this scheme. When those negotiations are completed, I hope to be in a position to make provision, by amendment at Committee Stage or by order, whereby the new office can assume an appeals function in relation to the non-valuation aspects to which I referred.
Regarding the compensation scheme for depopulation on account of BSE, I do not consider the appeals office to be an appropriate forum. The issue is one of valuation. As the evolving scheme matures, there may be a good basis for bringing appeals under this scheme within the remit of the appeals office, but this must be left open because we have an emergency now that hopefully will not be there in one or two years' time. No animal born since 1996 has been found with BSE and we hope there will be an end-solution in two years. It would be possible to bring appeals under the scheme during a calmer time but not in the present emergency.
Reference was made also to delays in making payments under certain schemes. The protocol on direct payments has laid down stiff targets, as did its predecessor, the charter of rights for farmers, and in general these targets are being met. The application process has been substantially simplified, making more use of pre-printed application forms and bar-code readable passports for the animal premium schemes. This year will see further simplification with the introduction of the area-based system for payment of disadvantaged areas compensatory allowance.
The bottom line is that standards are high. Where there is room for improvement, I intend that my Department, which has an excellent record in this area in terms of European comparisons, will take the necessary steps. One of the difficulties which the Department of Agriculture, Food and Rural Development faces is that many farmers are slow to respond to queries which arise when applications are being processed. The protocol on direct payments contains a section dealing with the role of the farmer in ensuring the various targets are met. The achievement of payment targets can be greatly facilitated where farmers respond quickly to correspondence from the Department. The Department is committed to making maximum use of data collected under the cattle movement monitoring system in the processing of payments. The database is only useful if farmers ensure that they register the birth of all new-born calves and notify the movement and deaths of all animals.
Recently my Department undertook a herd reconciliation exercise with a view to bringing the database fully up to date. This involved the issue of herd profile forms to farmers. It is somewhat disappointing that as many as 18,000 farmers have so far failed to return these herd profile forms. That failure is unfortunate.
Both the IFA and ICMSA, as well as those of us in politics, should be educating farmers to fill out the required forms, and also to respond to officials. We have all heard the joke about the fellow who gets the tax bill and throws it in the fire, believing that is the end of it and he will never hear from them again. These matters are now being followed up and that realisation is getting through to many farmers. For 18,000 out of 146,000 farmers not to have replied is a sizeable amount and they will be at a loss if they do not improve in this area.
Senator Tom Hayes was anxious that the new office should have power to consider appeals against decisions taken some years ago. I can sympathise with his motivation, but I do not consider retrospection to be realistic. Any newly elected Member of either House will find that they get every refusal for the past 20 years referred to them. We all did. When I came to the House first I got every failure in the business to deal with. If we get into retrospection, the people who made decisions may not be there anymore. I do not think it would be fair to those who made decisions years ago to ask them to recollect the issues. It would amount to re-opening any case where the appellant was still dissatisfied with the decision of the Department or the appeals unit. That would not be productive. It would generate a very large workload and would raise hopes almost certainly to be subsequently dashed. Unfortunately people believe that if a case is re-examined they can expect a favourable result. That would be disastrous and would lead to further disappointment.
Regulations will be prepared under section 15 is to specify a reasonable interval – perhaps 28 days – within which an appeal must be made. This will be subject to an overriding power on the part of the director to accept appeals made late, at his or her discretion and where he or she is satisfied that the facts justify late acceptance, say if somebody is sick, has a broken arm, or has had a bereavement. The appeals office will deal with matters on a human basis. The established Civil Service is sometimes debarred from considering such matters by the regulations from Europe. The only exception is the force majeure which is a major issue and unfortunately a telling one which may have other consequences.
Senator Doyle wondered about section 18. The purpose of that section is to preserve fully the right of recourse to the Ombudsman in spite of the appeals officer. There is still that right. There was a recent case not too far from Senator Jackman's area where the Department feels that the penalty was too severe. The regulation from Europe unfortunately decided the penalty that had to be applied. It involved the removal of a ditch for safety purposes because tragically somebody had been killed coming out of an entrance when the ditch blocked the view of the roadside. It was the neighbouring farm and the man removed the ditch in response to the accident. We have appealed our own decision to Europe, and that will give some flavour and show that there is reality, practicality and humanitarianism within the civil service.
Senators Callanan and Hayes emphasised the importance of an oral hearing. Such a hearing will be held in every case where it is requested, unless the director is satisfied that the request is frivolous or vexatious. I was part of a recent oral hearing in Senator O'Meara's area. There were nine meetings about the matter and no new evidence was produced. We decided to have a full meeting of all the people dealing with the matter from the person who initially started it to the people at the finish. No new evidence was brought up after an hour in Nenagh. That totally wrong appeal was vexatious, but the amount of time involved was great despite the fact that the more the man said the more he condemned himself. Where there is a genuine appeal people will be heard.
Farmers can also be assured that they may be accompanied by an expert of their choice, family member, or as Senator Connor has offered, a public representative. We are delighted that the Senator can spend his time on this as well as the social welfare appeals. I should point out – because some anxiety was expressed about this – that the oral hearing will be in private, so that a farmer appealing need have no fear that the confidentiality of his or her case will be breached.
Several contributors to the debate thought that the 12-week interval for processing appeals was too long. I would prefer a shorter time limit. There are some cases which cannot be made within this limit. I am reluctant to provide a statutory obligation to deliver a result within a specific time, because there may be outside evidence to be brought in, and outside bodies over which neither the appeals officer nor the client has any authority. The relevant person may be away on holidays. It would be wrong to tie it down but it is the intention to make it a shorter term period. There is the risk of compromising public faith in the law because it simply would not be possible in all cases to observe the law. It is worth noting that neither the Social Welfare Appeals Office nor An Bord Pleanála has statutory time-limits, largely for this reason. We are all frustrated with An Bord Pleanála's appeals section which writes letters every three months advising of another query and a further three month delay.
I do not consider it wise to lay down a precise target in statute, but I am anxious to keep as short as possible the time taken to turn an appeal around. The guidelines I will issue under section 8(4) will therefore be as tight as I can make them, and shorter than twelve weeks if that is at all realistic. I am anxious to be helpful here.
Misgivings were also expressed about the position of REPS planners, where it may happen that an error by a planner may give rise to a penalty on a farmer. I listened with glee because these are people who are charging a sizeable fee and who should do a professional job. I had a case in my own constituency where the REPS planner did not even leave the kitchen table. He looked at the maps. They were old maps and three ditches had been removed in 1980 with grants from the Department but they were still included. When the inspector came, the ditches were not there. It was then I discovered that the REPS planner had never left the kitchen. He got a soft fee for this instead of walking the farm and advising on what needed to be done.
Planners are employed by farmers to draw up their agri-environmental plans, and they also have a role in the subsequent annual applications for payment. Ultimately, if it happens that a farmer meets difficulties and perhaps suffers penalties because of error by a planner, it is up to the farmer to take that up directly with the planner. He has insurance and it is time we started using some of this to protect people who are misguided and misinformed in those areas. There is a responsibility that those who are weaker in that area will be dismissed by word of mouth and not taken on in future. It is a professional job to advise somebody and if a fee is being paid responsibility should be taken.
My Department takes action against REPS planners when there is evidence that they have contravened the terms of approval for REPS works. Sanctions take the form of warnings, and a series of warnings can result in significant financial implications for planners. I believe that this system is a substantial deterrent against negligence or deliberate breaches of the conditions of approval. It is only fair to say that the vast majority of the thousand or so approved REPS planners carry out their work in a competent and professional manner and that there are very few who have merited sanctions. Just as with legal advice, people are slow to take action in relation to a person who has wronged them by giving the wrong advice or indeed not acting on the plan.
Senators are aware that if a farmer suffers a penalty under REPS – and I know that the penalties can be very severe – even now he or she has a right of appeal, and under this Bill that appeal will be to the new appeals office. If a farmer believes that the error by a planner has contributed to a penalty, he or she is free to make that argument in the course of the appeal. Where they have been wronged by a professional they have the right of appeal.
A number of Senators referred to the position of particular applicants under the various schemes. This is not the appropriate forum in which to respond in detail to the claims or criticisms made. Where Senators believe that a farmer has been unfairly treated on an original decision and then on internal review within the Department, they should encourage that farmer to lodge an appeal. There is already an appeals unit dealing with headage and premium cases and arable aid. There is also a REPS appeals mechanism. Obviously these mechanisms will be enhanced on the passage of this Bill, but even now there is an effective means of recourse for farmers in this position where they can actually meet the appeals board, talk to them and make their case. I have found it a reasonably good system to date and have no great objection to the system that has been working. It is a tribute to the officers who have imposed the penalty in the first place, that if there are circumstances that come to light that they were not aware of, they have generally been very sympathetic and have recommended a reduction in the penalty.
I have seen cases where the original officer has changed his mind or downgraded his opinion and the appeals group upheld his original decision on the basis that they felt it was appropriate. They operate quite independently of each other. I have great respect for the civil service, for what they have done over the years and for the high standards they have kept.
Suggestions were also made in connection with the referral process for representations under the NBA scheme, where the Minister intends to refuse or revoke a certificate of approval. In particular, it was suggested that appeals from decisions by the Minister should be referred to the appeals office in the normal way, instead of getting the input of the office in advance in accordance with the scheme of the Bill. I can see the basis for this proposal, which is reasonable, but it seems to me to be ruled out on the following ground: it is the Minister himself or herself who will make the decision whether ultimately to refuse or revoke, and it would not be proper that that decision should be overruled by a body ultimately reporting to the Minister. To take advice in advance seems the best way to meet the case. I do not see any Minister treating that advice casually. The strong likelihood is that the Minister will be guided by the advice. Furthermore, the NBAS provides that the Minister's decision may be appealed to the Circuit Court and that court's decision will be final. Any change to that, such as has been proposed today, would require an amendment to the NBAS Act.
I have a great deal of sympathy with the reservations and the criticisms that have been expressed on many occasions, particularly by those who work in a rural constituency. Senators will, I hope, accept that I am as concerned as anybody to ensure that the penalty fits the crime. There was a case in Cork recently where two people injecting slurry into an animal had the probation Act applied. It was an act of treason, particularly bearing in mind the current issues with beef, but the cruelty involved alone was huge. I believe there is a further case pending. It is a small minority but they must be weeded out.
The same applies to the people who are swapping tags. I am aware of a case where an eight year old cow's tag turned up on a heifer and the cow has been killed twice. Those cowboys have to be got rid of. I believe that we will soon see farming being licensed. Only an appropriate per son will be licensed to produce food. People who prepare and sell food are licensed by the health boards and I believe that the primary producer at some stage will have to be licensed. It will be a way to ensure that the 99.9% of our farmers who are caring producers, proud of their product and want to be even more proud of their product are fully recognised under that system.
Senator O'Meara mentioned the oral hearings. Evidence may be taken on oath but it does not have to be taken on oath. There was a famous court case some time ago where Senator Jackman came from originally. The defendant was accused of killing a man at a faction fight and the doctor said, "He had a thin skull, it was not the killing blow that killed him." The accused man said, "You heard the good doctor. The fair at Cappawhite is no place for a man with a thin skull." He did not have to swear it but he could defend it.
