ANALYSIS: Does the recent High Court inspection appeal case effect you?

The recent ruling on the O’Connor vs the Department of Agriculture, Food and the Marine has implications for farmers who suffered penalties as a result of a Department Inspection.

The Case was taken under the Appeals Act 2001 and therefore the immediate cases that are effected are cases where an appeal was lodged with the Appeals Office. A decision of the Department must ordinarily be appealed within three months of the date of the decision. However, where the Director considers there are exceptional circumstances, may allow an appeal to be heard even after the three months.

Under the Act, any decision of an Appeals Officer or Director may be appealed at any time if new law, evidence or facts come to light.

The new High Court Ruling, has applied the rules of fair procedure under the Constitution as well as the application of the Direct Payment Regulations to the procedures the Department have used in dealing with inspections and the appeals process.

The Judge stated that a Control Report must be provided by the Department, before the inspector draws his conclusions. The Judge also stated that where additional penalties are applied by a higher officer, any such review should also be subject to a Control Report.

What is a Control Report ?

This is the EU’s version of Irish Fair Procedure law. Different inspections require different criteria to be contained in a Control Report.

The Control Report for Land Eligibility must contain at least the following information:

(a)   the aid schemes or support measures, the aid applications or payment claims checked;

(b)  The Persons Present;

(c)   The agricultural parcels checked, the agricultural parcels measured including, where applicable, the result of the measurements per measured agricultural parcel and the measuring methods used;

(d)  where  applicable, the results of the measurement of non-agricultural land for which support under rural development measures is being claimed and the measuring methods used;

(e)   whether notice of the check was given to the beneficiary and, if so, the period of prior notice;

(f)   indications of any specific control measures to be carried out in the context of individual aid schemes or support schemes;

(g)   indication of any further control measures carried out;

(h)  indication of any non-compliance found that could require cross-notification in view of other aid schemes, support measures and/or cross-compliance;

(i)    indication of any non-compliance found that could require follow-up during the following years.

Most importantly, the Control Report must provide an opportunity for the farmer or his agent to make observations and to attest to the presence of the inspector by signing the document.

Where any non-compliance is found the beneficiary shall receive a copy of the control report

Why is a Control Report significant?

The Control Report is the EU way of ensuring that farmers are afforded fair procedures and given an opportunity to have their say in the decision making process. It is therefore critical that the farmer is allowed to make observations before the Department Inspector draws any conclusions. The question must be asked why the Control Reports were not provided and why were farmers not afforded these most basic fair procedures.

The Constitutional Right to a Fair Hearing

The Judge quoted Audi Alteram Partem Rule. This is the citizen’s right to be alerted to and given details of a decision that affects him or her. The citizen must also be allowed appropriate facilities to make the best possible case and reply.

This right is even more important where a decision is made that would have a disproportionate effect on the citizen. In the case of land eligibility, for example, where reductions over 20% were found and penalties of 100% of the annual payment were made these rights must be observed even closer. Therefore, the higher the penalty the more important the control report is to the process.

Farmers who have appealed a decision of the Department may now review their decision in light of this ruling so that full regard will be had to the fair procedures and the failure to provide the proper documents to the farmer prior to drawing their conclusions.

It is not yet clear how the Appeals Office will deal with the volume of reviews that may be coming down the line or whether the Appeals Office will accept appeals from farmers who have not appealed before but may in exceptional circumstances be entitled to a review.

Equally, clarity is required around the remedies that the Appeals Office can provide farmers who’s rights have been breached.

What is also unclear is how the Department will treat farmers who may be entitled to have historical decisions overturned and how this would affect the farmer’s entitlements for the reference years.

Unfortunately, the fallout from this case could take a number of months to assess what remedial actions can be taken to ensure farmers whose rights were breached are dealt with fairly. More importantly there is now an onus on the Department to ensure that proper regard is had to farmer’s rights going forward.

John Cuddy is a Loughrea-based solicitor, with a particular interest in farmer’s rights, Environmental Law and European Regulation.