Oireachtas Joint and Select Committees
Tuesday, 3 July 2018
Joint Oireachtas Committee on Agriculture, Food and the Marine
Report of the Agriculture Appeals Act Review Committee: Discussion
I welcome Dr. Kevin Smyth, assistant secretary, and Ms Eilis O'Connell, assistant secretary, Department of Agriculture, Food and the Marine. The meeting is to discuss the report of the Agriculture Appeals Act review committee.
I draw the attention of witnesses to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.
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 Houses or an official either by name or in such a way as to make him or her identifiable.
I call Dr. Smyth to make his opening statement.
Dr. Kevin Smyth:
I thank the Chairman and the members of this committee for the opportunity to address them today with my colleague, assistant secretary Ms Eilis O’Connell, regarding the Agriculture Appeals Act 2001 and the work of the appeals office.
The programme for partnership Government provided for a review of the Agriculture Appeals Act 2001 to ensure the independence and efficiency of the office in dealing with appeals from farmers. In September 2017, the Minister announced the commencement of such a review through the establishment of a review committee to carry it out and to furnish a report. The report was to include recommendations on the legislation governing, and the future operation of, the appeals office and was to be completed by the end of that year. The process was to featureconsultation with relevant stakeholders.
The committee comprised Niamh O’Donoghue, former Secretary General, Department of Social Protection and chairperson; Padraig Gibbons, former chairman of Connacht Gold and former president of the Irish Co-operative Organisation Society; and Paud Evans, former principal officer in the Department of Agriculture. Written submissions were invited and 20 submissions were received by the closing date.
In February 2018 the report was published for consideration by the relevant stakeholders, including this joint committee, explaining that the recommendations were currently under consideration by the Department, particularly with regard to legislative changes that may be required to give effect to them. The consultation process that has been under way is now drawing to a close. To date, there has been a submission from this committee and we have had meetings with the director and a senior staff member in the appeals office, staff in the payments and entitlement areas and a recent meeting with six farm organisations after last week’s farmers’ charter meeting. This committee meeting will help to further inform the process.
We are aware through the committee's letter of 2 May that it has the following issues of concern: the status of the independence of the chairperson of the appeals panel; the independence from the Department of any legal advice sought by the appeals panel; and the validity of inspections that are not carried out in accordance with terms, conditions and guidelines of the scheme. Furthermore, the committee also indicated that its engagement will be ongoing in reviewing the legislation as it progresses through the Oireachtas. The Minister is interested in the further views of the committee and would like to ensure all interested parties have had their say on the contents of this important report.
There were 31 recommendations in total but I will highlight some of the key points in the report. The most significant recommendation is probably the introduction of an independent agricultural appeals review panel. Others include a fee to be set by the independent review panel for the progression of an appeal to the second tier; the Department should continue to broaden the pool from which appeals officers are recruited; a structured programme of knowledge and skills-based training and development to be put in place; the appeals office should publish a principles-based code of practice; the appeals office should put structures in place to ensure that appellants can be advised of the progress of their appeal; greater engagement by the appeals office with the farmers’ charter of rights monitoring committee; the appeals office should consider recording oral hearings and the possible use of video conferencing; the introduction of a plain English booklet giving details of the decision-making process may be given to all claimants; the time limit for submission of correspondence to be extended from 14 to 21 days; the appeals officer may have discretion as to whether to hold an oral hearing as necessary; arrangements are to be made to appoint a deputy director with potentially a greater remit; the Department should look at the robustness of its internal review process; the report of a finding by the appeals office should be timely and comprehensive in the interest of informing both the Department and the appellant; and the regulations should be amended to require both parties to submit a list of attendees that they intend to have at an oral hearing and that any new evidence should be submitted two weeks before the date of the hearing.
Subject to a positive decision by the Minister, certain of these recommendations can, in effect, be put in place relatively quickly. I would cite as possible examples areas such as the introduction of greater levels of training; the publication of more detailed information; a better emphasis on timeliness; and the procurement of additional IT resources etc. The biggest challenges arising from the recommendations, such as the introduction of an agricultural appeals review panel comprising the director of the appeals office and non-departmental staff, would require primary legislation to be introduced.
A preliminary legal view has also been put forward that the recording of proceedings would need a legislative change as section 8(2) of the Agricultural Appeals Act currently requires that hearings be held in private. The use of video recording and communication tools such as Skype would need to be carefully examined legally, particularly with regard to the use of personal information and GDPR ramifications. Consideration will also have to be given to the practical aspects of the recommended changes. For instance, there would be logistical issues and increased administrationarising from having four additional persons review each case. Currently, there is no second oral hearing and appeals to the director are based on fact or on law. The recommendations seem to make provision for the independent review panel to meet the parties again.
If I can paraphrase the consultation that has taken place to date, I would say that the groups that have given their views have been broadly supportive of the contents and recommendations of the report. The farm organisations spoke of the need to strengthen the independence of the appeals office and the importance of open access to an oral appeal. The appeals office itself gave the view that any changes must not compromise the authority and responsibility of that office and, in particular, of the director. The appeals office welcomed the recommendations of a six-month timescale for appeals and the use of a code of practice. Staff within the paying agency wanted greater certainty on the timescale of appeals and to curtail the late introduction of new evidence.
It would be remiss of me to suggest that all recommendations in the report have been met with universal agreement. The farm organisations are opposed to the introduction of fees for further appeals. Reservations have also been expressed about the use of recording and video conferencing from the point of view of the stress it might cause, the legal and privacy implications and its efficacy as a communications tool. I am happy to discuss these views with the committee.
Regarding the next steps, the views of all parties will be summarised and sent in a submission to the Minister on the best way to implement the report.
There will be an emphasis on those recommendations that can be put in place quickly. Definitive legal advice will be sought on the best way to proceed with those recommendations that require primary or secondary legislation. I thank the committee members for their time and we are happy to answer questions.
I thank Dr. Smyth for his presentation. I have been asking questions about this issue for a long time on this committee. It was a condition of the Programme for a Partnership Government that there would be a review of the appeals process. The reality on the ground is that farmers have lost confidence in the appeals process and the procedures surrounding it. Our job is twofold. We want to restore farmers' confidence in the process and we can do that by ensuring there is fairness in the process. We need an independent chairman. With all due respect to the personnel of the Department, an independent chair is not someone who has spent his or her life working in the Department. Many people with the required CV are not former employees of the Department. I am not casting aspersions on anyone's character but we are trying to restore confidence and that is one of the essential things that needs to be done first.
We also need an appeals structure with farmer representation. I refer to the model for tuberculosis, TB, compensation. If there is a dispute over TB compensation, an appeal can be made to a body which has farmer representation. In general, that has worked well and there are few complaints when people use that appeals process. People are happy with the findings. I know of one case lately involving a high economic breeding index, EBI, herd. The farmer was not at all happy with the valuation system. An appeal was made to that body and it was felt there was a fair hearing. Farmers' representation on the appeals body added greatly to the credibility of the process.
When an inspection is carried out and it is proven subsequently that it was not carried out correctly according to the terms and conditions of the scheme, then no sanction should be applied. From past experience, unfortunately, in a significant number of cases inspections have not been carried out in accordance with the terms and conditions and substantial fines have ensued. If there is a Garda prosecution and everything is not done correctly, when it goes to court it is automatically thrown out without any debate. The same thing has to happen here. Department officials who are carrying out inspections have a rule book. If it is seen that they have not adhered to that when carrying out the inspection, if it has not been in accordance with what is laid down in black and white, then that inspection has to be null and void. That is absolutely essential to restoring farmers' confidence in this whole process.
I welcome the review. We have our Agriculture Appeals Act and we have a job of work to do now. Those changes would go a long way towards restoring farmers' confidence and ensuring that in future farmers would be confident of getting a fair hearing. It is important to state that we are talking about a minority of cases where people feel they have to go for appeals - not every farmer that is going down this route. Where they do go down this route we have had much publicity in the last couple of weeks about questions being asked. In my neck of the woods, this issue goes back five, six, seven and eight years.
We were very critical and I produced figures here which showed the levels of fines in one part of Tipperary versus the other part was at a ratio of 3:1. In my view, there were not more non-compliant farmers in north Tipperary than south Tipperary, and definitely not to that ratio. There were significant issues. Many of those individual farmers, unfortunately, went the appeals route and the outcome was not what I would consider satisfactory. Those are my recommendations and they come from extensive consultation with farmers who have been in throes of this and feel they have been unfairly treated by the whole process. If we could get those three things from this review, we will be going a long way down the road to restoring confidence and ensuring that farmers will feel this appeals process will give them an fair outcome. They might not always like the outcome they get but if they get a fair hearing, that is what is being asked for and demanded.
I thank Dr. Smyth for his presentation, which I read earlier. I come across appeals regularly and the issue is that people often feel they are up against it. They already have a negative finding before they go for the appeal, they are trying to prove themselves and the people they meet are very much on the side of Department. That is generally the way people look at it. I welcome the report and its recommendations. I have an issue with the fee being put in place because in the vast majority of cases the people looking for an appeal are looking for something to which they are entitled. They feel they are being done out of that wrongly or they would not be appealing. Suggesting a fee should be put on them would be an unfair penalty to place on people who already feel penalised by the system.
I agree with Deputy Cahill's suggestion that the chair should be somebody independent. I do not think it has to be anyone with any particular knowledge of agriculture or the agricultural sector. It can be someone from outside. There are many eminent people who, with a short bit of training up in the areas of the various schemes, would be able to come up to the standard and deliver. Most of the recommendations are clear and sensible. One simple example that I came across recently is where a person was reported to the local authority, wrongly, for spreading slurry. The local authority came out, did a short investigation and then sent a report off to the Department. That person feels wrongly done by because he or she had not breached anything. They also feel that the investigation by the local authority was simply to try to substantiate the report that was already sent in.
Those of us who live in rural Ireland, and in the farming community, know that when somebody reports somebody else it usually has nothing to do with the issue reported. It is about some other gripe from long ago. That is often the case in many of these instances. When something like that goes to an appeal it is difficult to sort out the issue. There needs to be a clear sense that people will get a fair hearing. Many people in the farming sector feel they do not at present. I have come across several people who, when they have taken a beating on something, say they would not even bother appealing it because they do not think they would get a hearing. That is a bad thing. People should feel confident, if they feel they are in the right about something, that they should be able to proceed.
Even if the appeals mechanism does not work out for them, they still have recourse to go to a solicitor and go to court. That is a reality that many people do not understand. They do not know they have that right. They should take that right when necessary, if they feel strongly enough about it. That should not, however, be necessary. The appeals mechanism should be strong enough to deal with it and deal with it adequately. As Deputy Cahill said, people often may not get the result they want.
However, although they may not agree with the decision, most people would get some level of satisfaction from being afforded a fair hearing. I welcome the work which has been done by the Department but I do not agree with people who are already being penalised being charged a fee.
I thank Dr. Smyth and Ms O'Connell for attending. On the appeals system, part of the problem relates to how the schemes are structured and the lack of flexibility regarding a mistake a person may make and the resultant penalty. Where do common sense and reasonableness come into the process? At all stages that an application is with the Department or under appeal everything is ruled by absolutely strict and rigid terms and conditions which often do not take cognisance of the realities and difficulties for people participating in schemes. We all understand the need for terms, conditions and rules but there must be some level of flexibility and understanding. That is where many of the difficulties originate. What capacity is there for flexibility within the system and the various schemes? Surely we can address that issue in terms of how the system and the terms and conditions are set up.
In the past two weeks, I have become aware of three relevant examples. A mistake relating to a tier 1 condition was made by an adviser in the submission of a GLAS application for a small rented plot of land, with the result that the landowner was unable to avail of the scheme after the first year. The full amount of €5,000 was paid in that year but although all the tier 2 actions were carried out in respect of the land, the farmer has been excluded from the GLAS scheme, must repay €5,000 and will miss out on €25,000 potential income over the five-year period. No flexibility was shown in respect of that mistake. Considering the extent to which such people depend on EU schemes for income, that decision is extremely inflexible and unfair to that full-time small farmer.
An appeal was lodged regarding a carbon navigator not being submitted on time to the beef data and genomics programme. The person carried it out, wrongly believed it had been submitted and must now repay €2,000 and has been excluded from the scheme. Again, there was no capacity for flexibility in that regard.
An application to TAMS relating to a low-emissions slurry spreader initially purchased on hire purchase was refused. The applicant later bought the spreader, which cost €40,000, outright in order to claim on it and is within the allowed three-year time period for to submit a claim but may not do so. That young farmer is out of pocket for 60% of the value of the spreader and has been left in an exceptionally unenviable position.
People considering appeals in respect of land and eligibility matters are not issued payment until those appeals are heard. Due to the fact that they do not wish to be without the payment until the completion of the process, they may accept a small penalty imposed on them although they think it unjust. In what way can there be more flexibility and understanding to better reflect the reality of farming and understand the impact that decisions based on very strict terms and conditions can have on the farming community? That is key.
On the implementation of the recommendations and timelines, the committee has reported and the recommendations have been made but there is no clear timeline for implementation. Can we ensure that clear timelines will be put in place for what will be implemented and when?
I thank the witnesses for attending. As Dr. Smyth is aware, the committee has been engaging on this matter for over a year and has examined the entire process, which is obviously very good.
How many cases have been appealed so far this year compared with the same time last year? Has there been an increase in appeals relating to specific areas or schemes such as the beef data and genomics programme referred to by Deputy McConalogue, GLAS or any other scheme? Are greater numbers of appeals being lodged in some areas of the country than was previously the case?
To follow on from the Deputy's question on timelines, it is over a year since the committee began its consultation process on the issue and communications with the Department in that regard. Dr. Smyth stated that some recommendations can be implemented now or reasonably shortly but the key issues will require legislation. He referred to the fact that only the director may deal with individual cases, of which the committee was aware. If there is an increase in the number of cases, how will one person be able to get through them in a timely manner? That will be a major issue down the line.
Whether we like it or not, legislation may progress slowly through the Houses and agricultural matters may not be afforded much priority, although all present would like them to be. It will take time to increase the priority of legislation in this area, although this issue is of importance. How can the necessary changes be progressed at a far quicker rate than is currently the case? The year-long consultation process is coming to an end. It is likely that some cases have been under appeal for up to a year and a half. When will they and the overall issue be addressed?
Dr. Kevin Smyth:
I thank members for their questions. People have not totally lost confidence in the appeals office. They believe there are ways in which things could be done better. There is a need for fairness and greater levels of confidence in the office. Many people think the appeals review panel is the mechanism to achieve that. Much stress has been put on that. As referenced by Deputy Cahill, the independent chair will be vitally important. He or she will drive the new system. All those consulted emphasised the importance of people respecting the independent chair and those on the panel. I acknowledge Deputy Cahill's point regarding farmer representation on the five-person panel and will relay it to the Department.
An inspection that is carried out incorrectly should be a basis for an appeal but that depends on the scale of the error. Deputy McConalogue stated that a small mistake by a farmer should not result in a big penalty. Similarly, a failure by an inspector to sign a sheet or include a date should not automatically invalidate the inspection. It is for the appeals office to determine whether an inspection is valid.
Obviously, if it is of the view that the inspection is not valid, then the whole thing should fall automatically.
Dr. Kevin Smyth:
As stated, one needs to show the areas. I would be interested to hear of examples the Deputy has in that regard.
I agree with Deputy Martin Kenny that certain farmers are of the view that the appeals process is difficult. They are not used to it and it is one of the things that should be borne in mind when we speak about video conferences and so on. It is difficult enough for farmers to turn up at appeals hearings. One can see why video conferencing might be a more efficient way of doing things but for a person who is not used to dealing with a public process, sitting in a Department office in front of a video camera might make the process even more difficult. It must be borne in mind.
In the context of who is chosen as the chairman, one of the problems is that the legislation is awfully complex. I wonder if a person who knows nothing about agriculture would be able to take on board the complexity of the schemes.
On Deputy McConalogue's comments regarding GLAS, the beef data and genomics programme and TAMS cases, I can see from where the difficulties are coming. This is borne of the complexity of the schemes that are in place. There are certain things we have to deliver, and this is one reason we have problems. While we try to make the schemes as simple as possible, there are areas where they become complex and then things have to be done and certain hurdles have to be crossed. An independent chairman should have the technical expertise to know and understand the schemes at a fairly early stage.
Dr. Kevin Smyth:
I understand that. This point was made by all six farm organisations. On the other hand, it must be possible to find a chairman who has a knowledge of agriculture and who is acceptable to all. I take the point regarding the Department.
On the panel, it might be useful at times to have a person who has a knowledge of schemes and who would be able to help with the technicalities. I would not rule it out. The person could be departmental or a former public servant from Teagasc who could be an asset. Do not rule people out automatically.
Dr. Smyth referred to having a knowledge of schemes. There are many consultants out there, and other people, who work on the schemes besides Department staff. The Department is on one side of the fence but there are many more people on the other side now who have a serious understanding of schemes. I do not accept that the only gene pool comes from the Department. There are many people out there who understand these schemes inside out. If we are to restore confidence in the scheme, then independence is fundamental. We can see how the farmers' charter worked. We have always managed to get individuals for that who are seen as independent to all groups around the table. We need the same in this structure also. I understand that Dr. Sean Brady is the chairman of that group.
Dr. Kevin Smyth:
I do not disagree with the Deputy. There is a very wide gene pool. There are consultants who might have the best of both worlds. They have the agriculture knowledge and the status and respect to be able to take the chair.
On the implementation of the recommendations and the timelines, we seem to have three types of recommendations. I am not pre-empting the decision of the Minister by stating that there is one recommendation we can do straight away where we do not require legislation. There are other recommendations in respect of which we might need to bring in a statutory instrument as secondary legislation. Undoubtedly, the slowest part will be when primary legislation will be required. This is what we need for the secondary review panel. We cannot avoid primary legislation for that.
Dr. Kevin Smyth:
We have had preliminary legal advice on the matter. We are aware of what needs to be done but I cannot give any promises. The members know how difficult it is to get legislation through the two Houses. I would be misleading the committee if I said I could give even a rough timeline.
On the 700 directive appeals, they tend to change from year to year depending on what is the most important thing at the time for schemes. For example, the main appeals in 2016 related to the agri-environment options scheme, basic payment scheme inspections, GLAS, areas of natural constraint schemes and the beef data and genomics programme.
Dr. Kevin Smyth:
Yes. On the 2017 appeals, we can see that beef data and genomics programme moved up the pecking order and was the most popular, followed by the national reserve because it was the year of decision for the national reserve scheme. GLAS was also on the list, as were the Scottish derogation payments. We cannot say that the appeals are the same types every year. This year, most of the appeals have been in respect of GLAS, which is top of the list, followed by the basic payment scheme and the beef data and genomics programme.
Dr. Kevin Smyth:
Some of the more complex appeals take over a year. The vast majority of appeals are dealt with in 70 or 80 days, which is below the 90-day limit. The problem with the more complex appeals is that they involve legal issues and complex matters of law. They are extremely detailed and there are also complexities within the schemes to take into consideration. They are the more difficult cases, but they are a minority.
If an appeal were lodged today - 3 July - will it be dealt with in a time-based manner or, on foot of the complexities to which Dr. Smyth referred, will it be dealt with in due course? Will appeals submitted in July be dealt with in December or, if there are complexities involved, will it take longer to dispose of them?
Dr. Kevin Smyth:
Most cases would be dealt with within the three month period. One of the problems with the more complex cases is that often they can go to oral appeals and, for one reason or another, the oral appeal does not take place. In 71 cases, the oral appeals were cancelled at the last minute.
Dr. Kevin Smyth:
Reference was made to the need for common sense around the systems and the schemes. I totally agree with this point but the reason we have an appeal system is that when mistakes are made there must be a way of rectifying it. There are three levels of appeal at the moment: the internal review; the appeals officer; and the director of appeals. At the moment there are some 40 cases going to the director of appeals per year. It has increased in the last couple of years. It was between 17 and 20 but it is now up to 40 cases.
One of the reasons the report should be welcomed is because I believe we should be putting in place mechanisms to assist the director in dealing with this matter and I believe the panel will be of assistance. We might also consider the remit of the deputy director, in terms of reducing the workload of the director.
Dr. Kevin Smyth:
We deem an appeal to be successful when it is allowed or partially allowed and they usually run, in percentage terms, from the high 40s up to 50%. Last year there was a glitch when the level of success fell below 40%. The reason for the decrease was due to the type of appeals, which were on the Scottish derogation, the national reserve and access to entitlements. They were simple "Yes" or "No" appeals in that one either complied with the conditions stipulated to allow one be part of the national reserve or one did not. The response was a simple "Yes, one is in the national reserve," or "No, one is not." There was no scope for appeals to be partially allowed. There was also a very high level of refusals compared with the normal course of events. The normal rate of successful appeals runs from the high 40s and up to 50%. Last year, the percentage fell below 40%.
I apologise; I was called away to vote in the Seanad and my return was slightly delayed.
I want to ask whether the appeals office received independent legal advice. Where does such advice come into play? Perhaps my question has been asked previously.
From where does the appeals office get its legal advice? Does the same location provide legal advice to the Department of Agriculture, Food and the Marine? Does a solicitor in God knows where have a contract to supply the appeals office with legal advice? How does the appeals office contract out its legal advice?
Do members have any more questions? No.
As the witnesses will have heard, the biggest concern is time. I know of a TB-related case that dragged on for 18 months, which I thought was extraordinary, but in the end the appeal was 95% successful. First, the farmer lodged his appeal with the appeals office and received 95% approval. Unfortunately, the Department appealed the decision. At the time I did not think that the Department could do so. However, the director agreed with the original approval of 95%. The farmer had to wait 18 months to receive a payment of €30,000. Eighteen months is a long time for anyone to wait. In addition, as his herd was restricted for the duration, he could not sell his stock to replace animals or be able to exist financially. He was put in a very difficult position. I am talking about one case but I am sure there were similar cases. The system is draconian because he had to wait 18 months to get his case dealt with.
I do not expect the representatives to comment on the following case. I know of a case in my constituency that went to the High Court. The farmer won his case in the High Court but then the Department lodged an appeal. He took on the Department and won his case in the High Court. I do not understand why the verdict was not accepted by the Department, particularly in terms of one's concept of fairness. The case has been lodged with the Supreme Court. A substantial amount of money is involved and the time lag is huge. Ten years or more have elapsed since the case was first initiated, which is very unfair on one individual farmer. I do not expect the officials to comment on the case.
I personally think that when the farmer won his case in the High Court, it should have been the end of the matter. Unfortunately, the decision was appealed by the Department, which makes farmers sceptical of the whole process.
Since there are no further questions I thank Dr. Smyth and Ms O'Connell for appearing before the committee today. I am sure they understand our interest in this particular issue. We look forward to engaging with the process as it moves along and we hope that happens as soon as possible.