In the unfortunate event that a Basic Payment Scheme (BPS), Single Payment Scheme (SPS), or other rural development scheme claimant; or British Cattle Movement Service (BCMS) or trader scheme participant has a disagreement with the Rural Payments Agency (RPA) it is important to take care over the mechanism used to resolve that dispute.
The RPA process does not allow a claimant to recover their costs and the risk is that claimants pursue an inappropriate mechanism resulting in a waste of time and costs, or worse, the inability to eventually have a court or competent tribunal resolve that dispute. This article summarises the RPA’s appeals process, before discussing the procedure for litigating over a dispute with them in the civil courts. Then some distinctions are drawn between the different types of dispute, followed by a discussion on the appropriate forum for the resolution of different types of dispute.
The RPA has an internal process for the resolution of disputes, which is summarised below:
The aggrieved party complains by telephone, e-mail or in writing, which is followed by a response from the RPA, who say that they will try to settle the complaint within 15 working days of receiving it. If they can’t, they say they will explain why and work with the aggrieved party to settle it or agree what else can be done.
If the aggrieved party is not satisfied with this, their Complaints Resolution Team will look at the case, and make a decision within a further 15 working days. If this isn’t possible, they’ll contact the aggrieved party to discuss what can be done.
If the aggrieved party is not satisfied with the decision of the Complaints Resolution Team, they will look at the case again. If the aggrieved party is still unhappy they may ask the RPA to pass the case to their Complaints Review Team, who will “…make an independent decision within 30 working days”.
The RPA then say that the next step, if the aggrieved party is not satisfied with the decision of the Complaints Review Team, will depend on whether they have complained about their service, or challenged a decision they have made. They say that if it is about their service, the aggrieved party can ask their MP to raise the case with the Parliamentary and Health Service Ombudsman, which must be done within 12 months of the initial complaint If the complaint is about a decision the RPA have made in respect of Rural Development socio-economic schemes it is possible to appeal to a panel where the aggrieved party alleges that the RPA have: made a mistake with an application; made a processing mistake; or got the law wrong. The appeal must be made within 60 days of receiving the decision letter on form (CA1).
With British Cattle Movement Service (BCMS) decisions, the panel will only consider an appeal against their refusal to issue a cattle passport following a late application, and only where there are “exceptional circumstances”.
Once the appeal form is received, if the ‘Appeals Team’ agrees with the RPA’s (their own) decision, they will refer it to the Independent Agricultural Appeals Panel or, for Rural Development socio-economic schemes, to a panel of senior officials.
The role of the Panel is to establish the facts that support the appeal and to consider whether the RPA has correctly applied the legislation and its published scheme rules.
Should the claimant wish to put their case in person, an Oral Hearing will be arranged.
The RPA’s declared aim is to send the Panel’s recommendation to Ministers within 60 days of receipt of the Appeal. The RPA state that the Minister’s decision is ‘final’, save for any further challenge which an aggrieved party might bring in the civil courts.
This article does not seek to criticise the Independent Agricultural Appeals Panel. Those who sit on it are knowledgeable, practical people, with relevant experience, who usually make fair decisions (in so far as they are able to do so) within the framework in which they operate.
Nevertheless it is argued here that they are not equipped to deal with legal interpretation points or the application of legal principles, and as such this can make the process something of a waste of time where the dispute centres around the interpretation of the law, such as on the definition of “exceptional circumstances” as against force majeure (and indeed whether there is actually a difference).
In most instances those aggrieved by a decision made by the RPA, who find themselves compelled to litigate that dispute in the civil courts, will have to resort to bringing Judicial Review proceedings.
The key point to remember is that the aggrieved party only has three months from the date of a qualifying decision to file a claim, usually as a maximum.
This means that a letter before action, and the rest of the pre-action procedure needs to be completed (in so far as that is possible), proceedings drafted, and then a claim filed all within three months.
It will not have been lost on the sharper reader that the RPA’s process, as outlined above, lasts rather longer than three months. Even if there is no delay between remedies, the cumulative time from the first decision to the ‘final’ decision of the minister is going to be over four months, and is often over a year in practice.
Fortunately, every new decision starts the clock afresh for bringing a claim in judicial review, and as such the ‘final’ decision of the Minister is, in theory, able to be challenged just as any other decision during the process is in principle able to be challenged. The effect of a succession of decisions being made is that the clock for the purposes of bringing Judicial Review proceedings is reset afresh with each decision.
The cynical reader may be thinking that there is not any point in following the RPA’s dispute resolution process, and as such they might as well file a claim, and get on with litigating the dispute in the civil courts. Unfortunately that is not necessarily the case. In disputes with public bodies, any statutory or formal alternative dispute resolution procedures need to be exhausted before judicial review proceedings.
Thus claimants have to pursue the statutory appeals process where appropriate, and then issue their claim in judicial review proceedings if unsuccessful, or risk the court not awarding costs they would ordinarily have been entitled to upon any later victory.
The RPA, in their recent review of the appeals panel, have recognised that there will be some disputes which are not suitable for the panel, their comments are repeated below:
1.5 In exploring the needs of customers in relation to appeals, it is apparent that customers and the Agency can encounter a need for greater legal certainty around both the requirements of the governing European legislation and the way in which that is interpreted. The Panel is not best placed to answer such questions and going through the entire appeals process can simply add delay before a more appropriate course is taken, such as seeking Judicial Review. It is recommended that further consideration be given to possible alternative mechanisms where there is legal doubt; by earlier referral to Judicial Review and/or the potential for utilising the First-Tier Tribunal Service.
Recommendation 4: The Agency and Defra should explore further the potential to transfer non-IACS appeals to the First-Tier Tribunal. The importance of legal clarity has also featured in cases relating to environmental agreements on common land.
Recommendation 5: Should an SPS related issue be clearly identified as involving legal issues which lead to uncertainties of interpretation such that Defra concludes that Judicial Review is a likely end point, the appeal process should be amended to allow early recourse to that route by mutual agreement and without the necessity of exhausting the entire appeal process. No formal change has been made to the process but in some circumstances the RPA should be asked to consider the process and whether or not it will be possible to have such a dispute resolved through the RPA’s appeals process.
From the point at which a decision is made, or a wrong perpetrated there will be three options:
1. Where all aspects of the dispute can be considered by the panel:
Proceed through the appeals process and judicially review the Secretary of State’s post appeal decision if appropriate.
2. Where some aspects of the dispute can be considered by the panel, and some cannot:
Commence the pre-action process in regards the issues which would not be covered by the appeals process, and file an application for judicial review if the matter is not resolved at the pre-action stage, immediately seeking to agree an application for a stay. Then proceed with those matters that can be considered by the panel.
3. Where no aspects of the dispute can be considered by the panel:
Commence the pre-action stages and seek to agree with the RPA that the appeals process is not appropriate, then file an application for judicial review if the matter is not resolved at the pre-action stage.
The RPA’s appeals process often results in disputes being resolved to the satisfaction of claimants. The thrust of this article is to encourage those seeking to have a dispute resolved to take a breath as soon as a dispute arises, and consider how such a dispute should be sought to be resolved. That may well save disappointment later.