Section 8: representations received and my assessment of those representations
Jump to
The representations made by the Permanent Secretary of Defra during 2008
Before setting out the recommendations I consider to be appropriate in order to remedy the injustice I have found resulted from maladministration by RPA, I will deal with some representations I have received concerning what it might be appropriate to recommend in the particular circumstances of the scheme which has formed the subject matter of this report.
In line with my normal practice, in September 2008 I sent a draft of an earlier version of this report to Defra and RPA and also to both the complainants. I asked them to comment on the accuracy of the facts set out in my report and to make any representations that they wished to make about the provisional findings that I was then minded to make. I should make it clear at this stage that the financial injustice described by Mr W and Mr Y was considerably greater than the financial injustice I have identified as a consequence of maladministration. It follows that the remedy I have recommended is less than the cost of RPA’s maladministration as perceived by the complainants. Mr W and Mr Y have told me that this is a disappointment to them and I recognise the frustration this must cause them. The representations I set out now are Defra’s arguments against paying compensation, as I have recommended.
In her responses of July 2008 and October 2008 the Permanent Secretary of Defra made three general points concerning my findings which she asked me to take into account before making any recommendations concerning an appropriate remedy for the injustice which I have found was caused to Mr W and to Mr Y.
The first of those three points related to whether it would be appropriate for redress to be provided for financial loss claimed as being incurred within the payment window for the scheme. In the words of the Permanent Secretary:
‘RPA and Defra made a number of announcements throughout the payment window to explain the progress on payments. Farmers had no legal right to receive payment of their claims before the regulatory deadline of 30 June 2006. Even if the bulk of payments had been made in accordance with Ministerial announcement[s] made in 2005, farmers had no reason to expect that their individual claim would be one of those. Farmers, including Mr W, who received payment after the end of the payment window received interest, subject to a de minimis of £50. This is regarded as sufficient redress.’
The second point related to whether providing redress on the basis of the findings I have made about the information provided by RPA about the timing of scheme payments would be appropriate. In the words of the Permanent Secretary:
‘... we do not accept... that the Ministers’ statements that they hoped to commence payments in February 2006 and complete the bulk of payments by the end of March 2006 amounted to a reasonable expectation, let alone a legal obligation, to do so. … We do not think that there are grounds for paying compensation as though we had breached a legal requirement. I do not think the Taxpayer would regard this as an appropriate use of public funds.’
The final point related to whether a factor in deciding whether to provide redress for Mr W and Mr Y should be the administrative convenience of RPA. In the words of the Permanent Secretary:
‘... we would be opposed to setting up elaborate arrangements to calculate actual financial loss in circumstances where the counter-factual would be very difficult to prove. We believe that your report will inevitably generate a new demand for financial compensation for alleged actual financial loss. To respond to all those demands would divert both staff time and financial resources, when both are at a premium from the job that most farmers want us to get on and do.’
My assessment of the representations made during 2008
As regards whether redress should ever be forthcoming other than the payment of interest on scheme payments made outside the regulatory window for such payments, I do not accept the view that, so long as a payment is made, there can be no basis for a finding of maladministration.
Where, as here, a public body has departed from the standards of good administration and that departure has caused injustice to those affected by the actions of that body, I believe it is an important principle that an appropriate remedy should be forthcoming for such a wrong. I do not accept that a public body can avoid the responsibilities it has to put right the effects of maladministration simply by asserting that it has met the minimum standards required in law.
The argument put by the Permanent Secretary is about whether or not they met their legal obligations. It should be clear that my arguments are about maladministration, which manifests itself in many and varied ways that only rarely amount to illegality. Sometimes maladministration does include failures to meet legal obligations but it also covers mistakes that a devotion to legality will not correct. In the absence of maladministration, as I have said in my findings about the injustice suffered by Mr W and Mr Y, most farmers would have received their Single Payment Scheme funding in February and March 2006, as RPA had told them they would; or farmers would have had the opportunity to plan their affairs properly because Defra and RPA would have acknowledged the scale of the problems with implementing the scheme and, for example, could have decided sooner that they would make partial payments.
This brings me to the second point, about whether any recommendations for redress would be inappropriate on the ground that it would be akin to finding that a legitimate expectation in a legal sense had been created, and then broken, by the information RPA gave to farmers about the timing of the scheme payments.
I have not found that that information created legal rights such as those to which the Permanent Secretary referred, nor is my assessment of the consequences of the maladministration I have found about that information grounded in the doctrine of legitimate expectations.
Instead, it is a basic and established principle of good administration that information provided by public bodies should be clear, accurate and complete. Where such information is misleading or deficient in other ways, and individuals who might be expected to rely on such information do so to their detriment, it is also good administration to provide a remedy for the consequences of them doing so.
As for questions of administrative convenience, it is not a recognisable – or, I believe, defensible – principle of good administration that an appropriate remedy for a justified complaint that injustice has been caused to a citizen should not be forthcoming on the grounds of the administrative convenience of the body whose maladministration caused that injustice. Nor do I consider that it would be appropriate to refuse to remedy such injustice in one case because other people might also have suffered similar injustice and might make a similar complaint seeking equivalent redress.
The provision of remedies can be time consuming and involve the diversion of public resources, but the best way to avoid these opportunity costs is, of course, to ensure that maladministration does not cause injustice to the users of public services in the first place.
In my view, wrongs caused by the maladministrative acts of public bodies should be remedied. As I say in my Principles for Remedy, I understand that, for public bodies, there is often a balance between responding appropriately to people’s complaints and acting proportionately within available resources. I accept that public interest, and the possible impact on the public purse of any compensation, can be legitimate considerations. However, finite resources should not be used as an excuse for failing to provide a fair remedy.
The response to my revised draft report in 2009, and my assessment of that response
I sent a further draft of my report to Defra and RPA in September 2009. In the revised draft I presented, as clearly as I could, the effect on the complainants of the serious mistakes made in the 2005 Single Payment Scheme and the evidence of Defra’s and RPA’s roles in those mistakes. I gave Defra and RPA a further opportunity to respond to my recommendations. In November 2009 the Permanent Secretary said:
‘We remain of the view that it would be inappropriate to accept both your second and fourth recommendation in terms of the level of payment suggested, and your fifth … recommendation in so much that, where it was determined that maladministration had occurred in other cases, we would apply the same rationale as you have done in terms of calculating the level of any consolatory payments due. However, with the agreement of my Secretary of State and in recognition of the long wait involved for the 24 cases you have identified, I have agreed that the RPA should make consolatory payment[s] of a higher level than I previously suggested, namely £500, to both Mr W and Mr Y. That applies equally to any of the 22 others where subsequent investigations reveal that maladministration has occurred.’
The Permanent Secretary had previously agreed to make consolatory payments of £250 to Mr W and £350 to Mr Y.
The Permanent Secretary said that it was inappropriate to elevate formal targets to the same status as legal obligations and that, even without making that distinction, the formal target was for 96.15% of claimants to be paid by the end of March 2006 and no individual claimant could have relied on not being in the remaining 3.85%.
In response, I would say that I have not elevated formal targets to the same status as legal obligations; nor are any of my findings of maladministration or injustice based on any individual claimant being able to rely on being in the 96.15% of claimants to be paid before the end of March 2006.
The Permanent Secretary also commented on the findings I have made about the shortfalls against the Principles of ‘getting it right’ and ‘being open and accountable’. She said:
‘I would ask you to consider the implicit message that runs through some of the findings of maladministration, that the RPA knowingly misled Ministers or farmers in general. It is a matter of public record that the Agency’s targets were not met. Ultimately, the then Chief Executive was accountable for that failure and was relieved of his post as a result. However, to the best of my knowledge, in all the enquiries that have been undertaken into these events no evidence has emerged that the Chief Executive or others in the Agency were not open or truthful. Although significant issues arose throughout the second half of 2005, they were all actively addressed. Right up to a matter of days before the public announcement that it would not be the case. I believe it remained the assessment of those concerned that the bulk of payments would be made in March 2006. Payments did of course start in February 2006 in line with the target. While I can, therefore, accept findings that we fell short of your test “to get it right”, I do not accept the same applies to your test “to be open and accountable”.’
My findings of maladministration are set out in full in paragraphs 134 to 145. I do not consider that those paragraphs contain a message, implicit or explicit, that RPA knowingly misled Ministers or farmers in general. Nonetheless, for the avoidance of any doubt, I can confirm that is not my belief.
In summary, none of the representations I received from Defra in October 2008 or November 2009 persuaded me that I should alter my findings or that I should not adopt my usual approach to the securing of remedies for justified complaints.
I therefore uphold Mr W’s and Mr Y’s complaints.
