Chapter seven: My recommendations for remedy

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  1. Before I make my recommendations for remedy, I should summarise the  factors that I have considered.
  2. My Principles for Remedyinclude apologies, explanations and  remedial action as things to consider in ‘Putting  things right’. They also  include compensation for financial loss, for the loss of use of the money  foregone and for the costs of pursuing a complaint. A further category of  financial payment is compensation for the non‑cash effects of inconvenience and  distress.
  3. ‘Acting fairly and proportionately’ means remedies should be fair, reasonable and  proportionate. It also means it is reasonable to take into account any way in  which a complainant has contributed to, or prolonged, the injustice.
  4. How do the Principles play out  in these nine complaints about RPA?

Apologies, explanations and remedial action

  • All the complainants need apologies and all need  explanations of what money is due to them from RPA. For example, Mr C needs  further explanation of RPA’s treatment of his common land. Mr F needs further  explanation of what RPA have paid him and why.

Compensation for financial loss and loss of use of the money foregone

  • In seven of the complaints, I have found that some  or all of the loss of SPS, and any other subsidy dependent on payment of SPS in  the year of that loss, was in consequence of RPA’s maladministration.
  • The loss of use of the SPS payment was a further  financial loss, measurable by an annual interest rate.
  • In some cases, the main loss dates from the 2005  payment window of 1 December 2005 to 30 June 2006. In another  case it dates from the 2006 payment window of 1 December 2006 to  30 June 2007. I have considered whether or not to date the loss of  SPS from a point within the payment window. In this instance, I have decided  that it is proportionate to date the payments for loss of use from the end of  the payment window. That is because of the relatively small sums involved and  because of the significant work entailed in establishing when RPA would have  paid the complainants, in the absence of maladministration.
  • In calculating the remedy due to the complainants,  RPA also needed to review what overpayments they made to them and how much they  have recovered from them.
  • RPA will also need to consider any representations  about costs connected with the maladministration I have identified, such as  bank charges. In Mr H’s case, he made a financial commitment – not  realising that he was without accurate information on his SPS 2005 payment.
  • All nine complainants paid £100 to appeal. I have  found that that cost was unnecessary.
  • Mr B also sought to judicially review RPA’s  decision on his appeal. That was unnecessary.
  • There were postage costs, and the cost in time away  from work, in pursuing the appeal. I have taken those into account in my  recommended compensation for inconvenience and distress.

Compensation for inconvenience and distress.

  1. The people in each of the nine complaints suffered different effects  from the maladministration that I have found, as their stories make clear. I  have taken that into account in considering the inconvenience and distress that  each complainant suffered.
  2. For example, in Mr B’s complaint, I have found that the farmer’s own  actions contributed significantly to the events that led RPA to apply a penalty  to his SPS claim. However, RPA’s maladministration was also a factor in what  happened to him. RPA need to compensate Mr B for the particular effect on him  of their maladministration.
  3. Each complainant’s story had particular elements that were exacerbated  by the Agency’s maladministration: sickness, bereavement, mounting money  worries, the physical difficulty of managing a farm as a person grows older, or  the responsibility owed to employees. The decision about compensation for  inconvenience and distress is not an exact science. I have resisted the urge to  use different amounts for inconvenience and distress as a means of  distinguishing between the cases. Making such distinctions suggests that I can  calibrate these recommendations to reflect precise degrees of suffering. I  cannot. In some ways, all these people were caught up in the same story and my  recommended compensation reflects that.

My recommendations for remedy

  1. The Defra Permanent Secretary accepted my recommendations.
  2. We asked RPA to check the calculations for each complainant’s SPS claim,  so that the figures used in our recommendations for remedy included the effect  of items such as modulation and any amounts paid by mistake and later  recovered. These figures will differ from the headline figures suggested by the  euro amounts in claimants’ entitlement statements.
  3. My first  recommendation is that the Permanent Secretary of Defra should send each of  the nine complainants a personal, written apology which acknowledges the  maladministration that occurred in his or her case and the injustice that  resulted. This should be sent to them within one month of the date of my final  report.
  4. My second  recommendation is that Defra and RPA should pay Mrs A £13,281.27 – the sum she would have received for SPS 2005 had she activated her  entitlements, within two months of the date of my final report, in recognition  of the financial loss that flowed from the maladministration I have identified.
  5. My third  recommendation is that Defra and RPA should pay Mr B £1,000, within two  months of the date of my final report, by way of apology for losing him the  opportunity to have adequate information at the right time. They should also  reimburse the reasonable costs flowing from his attempted judicial review.
  6. My fourth  recommendation is that Defra and RPA should compensate Mr C, within  two months of the date of my final report, for the effect on him of the maladministration  I have identified in their handling of his 2006 claim to SPS. This injustice  was worsened by RPA’s failure to take proper account of his disability. The  Permanent Secretary offered to pay Mr C 50 per cent of the SPS payment he  had missed, giving an amount of £3,635.3958.  In my view that provides an appropriate remedy for the uncertainty he has  suffered in consequence of maladministration. RPA should also engage with  Mr C about reimbursing him for the costs he incurred after RPA used the  wrong bank account for his 2005 support payments.
  7. My fifth  recommendation is that Defra and RPA should pay Mr D £7,745.39 – the sum he  would have received for SPS 2005 had he activated his entitlements, within two  months of the date of my final report, in recognition of the financial loss  that flowed from the maladministration I have identified.
  8. My sixth  recommendation is that Defra and RPA should pay Mr and Mrs E £5,183.99 – the sum they would have received for SPS 2005 had they activated  their special entitlements, within two months of the date of my final report,  in recognition of the financial loss that flowed from the maladministration I  have identified.
  9. My seventh  recommendation is that Defra and RPA should pay Mr F £9,278.0959 – the sum he would have received for SPS 2005 had he claimed correctly, within  two months of the date of my final report, in recognition of the financial loss  that flowed from the maladministration I have identified.
  10. My eighth  recommendation is that Defra and RPA should pay Mr G £2,088.42 – the sum he  would have received for SPS 2005 had he activated his entitlements, within two  months of the date of my final report, in recognition of the financial loss  that flowed from the maladministration I have identified.
  11. My ninth  recommendation is that Defra and RPA should pay Mr H £500 in recognition of  the upset he suffered because of their maladministration in telling him  incorrectly that he would be paid in full for SPS 2005 and taking a year to  correct their mistake. As well as paying this £500 (and the £500 in my  thirteenth recommendation), Defra and RPA should look closely at whether, in  the light of my Principles for Remedy and their understanding of farming  businesses, they should compensate Mr H further for the effect on him of having  inaccurate information when he decided to replace his combine harvester. They  should send me, Mr H and the Member the reasons for their decision. They should  do that within two months of the date of my final report.
  12. My tenth  recommendation is that Defra and RPA should pay Mr I £11,479.1360 – the sum he would have received for SPS 2006 had he submitted his claim within  the SPS deadline, within two months of the date of my final report, in  recognition of the financial loss that flowed from the maladministration I have  identified.
  13. My eleventh  recommendation is that Defra and RPA refund the £100 fee that each of the  complainants paid to complete RPA’s appeal process. They should do that within two months of the date of my final report.
  14. My twelfth  recommendation is that Defra and  RPA should compensate the complainants for the costs associated with being  deprived of the use of the relevant SPS payment. For simplicity, that  compensation should take the form of interest from the end of the relevant  payment window, unless the complainant demonstrates to Defra and RPA that they  incurred greater losses. RPA and Defra  should do that within two months of the date of my final report.
  15. My thirteenth  recommendation is that Defra and RPA should pay each of the nine complainants  £500 in recognition of the inconvenience, distress, and frustration they  experienced in consequence of the maladministration I have identified. They should do that within two months of the  date of my final report.
  16. My fourteenth  recommendation is that RPA should give each of  the complainants an up‑to‑date statement summarising the money paid to and  recovered from him or her since the start of SPS, and any other information  which RPA consider relevant to his or her understanding of his financial position.  In Mr C’s case, they should give him a full explanation of the land areas  used to calculate his SPS payment and of reasons for the change in his common  land rights, and if necessary, visit him. In Mr F’s case, they should give  him a full explanation of the payments he has received and, if necessary, meet  him. In Mr I’s case, RPA should tell him how his SPS claim stands in terms  of any payments from the National Reserve. In each case, RPA should make good  any further shortfall they identify between what the complainants have received  in SPS and what they should have received. They should do this within three months of the date of my final report.
  17. My fifteenth  recommendation is that Defra and  RPA should give me an action plan, copied to the complainants, their  representatives and the Members, setting out the systemic changes they have  made, or are making, that address the maladministration my investigation has  found. They should do that within two months of the date of my final report.

Ann Abraham
Parliamentary and Health Service Ombudsman

September 2011

Footnotes

  1. « Defra and RPA’s calculations put  Mr C’s total 2006 SPS payment at £8,474.18. He received £1,203.41 in 2007,  as a result of what he had claimed. That left an estimated financial loss of  £7,270.77. Half of that is £3,635.39.
  2. « Mr  F claimed 25.04ha in 2005 and 22.24ha of that was dual claimed. A further 0.7ha  was ineligible for SPS. His correct and activated land area for SPS 2005 was  2.8ha.
  3. « The total payment due to Mr I was £26,285.22, but RPA have confirmed that they  paid him £14,806.09 on 19 February 2007 and have not recovered that  payment.

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