Chapter one: Introduction

The complaint

3. The complainants allege that RPA, an executive agency of the Department for Environment, Food and Rural Affairs (Defra), generally mishandled the complainants' applications ³ for SPS and their later representations about their applications. They are also aggrieved by the way that RPA have dealt with their complaints about RPA's mishandling. They allege that this amounts to maladministration by RPA.
4. In particular, the complainants allege that RPA:
   • failed to take decisions based on all relevant considerations because they failed to consider (and/or respond adequately to) all the documents submitted, or used standard letters which failed to cover all the issues raised; and/or
   • were not customer focused or open and accountable because they delayed notifying them that they would not be paid and also of the reasons for that non-payment; and/or
   • failed to return telephone calls when this had been promised; and/or
   • misdirected them about the status of their particular cases; and/or
   • provided poor quality guidance about how to complete applications which was sometimes ambiguous; and/or
   • otherwise provided poor quality advice and customer service to them.
5. As a result of RPA's mishandling of their cases, the complainants claim to have suffered injustice in the form of financial loss and inconvenience, distress and additional expense in trying to resolve their applications.
6. By way of remedy, the complainants seek an apology, full financial redress and an assurance that the future handling of their applications will reflect accepted principles of good administration, good complaint handling and remedy, as embodied in my Principles.
   

Summary of the individual complaints

7. Mrs A
   Mrs A complained that RPA gave poor quality guidance on how to complete applications, misdirected her about the status of her case, and otherwise gave poor quality advice and customer service. In particular, Mrs A complained that RPA have declined to treat the errors she made in her 2005 SPS claim as 'obvious errors'. The errors meant Mrs A did not activate her entitlement. She further complained that RPA have been inconsistent in their decision about what represents 'obvious error' and that, having paid her £5,000 by mistake, recovered that overpayment.
8. Mr B
   Mr B complained, through his agent Mr J, that RPA delayed notifying him that he would not be paid and also of the reasons for non‑payment; misdirected him about the status of his particular case; gave poor quality guidance on how to complete applications that was sometimes ambiguous; and otherwise provided poor quality advice and customer service to him and his agent. In particular, he complained about RPA's failure to reply to his agent's correspondence in May 2005 and the shortcomings in RPA's guidance and provision of information that led his agent to request clarification from them. He complained that he has suffered financial loss and avoidable trouble and inconvenience.
9. Mr C
   Mr C complained that RPA failed to take decisions based on all relevant considerations because they failed to consider and respond adequately to all the documents submitted with his application form, and used standard letters that failed to cover all the issues raised; and provided poor quality advice and customer service. In particular, he said that RPA failed to take proper account of his circumstances in their decision about the errors in his 2006 SPS claim; omitted to update his bank details in 2005, which meant his Entry Level Stewardship payment went to a closed bank account that he could not access; and have still to pay all of his 2007 entitlement. Mr C said that RPA's errors have caused him financial loss and significant anxiety.
10. Mr D
    Mr D complained that RPA provided poor quality guidance that was sometimes ambiguous about how to complete applications; were not customer focused or open and accountable because they delayed notifying him that he would not be paid; misdirected him about the status of his particular case; andotherwise provided poor quality advice and customer service. In particular, he complained that the guidance about completing the 2005 claim form was misleading and that RPA took too long to give him a decision about his claim and then misled him into believing he would be paid. He further complained that they failed to take proper account of his circumstances when he first disputed their decision and that RPA's independent appeal panel was too closely guided by RPA staff. Mr D claimed that he has suffered financial hardship and anxiety as a result of RPA's mishandling. He said his family, particularly his wife, have suffered significant stress. He said that he has increased his overdraft, sold land and taken on extra part‑time work in order to meet the financial shortfall.
11. Mr & Mrs E
    Mr and Mrs E complained that RPA misdirected Mrs E when she asked them to clarify the RPA guidance, which they felt was incomprehensible, about claiming special entitlements in her 2005 SPS application. As a result, she altered her claim form and, in doing so, did not activate her entitlement for 2005. They complained that they have lost entitlement to payment for that year.
12.  Mr F 
    Mr F complained that RPA failed to take all relevant considerations into account when they decided to penalise him following his overdeclaration of land in his 2005 SPS application. Mr F complained that he has suffered a financial loss.
13. Mr G
    Mr G complained that RPA provided poor quality guidance that was sometimes ambiguous about how to complete applications; were not customer focused or open and accountable because they delayed notifying him that he would not be paid and the reasons for non‑payment; misdirected him about the status of his particular case and otherwise provided him with poor quality advice and customer service. In particular he complained that:
    • RPA's guidance about completing the 2005 claim form was misleading;  
    • they made avoidable errors in processing his claim;
    • they took too long to give him a decision about payment of his claim; and
    • during that time, misled him into believing he would be paid.  
14. He further complained that they failed to take proper account of his circumstances when he disputed their decision; and that their independent appeal panel was too closely guided by RPA staff. Without the SPS payment of about £2,642 Mr G had to support the farm with money from his other work and by making household economies. He complained that he and his family have suffered a great deal of worry and uncertainty and he has not been able to have a holiday for two years.  
15. Mr H
    Mr H complained that RPA failed to take decisions based on all relevant considerations; were not customer focused or open and accountable because they delayed telling him that he would not be paid and also of the reasons for non‑payment; that they misdirected him about the status of his case; that they provided poor quality guidance about how to complete applications and that they otherwise provided him with poor quality advice and customer service. In particular, Mr H complained that RPA's guidance about completing the 2005 claim form was inadequate and they took too long to give him a decision about his claim. He further complained that they accepted his failure to activate it was an 'obvious error', only to reverse their decision a year later. He said he has suffered financial loss because of RPA's mistakes; has bought new farm machinery for £15,000 after they told him they would treat his mistake as 'obvious error'; and has suffered stress and anxiety.
16. Mr I
    Mr I complained that RPA failed to take decisions based on all relevant consideration because they failed to consider and respond adequately to all the documents submitted with application forms or used standard letters that failed to cover all the issues raised; were not customer focused or open and accountable because they delayed notifying him that he would not be paid; misdirected him about the status of his particular case; and provided him with poor quality advice and customer service. In particular, he complained that RPA's failure to produce an accurate set of maps for his land prevented him from making a complete 2006 SPS claim. He further complained that they failed to reply to some of his letters about the problems with his claim; they told him they had accepted his late claim, without penalty, but then changed their mind; and, during the appeal process, they failed to explain the reasons for their changed decision on his entitlement. Mr I said RPA's errors have caused him financial loss and avoidable upset.

Summary of my decisions about the complaints

17. My findings refer to RPA, but Defra's close relationship with RPA means that what I say about the Executive Agency should be taken as also applying to the Department.
18. I upheld the complaints made by Mrs A, Mr B, Mr C, Mr D, Mr and Mrs E, Mr F, Mr G, Mr H and Mr I. In all nine complaints I found that maladministration by RPA caused an injustice to the complainant.

General maladministration

19. I made two general findings of maladministration (chapter five of the report).
    • RPA failed to 'get it right' or 'be customer focused' for a number of cases on SPS in 2005 and, to a lesser extent, in 2006.
    • RPA failed to respond appropriately when it came to 'Putting things right' for individuals affected by the failures of SPS 2005 and 2006.

Individual findings of maladministration and injustice

20. The general maladministration that I have identified affected all nine complainants.
21. Mrs A, as a result of RPA's maladministration, omitted to activate her 2005 SPS entitlements by mistake and had no chance to correct her error. She has:
    • suffered the financial loss of not being paid for her 2005 SPS entitlements;
    • continued to suffer that loss for longer than she should have;
    • lost £100 paying for an appeal when the case should have been dealt with as a complaint; and
    • experienced distress, inconvenience, frustration and outrage.
22. Mr B made a dual claim in SPS 2005 by mistake. As a result of RPA's maladministration, he did not understand that he had made a dual claim. He:
    • lost the opportunity to have a proper understanding of the SPS rules for his type of farming and, therefore, to understand that he was making a dual claim;
    • lost £100 paying for an appeal, and incurred the costs of seeking leave for judicial review, when the case should have been dealt with as a complaint; and
    • experienced distress, inconvenience, frustration and outrage.
23. RPA failed to anticipate how customers with disabilities, such as Mr C, might be disadvantaged in claiming SPS. That was maladministration and limited Mr C's opportunities to get his SPS claim right, although the evidence we have seen in this investigation does not lead me to believe that the maladministration was the reason Mr C did not complete his 2006 claim form correctly.
24.  Mr C has:
    • suffered the uncertainty of not knowing whether, with a little more help from RPA, he would have received his full 2006 SPS payment; RPA's failure to take proper account of his disability made this injustice more serious;
    • continued to suffer that uncertainty for longer than he should have;
    • lost £100 paying for an appeal when the case should have been dealt with as a complaint;
    • as a result of separate maladministration by RPA in the handling of his case, lost bank account interest and incurred bank charges; remains uncertain about what his correct SPS payments should be; and
    • experienced inconvenience, distress and frustration.
25. Mr D, as a result of RPA's maladministration, omitted to activate his 2005 SPS entitlements by mistake and had no chance to correct his error. He has: 
    • suffered the financial loss of not being paid for his 2005 SPS entitlements;
    • continued to suffer that loss for longer than he should have;
    • lost £100 paying for an appeal when the case should have been dealt with as a complaint; and
    • experienced inconvenience, frustration and distress.
26. Mr and Mrs E, as a result of RPA's maladministration, omitted to activate their 2005 SPS entitlements by mistake and had no chance to correct their error. They have: 
    • suffered the financial loss of not being paid for their 2005 SPS entitlements;
    • continued to suffer that loss for longer than they should have;
    • lost £100 paying for an appeal when the case should have been dealt with as a complaint; and
    • experienced inconvenience, frustration and distress.  
27. Mr F, as a result of RPA's maladministration, made a dual claim in 2005 SPS by mistake and claimed for other land which fell outside his SPS entitlement. RPA also failed to recognise how their duties under the Disability Discrimination Act 1995 might affect his access to their service. He: 
    • was not paid for any of his 2005 SPS entitlements;
    • has continued to suffer that loss for longer than he should have;
    • lost £100 paying for an appeal when the case should have been dealt with as a complaint; and
    • experienced distress, inconvenience and frustration.
28. Mr G, as a result of RPA's maladministration, omitted to activate his 2005 SPS entitlements by mistake and had no chance to correct his error. He has:
    • suffered the financial loss of not being paid for his 2005 SPS entitlements;
    • continued to suffer that loss for longer than he should have;
    • lost £100 paying for an appeal when the case should have been dealt with as a complaint; and
    • experienced inconvenience, distress and frustration.
29. Mr H omitted to activate all his 2005 SPS entitlements by mistake and he was unable to correct his error in time to obtain full payment within the SPS rules. RPA's maladministration played no part in that. But it was maladministration by RPA that led Mr H to believe, for 12 months, that they would pay him. He has: 
    • suffered inconsistent messages from RPA, on top of the financial strain imposed by his mistake;
    • has continued to suffer that uncertainty for longer than he should have;
    • made a significant decision about investing in farm machinery for his business without accurate information on his 2005 subsidy payment;
    • lost £100 paying for an appeal when the case should have been dealt with as a complaint; and
    • experienced inconvenience, distress and frustration.
30. Mr I, as a result of RPA's maladministration, was unable to submit a complete and accurate SPS 2006 claim within the SPS deadline. He has:
    • suffered the financial loss of not being paid for his 2006 SPS entitlements;
    • not received further SPS funds he would have been entitled to;
    • has continued to suffer those losses for longer than he should have;
    • lost £100 paying for an appeal when the case should have been dealt with as a complaint; and
    • experienced inconvenience, distress and frustration.

Conclusion

31. I go on to set out my recommendations for putting right the injustice sustained by the nine complainants.

Remedy

My recommendations for remedy

32. The Defra Permanent Secretary accepted my recommendations.
33. We asked RPA to check the calculations for each complainant's SPS claim, so that the figures in the recommendations 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.
34. 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.
35. 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.
36. 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.
37. 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 £3,635.39 ⁴. 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.
38. 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.
39. 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.
40. My seventh recommendation is that Defra and RPA should pay Mr F £9,278.09 ⁵ – 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.
41. 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.
42. 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.
43. My tenth recommendation is that Defra and RPA should pay Mr I £11,479.13 ⁶ – 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.
44. 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.
45. 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.
46. 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.
47. 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 that within three months of the date of my final report.
48. 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.

My role and remit

52. My role is determined by the Parliamentary Commissioner Act 1967 (the 1967 Act), which enables me to investigate action taken by or on behalf of bodies within my jurisdiction in the exercise of their administrative functions. Complaints are referred to me by a Member of the House of Commons on behalf of a member of the public who claims to have suffered injustice in consequence of maladministration in connection with the action so taken.
53. When deciding whether I should investigate any individual complaint, I have to satisfy myself, first, that the body or bodies complained about are within my jurisdiction. Such bodies are listed in Schedules 2 and 4 to the 1967 Act. Secondly, I must also be satisfied that the actions complained about were taken in the exercise of that body's administrative functions and are not matters that I am precluded from investigating by the terms of Schedule 3 to the 1967 Act, which lists the matters over which I have no jurisdiction. The nine complaints considered in this report were directed at RPA, as the agency responsible for the administration of SPS. RPA are an executive agency of Defra, which are listed in Schedule 2 to the 1967 Act, and so Defra and their executive agencies are within my jurisdiction. Defra are a party to the complaint because of their governance role and their role in operational and policy decision making on the administration of SPS.
54. The nine cases were complaints about administrative functions, which are also within my jurisdiction. My Office will sometimes give a view on what the law is, but I do not dispute a court's findings. That is why I have taken careful note of the strict view taken in a judgment in the Northern Ireland Court of Appeal in December 2009 (the McAlinden and Hennity judgment) about the circumstances that amount to 'obvious error' under the law covering SPS.
55. I believe it will help the general understanding of the space that my Office fills in this complex area, where legislation and administration meet, if I set out some basic points. First, I am aware that the European Commission or the Court of Auditors might impose sanctions on Defra if either body concludes that the UK has adopted an over-generous approach to the Regulations.
56. Secondly, I am aware that sometimes court action may be a better course for a complainant to take than making a complaint to me about maladministration. Section 5(2) of the 1967 Act is about a complainant's access to a remedy by way of court proceedings to the injustice he or she has suffered – a route I call 'alternative legal remedy'. A complainant does not have to use it, but I do need to be satisfied that it is not reasonable to expect the complainant to use that legal remedy now or to have used it in the past. In each of the nine complaints covered by this investigation, I was satisfied that it was not reasonable for the complainant to have pursued an alternative legal remedy.
57. Thirdly, I am also aware that the European Court of Justice is the ultimate authority for interpreting EC legislation. I have no power to refer matters to this court. If approached, the European Court of Justice would provide a legal interpretation of the Regulations. My concern is simply to look at the administrative actions of RPA. The legal language of the Regulations (such as 'obvious error', 'force majeure' and 'exceptional circumstances') does not always cover the whole story of what is required for good administration. The courts have determined the question of how an anomaly in an SPS claim may or may not be accepted as an 'obvious error' within the Regulations. However, that determination leaves open questions about whether or not RPA's administrative handling of any particular anomaly met its own standards and general administrative standards. Similarly, RPA's administrative handling of a claimant's case may have represented a significant shortfall against the wider standard of acceptable administrative practice, even though the claimant's circumstances may fall outside the Regulations' scope for taking account of 'force majeure' or 'exceptional circumstances'. These further questions are very much Ombudsman territory.
58. Timeliness was a further issue of remit considered in each of these nine complaints. The aim of the time bar set by section 6(3) of the 1967 Act is to ensure that people pursue their complaints in a reasonably timely way. But the time limit is not absolute. Complaints about government departments and agencies may be difficult to pursue within tight timescales and there may be good and understandable reasons for delay. I was satisfied that, in each of the nine complaints I decided to investigate, either the complainant had made his or her complaint to a member of the House of Commons within 12 months; or there was good reason for me to use my discretion to waive the time bar.
59. My approach when I conduct an investigation is to consider whether or not there is evidence to show that maladministration has occurred that has led to an injustice. If there is an unremedied injustice, I will recommend that the public body in question provides the complainant with an appropriate remedy in line with my Principles for Remedy. The recommendations may take a number of forms such as asking the body to issue an apology, or to consider making an award for any financial loss, inconvenience or worry caused. I may also recommend that the body in question reviews its practices to ensure that similar failings do not occur.