Chapter two: The basis for my determination of the complaints

Introduction – establishing the overall standard

60. Comparing what actually happened with what should have happened is generally my starting point for determining whether or not a person has sustained injustice because of maladministration. I need to establish the facts relevant to the complaint. I also need to establish a clear understanding of the standards which governed the exercise of the administrative functions of the bodies and individuals whose actions are the subject of the complaint, at the time the events complained about occurred. This means understanding both the general standard and the specific standard for the circumstances of the case. I call this establishing the overall standard. 
61. The general standard comes from general principles of good administration and, where applicable, of public law. The specific standards come from the legal, policy and administrative framework relevant to the events in question. 
62. Having established the overall standard, I then assess the facts in accordance with the standard. Specifically, I assess whether or not an act or omission on the part of the body or individual complained about constitutes a departure from the applicable standard. If so, I then assess whether, in all the circumstances, that act or omission falls so far short of the applicable standard as to constitute maladministration. 
63. The general and specific standards which I have applied to this investigation are set out in the next sections of the report. 

The general standard including the Ombudsman's Principles

64. In 2009 I republished my Principles of Good Administration, Principles of Good Complaint Handling and Principles for Remedy.⁸ These are broad statements of what I consider public bodies should do to deliver good administration and customer service, and how they should respond when things go wrong. 
65. The same six key Principles apply to each of the three documents. These six Principles are:
    • Getting it right
    • Being customer focused
    • Being open and accountable
    • Acting fairly and proportionately
    • Putting things right, and
    • Seeking continuous improvement.
66. I believe the Principles of Good Administration address the facts I have seen in these complaints about RPA. 
67. Among other things, 'Getting it right' means providing effective services with appropriately trained and competent staff. Public bodies should plan carefully when introducing new policies and procedures. Where public bodies are subject to statutory duties, published service standards or both, they should plan and prioritise their resources to meet them. They should take reasonable decisions based on all relevant considerations, ignoring irrelevant ones and balancing the evidence appropriately.
68. 'Being customer focused' is about ensuring people can access services easily; informing customers what they can expect and what the public body expects from them; keeping to commitments, including any published service standards; dealing with people helpfully, promptly and sensitively, bearing in mind their individual circumstances; and responding to customers' needs flexibly.
69. 'Being open and accountable' entails making public administration transparent and handling information as openly as the law allows. It is about giving people information that is clear, accurate, complete, relevant and timely, and being open and truthful in accounting for decisions and actions. Public bodies should take responsibility for the actions of their staff.
70. When a public body 'acts fairly and proportionately', it treats people impartially; with respect and courtesy; deals with people and issues objectively and consistently; and ensures that decisions and actions are proportionate, appropriate and fair. People should be treated fairly and consistently, so that those in similar circumstances are dealt with in a similar way. Any difference in treatment should be justified by the individual circumstances of the case. When taking decisions, and particularly when imposing penalties, public bodies should behave reasonably and ensure that the measures taken are proportionate to the objectives pursued, appropriate in the circumstances and fair to the individuals concerned. If applying the law, regulations or procedures strictly would lead to an unfair result for an individual, the public body should seek to address the unfairness. In doing so, public bodies must, of course, bear in mind the proper protection of public funds and ensure they do not exceed their legal powers. 
71. 'Putting things right'means that a public body acknowledges mistakes and apologises where appropriate; puts mistakes right quickly and effectively; provides clear and timely information on how and when to appeal or complain; and operates an effective complaints procedure, which includes offering a fair and appropriate remedy when a complaint is upheld. 
72. 'Seeking continuous improvement' includes reviewing policies and procedures regularly to ensure they are effective; asking for feedback and using it to improve services and performance; and ensuring that the public body learns lessons from complaints and uses these to improve services and performance. 
73. 'Getting it right', 'Being customer focused'and 'Acting fairly and proportionately' are the Principles of Good Complaint Handling that I found particularly relevant to this complaint.
    • 'Getting it right' includes those at the top of the public body taking the lead in ensuring good complaint handling, with regard to both the practice and the culture. Among other things, senior managers should be responsible and accountable for complaint handling; ensure the policy is delivered through a clear and accountable complaint handling process; and ensure learning from complaints is used to improve service. Complaint handling should focus on the outcome for the complainant and, where appropriate, others affected.
    • 'Being customer focused' entails, among other things, dealing with complaints properly and responding flexibly to the circumstances of the case. For public bodies, this means considering how they may need to adjust their normal approach to handling a complaint in the particular circumstances.
    • 'Acting fairly and proportionately' entails avoiding a rigid, process‑driven, 'one size fits all' approach to complaint handling and ensuring that the response to an individual complaint is proportionate to the circumstances. By that, I mean taking into account the seriousness of the issues raised, the effect on the complainant and whether any others may have suffered injustice as a result of the same problem.
74. 'Putting things right' is also a Principle of Good Complaint Handling, but I have found it most relevant to these complaints as a Principle for Remedy. 'Putting things right' entails considering fully and seriously all forms of remedy, such as an apology, an explanation, remedial action or financial compensation. It means, if possible, returning the complainant and, where appropriate, others who have suffered similar injustice, to the position they would have been in if the maladministration had not occurred. If that is not possible, it means compensating the complainant and others appropriately. There are no automatic or routine remedies for injustice resulting from maladministration.
75. Remedies may be financial or non-financial, and may include an apology or explanation; remedial action (such as reviewing or changing a decision on the service given, revising published material); a revision of procedures to prevent the same thing happening again; or financial compensation for direct or indirect financial loss, loss of opportunity, inconvenience, distress, or any combination of these. Remedies may also need to take account of injustice that results from pursuing the complaint, as well as the original dispute. 
76. The Principles for Remedy also recognise that 'Acting fairly and proportionately means that remedies should be fair, reasonable and proportionate to the injustice suffered'. It is also reasonable for a public body that is looking at remedy to take into account any way in which the complainant has contributed to, or prolonged, the injustice. 
77. Payments for financial loss should be calculated by looking at how much the complainant has demonstrably lost or what extra costs they incurred. In addition, and as described in the Principles for Remedy, an appropriate interest rate should be applied to payments for financial loss, aimed at restoring complainants to the position they would have been in had the maladministration not occurred. As a general principle, and if there is not a good reason to use another rate, I recommend using the rate specified in the rules for the relevant courts.

The specific standard – the Rural Payments Agency and the Single Payment Scheme in 2005 and 2006

78. The specific standard comes from the legal, policy and administrative framework relevant to the events covered by the nine complaints I have investigated, as I have explained. The specific standard I have used in this investigation includes RPA's published statements of their purpose; the statutory framework for SPS; RPA's own customer service commitments and the relevant parts of their guidance to farmers; and the relevant parts of RPA's guidance to their staff.

RPA's objectives

RPA's mission in their 2004‑05 Annual Report – summer 2005

79. RPA's mission in 2004‑05⁹ was:  

    'to be a customer focused organisation delivering high quality services, including processing payments and receipts, conducting inspections and recording animal identification to government and the rural community.'

80. Here is RPA's vision from their 2004‑05 report.

    'A customer focused paying agency, respected as the European leader in efficient and effective administration and as an authoritative source of advice to policy makers:

    1. Which provides customers with information and a choice in the way they access services.
    2. Which plays its full part with others involved in delivering related services to its customers and the community…
    3. …Where technology and innovation are used to enable services to be delivered more efficiently and effectively.
    4. Which embodies professionalism, being open and honest in its dealings with internal an external stakeholders and always acting with integrity.'
81. One of RPA's objectives, given in the same report, was to: 'Provide fair, responsive and high quality services to its customers, minimising administrative burdens placed on the customers it serves'.

RPA's mission in their 2005‑06 annual report – summer 2006

82. In RPA's 2005‑06 Annual Report RPA gave the same definition of their mission as they had in 2004‑05. The Interim Chief Executive acknowledged that RPA had failed to meet that objective. He said RPA's goal for 2006‑07 was to start the recovery work to improve performance.

The legislative framework

SPS – the legislative basis

83. The Treaty that established the European Economic Community (now the European Community (EC)) included provisions for a Common Agricultural Policy (CAP). SPS resulted from 2003 reforms to the CAP. Three main EU Regulations provided the rules for SPS in 2005 and 2006 that are relevant to the complaints covered by this investigation. These regulations were:
    • Council Regulation (EC) No 1782/2003, 'establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers';
    • Commission Regulation (EC) No 795/2004, 'laying down detailed rules for the implementation of the single payment scheme'; and
    • Commission Regulation (EC) No 796/2004, 'laying down detailed rules for the implementation of cross-compliance, modulation, and the integrated administration and control system.'

RPA's role and responsibilities – what the legislation said

84. RPA were (and are) the paying agency for SPS in England. All CAP payments, such as the SPS, may only be made by accredited paying agencies. The power to grant and withdraw accreditation rests with EU member states through a Competent Authority. In the UnitedKingdom the four agriculture ministers make up the Competent Authority.¹⁰ (The agriculture minister for England is the Secretary of State for Environment, Food and Rural Affairs.) A 'Co-ordinating Body' acts as the Secretariat for the Competent Authority. It liaises with EU bodies for all four paying agencies in the United Kingdom. In 2005 and 2006 that meant RPA had a wide‑ranging responsibility to monitor claims and to provide reports about the administrative checks made on SPS claims and the payments made to farmers.¹¹ I refer here only to the responsibilities relevant to these complaints. The preamble to Council Regulation (EC) No 1782/2003 explained that payments should be made to beneficiaries in full and within the prescribed time, subject to any reductions allowed for in the Regulations. It also explained that the CAP support schemes provided for: 'direct income support in particular with a view to ensuring a fair standard of living for the agricultural community. This objective is closely related to the maintenance of rural areas'.¹²

The overall administrative framework required by the legislation

85. Member states must have an integrated administration and control system (IACS¹³) for CAP subsidies and for payments in respect of rural development, such as the Environmental Stewardship schemes. Council Regulation (EC) No 1782/2003 set that requirement and Commission Regulation (EC) No 796/2004 detailed what IACS meant in practice. The control system had to have a computerised database for the identification of agricultural land – field by field. The system also had to have provision to identify each farmer making a claim; for tracing each payment entitlement; and for cross‑checking the areas declared under SPS with each farmer's payment entitlements and against different payment entitlements. The Regulations also defined a payment window within which RPA had to make payments to farmers. For SPS 2005 it was 1 December 2005 to 30 June 2006.¹⁴

Making a claim for SPS – what the legislation expected of RPA and of claimants

86. Article 12 of Commission Regulation (EC) No 795/2004 set out the terms of SPS claims. It required RPA to send out claim forms by 15 April in the first year of SPS, or no later than one month before the last date for lodging a claim to SPS. It also said that claims to establish entitlement to payment and for payment itself could be made at the same time. 
87. Article 22 of Commission Regulation (EC) No 1782/2003 provided that each year farmers should submit a claim that showed all agricultural parcels, the number and amount of payment entitlements and any other information asked for by the Regulations or the member state. Article 22(2) of the same Regulation provided that the member state would distribute preprinted forms based on areas determined the year before. 
88. Article 11(2) of Commission Regulation (EC) No 796/2004 provided that farmers should submit their SPS claims by the date fixed by the member state, which was to be no later than 15 May in the relevant year. Articles 12 to 14 of that Regulation set out what such a claim must contain, and gave both specific requirements and general rules for claims. In particular, article 12(2) set out that the preprinted forms would identify the payment entitlements and that the farmer would correct the preprinted form to show any amendments. 
89. Article 21 and Article 21a of Commission Regulation (EC) No 796/2004 provided that, except in cases of 'force majeure' and 'exceptional circumstances', late submission of claims would lead to the imposition of penalties in the form of daily percentage reductions in the claim value. If the delay amounted to more than 25 calendar days, the claim would be refused. 
90. Council Regulation (EC) No 1782/2003, Article 44 (3) said that a farmer should declare the parcels corresponding to the eligible land accompanying any payment entitlement. With limited exceptions, these parcels should be at the farmer's disposal for a period of at least 10 months. 

Correcting mistakes – what the legislation said about time limits

91. Article 15 of Council Regulation (EC) No 796/2004 set the scope for applicants to amend their claims to add land parcels or change the land use for individual parcels. They could do this, as long as they told the Competent Authority by 31 May in the year concerned. Applicants could make amendments only if the Competent Authority had not already informed them of irregularities in their claim or a future inspection revealed such irregularities. (After 31 May, farmers might also make corrections before the end of the 25 days specified in Article 21 of Council Regulation (EC) No 796/2004, but they would suffer penalties on the parcels being corrected.) That meant that if SPS claimants omitted to activate their entitlements and failed to realise before 31 May that they had not done so, they relied on RPA asking them what their intentions were, for example, during the Level 0 validation checks (see glossary).

Correcting mistakes – what the legislation said about 'obvious error'

92. Some information about RPA's checks on SPS claims should make it easier to grasp what the legislation on correcting mistakes could mean in practice. An SPS claim had to meet some minimum standards before RPA would accept it as a valid claim, that is, before it was lodged as a claim for SPS. RPA called this 'Level 0 validation'. It had five parts that checked that the form gave: the identity of the farmer; answers to at least one of the form's questions about establishing and activating (or not) the farmer's SPS entitlements and claiming under other subsidy schemes; at least one complete line in the claim's field data sheets; a signature; and an unaltered declaration (that the farmer understood and had complied with the terms of the EU Regulations for SPS).
93. RPA have told us that they had sight of the whole form when they performed these checks. In 2005 they had to key in each form. From 2006 they scanned in the forms. 
94. 'Level 1 validation' was mainly about checking field sizes, codes or missing data. The computer system produced a list of errors that staff would follow up. Staff worked by error type for SPS 2005, not by claim. So several people could work on the same claim without looking at the whole picture. Level 2 validation, also led by a computer error list, was largely about mapping errors. By the May 2006 deadline for SPS 2006 claims, RPA had started the move to 'whole case working' which focused work by claim, not task. But this was a gradual change, which also required changes to RPA's computer systems.
95. Article 19 of Council Regulation (EC) No 796/2004 provided that farmers may adjust their claim at any time after its submission in cases of 'obvious errors' recognised by the Competent Authority.
96. A European Commission working document AGR 49533/2002 recognised the difficulty in making consistent decisions about 'obvious error'. It gave some guidance about the approach the Commission expected. It also said that the Competent Authority should be able to give an audit trail for each 'obvious error' adjustment that it made.
97. The courts have taken a strict view of what might represent an 'obvious error'. A Northern Ireland Court of Appeal decision in December 2009¹⁵ found that:
    • an error was not obvious unless an official was bound to conclude there had been a mistake and that the form could not have represented the applicant's true intent;
    • an error was not obvious if the claim left an official speculating about whether or not the applicant might have made a mistake; and
    • the fact that an official looking at all the claims (that is, with a 'shared pool of knowledge') might conclude that someone had failed to claim entitlements because of a mistake did not make an error obvious – an 'obvious error' was one that that an official considering only one claim form would identify.

    Although this judgment is not binding on the courts of England and Wales, it is likely to be considered persuasive in their consideration of 'obvious error'.

Penalties – what the legislation said about incorrect claims

98. Regulation 1782/2003 also provided for two strands of penalties (which it called reductions and exclusions). One strand is about non‑compliance with the eligibility conditions for payment, in other words, failure to follow the claim procedure set out by the Regulations. The other strand is about failures to keep land in 'good agricultural and environmental condition', also known as the cross compliance provisions¹⁶. The first strand, about eligibility conditions, is the one relevant to this investigation.
99. Articles 49, 50 and 51 of Regulation 796/2004 set out the effects of over- and underdeclarations in SPS claims. If a farmer had declared in the claim more land than the Competent Authority decided should be covered by the claim, there would be a penalty. The Authority was to calculate the difference between the area declared and the area qualifying for payment and apply penalties, using the criteria given in articles 49 to 51. 
100. Article 68(1) of Regulation 796/2004 provided that eligibility penalties would not apply where the farmer had given correct information or was demonstrably not at fault. Article 68(2) of Regulation 796/2004 further provided that the penalties would not apply where the farmer had said, in writing, that the claim was incorrect – as long as the competent authority had not already alerted the farmer to the error. This was known as 'notified error'.

Special circumstances – what the legislation said about 'force majeure' and 'exceptional circumstances'

101. The Regulations gave farmers scope to ask their Competent Authority to take account of special circumstances. For example, Article 40 of Regulation 1782/2003 was about hardship cases. Preparations for SPS involved calculating a reference amount based on a farmer's subsidy claims in the years 2000 to 2002. Article 40 allowed farmers whose production had been lower than usual in those years, because of 'force majeure' or 'exceptional circumstances', to ask RPA to base the reference amount on a part of the reference period unaffected by those factors or, if the whole reference period was affected by 'force majeure' or 'exceptional circumstances', to calculate the reference amount using the 1997 to 1999 period.
102. Article 40 said this about 'force majeure' or 'exceptional circumstances':  

     '(3) A case of force majeure or exceptional circumstances, with relevant evidence to the satisfaction of the competent authority, shall be notified by the farmer concerned in writing to the authority within a deadline to be fixed by each member state.

     (4) Force majeure or exceptional circumstances shall be recognised by the competent authority in cases such as, for example:

     (a) the death of the farmer;

     (b) long-term professional incapacity of the farmer;

     (c) a severe natural disaster gravely affecting the holding's agricultural land;     

     (d) the accidental destruction of livestock buildings on the holding;

     (e) an epizootic affecting part or all of the farmer's livestock'.

103. The Regulations for SPS referred to Article 40's description of 'force majeure' and 'exceptional circumstances' when they mentioned the other instances where farmers could ask RPA to consider special circumstances. Article 34 of Regulation 1782/2003 required farmers to claim SPS by 15 May, 'except in cases of force majeure and exceptional circumstances within the meaning of Article 40(4)'. Article 72 of Regulation 796/2004 provided that farmers wishing to rely on instances of 'force majeure' or 'exceptional circumstances' to avoid the imposition of penalties had to inform the Competent Authority within ten days of being in a position to do so.
104. The European Commission provided some guidance on the application of 'force majeure' in notice C(88) 1696 Force majeure in European agricultural law, issued in 1988. 

Appeals – what UK legislation said about disputing decisions on entitlement

105. RPA introduced their SPS appeal procedure in November 2004.¹⁷ RPA have told us that they modelled the SPS appeal procedures on the appeals system used for previous subsidy schemes and that the SPS appeals system has evolved over time. A claimant who disagrees with RPA's decision on entitlement to SPS can ask RPA to reconsider. The first reconsideration will be done locally. It should result in a written response to the person's representations. The next step is for the claimant to appeal and, generally, he or she will start the appeal by writing to RPA's customer relations unit or asking RPA to send out an appeal pack.
     • A Stage 1 appeal is an administrative consideration by the customer relations unit. This is recorded on a form called the SP6(a).
     • A Stage 2 appeal requires payment of a £100 fee (this is the maximum fee permitted by statute and is refunded if the appeal is successful). A panel of three people, drawn from a pool of external panel members selected by RPA and paid a fee for each hearing, hears the appeal. An RPA staff expert and an RPA appeals panel secretary from the RPA customer relations unit support the panel. That means they give administrative support and, if needed, advice on the meaning of the legislation. Claimants can opt for an oral or paper hearing. The panel makes a recommendation, usually recorded on less than half a page of A4. The panel recommendations we have seen sometimes, but not always, acknowledge any administrative mishandling of a case by RPA.
106. The panel recommendation forms the basis of a recommendation to the Minister, prepared by the appeals panel secretary. 
107. The Minister's private office gives RPA the Minister's decision. The appeals panel secretary then writes to the claimant. Claimants can challenge the Minister's decision by asking the courts to permit a judicial review of the decision.

Overpayments – what the legislation said about recovering incorrect payments

108. Article 73 of Regulation 796/2004 was about the 'recovery of undue payments'. It said that the farmer would repay undue payments (overpayments) with interest. The paying agency could also recover overpayments by deducting money from later payments to the farmer. Article 73(4) also said that farmers would not be obliged to repay money if error by the Competent Authority, or otherrelevant public body, had caused the overpayment and the farmer could not reasonably have detected the error. However, farmers were obliged to repay the money if: 'the error relates to factual elements relevant for the calculation of the payment concerned' and the Competent Authority had told the farmer about the decision to recover it within 12 months of the payment.
109. Article 73(5) said farmers were not obliged to repay an overpayment if the Competent Authority took more than 10 years from the date of the payment to tell the farmer that it was wrong. It also said that the period for possible recovery fell to four years if the farmer had acted in good faith. 

Disability discrimination legislation

110. Legislation¹⁸ has made it unlawful for service providers to treat disabled people less favourably than other people for a reason relating to their disability, unless such treatment is justified. It is also unlawful for service providers to fail to make reasonable adjustments for people with disabilities, where the existence of a physical barrier, practice, policy or procedure makes it impossible or unreasonably difficult for a person with a disability to use the service provided, unless such a failure is justified. 
111. A person is disabled if he or she has a physical or mental impairment which has a substantial and long‑term adverse effect on the ability to carry out normal day‑to‑day activities. The legislation also covers people who have had a disability in the past.¹⁹
112. Government departments' legal duties to disabled people changed during the time covered by these complaints. I describe here the duties relevant to RPA in the periods before and after December 2006. 
113. The Disability Discrimination Act 1995 (the 1995 Act) took effect on 2 December 1996. It became unlawful for service providers to treat a disabled person less favourably for a reason related to his or her disability. Government departments were service providers, although the 1995 Act covered only some of their activities. From 1 October 1999 service providers also had a duty tomake 'reasonable adjustments' for disabled people. That could mean providing extra help or making changes to the way they provided their services. Among other things, the relevant Code of Practice on rights of access for goods, facilities, services and premises²⁰ said:   

     'The duty of reasonable adjustment is best met by the service provider trying to anticipate the types of problems which could arise and by training its employees to enquire rather than act on assumptions.' 

114. The Code acknowledged that there might be situations where it was not reasonable for a service provider to anticipate a particular requirement. It also said that sometimes the changes needed might be 'little more than an extension of the courtesies which most service providers already show to their customers'.
115. From 4 December 2006 the Disability Discrimination Act 2005 added to public bodies' duties in their treatment of disabled people. It amended the 1995 Act so that all public bodies also had a positive duty to promote equality of opportunity between disabled people and other people. The Disability Discrimination Act 2005 also brought most functions of public bodies that had not been covered by the 1995 Act within the scope of disability discrimination legislation. For example, this meant it covered many decisions made by public bodies, as well as access to their services. 
116. It is not my role to adjudicate on matters of disability discrimination law or to determine whether the law has been breached: that is a matter for the courts. My Principles of Good Administration do, however, say that the Principle of 'Getting it right includes acting in accordance with the law and with regard for the rights of those concerned, and taking reasonable decisions based on all relevant considerations. 
117. If it seems to me that someone's disability rights are engaged in relation to the events complained about, I expect the public body, in accordance with my Principles of Good Administration, to have had regard to those rights in the way it has carried out its functions. I also expect the body to have taken account of those rights as a relevant consideration in its decision making. If the public body is unable to demonstrate that it has done so, I will take that fact into account when considering whether there has been maladministration. In cases where I identify maladministration, it does not necessarily follow that I will also find that injustice has been caused as a result.
     

What RPA told their customers

118. RPA have told us that they set out to tell farmers and others about SPS in several ways.

     • In May 2004 the Minister responsible for the implementation of the SPS wrote to the Defra mailing list of 180,000 about SPS and the deadline for returning SPS claims.
     • RPA also used the Defra mailing list to send out explanatory brochures in 2004‑05.
     • In February 2005 RPA sent the SPS Handbook and Guidance for England 2005 (the 2005 Handbook) and the 2005 claim form to people who had claimed under previous schemes, together with the customer's 2005 SPS claim form.
     • In February and March 2005 RPA ran 32 seminars for farmers, in 16 places around the country. About 8,500 farmers attended the seminars.
     • On 18 April 2005 RPA published a supplement to the 2005 SPS Handbook and Guidance notes. They also sent out a booklet of frequently asked questions (FAQs) based on their seminars.
     • RPA also provided video/CD/DVD versions of their seminars; updated the RPA and Defra websites with relevant information; ran media campaigns in the specialist press and regional newspapers; held regular meetings with their key stakeholders; and ran further seminars in April 2005 for land agents.

 RPA also sent farmers sample SPS claim forms intended to allow farmers to familiarise themselves with the claim format before the SPS claim process started.

Customer service standards

119. In April 2004 RPA published Our commitment to good customer service A guide to the standard of service that we aim to provide to all our customers. The leaflet said:   

     'We are committed to providing a consistently high standard of service. We aim to make sure that you are dealt with quickly, politely and professionally at all times. We publish our performance targets in our business plan, and details of how we are performing are given in our annual report and accounts…'

      
120. The leaflet said RPA aimed to answer telephone calls within 20 seconds and to return all calls within one working day and they aimed to provide a full reply to letters within 15 working days of receiving them or to tell the person the reason for the delay. They aimed to acknowledge emails on the day they received them and to reply to them within 15 working days. They also said that they would offer customers a choice in the way they could contact RPA and would make sure the information they gave was easy to understand.

How to complain and how to appeal

121. The same leaflet explained how to complain and how to appeal. It said customers should first contact the person dealing with their case. They could then write to the head of operations in that office. RPA would respond within 15 working days. If still dissatisfied, customers could write to the customer relations unit, which would reply within 15 working days. After that, customers could ask their MP to take up the case or to refer it to the Parliamentary Ombudsman.

122. The leaflet invited customers with special needs to contact RPA if they needed the leaflet in any other format. RPA also gave some points for customers. They asked them to:

     • 'provide your properly filled‑in claims and applications in plenty of time and provide any supporting documents we ask for;
     • 'read scheme documents carefully, paying particular attention to the scheme rules and, if necessary, get professional advice. Our staff cannot give you advice, but they can give you information…;
     • '…keep accurate and up‑to‑date records in a format approved by us;
     •  'read all information carefully and make sure that you understand any declarations before you sign them;
     • 'make a note of any contact between you and us. Keep a record of the date, the name of the person you have been in contact with and what they have said to you… .'
123. A new leaflet, published in March 2006, gave the same commitment to customer service as in April 2004. Their service standards made similar commitments to the ones made before on telephone calls, letters and emails. It again invited customers with special needs to contact them if they needed the leaflet in another format. An updated explanation of how to complain said that, on SPS matters, customers should contact the customer service centre.

The 2005 and 2006 Handbooks

124. On 19 April 2005 RPA announced how it would treat SPS claims where farmers were still waiting for complete mapping information. The press release said farmers could apply for SPS in 2005 without waiting for RPA to finish the Rural Land Register mapping of their holding. They gave examples of what farmers might still need to have from the Rural Land Register. For example, they said that farmers who were waiting for a response to an IACS 22 form should complete their field data sheets with the changes they had sent RPA, identify them as clearly as possible and make a note on the form to say that they had completed an IACS 22. The press release concluded:

     'If the finally agreed area of a land parcel differs from the figure used to complete your application then, provided you have made a reasonable attempt to estimate the area accurately, we will not penalise an over-estimate and will adjust the area, either upwards or downwards, to the new figure.'

Advice on mapping in 2006

125. The 2006 SPS Handbook included advice about registering land on the Rural Land Register. Among other things, it said that all land in the 2006 SPS claim should be registered. It also said that some fields might not appear on the preprinted forms or would need amendment. It said claimants still needed to ensure that they included all agricultural land accurately. It also said that, if claimants were waiting for RPA to respond to an RLE1 form,²¹ they should send a covering letter with their claim that explained which fields were outstanding. Annex B gives more information about what the Handbook said.

What RPA told their staff

126. RPA staff had the SPS Handbooks as a source of information, along with further internal guidance. The material that follows is based on the papers we have seen and is only some of the material available to RPA staff.

Claimants with disabilities

127. In June 2004 RPA produced some guidance on giving assistance to claimants with disabilities. RPA have been unable to tell us whether or not the guidance was issued to staff, but we have seen no indication that it was withheld. The guidance gave some options for some difficulties and noted:

     'Our customers are in business and therefore it is for them to seek assistance for themselves. There may be costs for the applicant. In no circumstances can RPA be held liable for completing forms but in instances where someone had no other option than to assist it would be necessary to have in place a disclaimer against the action and [for it to be] fully recorded why this was done.'

The guidance said it was primarily up to operations managers to decide what 'realistically can be achieved within time and costs constraints' and added:

'…there are no existing budgets available to undertake the additional assistance the claimant with disabilities may request unless there are sufficient printing type budgets on each site.'

It gave the equal opportunities section and the chief executive's office as sources of advice for staff.

Contacting claimants

128. RPA guidance to staff asked them to telephone claimants three times before resorting to sending a letter. In particular, guidance issued in September 2005 said that staff should make all initial contact with customers by telephone and that after three unsuccessful attempts to speak by telephone, staff could send a letter.

Correcting mistakes – 'obvious error'

129. In 2005 and 2006 RPA provided staff with guidance on identifying 'obvious errors' in SPS claims. Guidance about error checking on the claim form, issued in September 2005, told staff to follow the 'obvious error' framework and to record the error on an 'obvious error' spreadsheet already sent to staff. They were also to make a note of the error in the system's 'task notes'. The guidance said team leaders would review these records.
130. RPA made several updates to the 'obvious error' guidance. For example, on 21 September 2005, Briefing Note number 82/2005, called Obvious Error Guidance, said each case should be considered on its merits; that an error could not be considered obvious just because it was a silly mistake notified by the applicant; and that the error must be genuine with no possibility of fraud or dishonesty. It listed some categories of irregularities that 'might usually be considered as "obvious errors"'. These included errors of a clerical nature, obvious in a simple examination of the claim, such as boxes not filled in or information lacking; errors detected as a result of a consistency check, such as arithmetical errors or a parcel declared twice; and errors detected as result of cross checks with independent databases, such as the Rural Land Register. It noted that errors detected in cross checks would not necessarily be 'obvious errors', but transcription errors identified in this way were likely to be accepted as obvious. The guidance asked staff to refer possible 'obvious errors' that fell outside these categories to the scheme management unit. Briefing Notes 83/2005 and 91/2005, issued on 21 and 23 September 2005, gave further examples of errors that might be considered obvious.
131. Guidance issued in September 2005²⁴ included two examples of errors by claimants in the start date for the period that land was at their disposal. The start date had to be between 1 October 2004 and 30 April 2005. (The claim form explained that RPA would assume a date of 1 February 2005 if a claimant left the box blank.) If the claimant had put 1 October 2005, the Briefing Note said RPA should telephone the claimant and ask him or her to confirm the 10 month start date in writing. A 2005 start date could be considered as an 'obvious error'. If the claimant had put a start date before the start date of the 10‑month period, such as 1 May 2004, the note said RPA should contact the claimant and ask for confirmation of the start date. It said this error was not an 'obvious error'.
132. A Briefing Note first issued on 21 October 2005 and updated in January 2007,²⁵ dealt with possible 'obvious errors' in columns I and J of the field data sheets of the SPS 2005 claim form. It said staff should view each claim individually and the way all the field data sheets within a claim had been completed should be reviewed collectively, not sheet by sheet. The guidance said staff should contact the customer if he or she had indicated at questions 1 and 3 on the form that they wanted to establish and activate entitlements, but had left columns I and J blank. If, for example, the claimant had claimed for commons or had completed columns I and J for some fields, the guidance said staff should not contact the claimant because no error was obvious.
133. In August 2006²⁶ RPA guidance said they had allowed a 'small minority' of customers to activate their entitlements under the 'obvious error' provisions.²⁷ It said these customers had ticked part C of the SP5a (Activation of entitlements) to give the answer no; completed part D (Land at your disposal) with a valid 10 month start date; and left column J on the field data sheet) (Area for which entitlements to be activated) blank. It said:  

     'Applications completed in this manner reflect an intention not to activate entitlements for 2005. However, by completing a 10-month start date for "Land at your disposal", the customer has created an inconsistency suggesting they do wish to activate entitlements which can be accepted under the "obvious error" provision.'

      

     The guidance asked staff to revisit similar cases which had previously been turned down. It then listed a further set of criteria. Staff were to refer cases to the scheme management unit, without contacting the claimant, if the claimant had answered yes to question 1 on the SPS claim form (to establish entitlements); no to question 3 of the claim form (to activate entitlements); put a date between 1 October 2004 and 30 April 2005; and left column J of the field data sheet blank for all fields. The guidance invited staff to refer cases where claimants had failed to activate fields, but there was a possible inconsistency in the claim form.

134. For the 2007 SPS year RPA started using 'nonpay' letters to contact claimants at the checking stage. The purpose of the 'nonpay' letter is to inform claimants that they have submitted an application form, but have failed to include any data within the form or any indication that they wish to receive a payment that year. For example, it may be that the claim has no fields or areas entered for activating SPS entitlements. Applicants may make changes to ad land and activate it, and/or change land use without penalty, up to the amendment deadline of 31 May. Applicants simply adding additional land parcels to their application for activation of entitlements would not fall foul of the Regulations' notification rule.

Penalties - dual claims

135. RPA gave staff guidance about dealing with cases where more than one farmer had claimed the same parcel of land. We have seen that there were several different ways in which a dual claim could happen, but RPA intended to take the same initial approach in every situation. They directed staff to write to all customers involved in a dual claim. The letter explained that more than one person had declared the same fields and asked the claimant to tell them, in writing, why the duplication had happened. The letter warned that penalties might be applied.²⁸

Dealing with mapping queries

136. I have based this summary of what should have happened in the mapping element of Mr I's case on information RPA gave us in an interview.
     • When RPA received Mr I's requests for mapping information,²⁹ they would have put the details he gave them into the mapping computer system. They would then have cross referenced the details he had provided with the details they found on their computer screen or 'piece[d] it together'.   
     • When Mr I applied for SPS in 2006, RPA would have sent him a pre‑populated form based on the information they had used in 2005. They would have asked him to check that the information was correct and to make any changes.   
     • RPA said that claimants who were waiting for mapping responses could speed up the process by sending a written request for up‑to‑date maps because RPA were able to print and send out maps relatively easily.   

Late claims in 2006

137. The Agency's guidance to staff on dealing with late claims in 2006³⁰ was that claims received from 1 June to 9 June 2006 would incur a reduction of 1 per cent per working day (after the deadline of 31 May). Any claim received after that would be rejected. The note added:
     • 'Some customers have been sent an SPV1 letter advising them that their application could not be lodged due to missing information. The customers concerned may have supplied the missing data by a variety of methods. These could be:
     • By resubmitting their original application because they asked for it to be returned to them.
     • Information taken by CSC staff over the telephone and added to notes on the SBI.
     • Written confirmation from the customers. This would be scanned as a letter.
     • RITA needs to be checked for every method of submission when determining the lodgement date.'
138. The EU Regulations were later amended to extend the claim submission deadline to 16 June 2006, with the late claim penalty period running until 10 July 2006.

Handling complaints

139. RPA guidance in June 2006 was that staff should provide as comprehensive a response to customer queries as was possible, as that would avoid escalation to higher level complaints or formal appeals. A Briefing Note for staff gave six actions that staff should take as part of considering whether or not to refer a query to the scheme management unit. These were: check on RITA that no one else was working on the same query; check on RITA whether or not an entitlement statement had been issued and whether it was provisional or definitive – if a definitive statement was incorrect, they should email the scheme management unit; check on RITA that the customer had no other SBI; check whether the claim was on hold; check the claim status to see whether outstanding tasks have prevented the system from issuing a definitive statement; and make a note on the system to show that they were working on the case.

Ex gratia payments

140. It is a generally recognised principle that a public body should make good where it has caused someone a loss or to incur expense through maladministration. RPA follow the guidance in HM Treasury's guidance to government departments, Managing Public Money³¹. The guidance gives some of the factors to consider in deciding financial compensation where maladministration has led to injustice or hardship. They include:

     • '[…] Whether someone has faced any additional costs as a results of the action or inaction of a public sector organisation, e.g. because of delay;   
     • 'Whether the process of making the complaint has imposed costs on the person complaining, e.g. lost earnings or costs of pursuing the complaint; and   
     • 'The circumstances of the person complaining, e.g. whether the action or inaction of the public sector organisations has caused knock on effects or hardship […].'   
141. Defra and RPA have guidance about making ex gratia payments in cases where administrative error on their part has had adverse effects on a customer, for example where their errors have led someone to miss out on payment of SPS. Any ex gratia payments come from national or Defra funds and do not risk disallowance. In commenting on a draft of this report, the Permanent Secretary said that ex gratia payments should only be considered where a remedy cannot be found within the scheme rules.