Chapter four: The complainants’ stories in summary

Introduction

179. In chapter four, I tell the stories of the nine complainants. I have used the evidence provided by the complainants and by RPA to give as complete a picture of what happened as possible.

 Mrs A: a summary of her story

About Mrs A

180. In 2005 Mrs A owned about 33.5 hectares (86 acres) of land in the South West of England. She was a livestock farmer. She has told us she kept her land, but sold the bulk of her stock in 2008 because the paperwork and hassle had become too much. Her last eight cattle will go this autumn. Mrs A has told us that, before SPS, she had taken her claim forms to RPA's Exeter office every year, where someone would go through them. That checking service was not available for 2005, although it was still possible to hand-deliver the form. Mrs A has said she believed that RPA would contact claimants if necessary.

The 2005 claim

181. In May 2005, in time for the deadline, RPA received Mrs A's 2005 SPS claim. She had completed the correct boxes to establish her entitlements but she had not activated them. She had said no to the question about activating entitlements; and she had made no entry in column J (for activation) of the field data sheets of the claim. Making no entry in column J meant she would receive no payment for 2005. Also in May 2005 RPA completed the Level 0 validation (see glossary) of the claim. On 15 June 2005 they completed a further checklist when they keyed in her application. 
182. Eight months later, in February 2006, RPA sent Mrs A her definitive entitlement statement. It said her entitlements were worth €20,351.27 (£13,879)⁴¹ for 2005.

Mrs A's representations to RPA from March 2006

183. In March 2006 RPA paid Mrs A £5,141.85 for the 2005 SPS. She asked them to explain the amount and in April 2006 an agent acting for her told RPA she would like RPA to amend her forms and pay her in full for 2005. Early in May 2006 the same agent made the same request for Mrs A's partner, Mr Z.
184. The next contact was in September 2006. RPA sent Mrs A a further payment of £96.65 for the 2005 SPS. This was her modulation refund.⁴² In total RPA sent her £5,238.50 in error for 2005.

RPA's internal debate about the claim – from September to November 2006

185. At the end of September 2006 RPA's Exeter office referred Mrs A's case for further consideration. They recommended that RPA adjusted their records to activate all her entitlements because Mrs A had 'made a genuine mistake'. They said she had believed that establishing entitlements for payment meant that she was requesting payment, and that many other applicants had made a similar mistake.
186. At the end of October 2006 the agent contacted RPA again. He said that RPA had paid Mr Z and he asked RPA to revisit Mrs A's claim.
187. In November 2006, RPA's policy team rejected the recommendation made by the Exeter office. They said RPA could not offer anything in Mrs A's case without creating a precedent and she had given no indication on the form that she wanted to activate her entitlements. They said that RPA should consider recovering Mr Z's payment. Later in November 2006 RPA wrote to the agent and Mrs A with their decision. They said Mrs A could appeal. They also explained that a keying error by RPA had resulted in four of Mrs A's entitlements being activated and that was why she had incorrectly received a payment. They said RPA would recover the overpayment and they told the Agency Mr Z should not have had any 2005 payment either.

Mrs A's appeal about her claim – Stage 1

188. In January 2007 the agent wrote to RPA about Mrs A's appeal. In summary, he argued that the Handbooksaid that RPA had the discretion to permit payment, because they could accept honest mistakes, and that Mrs A's errors in failing to complete the form correctly were manifestly obvious. He referred again to Mr Z's case and he said that Mrs A's cousin, Mr W, had made the same mistake but had been contacted by RPA and allowed to correct his form. In May 2007 the agent had to resubmit the appeal. RPA had received his letter, but they had no record of receiving an appeal form.

RPA ask for their money back

189. In August 2007 RPA sent Mrs A an invoice for the £5,238.50 she had received in error. (Mrs A has told us she received no further contact from RPA about the overpayment. They deducted it from a later SPS year's payment.)
190. In October 2007 RPA refused Mrs A's Stage 1 appeal. They said that the way she had completed her form was consistent with an applicant who wanted to establish entitlement, but did not want to activate entitlements for 2005. The Agent disputed their decision. He told them that RPA had been encouraging agents (the Agent had not acted for Mrs A on her claim, but on her appeal) just to get the forms in and had told them that RPA would sort out any mistakes later. In commenting on the draft report, Defra and RPA said that they believe the agent was referring to RPA's stance on mapping issues, not on claims generally. But that is not what the evidence we have seen suggests. In December 2007 the agent sent RPA the grounds for Mrs A's Stage 2 appeal. In February 2008 the Minister, following a recommendation by RPA's appeal panel, rejected the Stage 2 appeal. RPA said that Mrs A could challenge the Minister's decision by judicial review or she could complain to this Office, through her MP, if she thought there had been maladministration. The Member took up Mrs A's case and then referred the complaint to me in September 2009.

Mrs A's evidence of RPA's inconsistent decision‑making

191. Mrs A has said that her partner (Mr Z) and her cousin (Mr W) each made the same mistake in their 2005 SPS claims as she did. That is, they established entitlements but omitted to say that they wanted to activate them. They asked RPA to activate their entitlements only after they received no payment for 2005. The difference between their cases and Mrs A's case was that RPA accepted their representations and paid their claims, but declined to pay Mrs A's claim.
192. The evidence in RPA's files has confirmed that Mrs A's mistake was the same mistake that Mr Z made. In November 2006 an officer in RPA's policy team said that she had looked at Mr Z's case and that he had made the same errors as Mrs A. She said she could not understand why his claim had been paid. We have seen insufficient evidence to be able to determine for ourselves whether or not Mrs A's cousin made exactly the same mistake in his 2005 SPS claim as she and Mr Z had made.

Mrs A's description of the effect on her of losing the 2005 payment

193. We asked Mrs A how losing her 2005 SPS payment affected her. She has said her farm had a small acreage and turnover. It did not make a profit, but as long as they could live, they were happy. She responded to the loss by cutting back the number of cattle she kept and being very careful about what she spent. Also, for four years she had no way of paying her partner rent for the land she rented from him. Mrs A has also told us that her impression of that time was that RPA never returned telephone calls and seemed not to understand that, as a farmer, she was out at all hours and in all weather. She said she 'just worried and worried and worried'.

Some comments from Mrs A on a draft of this report

194. We shared a draft of this report with Mrs A. She told us that she had lost confidence in filling in any forms from RPA and now always used an agent. She also said: 'The hassle and stress have resulted in my being prescribed both anxiety tablets and anti-depressants, although I am beginning to cope far better again, but for two years my life stood still'.

Mr B: a summary of his story

About Mr B

195. Mr B's 2005 SPS claim covered 97 hectares (240 acres). He is an arable farmer in the East of England, with no livestock. Mr J has been Mr B's agent since about 1995.
196. Mr B is a tenant of the county council, which means he is not permitted to sub‑let his land. However, there is a long‑standing practice in that part of the country for specialist pea contractors to grow peas on farmers' land for freezing. If the peas are unsuitable for freezing, the farmer keeps the crop.
197. The start of subsidies for fruit, vegetable and potato crops (FVPs) was the complicating factor for farmers in Mr B's position. Issues about dual claims for subsidy on these crops had not arisen before 2005. That was partly because no subsidy had been payable on peas and partly because 2005 was the first year of linking subsidy to land holding instead of production. Under the IACS scheme claims the land had always been under Mr B's name, as it met the criteria for being under his control at the key date. (The FVP scheme no longer exists.)
198. An NFU Information and Analysis paper issued on 10 July 2006 said: 'The introduction of SPS has not been a happy experience for FVP growers and those farmers who provide them with land under short‑term arrangements'.The paper went on to explain that farmers and specialist growers often had informal arrangements about land. In 2005 specialist growers who had not received direct subsidy in the past ended up claiming SPS. If the specialist growers had not claimed, there had been a risk that the industry would lose financially because they had failed to establish entitlements. The paper noted that farmer claimants needed to ensure they had enough management control to fulfil the rule of having the land at their disposal for 10 months. It described the FVP regime as almost unworkable.

The 2005 SPS claim

199. On 12 May 2005 Mr J wrote to RPA. The letter was headed [Mr B] – SBI […] and Mr J handed it in with the form. But he delivered it as a general query, not a covering letter. His letter said:

     'I was surprised and disappointed to find that this year, staff have been instructed to give no help or advice on any query even though this is the first year of the new regime and with ever more complex forms – other than to check for signature and tippex!'  

     In commenting on the draft report, RPA have told us that they offered the same basic level of check as in previous years. This is not what the evidence from the complainants suggests. Mr J's letter also said: 

      'I am concerned that three applications I handed in may have unintentional errors as I am unsure of the need to activate entitlements for fields let for an annual crop, but which may be retained by the grower if not fit for the purpose for which it was grown. The FVP [fruit, vegetable and potatoes entitlement] being claimed by the hirer [sic]. I had taken some thirty forms to the office at the same time and they were split up between three clerks for stamping at three separate desks and I did not ask for my query to be appended. I raised my queries and was told that anomalies would result in the return of the form for correction as in previous years and trust this will be so.'

     RPA have said that they have no record of receiving Mr J's letter. He has said that, if they had replied, he would have updated Mr B about the correct situation.

200. On 13 May 2005 Mr B's claim, which was signed by Mr B, passed RPA's Level 0 validation checklist. The checklist noted the agent's authorisation.
201. Mr B and Mr J have said that after Mr J had submitted Mr B's claim, the pea contractor spoke to Mr B. He and the pea contractor agreed that for 2005 the pea contractor would claim the fruit, vegetables and potato subsidy for his pea crops on Mr B's land. Neither of them contacted RPA or Mr J about this changed arrangement. Mr J later told RPA⁴³ that Mr B had believed it did not matter, since he had not claimed fruit, vegetables and potato authorisations for those fields.

RPA identify the dual claim – November 2005

202. On 8 November 2005 an RPA caseworker noted that the pea contractor and Mr B had claimed for the same land. RPA wrote to both of them about the dual claim on three land parcels. We have not seen a record of any letter being issued to Mr J, but he replied to RPA on 24 November 2005 and explained matters – Mr B's claim for the fields had been a mistake.The papers show the involvement of other caseworkers between November 2005 and June 2006. In January 2006 RPA identified a fourth land parcel claimed by both the pea contractor and Mr B.

Mr B asks why he has received just 1p

203. In July 2006 Mr B called RPA to ask why he was receiving only 1p for his SPS claim, with the other £6,000 taken off in penalties. Mr J also took up the matter. He and Mr B stayed in touch with RPA, seeking an explanation. On 22 September 2006 RPA wrote to Mr B. They said they had reviewed his claim and decided they needed to adjust their records. They said they would contact him again when they had adjusted it, but asked him not to contact them for further information as they were 'striving to make payments on all claims, including yours, as quickly as possible'.There was further contact in November 2006 and in spring 2007.

RPA explain, remove the penalty, then put it back – April to July 2007

204. In April 2007 RPA explained matters to Mr J. RPA's records show that they said the penalty seemed to have been applied because four parcels of land had been claimed in 2005 by Mr B and by the pea contractor; that Mr B's written request for withdrawal of the first three parcels was made in a letter dated 24 November 2005, replying to RPA's letter of 8 November 2005; that his request for withdrawal of the fourth parcel was made in a letter dated 5 November 2006 in response to a telephone call from RPA; and that it seemed penalties had been applied because the requests had been made after RPA had drawn Mr B's attention to a problem or anomaly. On 8 May 2007 Mr J wrote to RPA. He said:  

     'It was in 2005, when Mr B was growing peas with [the pea contractor] that he was approached and it was suggested that, provided he had sufficient fvp's for his own needs, it would help [the pea contractor] if the peas could be treated as his. Mr B agreed and some fields with peas were excluded from his application. Unfortunately, the list given to me was not identical to that discussed and this field – […] was not included. The reason for this was partly due to this field number being originally mistyped by yourselves as […] and the field was then amalgamated and renumbered as […].' 

     He said he had explained this in his letter of 5 November 2006, but had received no reply. He also said that in two similar instances RPA had corrected claims without penalty.

205.  In June 2007 RPA decided to remove the penalties, but a month later they decided they should stand. On 1 August 2007 RPA wrote to Mr J with a further explanation, confirming a telephone conversation. The letter said the penalties were still in place. Among other things, it said there should have been an RLE1 form⁴⁴ to enable the pea contractor to claim on Mr B's entitlements. The letter referred Mr J to section D9 of the SPS Handbook, which was about transferring and letting land. It said Mr J needed to appeal if he wished to dispute the decision.

The Stage 1 and Stage 2 appeals – August 2007

206. In August 2007 RPA received Mr B's Stage 1 appeal and in February 2008 they upheld their decision to apply penalties on all but one of the four fields covered by the dual claim. In March 2008 Mr J submitted a Stage 2 appeal. In May 2008 the appeal panel upheld the decision to apply penalties. But they also commented that the lack of adequate communication from RPA had put unnecessary stress on Mr B and that RPA should review the disproportionate effect of financial penalties on smaller applicants. In June 2008 the Minister accepted the panel's recommendation. The Minister's office also asked what had been done about the panel's statement about reviewing the disproportionate effect of financial penalties on smaller applicants. The response, obtained from a member of the RPA policy team, was:

     'It would require an amendment to the EC Regulation which specifies the level of penalties to be applied. Although we can channel this request through Defra, it is not very likely that it would be achieved as it would require the Commission to agree in principle and would also require the agreement of all other member states. Although I understand the feeling that small claimants are potentially penalised more, ie in that if the small producer makes only 1 mistake on his application the fallout is likely to be higher, but the same principles are applied to all claimants. It is the extent of the mistake that determines the penalties rather than how many errors were made.'

The attempt to go to court

 

207. In August 2008 Mr J told RPA he planned to apply for judicial review. RPA gave him no detailed response and in September 2008 he submitted a judicial review application. RPA's lawyers apologised for the lack of an earlier detailed response and set out their reasons for refusing Mr B's claim. They offered to pay his costs if he withdrew his claim. In November 2008 Mr J told RPA that their solicitor had said the casemight have been better dealt with by the Ombudsman. He said he was making a final submission so that RPA could reconsider the case. He gave five examples of mistakes he had seen RPA correct without penalty. In December 2008 the High Court refused permission for an application for judicial review. The judgment said:  

     '…the documents do not demonstrate any error of law or irrationality on the part of either the RPA, or its appeal panel, or the Minister, or Defra… The Panel's acknowledgment that financial penalties affect smaller applicants disproportionately does not indicate any reviewable error of law. At most it indicates the view of the Panel that the law, when correctly applied, may bear more harshly on smaller applicants.'

208. In January 2009 RPA replied to Mr J's November 2008 letter. They said nothing of substance in answer to the nine points he had raised. The Member referred the complaint to the Ombudsman in February 2009.

Mr J's evidence of RPA's inconsistent decision‑making

209. Mr J, in his November 2008 representations to RPA about Mr B's dual claim, told them about five cases that he believed were comparable with Mr B's. His understanding was that RPA had taken a more lenient approach in those cases than they had with Mr B. RPA offered no explanation for Mr J's examples of apparent inconsistency. They invited him to give them more details and said that if they found the rules had been applied incorrectly, they might have to consider recovering those incorrect payments.

Mr B's description of the effect on him of losing the 2005 payment

210. Mr B has told us that the problem for him was being accused unfairly of fraud – that was how the penalty issue had felt to him. He found it difficult that each time he called RPA, he was passed around to three or four people, none of whom knew what was going on. He has also said that there were times when RPA failed to return telephone calls. He said that he was lucky to have been in credit at the bank and that the bank had been willing to lend to him. His penalty affected only his 2005 SPS payment.

Some comments from Mr B on a draft of this report

211. We shared a draft of this report with Mr B and his representative. His representative said that hewasdisappointed with the conclusions we had reached, but he accepted our reasoning. However, he said that he believed that the circumstances of Mr B's complaint would justify a larger payment to him than the £1,000 I had recommended, closer to the £6,000 loss he had suffered.

Mr C: a summary of his story

About Mr C

212. Mr C is a tenant farmer in the South West of England with about 40 hectares (about 98 acres) of land. He is a beef farmer, although he had a dairy herd until 2004. Mr C is completely deaf in one ear and partially deaf in the other. He has told us that, generally, he prefers written communication and that, after he speaks to RPA, he tends to confirm conversations by letter. He used an agent to handle his subsidy claims before SPS and in 2005 a Forest Friendly Farming adviser helped him with his claim.⁴⁵ Mr C would have received about £9,128⁴⁶ in total from SPS in 2006 if he had activated all his entitlements as he had intended. Mr C is 76. Two of my investigators have met Mr C and his representative. In the meeting Mr C had a full grasp of the facts of his case, but it was clear that he had difficulty hearing what the investigators said. His handwriting on the official forms and letters that we have seen can look unsteady. 
213. Mr C has told us that he told RPA that he was deaf 'time and time again'. He has said that he attended one of RPA's meetings for farmers, but was unable to hear the information given. He also told us that it would have been easier for him if he had had to deal with one person 'instead of 25'. The papers we have seen show that, from time to time, RPA officers did consider the welfare and stress issues raised by Mr C and people writing on his behalf. We have seen no evidence that RPA attempted to have any face‑to‑face meetings with Mr C and his representatives. At least three times – in November 2006 and twice in January 2007 – Mr C and his farming adviser asked RPA to give Mr C one person to deal with his case. In one of the January 2007 letters the farming adviser made it clear that Mr C was deaf. But he and his advisers still had to deal with a range of people.

The 2005 SPS claim

214. Mr C made a successful 2005 SPS claim. However, in March 2006 he found that RPA were using the wrong bank account details and two payments went to an account held by a bank he had left. He telephoned them. One payment, for £575.50, was from an environmental stewardship scheme⁴⁷ and has been retained since 2006 by his old bank. Mr C first complained about this in March 2006. RPA then made the first payment of his 2005 SPS claim into the same, old account. They recovered that payment and re‑made it, correctly, at the end of July 2006. RPA apologised, but they gave him differing accounts of what happened. They also disputed Mr C's view of their level of responsibility for the costs he incurred and for recovering the payment retained by the bank. RPA have said the bank netted off the payment against an overdraft. At the end of November 2006 RPA decided to pay Mr C £50 by way of apology, but lost the paperwork. They made the payment in February 2007.
215. Mr C has also been in contact with RPA since 2006 about changes to the land area they had used to calculate his SPS claims, particularly their treatment of his common land rights.

The 2006 SPS claim

216. Mr C's farming adviser was away when he made the 2006 SPS claim and Mr C looked after the claim on his own. On 4 May 2006 RPA received Mr C's 2006 SPS claim form. Mr C had completed column C10 to activate his entitlements for only one field parcel. He had added this line by hand. He had left the lines of pre‑populated field data untouched. His covering letter said: 'On filling out this application you completely missed out field number […] which is recorded on your Rural Land Register Map'. In his comments on a draft of this report, Mr C said that the small print on the form said there was no need to alter it unless land was missed out. (The 2006 form also asked claimants to correct any mistakes in the preprinted entries.)
217. On 5 May 2006 Mr C's 2006 SPS claim form passed RPA's Level 0 validation checks. The checklist asked if at least one line in the field data sheets had entries at parts C2, C4 and C8 or D1 and D2. One line was completed – enough for Mr C's form to pass the basic checks of RPA's initial validation process for part C of the claim form.
218. The 2006 SPS claim form, in part E, also asked claimants to use the information from their field data sheets (part C) to tell them which entitlements they were 'activating for payment' in 2006. There was no preprinted entitlement information in part E of Mr C's claim form and he made no entries, either of individual entitlements or to complete the 'activate all' box on the form. We asked RPA about how they handled claims where part E was blank. They told us that Mr C's form failed the checks for part E of the claim and their guidance at the time was to send an 'SPV1' letter asking for the missing information. They told us they could find no record of writing to Mr C and that it seemed no action was taken on the blank part E. In principle, the lack of an entry in part E did not disadvantage Mr C. That was because RPA decided to base 2006 scheme payments on the land area activated in part C of the application form even if that was not supported by the entries in part E. RPA also said that, even if Mr C had completed the blank part E after receiving an SPV1 letter, they would only have paid him for the entitlements he had activated in part C. 
219. In September 2006 RPA telephoned Mr C about the 2006 land use coding in his 2006 claim. (None of the preprinted fields had a 2006 land use code as Mr C had not completed any of those lines.) RPA's note of the call said that Mr C confirmed that the land use code for 2006 should be as the 2003 land use code. RPA amended his claim accordingly. Mr C has told us that, in that call with RPA, he had told them that everything on his 2006 form should be the same as his 2005 form. On the same day RPA wrote to Mr C to confirm their telephone conversation. They did not mention the other missing information. Mr C replied, clarifying the information about his land use.
220. Mr C contacted RPA three times in February 2007 about his payment and his other concerns. In March 2007 RPA told Mr C that he had activated only one field, which was why his payment had been less than he expected. The Member intervened on his behalf. At the end of March 2007 RPA decided that there had been no 'obvious error' in Mr C's case because there was no inconsistency within the claim form which would suggest any intention to activate entitlements. In March, April and May 2007 RPA looked again at Mr C's case in response to requests from him and from others, including the Member. In May 2007 RPA noted that it was difficult to communicate with Mr C due to his hearing aid. RPA debated the decision internally, but at the end of May 2007 RPA told him they could not change his claim. Mr C's farming adviser and Farm Crisis Network, who took a hand in his case in late 2007, both told RPA they were concerned about the £100 cost to Mr C and the stress of going through an appeal. Also in June 2007, Mr C's family doctor provided a letter saying that Mr C had been suffering from gastritis since April 2006 and his symptoms seemed closely related to stress. Mr C's Stage 1 appeal, submitted in June 2007 and decided in October 2007, failed. In his appeal claim, Mr C said it was his understanding that the claim form had had a dark pre‑populated 'X' in the box for activation and it was his understanding that he did not have to write over it again, as it was already marked. His Stage 2 appeal, submitted in January 2008 and decided in March 2008, also failed.
221. On 1 May 2008 RPA wrote to Mr C in response to his letter of 8 April 2008. They said that they did not consider that RPA had discriminated against him as a disabled person through their handling of his appeal and they explained why.

An overpayment for SPS 2006

222. On 10 June 2008 RPA asked Mr C to repay £225.76 which they said they had overpaid him for 2006 SPS claim. They wrote to him again about this on 19 August 2008. On the same day the Member referred the complaint to the Ombudsman. RPA looked into the overpayment at Mr C's request and on 2 September 2008 they told Mr C that the overpayment was correct and that he would have to repay it.

Other matters of concern for Mr C

223. Mr C and RPA have had a third area of dispute, apart from the handling of his bank details and his 2006 SPS claim. This third issue was about RPA's treatment of Mr C's common land rights. In 2001 RPA had said the total area of the common where Mr C had rights was 104.872ha. For his SPS claims the total area changed to 79.23ha. Mr C has said that he cannot see how the common can have changed size in that way. In summer 2010 Mr C told us that he remained unconvinced by RPA's decision on his common land, the approach they took to his complaint about his bank account or their decision about the activation of his 2006 claim. He has also told us that, apart from the common land questions, he is also unconvinced by RPA's figures for the land covered by his 2005 SPS claim.

 Mr C's description of the effect on him of receiving a reduced 2006 SPS payment

224. We asked Mr C how his problems with the RPA had affected him. He made a joke about not having a nervous breakdown and explained he was just annoyed that RPA would not listen to anything he said. He said he wanted the money. He said that in 2007, when his SPS payment was less than expected, he had just had to manage on his overdraft. But his bank had been after him all the time. He has told us that in 2008 he sold his interest in some land in order to clear a loan and interest that had built up partly because RPA had not paid his 2006 SPS claim as expected. We noted that relatively small things had added to his frustration. For example, Mr C told us he had had to pay excess postage when RPA sent him the papers for his appeal and that he always used registered post for RPA now, since they lost a recorded delivery letter (about milk quota).

Some comments from Mr C on a draft of this report

225. We shared a draft of this report with Mr C and his representative. In commenting on the draft, he said:  

     'I am a cheerful personality and try not to get depressed. But [this experience with RPA was difficult, what] with the loss of my ex‑wife Pauline and partner during July 2004 with leukaemia after 44 years, and the RPA attitude, [and] finance for the business is hard to find as I was not allowed my full entitlement under SPS.'

226. Mr C has also said that he was disappointed that our recommendation for remedy stopped short of asking RPA to pay him the full amount of his SPS 2006 claim. He said that RPA had received his claim on 4 May 2006. The extended deadlines that year meant they had time to return his claim, he said. He also told us that he had told RPA several times about his deafness. Mr C and his representative have also told us that they believe RPA should have understood from their contact with Mr C in September and November 2006 that he had intended to activate the same entitlements for SPS 2006 as he had for SPS 2005.

Mr D: a summary of his story

About Mr D

227. In 2005 Mr D ran a small arable farm, of about 40 hectares (100 acres), in the East of England. He also did some contract farming work. His 2005 SPS claim would have come to about £8,094⁴⁸ if he had activated his entitlements as he intended. His wife ran a small toy business. Mr D is still farming, but his wife has closed her business.
228. Mr D has said that in 2005 he relied on the original guidance sent out by RPA when he completed the claim form, although he probably had received the supplementary guidance they issued in April 2005. He has said that he found the timescale tight. At the time, his father was dying.
229. Before SPS, Mr D has said, he took his forms into RPA and officials checked them for him. He has said that the first years of the IACS scheme had been confusing for people and officials had been very helpful then.

The 2005 claim

230. In May 2005, in time for the deadline, RPA received Mr D's 2005 SPS claim. He had completed the correct boxes to establish entitlements but he had not activated them. He had said no to the question about activating entitlements; and he had made no entry in column J (for activation) of the field data sheets of the claim. Making no entry in column J meant he would receive no payment for 2005. Mr D has said that he had misunderstood the guidance on completing the claim form. His next contact from RPA was in February 2006 when they sent him his definitive entitlement statement (see glossary). It showed he had entitlements worth €11,869.60 (£8,094 at the 2005 SPS exchange rate).
231. RPA completed their Level 0 validation of Mr D's claim in May 2005 (see glossary) and a further checklist when they keyed in the claim in July 2005.

Mr D's representations to RPA from April to October 2006

232. At the end of March 2006 RPA sent Mr D a payment statement. It showed a payment due of £1,356.56, but reduced to nil by penalties. Mr D has said that he has not received an explanation for the information on the payment statement, which should not have included any penalties. In April 2006 Mr D contacted RPA and asked if his mistake in not activating his entitlements could be corrected. RPA asked the RITA delivery expert (see glossary) for advice. Mr D telephoned or wrote to RPA three times in April to May 2006 and in May received a standard letter from RPA about their SPS payment problems. In May to June 2006 Mr D, or his wife, telephoned RPA four times. Mr D has said that RPA returned his calls. The problem was that no one in RPA could give him an answer.
233. At the end of June 2006 RPA wrote to Mr D. They said that he had omitted to complete column J on his claim. They said they were 'implementing an adjustment mechanism' which would enable them to recalculate Mr D's entitlements and make any associated payments. They said would contact him again if his claim was to be adjusted and they asked him not to contact them.
234. In September 2006 Mr D asked RPA for an update. Later the same month the Member wrote to Lord Rooker, the Minister responsible for RPA, about Mr D's case. He said Mr D was: 'left completely in the dark about any future payments'. In early October 2006 the Minister replied to the Member. He said that RPA were unable to accept the errors on the claim form under the 'obvious error' provision and would be unable to make payment for the land that had been established, but not activated.

Mr D's appeal – Stage 1, from November 2006 to February 2007

235. In November 2006 RPA received Mr D's appeal against their decision not to make any payment for the 2005 Scheme. He said that he accepted that he had placed undue weight on paragraph 320 on page 86 of SPS Handbook (Annex B, paragraph B2), which said that you could not activate entitlements until they had been established. He said that he assumed activation would follow establishment.
236. In February 2007 an RPA lawyer told the officer considering Mr D's appeal that there was no legal basis to use the 'obvious error' or 'force majeure' provisions to pay the claim. Later that month RPA sent Mr D the Stage 1 appeal decision, which upheld the decision not to pay him.

Mr D's appeal – Stage 2, from March 2007 to July 2007

237. In March 2007 Mr D submitted his Stage 2 appeal. He said that the Stage 1 decision appeared to be based around 'obvious error' or 'force majeure' and that was not his argument. He said that the information he had received from RPA in 2006 had led him to believe that his mistake could, and would, be rectified.
238. In July 2007, after an RPA appeal panel had considered the case and recommended rejecting the appeal, RPA wrote to Mr D saying that the Minister had rejected his appeal. On 6 May 2008 the Member referred the complaint to the Ombudsman.

Mr D's description of the effect on him of losing the 2005 payment

239. Mr D has told us that for 2005 his farm accounts showed a current account credit balance of £4,000. In 2006 there was an overdraft of £8,000 and in 2007 it was £5,500. He gradually increased his overdraft facility, which peaked at £13,000. He has said:

     'If I had known at the beginning of this shambles (April 2006) that I definitely would not be paid, I could have planned a more structured way of overcoming our financial problems, instead of constantly playing catch‑up with overdrafts. I would have been pretty annoyed, but I do think that we could have avoided some of the things that happened which cannot now be reversed.' 

     He has talked about the impact on his wife's toy business (which without his cash support, closed after 19 years' trading); about having to sell land; about cutting household costs, including family holidays; about cutting investment in machinery and maintenance of the family home; and about losing confidence in his ability to complete the forms – he now pays an agent £300 a year. He has said his wife feared the worst and became very depressed. Mr D's letter, setting out the effect on him, the business and his family, is in an annex to this report.

Some comments from Mr D on a draft of this report

240. We shared a draft of this report with Mr D and his representative. Mr D's representative told us that Mr D felt that justice had been done and he would like the Ombudsman to 'know that this piece of work had restored his faith in our democracy'. The representative said: '[Mr D's] family have really struggled at times over the last five years, and the recommended payments will go a long way towards getting their lives back to normal'.

Mr and Mrs E: a summary of their story

About Mr and Mrs E

241. Mr and Mrs E were sheep farmers in 2005. They run a flock of about 600 ewes in the East of England on land held on grazing agreements. Their 2005 SPS claim would have been worth about £5,355⁴⁹ if they had activated their entitlements as they had intended.
242. Mrs E has said that in May 2005 she had not understood what RPA meant by 'a forage area obligation', for example, in their guidance about claiming SPS. She has said that she and her husband could not afford to use an agent to look after their paperwork. However, someone in RPA's Cambridge office had always been able to answer their queries. That service was no longer available in 2005. Mrs E has also said that in early 2005 she was receiving chemotherapy treatment for cancer.

The 2005 SPS claim

243. Mrs E remembers having second thoughts when she filled in her 2005 SPS claim and ticked the box for activation. She called the RPA helpline. They told her that she needed at least 0.1ha of land to activate her entitlements. RPA later told Mrs E they had no record of her telephone call. But we have seen a note made by RPA in which they said she called for fresh forms, including a business registration form. Mrs E was already registered with RPA. She has said that she did not ask for or receive a fresh set of forms.

RPA's handling of the claim from May 2005 to October 2006

244. RPA received Mrs E's 2005 claim form on 12 May 2005, signed on 9 May 2005, before the claim deadline. The claim form showed that Mrs E had originally marked 'yes' to the question about activating her 'entitlements subject to special conditions', but had amended the form to 'no'. The next day the claim passed RPA's Level 0 validation check (see glossary on validation). 
245. In February 2006 RPA sent Mr and Mrs E a non‑validated entitlement statement showing a total value of €7,852.63 (£5,355). In March 2006 RPA carried out a further check of the 2005 claim. They noted that they had not received an SP16 form with details of livestock and that Mr and Mrs E had said they did not want to activate special entitlements. RPA wrote to Mr and Mrs E saying they could not activate their entitlements without the information from an SP16 form. The SPS claim form and Handbook did not mention this form, but a leaflet enclosed with farmers' entitlement statements said that farmers who had established special entitlements 'should have already received from the RPA form SP16'.
246. In April 2006 RPA sent Mr and Mrs E a definitive entitlement statement. This too showed entitlements amounting to €7,852.63 (£5,355) for the 2005 scheme year. Mrs E sent RPA a completed SP16 form, obtained from the NFU. She said she hoped that the information she had supplied would be sufficient to activate her claim. She said that she had contacted RPA on 28 March 2006 and on 3 April 2006 requesting the SP16 form, but it had not arrived.
247. In May 2006 RPA returned Mr and Mrs E's 2006 scheme claim, because they had not provided any field data or activated their special entitlements. (In commenting on the draft report, Defra and RPA said:  

      'The letter is a standard letter sent to all applicants who have failed to enter sufficient detail on to their form meaning it cannot be validated. The letter was not advising with regard to an obvious error, it simply advised that the form could not be processed as it did not contain sufficient information.')  

     Mr and Mrs E corrected their form and returned it. (RPA wrote to them in June 2006 about the conditions required for activation in 2006; telephoned them in November 2006 to confirm they wanted to activate the entitlements for 2006; and checked that again in February 2007.)

248.  In October 2006 RPA told Mr and Mrs E that they could not pay them for 2005 because they had not activated their entitlements. Also in October 2006 Mrs E complained to RPA about how the helpline had misled her in a telephone call in early May 2005 and asked them to look into her case. In December 2006 RPA confirmed that they would not pay the SPS claim for 2005.

Mr and Mrs E's Stage 1 appeal – January to April 2007

249. In January 2007 Mr and Mrs E made their Stage 1 appeal. In that, Mrs E said that she had found the 2005 Handbook guidance on special entitlements to be 'incomprehensible'. In April 2007 an RPA lawyer commented on RPA's draft decision. She ruled out allowing the claim within the Regulations. She also said that the administrative error (of suggesting in March 2006 that but for a missing form, RPA would have activated their entitlements) did not amount to maladministration. However, she also said that RPA might want to consider the claims that the Handbook advice was confusing and that the customer helpline's advice was poor. She referred to previous criticism of the helpline. She gave no direct advice on how RPA might take those claims into account. The same month RPA sent Mr and Mrs E the Stage 1 appeal recommendation, rejecting the appeal because there was no scope to allow it within the 'obvious error' Regulations. RPA also explained that they had no record of a telephone call with Mrs E in May 2005 and so had no way of knowing what was discussed during the call or what advice was given.

Mr and Mrs E's Stage 2 appeal – June 2007 to April 2008

250. In June 2007 RPA received Mr and Mrs E's Stage 2 appeal. Mrs E had taken legal advice about the appeal, thanks to an NFU grant of £250. Among other things, she said that the wrong and misleading advice Mrs E received should constitute exceptional circumstances, which would entitle her to have the claim reconsidered, because RPA had a duty to provide proper guidance and customers were entitled to rely on that advice. She also sent RPA a copy of her telephone records showing her call to them in May 2005.
251. In March 2008 an RPA appeal panel rejected the appeal. The appeal panel recommendation said that there was no evidence to support Mrs E's claim that she had been given incorrect advice; the answer given to question 4 of the claim form could not be considered to be an 'obvious error'; and there was no evidence produced to show that the RPA had given misleading advice. In April 2008 RPA wrote to Mr and Mrs E with the decision that the Minister had rejected the appeal. The Member asked the Minister to reconsider the case, but he said that he was constrained by the Regulations and unable to grant the appeal. On 9 May 2008 the Member referred the complaint to me.

Mrs E's description of the effect on them of losing the 2005 payment

252. Mrs E has told us that, without the 2005 SPS payment, she and her husband were unable to pay someone to help them in their busy period. When it came to lambing in 2006 they did not even get all the sheep home. She said that their son had dropped everything (he was self-employed) to help them out. She said that he went home after lambing, put his house on the market, and came back to the farm to help them out permanently. Mrs E said they would not still be farming if it had not been for their son. Mrs E said it was very stressful; she was just getting over cancer and it had been a terrible time. She said they that they had incurred extra fuel and telephone costs and had to complete extra paperwork for the appeals, as well as the £100 cost of the appeal. Mrs E's son has told us that he considered they had lost about two days' business, which he defined as two nine‑hour days at £12.50 an hour.

Some comments from Mr and Mrs E on a draft of this report

253. We shared a draft of this report with Mr and Mrs E. They had no comments to make except to confirm the accuracy of the facts as we had recorded them.

Mr F: a summary of his story

About Mr F

254. Mr F is a livestock farmer, farming about 5 hectares (12.4 acres) in the East Midlands of England. He rents his land. His holding includes the family farm's suckler cows. His family have a separate, larger holding, set up for dairy farming. The value of his 5ha SPS claim would have been about £12,080 in 2005⁵⁰, if he had avoided making a dual claim for the land he used under a grazing agreement. This was a relatively large sum for the land area, which reflected the size of the historic part of his entitlements. Mr F's dual claim meant he paid a penalty for overdeclaration that wiped out his 2005 and 2006 payments as well as part of his 2007 payment. In 2005 Mr F was 47 years old.
255. Mr F has told us he had known the owner of the grazing land for some years and had a 'gentleman's agreement' with him about the land. The owner died in December 2004.
256. The medical evidence we have seen says that Mr F was completely fit and well until 1999 when poison contaminated his farm. A doctor's report prepared in February 2005⁵¹ said that he had severe chronic fatigue syndrome, and that his history was highly suggestive of organophosphate poisoning. It meant he was unable to work and run his business. The papers we have seen also show that Mr F had had a stroke in 1999. Mr F has told us that his health has improved very much since 2005. In his comments on a draft of this report, made through his representative, Mr F said that RPA had never taken his health status into account.
257. Evidence provided in September 2005, by a consultant physician and clinical toxicologist at Guy's Hospital in London, said that in 2003 Mr F had, with other assessments, been assessed for his cognitive and memory function. The doctor's letter said: 'This showed his verbal reasoning abilities to be less well developed than his non‑verbal abilities, with long‑standing learning difficulties in the verbal domain'. Mr F has told us that Guy's Hospital advised him to write things down as soon as he thought of them, as he would forget things very easily.

Mr F's request to change his reference period

258. In April 2005 Mr F completed a form asking RPA to change his reference period (form SP2). He said that a person had put poison on the farm and he provided papers to show the effect. He also gave RPA a copy of a letter to his GP from a specialist, dated 8 November 2004. The letter said that a fat biopsy suggested Mr F had had an abnormally high exposure to certain pesticides and set out how those might affect him. It said possible results included chronic fatigue syndrome and neurological damage. RPA have said they received both these documents.

The 2005 claim

259. In 2005 Mr F was looking after his SPS claim himself. Farm Crisis Network, now his representative, was not involved and Mr F has told us that he and his parents did not feel able to afford an agent to look after their separate claims. Mr F has said that he and his parents met RPA before making their SPS claims. He has said he had two concerns: the effect of the organophosphate poisoning on the amount he would receive in his SPS claim; and the land covered by the grazing agreement. Mr F has told us that he asked RPA for advice on both points. RPA have no record of any meetings with Mr F.
260. On 20 April 2005 the late landlord's agent wrote to Mr F. His letter said:  

       '[The late landlord's sister] has been in touch with me and she says you've told her you'd like the grass keeping again. There is still £800 outstanding from last year so before I can consider a new agreement I must be paid up to date.'  

     We have been unable to establish when the grazing agreement for 2005, mentioned in the agent's letter of April 2005, was made. Mr F has said that he believes he paid the rent in June 2005.

261. In May 2005 the late landlord's agent and Mr F submitted SPS claims for 2005. RPA have told us that they received a letter dated 10 May 2005 with Mr F's SPS claim. It said:

     'Further to our meeting on the 1-04-05 at Chalfont Drive Nottingham, with having the disaster of the poison being put down on our holding it would be in your best criteria to start my base year in 1997. This was when the first lot of poison was put down. It was the 8-02-97, see the papers provided and then three more lots were also put down between 1999-2000.'    

     'It wasn't until spring 2001 that the real disaster took place where we lost a lot of cattle. It is now 2005 and we still haven't got the chemical cleared up. I have now picked it up myself from the cattle. See the paperwork.'

     'I hope DEFRA could pull their fingers out a bit more so we can get thing under control. I do not know how to do the single farm payment scheme because it is difficult to run a business with so much worry. To top all of this off I have been under a TB2 restriction [a movement restriction on stock] for the past 26 months.'

262. Mr F has said he wrote RPA a further letter dated 10 May 2005, which said:  

     'Further to our meeting on the 1-05-05 at Chalfont Drive Nottingham. I put fields on my IACS from [six fields, named by reference number]. I want all these fields deleting if [the late landlord's estate] decide to claim so it will not jeopardize with any of my claim. I also enclose a copy of my health report as explained in previous letters.' 

     Mr F added a postscript: 'The reason this needs to take place is because [thelandlord] has died'.

263. I refer to this as the letter about the grazing land. RPA have told us they have no record of receiving this letter. The letter omitted one further field covered by the grazing agreement. At our request, RPA have checked their electronic and hard copy files for Mr F and for Mr F's parents' SPS claims and for the requests to amend the reference period - in case the letter about the grazing land was misfiled. They have told us that the missing letter was not in any of the files. In commenting on a draft of this report, Mr F has said that this missing letter was raised at his Stage 2 appeal but not followed up by RPA.
264. The effect of Mr F's mistake at this point was not only that his SPS claim overdeclared the land that was 'at his disposal'. RPA have told us he also claimed 0.7ha of non‑agricultural land. Under SPS Regulations, both mistakes meant RPA would impose financial penalties, set by the scale of the overdeclaration.

RPA's handling of the claim from May 2005 to December 2006

265. On 12 May 2005 Mr F's SPS claim form passed RPA's initial checks. Among other things, the checklist said: 'Refer to desk instructions if a clear request for assistance has been made or request for contact to be made by the farmer'. RPA have told us that there is no evidence that any further action was taken in response to Mr F's letter of 10 May 2005 in which he said: 'I do not know how to do the single farm payment scheme because it is difficult to run a business with so much worry'. Later in May 2005 RPA wrote to Mr F about his claim, asking him to initial his amendments, which he did. He also sent them a letter, dated 3 June 2005, saying that his landlord had died.
266. In November 2005 RPA identified part of a dual claim and obtained confirmation of the correct claimant from Mr F and the landlord's agent. RPA identified a further part of the dual claim in January 2006. They asked Mr F to explain matters and in April 2006 he wrote to them. He said that he had made a mistake and the land was being claimed by his landlord. He said he had declared this on an IACS 22 form (used to register land on the Rural Land Register) in May 2005, with 'the letter about [the landlord] dying so it didn't jeopardize with any of my claim'. (RPA have told us they have no record of receiving an IACS 22 form in 2005 from Mr F.) From August to December 2006 Mr F asked RPA about his payment. They told him about the effect of the penalties only at the end of December 2006.

Mr F's Stage 1 appeal - from January 2006 to August 2007

267. Mr F wrote to RPA in December 2006 as soon as they told him he should appeal. They received his Stage 1 appeal form in January 2007. He said his grounds for appeal were that he had declared what he had done when he submitted his claim, in his letter about the grazing land of 10 May 2005. He also provided medical evidence and an undated extract from a grazing agreement which included a specification that he was not to claim SPS on those fields. It is unclear whether this is from the missing 2005 agreement or an extract from the 2006 agreement, which it matches. Farm Crisis Network became involved in his case in 2007.
268. In February 2007 RPA considered Mr F's appeal. The officer referred to the guidance in the 2005 SPS Handbook⁵² that farmers should resolve whether or not land was at their disposal before they claimed and that RPA would apply penalties if a farmer overdeclared. The officer recommended rejecting the appeal.
269. From February to March 2007 Mr F asked RPA for updates on his 2006 SPS claim. They gave him varying messages. At first they told him that it seemed he was not going to receive a payment for 2006. But in later calls RPA gave him the information shown on the system, which suggested that the 2006 claim was simply awaiting authorisation. Also in March 2007 RPA decided to treat Mr F as a rural stress case. (RPA had a set up a team to monitor any cases where they believed the claimant was suffering particular stress. The team provided a contact point for bodies, such as Farm Crisis Network, representing farmers.) RPA's payments system shows that they paid Mr F £10,157.70 on 9 May 2007. They have told us that this was his SPS 2006 payment, made to him in error. They paid him a further £128.55 in August 2007 – the modulation payment.
270. In June 2007 another RPA officer asked for legal advice on Mr F's Stage 1 appeal. She suggested that RPA accepted Mr F's letter of 10 May 2005 about the grazing land as a notification of his error, although they had no record of receiving it. But she pointed out that he still faced a penalty, because the letter had omitted to mention one of the dual claim fields. She suggested that his later letter of June 2005, saying that the landlord had died, should have alerted RPA to the possibility of a dual claim and that RPA could accept that letter as notification. That argument did not succeed. In August 2007 RPA rejected Mr F's appeal.
271. RPA's papers do not include any consideration of whether or not they should have taken account of the information about Mr F's health or understanding in his letter of 10 May 2005 about the poison. In September 2007 RPA received Mr F's Stage 2 appeal.

Mr F's Stage 2 appeal ends

272. In February 2008 an appeal panel heard Mr F's Stage 2 appeal against the application of penalties on his 2005 claim. Later in February 2008 the Minister accepted the appeal panel's recommendation to reject Mr F's appeal and RPA sent Mr F the decision. RPA's payment system shows that they paid him £7,629.08 on 5 March 2008 (and a modulation payment of £161.41 on 9 September 2008). They have told us that this was Mr F's SPS 2007 payment, made without penalty in error. In July 2009 the Member referred Mr F's case to the Ombudsman. RPA's work on the appeal did not identify the error in claiming the non-agricultural land. The dual claim obscured the earlier penalty imposed by the RITA computer system.

Mr F's description of the effect on him of the penalty

273. We asked Mr F about the impact on him of dealings with RPA about his 2005 SPS claim. He told us that the money he lost, which he put at £15,000 to £18,000, was worth about half the farm's income. He said that not getting the SPS money was like 'having your legs pulled from under you'. Mr F said that he had had to remortgage after what he calls the disaster of the poisoning incident. He fell behind with payments, and in 2006 received a possession order. After that he started his relationship with Farm Crisis Network in April 2007, but it had been hard for him to ask for help. He said that the problems he had with RPA were a 'contributing factor' to getting behind with the mortgage payments, which led to the possession order. They had also had an effect on his health. 

Some comments by Mr F on a draft of this report

274. We shared a draft of this report with Mr F and his representative. He told us, through his representative, that it portrayed a genuine account of what had happened. He also said that he felt a lack of information from RPA meant that he remained uncertain about how his SPS payment (particularly the historic element) was made up; what penalty RPA had intended to collect from him; and over how many years that penalty was meant to run.

Mr G: a summary of his story

About Mr G

275. In 2005 Mr G ran a small arable farm of about 14 hectares (35 acres) in the East of England. He took over the farm from his father. He describes himself as a part‑time farmer as he also has (and had in 2005) a small engineering business. His 2005 SPS claim would have been worth about £2,292⁵³ if he had activated his entitlements as he intended. Mr G is still farming.

The 2005 claim

276. Ahead of the SPS claim, Mr G wanted to register a field on the Rural Land Register. RPA had told him that, if they could not register the field in time, he would need to adjust his pre‑populated claim form himself. RPA received Mr G's 2005 Scheme claim in May 2005, before the claim deadline. He had completed the correct boxes to establish his entitlements. But he had marked the 'no' box for the question about activating his entitlements and he had left column J (about activation) empty on the field data sheets. He has said that he believed, partly because of needing to register the land and partly because of paragraph 320 of the Handbook (Annex B, paragraph B2), that he could not activate the fields before the land areas were settled and the entitlements established. He told us that he expected RPA to contact him again to activate his entitlements when they had completed his registration and established his entitlement. He also told us that he had used RPA's checking service when IACS had started and would have used it again in 2005 if it had been available.

RPA's handling of the claim from May 2005 to February 2006

277. In May 2005 RPA completed the Level 0 validation (see glossary) of Mr G's claim. They returned the form to him asking him to initial corrections he had made to the form, which he did. The day after the deadline he received confirmation from RPA that they had registered his field. In July 2005 RPA completed a further claim form checklist when they keyed in the claim.
278. In February 2006 RPA sent Mr G a non‑validated entitlement statement (see glossary). They told him his claim was still being validated. They asked him not to contact them.

Mr G's requests for information – April 2006 to October 2006

279. Mr G telephoned RPA in April, June and July 2006 about payment. At the end of June 2006 RPA sent him £379.57, which he told them was far less than the 80 per cent of his payment that they said it was. The officers who answered his calls said nothing about any problem with his claim – the information they had suggested only that it was still being processed.
280. In July 2006 RPA told Mr G he had failed to activate his SPS entitlements for 2005 and their payment had been a mistake. RPA asked Mr G to write to them, which he did, explaining that he did want to activate his 2005 entitlements. A few days later RPA sent Mr G a definitive entitlement statement. This showed 14.3 entitlements worth a total of €3,699.12 (£2,292). RPA's letter said that if Mr G had applied to activate his entitlements in the 2005 SPS year he would receive his payment shortly. Mr G believed that meant RPA would pay his claim. In August 2006 and four times in September 2006 he telephoned RPA about his payment. In those calls RPA told Mr G that his claim was being worked on. At the end of September they told him he would not be paid. In October 2006 a manager in the customer relations unit told Mr G he could go straight to the appeal stage. Mr G complained that RPA had misled him for several months and the manager apologised.

Mr G's evidence of RPA's inconsistent decision‑making

281. Mr G spoke to RPA later that month. RPA's note of the telephone call said he told them he had received the appeal form, but his neighbour had received payment without appealing. RPA told Mr G to complete the appeal form.

Mr G's Stage 1 appeal about his claim – November 2006 to March 2007

282. RPA received Mr G's Stage 1 appeal in November 2006. One of his grounds for appeal was that RPA's 2005 Handbook at paragraph 320 was misleading. Mr L, of the Bedfordshire and Cambridgeshire Rural Support Network, had helped him prepare his appeal. In February 2007 an RPA lawyer commented on the draft appeal decision about Mr G's appeal. He agreed that there was no legal basis for amending the claim. He also said he did not believe maladministration had occurred. He said that people commonly alleged that the customer service centre had told them to await payment, but he doubted that staff went beyond saying that payment would be based on the content of the claim form. In any case, he said, Mr G had lost nothing as a result. In March 2007 RPA sent Mr G their Stage 1 appeal recommendation, rejecting his appeal.

Mr G's Stage 2 appeal about his claim – May 2007 to July 2007

283. In May 2007 RPA received Mr G's Stage 2 appeal and in June 2007 an RPA appeal panel heard his case. The panel recommended rejecting Mr G's appeal. They also said that RPA's actions had: 'seriously misled the applicant and caused him considerable distress'. Mr G has said that he felt the appeal panel secretary and the SPS expert, who were RPA officers, took part too much in the hearing and the panel members seemed unfamiliar with some aspects of SPS. He has also said that it seemed the panel had no power to recommend a remedy for the maladministration they had identified. In July 2007 RPA wrote to Mr G to say that the Minister had rejected his Stage 2 appeal. RPA's letter did not mention the points made by the appeal panel about RPA's mishandling of his case. It is not clear, from the papers we have seen, whether or not RPA have recovered the £379.57 they paid Mr G by mistake.

Mr G's description of the effect on him of losing the 2005 payment

284. Mr G has said that without his 2005 payment he had to stop investment in machinery; rethink his cropping plans; defer his bill payments; and cut household spending to make ends meet. He had replaced his van in June 2005 and had slightly stretched his budget to do that. At the time he had been confident that he would receive his SPS payment. He told us that he believes it took 15 to 18 months for the knock‑on effects of losing the 2005 payment to work through. At one point he had just £300 in his business current account, when he would usually expect to have at least four figures. He ended up on pills for hypertension (high blood pressure), which cost him about £120 a year until he reached 60 in April 2011. He now receives free prescriptions. He also started to use an agent to make his SPS claim because he lost confidence in his ability to do that after 2005. Using the agent has cost £270-£280 plus VAT each year since 2006. Mr G puts the cost of his and Mr L's time at £500 for the day required to attend the Stage 2 appeal. On the same basis, he puts the cost of preparing for the hearing at £100. 

Some comments from Mr G on a draft of this report

285. We shared a draft of this report with Mr G and his representative. Through his representative, he told us that the report gave a clear summary of his case and the circumstances around it. He emphasised the tangible financial effect on him of the stress he suffered because of his experience with SPS 2005 (paragraph 284).

Mr H: a summary of his story

About Mr H

286. In 2005 Mr H was (and still is) an arable farmer, running a tenanted farm of about 93 hectares (230 acres) in the East Midlands of England. His SPS claim would have been worth about £20,245⁵⁴ in 2005 if he had activated all of his entitlements as he had intended. In 2005 Mr H sought advice from an agent about the SPS forms (because he shared ownership of some land), but he completed his own claim form. 

The 2005 claim

287. In May 2005, before the claims deadline, RPA received Mr H's SPS claim in Nottingham. Mr H had answered yes to question 3 in part C of the form, confirming that he wanted to activate entitlements. Mr H has told us that, by mistake, he had omitted to complete column J for one of the field data sheets. The 12 fields on this sheet made up about 68ha of his holding. On the summary page of the field data sheet (which was for farmers' own use and not part of the claim) he had written that he was applying to establish entitlements for 93.33ha and to activate entitlements for 7.50ha. The figure of 7.50ha was the amount of his set‑aside. He had activated 17.70ha.

RPA's handling of the claim from May 2005 to February 2006

288. Also in May 2005 Mr H's claim passed RPA's Level 0 validation check (see glossary on validation). In June 2005 it went through a further checklist when RPA keyed it into their system. In August 2005 RPA contacted Mr H about a mismatched field data entry in the claim.
289. In February 2006 RPA sent Mr H his definitive entitlement statement, which said he had established entitlements worth €29,686.39 (£20,245). Mr H has said that he spoke to RPA after he received the statement. In March 2006 RPA paid Mr H £2,411.71.

RPA decide they can activate all Mr H's entitlements – September 2006

290. In late March and in April 2006 Mr H asked RPA, twice by telephone and twice by letter, to explain his payment. He wrote to them in May 2006 asking them to consider his cases under the rules on 'obvious error'. He contacted RPA again in August 2006, referring them to his earlier letters. In September 2006 RPA told Mr H, in writing, that they would activate all his entitlements.

Mr H asks RPA when they will pay him

291. From November 2006 to March 2007 both Mr H and the Member contacted RPA about Mr H's 2005 payment. In June RPA sent Mr H's case for payment. On the same day, another RPA officer looked at Mr H's case. He noted that it should not be paid. In July 2007, after the National Farmer's Union (NFU) contacted RPA on Mr H's behalf, RPA told the NFU there was a doubt about his case. They said they would write to Mr H within a week. That did not happen. In August 2007 Mr H told RPA that he was very concerned. He said he had made a financial commitment believing 'I would receive my payment sooner, rather than later. Financially I am now in a very precarious position and my health is suffering'.

RPA decide they cannot activate the claim – September 2007

292. In September 2007 RPA wrote to Mr H saying that they could not amend his claim. Mr H told RPA again that he had budgeted for the extra money that the decision of September 2006 had meant he would receive.

Mr H's Stage 1 appeal – November 2007 to May 2008

293. At the end of November 2007 RPA received Mr H's Stage 1 appeal form. He said he was appealing against 'A total reversal of a decision made by you in September 2006, on which I budgeted, twelve months later'. At the end of February 2008 Mr H wrote to RPA asking them to consider his 'as a desperate case' so that his 2007 payment could be released early. He said he had cash flow problems and the situation was also affecting his health. In April 2008 an RPA lawyer commented that Mr H could argue that their maladministration led to financial loss. The lawyer said he saw no evidence yet of loss flowing from maladministration, but RPA could mention to Mr H that he had a right to complain about maladministration.
294. In May 2008 RPA sent Mr H their Stage 1 appeal recommendation – the appeal was unsuccessful because RPA found there was nothing in the claim form to indicate 'obvious error'.

Mr H's Stage 2 appeal – July to November 2008

295. In July 2008 RPA received Mr H's Stage 2 appeal. In November 2008 an RPA appeal panel upheld RPA's decision not to make payment. They said this was because the case did not fall within the 'obvious error' provisions. They also noted RPA's poor handling of Mr H's case and the effect of the letter of 4 September 2006.

Events after the appeal hearing

296. The day after the appeal hearing, the appeal panel secretary telephoned Mr H and gave him his email address. Separately, an RPA officer alerted colleagues that Mr H's case might come to the attention of Ministers. That because was Mr H's sister‑in-law, who had accompanied Mr H to the hearing, had said she knew RPA's new Minister. The appeal panel secretary looked into why RPA had told Mr H he would be paid and updated Mr H by email. In December 2008 RPA put a submission to the Minister with the panel's recommendation that she should reject the appeal. They also said that they accepted they had 'maladministered' the case and proposed a consolatory payment of £500. On 15 December 2008 the Minister's private office confirmed that she had accepted the recommendation. On 23 December 2008 RPA sent Mr H the stage 2 appeal recommendation. Mr H told us that he had declined to accept the consolatory payment from RPA.
297. In March 2009 the Member referred the complaint to me.

Mr H's description of how losing the 2005 payment affected him

298. Mr H told us that he completed his 2006 SPS claim successfully on his own but he has used an agent since then. He has also told us that he bought a small second‑hand combine harvester (a New Holland TX34) for about £15,000 on the basis that he would receive the payment. Mr H has said that he was not in the red at the bank and could afford to pay for the machine, but it did affect his budgeting. We have seen an invoice dated 22 August 2007 for the deposit of £3,166.62. Mr H has told us that he paid the balance in March 2008. He has also explained how isolated he felt when, first, he realised that he might not get the payment and then no one in RPA would give him an answer. They did not return his calls. He said RPA's actions had caused him 'heartache, turmoil and worry'.

Some comments from Mr H on a draft of this report

299. We shared a draft of this report with Mr H. He said:  

     'If the RPA had sent the correct decision to me in the letter dated 14 September, 2006, I would have been spared the subsequent extreme stress, anxiety, lack of sleep, financial management and related family problems. If the decision had been to refuse payment, although I may not have been pleased, I would have not have suffered this subsequent personal torment - something I don't feel I deserve and which I do not ever want to experience again. I would certainly have never committed to making the considerable investment in a replacement combine if my application had not been approved by the RPA. I went ahead with the purchase in the mistaken belief that the money was going to be paid to me in due course. I would not have put myself through the ordeal of going to appeal and then to the Ombudsman if the RPA had not made such a major mistake in leading me to believe that I was entitled to the payment at this time.'

300. We also received comments from people who had contact with Mr H during the time that he was waiting for payment from RPA and then making his appeal. An agent who had advised Mr H and knew him through the local discussion group of the Tenant Farmers' Association described her recollection of how Mr H reacted to the written confirmation from RPA that they would treat his mistake as 'obvious error'. She said: 

     'When we met at the discussion group, Mr H updated us as to progress and was quite frank as to the impact the 'positive' decision had on his business and his personal wellbeing. I recall him commenting on the impact on cash flow and I specifically recall him commenting that he would be able to re-invest in machinery and make decisions that he did not feel he could make before he knew he would receive the whole of his 2005 payment. When he had received the confirmatory letter, at no time did I or, I believe, Mr H believe the decision would or indeed could be reversed.

     'I was therefore very surprised when Mr H said he had a letter from the RPA reneging on the previous agreement regarding his clerical error. Mr H was understandably confused by this decision as well as shocked and I think it fair to say he appeared almost traumatised by the decision. He told me he would be 'appealing' the decision. From that time on Mr H kept the discussion group updated and it was obvious to me and I believe other members of the group, the impact this was having on Mr H – especially when the group expressed disbelief at how the RPA had handled the situation.

     'I really believe the whole experience has been extremely stressful for Mr H – and I really believe that the most traumatic aspect was the reversal of the RPA's written decision. Mr H was visibly stressed by this decision and I believe he needed considerable support during this period to try to come to terms with the way in which he had been treated by the RPA. The sheer length of time taken by the RPA in the decision process did not help – particularly as this encouraged him to make financial decisions which I do not believe he would have made without having received the RPA's letter. I believe it is particularly upsetting to him that he followed all the RPA's processes and rules but to no avail.

     'Whilst I do not advise Mr H on the management of his business, I believed from the discussions at the time, the original letter form the RPA was a deciding factor in the decision to purchase machinery and he therefore made a financial commitment to spend approximately £15,000 which he has had to fund from other sources where as he genuinely believed would be funded through the 2005 payment.'

301. A representative from Farm Crisis Network also contacted us. He said: 'Mr H has been very frustrated and depressed by the inconsistent and seemingly contradictory messages that have been ongoing from RPA over six years'.

Mr I: a summary of his story

About Mr I

302. Mr I owns a farm in the South West of England. He bought a second farm in late 2002 and in 2003 he merged both farms into one holding of about 187 hectares (462 acres). He claimed SPS successfully in 2005, although he was still waiting for his mapping details to be digitised by RPA (see glossary on the Rural Land Register). His 2006 SPS claim would have been worth about £29,600⁵⁵ if he had claimed it successfully.
303. Mr I has said that in 2006 he had read the SPS guidance in detail before completing his claim forms and telephoned the helpline several times without getting through. (He has also commented that RPA sent him many booklets, which suggests he did not have time to read everything.) He said that, on the one hand, RPA kept changing things and only some rules seemed to be strict. But on the other hand, the declaration on the form (see Annex B) was very clear about what a signature implied. It was the declaration that meant he would not complete the form until he was sure the field data was accurate.

Mr I asks RPA to register his land – February 2005

304. In February 2005 RPA received Mr I's claim to add some land to the Rural Land Register. He made a 2005 SPS claim without receiving their response, in line with RPA's 2005 guidance.
305. In August 2005 RPA sent Mr I his updated maps and in September 2005 he asked for corrections – he could see three errors. In autumn 2005 to January 2006 he and RPA corresponded about his National Reserve claim. In January to March 2006 he answered RPA's mapping queries from his 2005 SPS claim and raised his own queries. He wrote to RPA and attempted to telephone them. They sent him standard letters about his 2005 claim. On 1 February 2006 Mr I told RPA that he had not received any digitised maps. This letter seems to have crossed in the post with RPA's letter to him of 2 February, which listed seven fields which had changed. But two fields he had queried were not mentioned.⁵⁶ He received no answer to his specific questions about his maps, although work on those was completed in February and March 2006.

The 2006 SPS claim

306. On 26 April 2006 RPA received the first of three 2006 SPS claim forms Mr I would send them. The form was incomplete, but he had signed and dated the form. His covering letter explained matters and asked, among other things, when RPA would send him a full set of maps. Mr I attempted again to telephone RPA at the beginning of May 2006, but was unable to speak to anyone. After that, he relied on writing letters. In commenting on the draft report, Defra and RPA have said: 'The letter dated 26 April 2005 refers to his 2005 application and the answers to his questions are not critical to his ability to complete the 2006 form'. They also said:  

     'Mr I certainly contributed to the situation by his refusal to submit the 2006 form until all his questions had been answered. He had much of the information needed from his 2005 form and other correspondence and could have submitted a nearly fully completed form, with an accompanying letter to explain his situation, within time, had he been so minded.'

307. On 3 May 2006 Mr I sent his second claim form, which he had not signed. His covering letter had some missing text, but it was clear that he felt he needed more information from RPA before he could sign his claim form. He wrote to RPA again, expressing increasing anxiety, on 8 May, 17 May and 2 June 2006. In his letter of 17 May 2006, Mr I again asked for a set of maps saying that he had never received them. On 12 July 2006 he wrote to the Secretary of State. RPA's response was, on 4 and 23 May 2006, to send Mr I standard letters (called SPV1s), intended to tell claimants about omissions in the information they have provided. (RPA have told us that there was a dual claim in 2005, but they removed the dual claimed field without applying penalties.)

RPA postpones the 2006 SPS deadlines – twice

308. RPA's guidance directs staff to try three times to telephone a person before writing a letter. We have seen no evidence that RPA attempted to telephone Mr I. In 2006 RPA extended the deadlines for SPS claims. First, on 5 May 2006, they said that late claim penalties would not apply to claims received between 15 May (the usual deadline for claims) and midnight on 31 May 2006. The final deadline for claims would be 9 June 2006. Then, on 22 June 2006, they said penalties would start to apply only from 16 June and the final deadline would be 10 July 2006. The effect of the extended deadlines was that RPA had over 10 weeks to reply to Mr I's queries about his first claim form, received on 26 April, before the 10 July absolute cut‑off for accepting 2006 claims.

Mr I's maps arrive, he sends RPA a completed claim

309. In August 2006 RPA sent Mr I a full set of maps, which he accepted were correct. RPA have told us that this will almost certainly have resulted from his letter of complaint to the Secretary of State in which he asked for a set of maps. RPA also replied to his letters of 25 April 2006 and 3 May 2006 and to a telephone call he made on 9 August 2006. They apologised for their delay in doing so. On 15 August 2006 RPA received Mr I's third claim form, based on the updated maps. The form was complete and signed and had a covering letter. On 30 August 2006 RPA wrote to Mr I to say they would accept his 2006 SPS claim without penalty on the grounds that they had previously received two claims from him before the deadline. They gave him a named contact. A day later the RPA customer relations unit, apparently unaware of the other letter, also wrote to Mr I.

RPA change their view on Mr I's claim

310. In December 2006 RPA wrote to Mr I saying that they could not accept his 2006 claim, because the deadline for that information had been 10 July 2006. RPA added that no SPS payments would be made to Mr I for 2006 and any entitlements would be considered unused for that year. Mr I said that problems caused by RPA had led to his delay in completing a full 2006 SPS claim.

RPA pay Mr I £14,800 by mistake and reject his appeal

311. In February 2007, by mistake, RPA paid Mr I £14,806.09. This was a partial payment for SPS 2006. In March 2007 RPA confirmed their decision not to accept his 2006 claim and apologised for any confusion caused. After Mr I appealed, RPA debated whether or not to accept the claim. In August 2007 they considered an internal argument that they had scope to pay his claim under the 'obvious error' provisions. They also considered possible maladministration, up to a point. In their view this was that their SPV1 letters failed to give Mr I a specific direction to activate his entitlements and their August 2006 error of saying they would accept his claim. They rejected all those arguments. During the discussions about Mr I's appeal, an RPA lawyer noted that the appeal panel could confuse eligibility for SPS with maladministration. He suggested that his colleagues considered clarifying what they expected the panel to look at. In November 2007 the Stage 1 appeal upheld the decision to reject his claim. In April 2008 RPA upheld their decision in a Stage 2 appeal.

Mr I's evidence of RPA's inconsistent decision‑making

312. The evidence we saw in Mr I's case included details of his 2005 SPS claim. Mr I and another farmer had both established entitlements for the same two fields, by mistake. RPA have told us that, in principle, the dual claim should have triggered a penalty for the other farmer. In practice, the case worker accepted the other farmer's explanation that he had made a mistake.

Mr I's description of the effect on him of losing the 2006 payment

313. Mr I has said that he was still uncertain what RPA have paid him, or recovered from him. He sums up the effect on him as the loss of his 2006 subsidy, the reduced value of his future entitlements and the trouble of dealing with RPA, which made him feel like a criminal. Mr I has said he was fortunate to have other means which meant he could pay his farm staff despite the loss of the subsidy.
314. RPA made some comments when we interviewed them about what happened in Mr I's case. This is a summary of what they said.
     • RPA have said that dealing with an apparent dual claim from Mr I's landlord had caused some of the delay in Mr I's case during 2005.
     • RPA have said that a written request for up‑to‑date maps would have produced a quick response and that Mr I should not have needed to go as far as writing to the Secretary of State to obtain up‑to‑date maps.
     • RPA established, in response to our enquiries, that a field was missing from the preprinted claim form received by RPA on 10 May 2006 […] and that another field […] was preprinted but had the wrong hectarage. The preprinting had inserted a figure of 2.13ha, which was the area of the missing field […)].
     • RPA's view was that the information in RPA's letter to Mr I of 2 February 2006 would have been of use in filling in the 2006 claim form and that Mr I's understanding of RPA's systems was good enough for him to have been able to analyse the information they gave him.

Some comments from Mr I on a draft of this report

315. We shared a draft of this report with Mr I. In his comments on the draft, he said that he agreed with most of our reporting of the facts and was willing to accept our account on the small points where his recollection differed from what we had said. He asked for written clarification from RPA of how his SPS claim stood in terms of the National Reserve (paragraph E276).

Conclusion

In chapter four, I have set out the complainants' stories. In chapter five I set out my general findings about RPA's handling of claims to SPS in 2005 and 2006.