The Scottish Government

216. If non-compliance with the same requirement or standard is identified within a consecutive period of three years, it will be considered to be a repeat breach.

217. Most of the GAEC measures relate to one standard. For example GAEC 1 (as defined in Annex 2) relates to the prevention of soil erosion over the winter period. If soil erosion under GAEC 1 is identified in 2005 and again in 2006 then this would be considered a repeat breach.

218. Some GAEC measures as well as the SMR's relate to more than one standard or requirement. For example GAEC measure 15 relates to the retention of a range of boundary features. To be considered a repeat the farmer has to have breached the same standard. For example, if in 2005 a farmer removes a hedge and in 2006 removes a dyke, this wouldn't be considered to be a repeat since the breaches relate to different boundary features, i.e. different standards. Equally, under the livestock identification and traceability SMR's (6, 7 and 8) there are a range of different requirements including: - incorrect tagging, not reporting movements, incorrect dates of birth and not reporting deaths. Consequently if incorrect dates of birth are found in 2005, and a non notified death is found in 2006 then this would not be considered a repeat breach.

219. Once a repeat breach has been identified the associated penalty must be considered. Article 66(4) of Commission Regulation ( EC) No 796/2004 states that where repeated breaches have been determined, the percentage penalty will be three times the penalty applied to the first breach. The following examples demonstrate this:

220. Example One

During an inspection in February 2005, incorrectly tagged cattle were found ( SMRs 7-8) resulting in a 1% penalty.

In November 2006 further animals are discovered incorrectly tagged - a repeat of the breach identified in 2005. Therefore a 3% penalty (1% x 3) is applied.

In the case of further repetitions of negligent breaches the multiplication factor three will be applied each time to the result of the reduction fixed in respect of the previous repeated breach. The maximum reduction will, however, not exceed 15%.

221. Example Two

During an inspection in February 2005, soil erosion on cropped land ( GAEC measure 1) is identified resulting in a 3% penalty.

In December 2006 a further breach of GAEC measure 1 is identified - a repeat of the breach in 2005. Therefore a 9% penalty (3% x 3) is applied.

In December 2007, a third breach of GAEC measure 1 is identified - a repeat of the breaches identified in 2005 and 2006. In this case 9% multiplied by 3 gives 27% but the maximum penalty ceiling is 15% and so the 27% is scaled back down to 15%.

Once the maximum percentage of 15% has been reached any further repeat breach will be considered as intentional. The resulting penalty will be 3 times the result of the previous penalty before (where applicable) the limitation to 15%.

In example two, the third breach would have resulted in a 27% penalty without the 15% ceiling. A fourth breach would therefore result in an 81% penalty (27% x 3).

AREAS OF CROSS COMPLIANCE AND MULTIPLE FIRST TIME BREACHES

222. Cross Compliance is classified under 4 'Areas'. These are:

• Environment ( SMR's 1, 2, 3, 4, 5)
• Public, animal and plant health ( SMR's 6, 7, 8, 8a, 9, 10, 11, 12, 13, 14, 15)
• Animal welfare (none until 2007)
• GAEC (All GAEC measures)

223. There are a number of rules governing the calculation of penalties from multiple first time breaches. If there is more than one breach within the same area, the highest determined penalty figure is applied. Alternatively, if there is more than one breach and they are in different areas then the penalty figures are added together. First time breaches or multiple first time breaches under the negligent category cannot exceed 5% in the first year. Three examples are provided below to help demonstrate these rules:

224. Example One

During an inspection two breaches of Cross Compliance are identified.

1) Unauthorised disposal of sheep dip ( SMR 2) which results in a 1% penalty.

2) Excess Nitrogen application within a NVZ ( SMR 4) which results in a 3% penalty.

Both of these breaches fall with the 'Environment' area of Cross Compliance and so the highest penalty figure is used. In this case it is the 3% which is taken and applied to any claims made under the direct payment schemes.

225. Example Two

During an inspection two breaches of Cross Compliance are identified.

1) Unauthorised disposal of sheep dip ( SMR 2) which results in a 1% penalty.

2) Failure to report cattle movements ( SMR's 7-8) which results in a 3% penalty.

These breaches fall into different areas of Cross Compliance, the first into 'Environment' and the second into 'Public, animal and plant health' and as a result the two penalties must be added together. This gives 4 % which is applied to any claims made under the direct payment schemes.

226. Example Three

During an inspection two breaches of Cross Compliance are identified.

1) Unauthorised disposal of sheep dip ( SMR 2) which results in a 3% penalty.

2) Failure to report cattle movements ( SMR's 7-8) which results in a 3% penalty.

As in example two, these breaches fall into different areas of Cross Compliance, the first into 'Environment' and the second into 'Public, animal and plant health' and as a result the two penalties are added together. This gives 6 % but because both breaches are in the negligent category and are first time breaches the 5% ceiling applies. Therefore the 6% is scaled back to 5% and applied to any claims made under the direct payment schemes.

ONE BREACH COVERING BOTH GAEC and SMR

227. In some situations one breach of the Cross Compliance rules may impact on two standards or requirements. In these situations this is considered to be one breach and only the breach with the highest determined penalty figure is used.

228. Example

At an inspection in July 2005, overgrazing on a Natura 2000 site is identified. This is a breach of the Habitats Directive ( SMR 5) and results in a 5% penalty but it is also a breach of the overgrazing measure under GAEC (number 11) and results in a 3% penalty. Both penalties have come from the same breach source and so only the highest determined penalty figure is used - in this case 5%.

MULTIPLE BREACHES WITH BOTH FIRST TIME AND REPEAT BREACHES

229. Paragraphs 222 - 226 describe the penalty situation where multiple first time breaches are identified. This section explains the penalties applied when multiple breaches are a mixture of first time breaches and repeat breaches.

230. In cases where a repeat breach is determined together with another breach or another repeated breach the resulting percentage penalties are added together. Consideration is given to the 15% limit explained in paragraph 220. The following examples demonstrate how penalties are calculated when there are both first time and repeat breaches.

231. Example One

During an inspection three breaches of Cross Compliance are identified.

1) Unauthorised disposal of sheep dip ( SMR 2) is determined for the first time which results in a 1% penalty.

2) Failure to report cattle movements ( SMR's 7-8) is determined for the first time which results in a 3% penalty.

3) A dyke is removed without authorisation ( GAEC 15) for the second year in a row, a repeat breach which results in a 3% penalty.

There are two first time breaches. Breach 1 is from the 'Environment' area and breach 2 is from the 'Public, animal and plant health' area. Because these breaches are from different areas they are added together to give 4%. This 4% is then added to the repeat breach of 3 % to make the total penalty figure 7%.

232. Example Two

During an inspection three breaches of Cross Compliance are identified.

1) Unauthorised disposal of sheep dip ( SMR 2) is determined for the first time which results in a 1% penalty.

2) Excess Nitrogen application within a NVZ ( SMR 4) is determined for the first time which results in a 3% penalty.

3) A dyke is removed without authorisation ( GAEC 15) for the second year in a row, a repeat breach which results in a 3% penalty.

Both of the first time breaches are from the 'Environment' area which means that the highest determined penalty figure is used, in this case 3%. This 3% is then added to the repeat breach of 3% to give a total penalty figure of 6%.

233. Example Three

During an inspection three breaches of Cross Compliance are identified.

1) Unauthorised disposal of sheep dip ( SMR 2) is determined for the first time which results in a 3% penalty.

2) Failure to report cattle movements ( SMR's 7-8) is determined for the first time which results in a 3% penalty.

3) A dyke is removed without authorisation ( GAEC 15) for the second year in a row, a repeat breach which results in a 3% penalty.

Of the first time breaches, breach 1 is from the 'Environment' area and breach 2 is from the 'Public, animal and plant health' area which means they are added together to give 6%. However because they are both first time negligent breaches, the 5% penalty limit applies. Therefore the 6% is reduced to 5% and added to the repeat breach of 3% to give an overall penalty figure of 8%.

234. Example Four

During an inspection three breaches of Cross Compliance are identified.

1) Unauthorised disposal of sheep dip ( SMR 2) is determined for the first time which results in a 3% penalty.

2) Failure to report cattle movements ( SMR's 7-8) is determined for the first time which results in a 3% penalty.

3) A dyke is removed without authorisation ( GAEC 15) for the second year in a row, a repeat breach which results in a 15% penalty.

Of the first time breaches, breach 1 is from the 'Environment' area and breach 2 is from the 'Public, animal and plant health' area which means they are added together to give 6%. However because they are both first time negligent breaches, the 5% limit applies. Therefore the 6% is scaled back to 5% and added to the repeat breach of 15%. This gives an overall figure of 20% but because all three breaches are classified as negligent, the 15% limit for negligent breaches applies. The 20% is reduced to 15% and applied to any claims made under the direct payment schemes.

235. Example Five

During an inspection two breaches of Cross Compliance are identified.

1) Soil erosion on cropped land over the winter period ( GAEC 1) is found for the 2nd time which results in a 9% penalty.

2) A dyke is removed after consent for removal had been refused ( GAEC 15) and is classified as an intentional breach resulting in a 30% penalty.

The 'Areas' of Cross Compliance do not apply for repeat negligent breaches or intentional breaches. So, in the example above, the 9% is added to the 30% to give and overall penalty figure of 39%.

STANDARD OF PROOF AND RIGHT TO APPEAL

236. As the SMR's are based on existing European legislation, farmers and crofters who commit serious breaches could potentially be taken to court by the relevant Statutory Authority. For example a farmer who has falsified a cattle passport may be prosecuted by the Local Authority.

237. Unlike criminal prosecutions, the lower civil standard of proof will be used to decide whether or not Cross Compliance requirements have been breached. In other words, even if there is no criminal prosecution, Cross Compliance penalties can still be applied. Civil standard of proof relates to the balance of probability. If an inspector can provide evidence to show that on the balance of probability a breach has been committed then this is enough to allow a Cross Compliance penalty to be applied. Farmers or crofters who dispute the findings can lodge an appeal under the existing EU Appeals procedure.

Appealing against our decision

238. If you are not sure why we have penalised you or you do not understand our decision, ask your SEERAD area office to explain.

If you are not satisfied with this explanation, you can ask us to review our decision under the EU Agricultural Subsidy Schemes Appeals procedure. You have 60 calendar days from the date of our decision letter to send in your appeal. The appeals procedure has three stages - an in-house review, an external panel review and an appeal to the Scottish Land Court.

You can get a booklet on the appeals procedure from any area office or from:

Appeals Secretariat
SEERAD
Room 028
Pentland House
47 Robb's Loan
Edinburgh
EH14 1TY.

The appeals procedure does not handle complaints about our standard of service.

Complaining about our standard of service

239. If you have a complaint about our standard of service, you should do the following.

• Contact the person at your SEERAD area office who is dealing with your case. You may complain by letter, by phone, or in person. If you want a more senior officer to consider your complaint, write to the Principal Agricultural Officer at your SEERAD area office. They will either deal with your complaint or pass it to the appropriate person. It will help us to investigate your complaint if you set out the facts as fully as possible, and give your main farm code number. We will acknowledge your complaint as soon as we receive it, investigate it properly and aim to reply within two weeks.
• If you are not satisfied with this reply, fill in the complaint form (which you can get from any area office) and send it to:

The Central Complaints Team
The Scottish Executive Environment and Rural Affairs Department
Pentland House
47 Robb's Loan
Edinburgh
EH14 1TY.

You can also ask your Member of the Scottish Parliament or your Member of the UK Parliament to take up your complaint with the Minister for Environment and Rural Development.

You, or your authorised representative, may also ask the Scottish Public Services Ombudsman to investigate your complaint. Your representative may be an MSP, local councillor or any person you consider suitable to represent your interests. Your complaint must be with the Scottish Public Services Ombudsman within 12 months of the day you first knew of the problem. You can get more information about the Scottish Public Services Ombudsman at:

Scottish Public Services Ombudsman
4 Melville Street
Edinburgh
EH3 7NS.

www.scottishombudsman.org.uk

• You can get a booklet on the complaints procedure from an area office or from:

The Central Complaints Team
The Scottish Executive Environment and Rural Affairs Department
Pentland House
47 Robb's Loan
Edinburgh
EH14 1TY.

COMMON PROBLEMS FOUND AT CROSS COMPLIANCE INSPECTIONS

240. The 12 most common problems are listed below and will lead to penalties against payments made or due under the Single Farm Payment Scheme, Scottish Beef Calf Scheme, Protein Crop Premium, Nuts Aid Scheme and Energy Crop Scheme (Direct Payment Schemes). Actions required to avoid these problems are also described.

241. Please note these are only the most common problems found at inspection. All Cross Compliance requirements must be met in order to receive full payment under any of the Direct Payment Schemes. These requirements are set out in Part A of this booklet.

Cattle Identification and Registration Discrepancies

242. The complete guide on cattle tracing is contained in the 'Cattle Keepers Handbook' issued by the British Cattle Movement Service ( BCMS). This gives full details of all the things you need to do to comply with cattle identification and traceability and therefore all the things you need to do to avoid penalties. If you have a business with more than one holding (permanent or seasonal) you need to ensure that the requirements are followed for each individual holding.

243. Animals do not have matching eartags and documentation.

When an animal moves onto your holding check all the details on the passport/Certificate of Registration (CoR) (including eartag) match the animal. If problems are found take the matter up immediately with the consigning keeper.

244. Passport details do not match eartags and records held on farm.

When you register a calf check to see you have received the passport within two weeks of application. On receiving the passport, carefully check all details. If you do not receive the passport, check the application status with the British Cattle Movement Service ( BCMS).

245. Movements are not notified to BCMS or are not recorded in herd registers.

Unless a BCMS link exists between the receiving and consigning holding, all movements on and off your holding must be reported to BCMS within three days, including 'within' business moves. These movements must also be recorded in you herd register.

If your animals move directly from or to a market/abattoir in Scotland, all markets and almost all abattoirs will electronically transmit the on and off farm moves to BCMS. Please check that this is the case and that they are moving animals on to and from the correct location.

246. Passports are not returned to BCMS for dead animals.

Return passports for dead animals to BCMS within seven days

Note - for animals over 24 months old that die on farm the animal must be sent for BSE testing. You must complete the death details in the passport or CoR and make sure this document goes with the animal for testing.

247. Discrepancies found in record keeping including movements, births and deaths.

Record keeping is your responsibility. Even if you arrange for someone else to maintain your records you, as the registered keeper, must check to ensure that the records are accurate and up-to-date for all livestock.

248. Animals have missing eartags.

Regular checks should be made of cattle to ensure that lost or illegible tags are replaced within 28 days of discovery.

Sheep identification and record keeping

249. Sheep have not been tagged with baseline tags and movement tags.

Ensure that all sheep and goats are correctly tagged within the required timescales. Check when receiving sheep that they are properly tagged. If problems are found, take this up immediately with the consigning keeper.

250. Continuous flock records are not kept up to date.

Ensure that all movements, births, deaths and flock counts are recorded in the continuous flock record. Ensure that movement documents are completed, retained and sent to the Scottish Animal Movement Unit ( SAMU) as and when required. Again, record keeping is your responsibility. Even if you arrange for someone else to keep your records, you must check to ensure that the records are accurate and up-to-date for all livestock.

Boundary Features

251. Boundary features including hedges and dykes have been removed without first obtaining consent from SEERAD.

Consent should be sought from SEERAD before any boundary feature is removed.

Waste Sheep Dip Disposal

252. Waste sheep dip has been disposed of on land without obtaining a Groundwater Authorisation from the Scottish Environment Protection Agency ( SEPA). Also, exceeding the terms and conditions of a Groundwater Authorisation (quantity of dip, number of applications, and dip disposals on unauthorised locations on the same unit).

A common problem has been the lack of record keeping which is required by the Authorisation. The information required is stipulated in the conditions and will include the date, location, type of sheep dip, volume and dilution details of the disposals undertaken.

Payment of SEPA's annual subsistence fees is required as a condition of the Authorisation. Non-payment could result in revocation of the Authorisation by SEPA and any subsequent illegal disposal to land would be a breach of Cross Compliance.

A Groundwater Authorisation should be obtained from SEPA before any waste sheep dip is spread onto land. Also, the terms and conditions of a Groundwater Authorisation must be followed.

Nitrate Vulnerable Zones ( NVZ's)

253. Action Programme measures in NVZ's are not being followed.

Farm records must be kept for at least five years, from the date of the last entry, including details of cropping, livestock numbers, the use of inorganic (chemical) nitrogen fertilisers and organic manure.

A Fertiliser and Manure Plan must be prepared and implemented each year and is required to:

• establish the quantities of livestock manure produced on the farm.

• demonstrate sufficient storage capacity and land available for spreading organic manure.

• contain an assessment of the amount of nitrogen available to grass and crops following application of organic manure.

• contain an assessment of crop and grass requirement for nitrogen fertiliser in each field taking account of nitrogen supply from soil organic matter, crop residues and organic manure.

Observe closed periods for spreading inorganic (chemical) nitrogen fertilisers and organic manure and do not spread organic manures within 10m of a watercourse.

Full details of NVZ requirements can be found in the SEERAD booklet titled 'Guidelines for Farmers in Nitrate Vulnerable Zones'

Soil Erosion at Watering Points

254. Livestock access to watercourses is causing erosion of banksides and entry of soil to the water.

Livestock numbers should be carefully controlled to ensure that soil erosion is avoided at watering points, particularly where there is direct access to a watercourse. Laying hardcore, erecting barriers and installing water troughs are other examples of preventing soil erosion and ensuring soil does not enter the watercourse.

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