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4 PRESENT PROBLEMS
4.1 The most common complaints we heard were; (i) that the ethos within SGRPID is wrong, with the emphasis being on finding ways to prevent money reaching farmers rather than making sure it reaches them; (ii) that there are too many appeal stages; (iii) that Stage 2 is not as independent of SGRPID as it ought to be; (iv) that Stage 2 recommendations are not binding on Ministers in any event; and (v) that the whole process takes far too long. We deal with these in turn.
(i) Ethos
4.2 We have not regarded it as any part of our function to conduct an inquiry into the workings of SGRPID and its predecessors in such a way as to apportion blame for such problems as there may be, but it is only fair to say that in our dealings with SGRPID officials we have met with nothing but openness, frankness and co-operation. We were impressed with the dedication of individuals to their task, the care which they brought to it and their willingness to contemplate change: indeed some of the recommendations in this report originate from SGRPID officials.
4.3 There are, however, two matters in the area of what might loosely be called "ethos" which give us concern.
4.4 The first is the change in culture at Area Office level to which we have already referred. As we have made clear above, we consider that change to be both real and regrettable.
4.5 The second is the low prioritisation of appeals work within Pentland House. This is mainly a problem of resources. We are satisfied that as resources are presently deployed within SGRPID they are inadequate to deliver an efficient appeals procedure. We realise, of course, that resources will always be limited and that they have, therefore, to be deployed according to a system of priorities. We formed the impression that, both historically and now, dealing with appeals has been and is a very low priority within SEERAD/ SGRPID. In fairness, what is a higher priority is getting SFP and other scheme payments out timeously to those who have submitted unproblematic claims and that is obviously a priority which the vast majority of Scotland's 21,000 SFP claimants would endorse. But the stark fact is that a lack of resources has led to unacceptable delays in the processing of appeals and that in turn has harmed confidence in the appeals system as a whole.
(ii) Number of Appeal Stages
4.6 It was an almost unanimously held view among our interviewees that the present structure involves too many appeal stages. Many applicants were dismissive of Stage 1, the outcome of which (adverse to the applicant) they believed to be a foregone conclusion. Many described it as a waste of time. Stage 2 was regarded as much more important and, although, as we shall see in the next paragraph, it was the subject of criticism in other ways, nobody wanted to abolish it. One or two people expressed doubts about the value of Stage 3 but the great majority of those who expressed a view on it were strongly in favour of retaining the Scottish Land Court as a final court of appeal.
(iii) SGRPID involvement at Stage 2
4.7 There was a strong, although not unanimous, view that SGRPID should not have a seat, so to speak, on Stage 2 panels. That was seen as fundamentally compromising the independence of the panels and being at odds with principles of fairness and natural justice. It was compared to a prosecutor in a criminal court being allowed to go into the jury room and take part in deciding their verdict. In other parts of the UK even government involvement short of having a seat on the panel attracted criticism as impairing the panel's independence. In Wales, although no member of the executive sits on their Independent Panels, there was resentment at the fact that Welsh Assembly civil servants continued to have access to the panel after the hearing of an appeal was over: as a representative of the Farmers Union of Wales put it, he was unhappy that following such hearings his opponent was allowed to go on arguing his case to the panel members when he himself was "half way across Wales on [his] way home". In England, where Rural Payments Agency (" RPA") personnel have never sat as panel members, this problem was cured as a result of changes made in the time of Lord Bach, himself a constitutional lawyer, as Minister. There is now no contact between RPA officials and Independent Panel members outwith the presence of the appellant. Indeed the role of RPA officials has been reduced to an entirely passive one: at hearings they speak only to provide information requested by the Panel. In Northern Ireland the role of their Department at hearings is reduced further still: the only representation it has at hearings is in the form of a case report from the Departmental officer dealing with the case.
4.8 Nobody, of course, suggested that the relevant payments agency should have no locus at such hearings but possible roles for their representatives to play ranged from the active - being entitled to argue the department's case and/or to give evidence - to the purely passive - being available to provide the panel with any information the panel might request. It should be recorded that the SGRPID officials who gave evidence were themselves of the view that the present arrangement was not satisfactory from the point of view of the perceived independence of Stage 2 panels.
(iv) Stage 2 recommendations not being binding on Ministers
4.9 Historically what has led to the present participation of officials on Stage 2 panels has been a concern to ensure that the external members of the panel applied the law correctly. Putting it less kindly, there was a perceived need to keep them "on message" and prevent them going off on frolics of their own, however well-intentioned, which may simply result in the Minister having to reject their recommendation for legal reasons further down the line. In one UK jurisdiction we visited, the relevant Minister, in the early days of their scheme, had felt obliged to reject panel recommendations on legal grounds on 27 occasions resulting in the relevant authority taking all independent panel members on an away day at which the errors of their ways in all 27 cases were explained to them, apparently with very satisfactory results in terms of future decision-making, viewed from the relevant Department's perspective!
4.10 The tensions here are obvious. On the one hand there is the feeling that the independence of Stage 2 panels ought to include the freedom to arrive at results which they think right in all the circumstances of the particular case. On the other hand a system in which a high proportion of recommendations from the panel are overturned by the Minister for legal reasons quickly falls into disrepute. This tension was reflected throughout the UK; everywhere there was a feeling among farmers' representatives that the independent nature of an appeal panel should mean that its decisions were binding upon the relevant Minister whereas no Minister can be expected to agree to be bound by recommendations which might be contrary to law. It is felt most acutely by farmers who are themselves members of such panels and it causes them much frustration: on the one hand they feel that they are better to participate in the system and try to make it work as best they can rather than abandon it to a worse fate while, on the other, they feel that their hands are tied and that they are obliged to make recommendations contrary to their instincts. In Wales in particular frustration, indeed anger, born of this tension was almost palpable but the same view was conveyed to us by some Scottish Stage 2 panellists. So far as users of the system (as distinct from those administering it) are concerned, many of them simply cannot comprehend how what is described as an independent review panel does not have unfettered discretion to come to what it considers to be the "right" result and why that result should not be binding on Ministers.
(v) Excessive delays
4.11 No attempt was made by SGRPID officials to defend timescales which have seen reports of Stage 2 panels taking up to 18 months to be issued and whole cases years to be disposed of. That is not surprising; these delays are indefensible, indeed scandalous. We could give many examples of the dissatisfaction which they cause but two replies to our questionnaire will suffice. To a question about the length of time taken to dispose of his case given the complexity of the issues raised, one respondent replied "It is almost 3 years since the Stage 1 appeal was lodged and 14 months since the Stage 2 was heard. It is appalling that no decision has yet been made or notified in such a simple case.". More colourfully, to a question about his overall impression of the appeal process another respondent replied:- "We may as well have written to Santa and stuck the letter up the chimney - at least we would get a response by Christmas."
4.12 It would be unfair, however, to give the impression that all cases are subject to such delays. Many of our respondents (36%) expressed themselves satisfied with the timescale for disposing of their appeals but the great majority (the other 64%) were dissatisfied, many of them strongly so, and it is plain that this is an area which requires urgent attention.
4.13 The foregoing deals with what might be called structural or systemic problems. There is, however, a much more fundamental problem which should not go unnoticed at this stage. It has frequently been the cause of the error which leads to a penalty being imposed. It is the failure of claimants to take adequate time and care in the completion of claim forms. It must be remembered that the vast majority of claims are unproblematic: most people get it right. Taking more time and trouble would achieve the same result for an even higher proportion of claimants.
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