Penalties for non-compliance
Most of the following guidance applies to both OAS (Conversion) and OAS (Maintenance). Where this is not the case, this is clearly indicated.
How will my compliance with Scheme rules be monitored?
72 Once you have been accepted into the Scheme you will be visited from time to time by inspectors from your approved Private Inspection Body to ensure that you are meeting the current organic standards. SEERAD inspectors will also carry out unannounced inspections to ensure that the correct hectarages are being claimed under the Scheme and that the land type is being properly classed. They will also inspect the land for any other reason should it be deemed necessary in verifying claims for payment under the Scheme.
What if I find I am unable to comply with the Scheme rules and conditions after joining?
73 Prior to agreeing to enter the OAS you must ensure that you have the resources to comply with the organic standards and OAS rules and conditions and to carry them out in the stipulated timescale. Failure to comply with any of your agreed proposals will be considered a breach of Scheme conditions. The action taken by SEERAD will depend on the nature of the breach and the penalties are detailed at paragraph 74. Please note if you have submitted a joint application any non-compliance will result in action being taken against whoever the agreement holder was at the time the breach occurred.
As soon as you are aware that you are unable to fulfil any part, or all of, your OAS obligations, you should notify your local SEERAD Area Office and your Private Inspection Body immediately in writing. If you fail to notify any non-compliance and it is picked up during a compliance inspection, this will be taken into account in determining the appropriate sanction.
The sanctions to be applied in a breach case will be commensurate with the seriousness of the breach in terms of the damage caused and/or its significance to the overall aims of the Scheme approval. Serious breaches include: deliberate damage, providing false or misleading information and deliberately failing to adhere to organic standards. Sanctions in such cases will be at the top end of the scale and you may be liable to prosecution.
What are the penalties for non- compliance?
74 Breach of an undertaking may have some or all of the following consequences depending on the seriousness of the breach: the withholding of any payments due to you, recovery of payments already made plus interest, termination of your undertaking, the addition of a penalty of up to 10% of the total EC reimbursable aid you were due to receive and a ban from entering another agri-environment scheme for 2 years.
Scottish Ministers may also apply penalties under the SRDP (Enforcement) Regulations 2000/3044 as amended. These are in addition to any EC penalties, which may apply directly.
Exceptional Circumstances
75 The only exception to the above would be in the case of force majeure, i.e. where you could not reasonably have foreseen the cause for the non-compliance. In such cases, SEERAD can decide not to apply any of the above sanctions. Each case will be considered on its own merits but circumstances that could count as force majeure include: a severe natural disaster, compulsory purchase order, accidental destruction of buildings for livestock or the death or long term incapacity of the farmer.
What if I have a complaint?
76 If you have a complaint about the service we provide, you should proceed as follows:
First get in touch with the officer dealing with your case. You can register a complaint by letter, by telephone, or in person. If you want your complaint considered by a more senior officer, please write to the Principal Agricultural Officer at your local SEERAD Area Office. It will help us to investigate your complaint if you set out the facts as fully as possible. We will acknowledge your complaint by return, investigate it fully, and aim to reply within 2 weeks.
If for any reason you remain dissatisfied, please write to us at SEERAD Headquarters.
- If you feel that the service you have received from the Area Office staff has not been satisfactory, you should write to the Chief Agricultural Officer, SEERAD, Pentland House, 47 Robb's Loan, Edinburgh EH14 1TY, who will investigate the matter further.
- Alternatively, if your concern is that the rules of the Scheme are unfair or have not been properly applied in your case, you should write to the Head of Organic Policy, Rural Development Division, SEERAD, Pentland House, 47 Robb's Loan, Edinburgh, EH14 1TY.
You may ask your Member of the Scottish Parliament (or alternatively your Member of the UK Parliament) to take up your complaint with the Minister for Environment and Rural Development at the Scottish Executive, Pentland House, 47 Robb's Loan, Edinburgh EH14 1TY.
If you have used our complaint procedure and are still not satisfied, you (or your representative) may ask the Scottish Public Sector 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 submitted to the Scottish Public Sector Ombudsman, 4 Melville Street, Edinburgh, EH3 7NS within 12 months after the day on which you first had notice of the matter which you are complaining about. Further information about the Scottish Public Sector Ombudsman is available at www.scottishombudsman.org.uk .
On the other hand, if you are satisfied with the service we have provided or wish to highlight some exceptional performance, we would be happy to hear from you. Should you have suggestions about how we can build upon the service we provide, these will also be welcomed.
Will I be able to appeal against a penalty?
77 Before penalties are imposed, you will be told the reason why and given an opportunity to make any representations you wish. A final decision concerning the nature of penalties to be applied will be made after taking your representations and any other relevant factors into account and will be proportionate to the breach. This reinforces the need for you to consult your local SEERAD Area Office if you have any difficulties at any stage in complying with your undertaking. If you disagree with SEERAD's decision or proposed action in your case you should contact your local SEERAD Area Office for a fuller explanation. If you are not satisfied with the explanation given and wish the decision to be reviewed you should initiate the appeals procedure as outlined below:
- Check that you have the right to appeal. For instance, a decision on eligibility to join a scheme would not be grounds for you to lodge an appeal.
- If you have grounds for lodging an appeal, submit your appeal within 60 calendar days from the date on SEERAD's decision letter using the standard application form AP1, which can be obtained from you local SEERAD office.
- Send the completed form (AP1) to the Appeals Secretariat, SEERAD, 47 Robb's Loan, Edinburgh EH14 1TY.
The Appeals Secretariat will register your appeal and acknowledge receipt. Further information regarding the appeals procedure is contained in the Appeals Information Leaflet, AP(EL) which can be obtained from your local SEERAD office.
False declarations
78 Any false or misleading statement that you make, or any steps that you take which prejudice your agreement at any stage may result in the termination of the agreement or the withholding or recovery of payments made to you. You may also be excluded from any other SRDP schemes that you are in for the calendar year in question. If the false declaration was intentional you may be excluded for an additional year and your OAS undertaking will be terminated. You may also be prosecuted.
Release of Subsidy and Recipient Information
79 The Scottish Executive is bound by the terms of the Data Protection Act 1998, the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.
It is the policy of the Scottish Executive to release information about the amounts of subsidy and the new recipients for the Single Farms Payments Scheme and the agreements under the Rural Development Regulation. We will process personal data we receive in line with the Data Protection Act 1998, but applicants should be aware the particular information mentioned above will generally be disclosed.
For the Organic Aid Scheme, this means that we will release information on the options for which you have applied for aid and the amount approved and received. The information will also include your name and the geographic locations. For public limited companies only, addresses will also be supplied.
We will also protect other personal data we receive in line with the Data Protection Act 1998. We will use the data provided in the Organic Aid Scheme application primarily for the purpose of processing the applications. However, personal data may also be used subject to the safeguards of the 1998 Act for purposes connected with:
- administration of the Common Agricultural Policy;
- SRDP and other schemes;
- the production and safety of food;
- management of land and other environmental controls;
- provision of services to businesses;
- animal health and welfare; and
- occupational health and welfare.
Data may be passed (when necessary for these purposes) to other bodies. For example to Customs and Excise for import or export purposes, or to local authorities for milk or health purposes and to the Forestry Commission for cross checking of land use to avoid double funding. Data may also be used for statistical purposes, not identifying individuals, which may reduce the need for some statistical data collection. It may also be used when necessary to comply with the Freedom of Information Act or the Environmental Information Regulations noted above.