Entry Level Stewardship (ELS) Handbook 2013 (NE349)

5.7 What happens if you fail to keep to the terms of your agreement, have a dispute or wish to make a complaint?


5.7.1 What is a breach of agreement?

You will be in breach of your agreement if you:

This is the case whether it is you or somebody else who causes a breach. It is your responsibility to ensure that all agreement conditions are fulfilled, and that all information in your application and other correspondence is accurate.

 

5.7.2 What penalties could be applied?

If you breach your agreement, you may be liable to one or more of the following penalties, depending on the circumstances of the breach, in addition to reducing your payment to what you should actually be due based on the findings:

  • we may withhold part or all of any future payments due under your agreement;
  • we may recover (with interest charged) part or all of the payments already made to you under the agreement;
  • we may terminate your agreement;
  • we may apply any penalties set out in the relevant EU legislation; or
  • we may prohibit you from entering into a new agreement under this scheme or any other EU agrienvironment scheme for up to two years.

When penalties are imposed, we will give you a written explanation of the reasons for the proposed steps and an opportunity to make any written representations.

When we seek to recover payments already made to you, interest will continue to accrue from the date of our notification of the breach to you, to the time of reimbursement of the payments from you to us, including during any period when the penalty is being appealed or otherwise under review.

In all cases, any penalties applied will be proportionate to the severity, extent and permanence of the breach.

Penalties will not be applied where we have agreed with you in writing that exceptional circumstances have occurred in relation to any breach (see Section 5.6.9).

The legislation which governs enforcement of breaches of your agreement is the Rural Development (Enforcement) (England) Regulations 2007 and Commission Regulation (EU) No 65/2011.

Penalties will be applied to the following types of breaches, although we retain discretion to apply penalties in any circumstance specified in Section 5.7.1:

  1. Where the total area of eligible land you have declared, or the points you are claiming for a particular option in a specific location, are found to be incorrect or the option is not in that location (for example, a length of hedgerow on the boundary of one field is too short or is not there at all).
  2. Where the management requirements for an option are not being followed (for example, where a hedgerow has been entered into a hedgerow management option that only permits cutting every other year, but has subsequently been cut annually).
  3. Where your FER features have been removed or damaged.
  4. Where the rules of cross compliance are not being followed.
  5. Other breaches of the additional requirements set out in Section 5.5.
  6. Failure to notify us that you have let, sold or transferred some or all of your agreement land to another party or that you no longer have management control of the land (see Section 5.6.2).
  7. Where cross-checks identify that the options you have selected are incompatible with or duplicative of options or management declared under other schemes (such as Single Payment Scheme, CSS, ESA or Forestry schemes).

With respect to any category of breach referred to in this handbook, where a breach is determined by us to be the result of serious negligence on your part you can, in addition to any other penalty, be excluded from all agri-environment measures for the calendar year in question. Where your breach is determined by us to be reckless or intentional, you can be excluded for the following year as well (ie two years in total) and you may also be required to pay an additional penalty of up to 10 per cent of the payment made or payable to you.

Points claimed cannot be found or management requirements are not being followed
Where checks reveal that:

  • there is a discrepancy between what you are claiming for a particular option in a particular location and the actual length/area/number on the ground; or
  • you have not followed the management requirements for a particular option, the points relating to that discrepancy will be deducted from your total points.

This shortfall can be offset against any surplus points from other additional options on land receiving the same area payment where they are identified by the inspector and where you already have that option on your land (ie £30/ha or £8/ha in ELS or £62/ha or £23/ha in Uplands ELS). Where the deductions relating to a shortfall reduces your ELS total points below your threshold points, your annual payment for all years where the discrepancy applies will be reduced and penalties applied on a sliding scale, as follows.

 

Table 11 Penalties for difference between target points claimed and points found

Difference between target points and points found (as a percentage of points found) Sanction Example
Agreement covers 30ha all paid at £30/ha. Points Target = 900 points Annual Payment = £900
Points found are less than your points target, but the difference is not more than 3% We will reduce (or recover) payment, based on the points found. No additional penalty. Actual points found = 880
Payment = £880
The difference is more than 3%, but not more than 20% We will reduce (or recover) payment, based on the points found. An additional penalty of twice the difference will be applied. Actual points found = 800 Payment = 800 – 2x(900-800) = £600
(Reduction of £100, plus penalty of £200.)
Difference is more than 20%, but not more than 50% We will reduce (or recover) payment, based on the points found. In addition the whole of the remainder of the payment will be deducted as a penalty. Effectively all payment for the whole agreement concerned is withheld (or recovered) for the year(s) concerned. Actual points found = 700 Payment = £0
(Reduction of £200, plus penalty of £700.)
Difference is more than 50% All payment for the whole agreement concerned is withheld (or recovered) for the year(s) concerned (as above), plus an amount equal to the difference will be deducted from the following year(s) payment(s) Actual points found = 400 Payment = £0 Deduction from following year payment = 900-400 = £500
(Reduction of £500 and penalty of £400 for current and previous years. Additional penalty of £500 in following year.)

 

Damage or removal of FER features<
If you damage or remove any of your FER features, we will reduce your annual payment. Any penalty will be proportionate to the severity, extent and permanence of the breach, and whether it is repeated. We will take into consideration the control you had over the damage or removal; for instance where this might have been wholly or partly due to the action of a third party.

Breaches of cross compliance
We will deal with breaches of cross compliance in proportion to the extent, severity and permanence of the breach, and whether it is the first time such a breach has occurred. Please contact the RPA (see rpa.defra.gov.uk/rpa/index.nsf/home) for more detail on cross compliance reductions.

 

5.7.3 What do you do if you receive an overpayment?

It is your responsibility to check that payments you receive are in accordance with the details set out in your agreement. If you are paid more than you are entitled to under your agreement, you will be liable to reimburse the amount overpaid. You may also be liable to pay interest on that amount covering the period between the date we notify you of the overpayment and reimbursement. We will write to you explaining how the sum has been calculated and how the overpayment must be repaid.

 

5.7.4 What if you disagree with any of our decisions or proposed actions regarding your application or agreement?

If you are unhappy with the decisions that we have taken in respect of your application or agreement, you should write to the Customer Service Team manager at your Natural England office, who will ensure that your case is properly investigated and advise you of the procedure to be followed.

Where the issue cannot be resolved within the team that originally handled your case, the Customer Service Team manager will ask a senior manager, who has not been involved in your agreement, to review your case. The adviser will consider any points you have raised and report to the Customer Service Team manager with their view on the steps proposed to resolve the dispute.

If you remain dissatisfied with the decision of the senior manager, you can have the matter referred to an independent person or body, nominated by us, for further consideration.

 

5.7.5 How do you make a complaint?

If you are unhappy about the way a member of staff has dealt with you, or with the level of service you have received, you are very welcome to use our complaints procedure, details of which are available below, or via our website: www.naturalengland.org.uk.

Our complaints procedure:

  • Step 1: Contact the Customer Service Team using the online Feedback facility at: www.naturalengland.org.uk/feedback/default.aspx or email them at customer.feedback@naturalengland.org.uk. They will respond to you.
  • Step 2: If you are not satisfied with our initial reply, please email the Customer Service Team again and they will escalate the complaint to the appropriate Team Manager.
  • Step 3: If you are still not satisfied with the outcome, please email the team again and they will direct the complaint to the appropriate Director.

If you do not wish to use our online Feedback facility to register your complaint, you can:

  • email the Customer Service Team;
  • contact the person who provided the service to you, by whatever method is most convenient; or
  • contact the Customer Service Team at:

Natural England
Mail Hub Block B, Whittington Road
Worcester WR5 2LQ

Our commitment to you
We will investigate your complaint thoroughly and fairly.

If we are at fault, we will try to put things right as quickly as possible. If not, we will give you a full explanation.

If we cannot resolve your problem on the spot, we will acknowledge receipt of the complaint within five working days. The acknowledgement will say who is dealing with the complaint and when you can expect a reply.

We will then write and tell you the outcome of our investigation within 20 working days. Difficult complaints sometimes take longer to sort out. If so, we will keep you informed of what is happening.

From time to time we will follow up with you to check if the way in which we handled your complaint was appropriate. We appreciate you may not always be happy with the outcome but it is important for us to monitor how our processes are working.

...and if you are still not satisfied
If you still feel that we have not resolved the issue satisfactorily, you can ask any Member of Parliament to refer complaints about administrative actions by us to the:

Parliamentary and Health Service Ombudsman
Address: Millbank Tower, Millbank, London SW1P 4QP
Helpline: 0345 015 4033
Fax: 020 7217 4000
Email: phso.enquiries@ombudsman.org.uk
Website: www.ombudsman.org.uk

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