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Annual Report of the Ombudsman 2004

Chapter 2 - Department of Agriculture and Food - Rural Environment Protection Scheme

The Ombudsman’s Guide to Standards of Best Practice for Public Servants states, inter alia, that -”Dealing “fairly” with people means - accepting that rules and regulations, while important in ensuring fairness, should not be applied so rigidly or inflexibly as to create inequity.” This following complaint, involving the Department of Agriculture and Food and an elderly widow, arose due to a series of misunderstandings which took some time to come to light and resulted in the Department seeking a substantial repayment from the complainant.

Mrs White’s (not the complainant’s real name) husband applied to be admitted to the Rural Environment Protection Scheme (REPS). The Department of Agriculture and Food’s local office acknowledged receipt of his plan as is normal. However, the plan was returned to his planner to correct minor deficiencies and was subsequently returned by the planner to the Department. Sadly, Mr White died in the intervening weeks. Mr White’s planner did not advise the Department of this.

A couple of months later, the Department approved the plan and issued an acceptance notification to Mr White. His widow contacted the planner with a view to having the name changed to her own. He advised that this could be done, in time, and that there was no problem with her continuing with the plan. Around the same time Mrs White contacted the Department in relation to another grant application her late husband had made and advised it that the application would have to be postponed because of his death. She also informed the same official that she wished to continue with the REPS plan in her own name.

Shortly afterwards the Department wrote to the “Reps of the late Mr White” confirming that the grant application had been cancelled following her telephone conversation. A day later she received a letter from the same official accepting her late husband’s entry to REPS. A few days later the first payment was made by the Department. The cheque was made out to her late husband. Mrs White claimed she had already been advised by another official, following the death of her husband, that she could cash cheques made out to her late husband so she cashed the cheque.

About a year later a Department official, unaware of the death of Mr White, carried out an inspection and found certain deficiencies in the plan. He then recommended that Mr White’s plan be terminated and a new one begun under Mrs White’s own name. A few months later the Department wrote to Mrs White telling her that Mr White’s plan had been cancelled and that she should, if she wished, submit a new plan. The following month the Department wrote to Mrs White telling her that the Department was recouping the first year payment made to her. This amounted to a sum of approximately €7,000. This came as a considerable shock to her as she believed that she had done everything correctly and had at all times advised the Department of what had happened.

In examining the Department’s files it seemed to me that it was somewhat sympathetic to her position. However, as the scheme is 75% funded by the EU and having been given legal advice that it could legally recover the money paid to Mr White, it decided that the money had to be recouped. The basis on which it decided this was primarily that as a contract did not exist at the time of Mr White’s death, any payments had to be repaid.

Mrs White subsequently appealed the matter to the independent Agriculture Appeals Office which, in turn, rejected her appeal on the basis that a contract did not exist and that the Department was acting in accordance with the terms of the scheme. The decision to reject was, however, one that was apparently taken only after a very detailed consideration of the unfortunate circumstances surrounding the case.

I was of the opinion that Mrs White was not being treated reasonably having regard to the exceptional circumstances involved. The Department, while acknowledging my views, again indicated its opinion that it was acting in accordance with the terms of the scheme. It also indicated the money already paid would have to be recouped as it was considered that a valid contract between the Department and Mr White did not exist. It also explained that the possibility of an ex gratia payment under the terms of the scheme was not feasible. I was, however, not prepared to accept that Mrs White’s special circumstances could not be taken into account and I asked the Department to reconsider the case.

After some correspondence the Department accepted my views and while indicating that it was still of the opinion that it had done nothing wrong in the case, it had asked for approval from the Department of Finance to write off the debt. I was very pleased to subsequently learn that the Department of Finance had agreed to this proposal.

I commend the two Departments for acknowledging the exceptional circumstances which arose and their flexibility in dealing positively with this case to resolve it in an equitable manner.

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