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Commons graziers in line for pay outs after CAP u-turn

Many farmers who graze common land in England will be eligible for millions of pounds in backdated Single Payments after Defra announced a u-turn in how commons CAP payments are calculated.

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Following a judicial review legal challenge, Defra admitted in a statement on Monday it has been underpaying thousands of commons graziers under its previous interpretation of the EU regulations.


Under grazing areas is having an adverse impact on some species of livestock, according to study.


Defra has changed the rule so commons graziers will receive higher payments under the Basic Payment Scheme (BPS) and has acknowledged it will now have to make backdated SPS payments in recognition of the previous underpayments. One common land representative estimated the pay outs could worth a total of up to £8m a year, dating back over the lifetime of SPS.


Under the SPS, Defra calculated the proportion of the total eligible area of a common a farmer could claim on the basis of the total number of rights recorded in the register for each common.


But, with some commons rights holders not making claims, this left a number of ‘naked hectares’ of unclaimed land and led to some commons graziers complaining their payments were too low.


Farmers with rights over Minchinhampton and Rodborough commons, in Gloucestershire, launched a legal challenge to the policy, which, without reaching court, has finally forced Defra to change the rule, with potentially huge implications for commons graziers in England.


As a result, under the Basic Payment Scheme (BPS), farmers will now be able to claim on a proportion of the total eligible area based on the total number of rights held by farmers who make a BPS claim.


This means that the full eligible agricultural area of each common will be available to claiming farmers. On some commons this could result in significantly higher BPS payments and is likely to push the overall payment rates in England down by a small proportion.


Because Defra now accepts methodology adopted in 2005 was ‘not in accordance with the regulations’, some farmers will be entitled to claim additional amounts under the SPS dating back up to six years. Other CAP schemes might be affected, too.

Massive decision

Julia Aglionby, chairman of the Foundation for Common Land, said it was a ‘massive decision’ for those who farm the commons.


She cited 2012 figures, showing 21 per cent of common land in England was not claimed on. These ‘naked hectares’ would have yielded about £8m had graziers been able to claim on them, she said.


“This is massive as far as those who farm the commons are concerned. It is a total u-turn and it is great news for those who farm the commons who are often the poor relation of the farming industry,” she said.


“The commoners still had to manage the common and do cross compliance across the whole area but were only being paid, on average, 79 per cent of that land and in some cases a lot less.


“It is complete nightmare for Defra. Now that have to offer everyone their money back until 2005. It is immense.”


She said the change became ‘even more important’ under BPS because of the higher payments granted to the moorland region where a lot of commons land lies.


A Defra spokesperson said: “We have changed the way we allocate CAP funding for farmers with grazing rights on commons to create a fairer system for those who are using the land.


“In many cases this will mean those farmers can expect higher payments than in previous years.


“The Rural Payments Agency will be writing to common farmers if they may be entitled to additional funding as a result of previous SPS claims.”


Commons CAP payment change - what it means?

How is the rule changing?


In the past each commoner has been able to claim on a proportion of the total eligible area of a common, calculated according to the ratio of the rights which that farmer holds to the total number of rights recorded in the register for each common.


Under the Basic Payment Scheme (BPS), farmers will now be able to claim on a proportion of the total eligible area which is calculated according to the ratio of the rights held to the total number of rights held by farmers who make a BPS claim in that year.


Who can make backdated SPS claims?


Those eligible for backdated claims include:


  • Farmers who claimed SPS in 2005 on commons where the full area was not allocated to claimants and have claimed in each subsequent year to date.
  • Others who had a consistent claim history from 2005 until they ceased claiming in a subsequent year may also be entitled to claim additional amounts.

Those who have claimed SPS in every year from 2005 to date may be entitled to receive additional entitlements and additional SPS payments, subject to a six year limitation period.


These additional entitlements will be ‘rolled forward’ to become entitlements under the BPS scheme.


How will backdated claims be made?


These farmers will need to lodge a formal claim in order to establish a legal basis for additional entitlements to be issued.


The RPA will write to them with a simple form which enables them to do this. Defra said a ‘streamlined process’ would be in place to handle these claims, where possible using information the RPA already holds.


How much common land is affected?


  • According to Julia Aglionby, chairman of the Foundation for Common Land:
  • There are 4,500 claimants on common land
  • SPS was claimed on 293,299ha out of the 373,365ha common land grazing area in 2012
  • That equated to 21.35 per cent unclaimed area
  • If payments had been claimed on this area they would have been worth £8m.
  • By land type, £2m moorland, £5.7m lowland, £0.33 million SDA £8m

Will other CAP schemes be affected?


There are also cases in which farmers have received Hill Farm Allowance (or Upland Transitional Payment) in respect of common land, calculated on the basis of the area eligible for SPS.


They may be entitled to extra payment for the later years of these schemes, again subject to limitation periods. RPA will write to those farmers affected inviting them to make a claim if they wish.


How will BPS eligible area on the commons be calculated?


The RPA has recently completed the process of mapping common land for CAP direct payment purposes. Farmers who use common land, or the commoners’ association or other management body, have recently received draft maps from RPA.


In many cases the eligible area of a common has changed from that used in the past. There are more cases in which the area has decreased in size, than has increased, because for the first time all areas which are ineligible for CAP direct payments (such as areas of dense scrub) have been properly identified and excluded.


The RPA will use the final version of the new maps for the BPS scheme from 2015 on wards.


Where a farmer lodges a claim to seek additional entitlements or SPS payments for earlier years, the RPA will use the total eligible area of the common as shown in the new maps to calculate whether anything is due.


RPA will not normally seek to recover any overpayments that become apparent from the new mapping where claimants could not reasonably have detected that they have been overpaid.


The RPA will write to all farmers who currently claim on common land providing guidance on the policy change.


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