Hamish Lean details a case in which it was held that the Scottish ministers’ rule formalism regarding a subsidy scheme was unjustified.

A recent case of mine in the Scottish Land Court has demonstrated that it is always worthwhile checking Scottish ministers are not enforcing subsidy regulations more strictly than is justified.

In 2015, the firm of Malcolm G D Morrison farms in Caithness applied for a payment under the Scottish Upland Sheep Support Scheme in relation to 420 ewe hoggs.

At an inspection, 82 hoggs were deemed ineligible due to an alleged failure to report their movement as a group on a single occasion from one holding to another to the Scottish Animal Movement Unit (SAMU) in Dumfries.

This resulted in the disqualification of the whole claim.

When sheep are moved the movement requires to be notified to SAMU within three days as a result of a European regulation which requires notification within 30 days of the movement having taken place.

These requirements were enacted in Scotland on a more onerous basis within a different order which, rather than leaving a period of 30 days within which to notify the movement, reduced the period to three days.

In this case, the sheep were looked after by John McKenzie, assisted by his wife Lorna.

Sheep were moved frequently between the Morrison farm and Mr McKenzie’s farm and Mr McKenzie was familiar with the movement reporting requirements. The paperwork was carried out by his wife, who was also aware of the need to post the movement record within three days and did it on a regular basis.

At the time of the inspection, the department were shown the duplicate and triplicate copy of the movement form in question.

Mrs McKenzie gave evidence to the court that she dealt with all of the farm business mail including posting mail and would have posted the movement form in the usual way.

However, she did not keep any record of postings or a note of any expenditure on stamps.

The Scottish ministers argued that there should have been proof of posting by the McKenzies, eg the form should have been sent by recorded delivery and that the McKenzies should have checked the movement form had been received by SAMU.

Anything between 50 to 400 individual movement notifications were received by SAMU every day.

Only one or two people a week would ring the office to check if a notification document had been received. On occasion, somebody would ask whether a movement notification had been received and the office would have to tell that person that it hadn’t been.

In upholding the appeal, the court accepted Mrs McKenzie’s evidence that the notification form had been posted. There was evidence of the notification copy having been detached from the other two.

It was a “one off” incident and all the other intimations had been posted and received timeously and there was no reason for the court to doubt that, on this occasion, Mrs McKenzie followed her usual practice of posting intimations promptly.

The court also accepted that all that was required in terms of the regulations was that the person notifying the sheep movement post the notification form to the department.

Given that the form had been posted, it did not matter that it might then have gone astray – that was sufficient for the appeal to succeed.

In essence, Scottish ministers were advancing a counsel of perfection that whenever an intimation is made by post the person making the intimation should contact SAMU to make sure it has been received.

This was unrealistic both in terms of what is expected of animal keepers and also what the staff at SAMU could cope with.