The Agriculture (Delinked Payments and Consequential Provisions) (England) Regulations 2023

Made: 19th December 2023

Coming into force: 1st January 2024

In accordance with sections 12(8), 13(5) and 50(6)(a) of that Act, a draft of this instrument was laid before, and approved by a resolution of, each House of Parliament.

PART 1 — Introduction

Citation, commencement, extent and application

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• (1) These Regulations may be cited as the Agriculture (Delinked Payments and Consequential Provisions) (England) Regulations 2023.

• (2) These Regulations—

• (a) come into force on 1st January 2024; and

• (b) extend to England and Wales but apply in relation to England only.

Interpretation

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In these Regulations—

• “the Act” means the Agriculture Act 2020;

• “the Direct Payments Regulation” means Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009[^f00002] as that Regulation applied in relation to England immediately before the end of 2023;

• “agricultural holdings tenancy” means a tenancy to which the Agricultural Holdings Act 1986[^f00003] applies;

• “delinking period” is the period beginning with 1st January in the year prescribed in regulation 4 and ending on the last day of the agricultural transition period for England[^f00004];

• “eligible land in England” means any land in England that was an “eligible hectare” within the meaning given by Article 32(2) of the Direct Payments Regulation;

• “farm business tenancy” means a tenancy to which the Agricultural Tenancies Act 1995[^f00005] applies;

• “reference amount” has the meaning given in regulation 5(3);

• “reference period” has the meaning given in regulation 5(2);

• “transfer”, in relation to eligible land in England, means— where the transferor is the owner of the land, a transfer by sale or gift or by lease under a farm business tenancy or agricultural holdings tenancy; where the transferor is a tenant occupying the land under a farm business tenancy, a transfer by surrender or assignment of the tenancy; where the transferor is a tenant occupying the land under an agricultural holdings tenancy, a transfer by surrender or assignment of the tenancy or by the transfer of the tenancy to a successor in accordance with Part 4 of the Agricultural Holdings Act 1986.

PART 2 — Delinked payments

Delinked payments

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The Secretary of State must make a delinked payment under these Regulations[^f00006] for any year falling within the delinking period to a person who, in respect of that year, satisfies the eligibility conditions in regulation 6.

The delinking period

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For the purposes of section 12(2)(b)(i) of the Act and of these Regulations, the year specified for the beginning of the delinking period is 2024[^f00007].

Calculation of delinked payments

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• (1) A delinked payment is to be calculated by the Secretary of State in accordance with Schedule 1.

• (2) The period which applies for the purposes of calculating a delinked payment (the “reference period”) is the period of three years which began on 1st January 2020 and ended on 31st December 2022.

• (3) The amount which applies for the purposes of calculating a delinked payment (the “reference amount”) is the amount described in paragraph 1 of Schedule 1 that is calculated by the Secretary of State in respect of a person.

• (4) When calculating a delinked payment under Schedule 1, the Secretary of State—

• (a) may adjust the reference amount to reflect any alterations to payments made to or in respect of a person under the basic payment scheme[^f00008] for any year falling within the reference period; and

• (b) must adjust the reference amount—

• (i) to offset any proportion of that amount that has been applied for the purposes of calculating a lump sum payment made to any person under regulation 12 of, and the Schedule to, the Agriculture (Lump Sum Payment) (England) Regulations 2022[^f00009]; or

• (ii) in accordance with paragraph 4 of Schedule 1.

Eligibility conditions

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• (1) The eligibility conditions are that a person—

• (a) was eligible for and claimed direct payments under the basic payment scheme in the 2023 claim year;

• (b) has a reference amount calculated in respect of them by the Secretary of State under Schedule 1; and

• (c) where applicable, has complied with any request made by the Secretary of State under regulation 7 for the supply of additional information or evidence.

• (2) For the purposes of paragraph (1) and of these Regulations, a person includes a natural or legal person or, as the case may be, a group of natural or legal persons, regardless of the legal status afforded to such group and its members.

• (3) A person who satisfies the eligibility conditions in paragraph (1) may, at any time, request in writing that the Secretary of State should cease to regard that person as eligible to receive any, or any further, delinked payments under these Regulations.

Information in support of eligibility

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• (1) The Secretary of State may require a person to provide additional information and evidence in support of that person’s eligibility to receive a delinked payment.

• (2) The information or evidence must be provided to the Secretary of State on or before the date specified by the Secretary of State.

Transfers of the reference amount

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• (1) A request may be made to the Secretary of State for the transfer to a person by the Secretary of State of all, or any part, of a reference amount and Parts 1 and 2 of Schedule 2 have effect for these purposes.

• (2) The Secretary of State must, as soon as practicable after the receipt of a request made under paragraph (1)—

• (a) determine that request; and

• (b) give notice in writing to the person who made the request of the Secretary of State’s decision in relation to that request.

• (3) For the purposes of determining a request made under paragraph (1), the Secretary of State may require additional information or evidence in support of that request under paragraph 9 or 16 of Schedule 2.

• (4) A person to whom all, or any part, of a reference amount is transferred following a request made under paragraph (1) and Part 2 of Schedule 2 in circumstances where paragraph 13 of that Schedule applies, is, for the purposes of these Regulations, to be treated as a person who has satisfied the eligibility condition in regulation 6(1)(a).

PART 3 — Making and recovery of delinked payments

Making delinked payments

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• (1) Subject to paragraph (3), a delinked payment must be paid by the Secretary of State to a person before the expiry of the period of 13 months beginning on 1st January in the year to which the payment relates.

• (2) A delinked payment in relation to a year may be paid by the Secretary of State to a person in two instalments, the first of which represents up to 50% of the estimated total value of the delinked payment payable to that person for that year and the second of which represents the balance due to that person after the total value of the delinked payment for that year has been calculated.

• (3) The Secretary of State may pay a delinked payment, or any part of a delinked payment, to a person after the expiry of the period specified in paragraph (1) where the Secretary of State is satisfied that there are good reasons for doing so.

Recovery of delinked payments

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• (1) The Secretary of State may recover on demand an amount paid to a person by way of a delinked payment to which that person was not entitled.

• (2) Where the Secretary of State decides to recover an amount under paragraph (1) from any person, the Secretary of State must notify that person in writing of—

• (a) the amount to be repaid; and

• (b) the deadline specified in paragraph (3) by which the repayment of that amount must be made by that person.

• (3) The deadline specified in this paragraph is before the end of the period of 60 days beginning on the date on which the notification under paragraph (2) is given.

• (4) Where a person fails to repay the full amount referred to in paragraph (2)(a) within the deadline specified in paragraph (3), the Secretary of State may recover the amount outstanding as a debt, together with interest on that amount, calculated in accordance with paragraph (5).

• (5) Where the Secretary of State exercises the power conferred under paragraph (4), interest may be charged to the amount to be repaid for each day from the repayment deadline specified in paragraph (3) to the date on which repayment of that amount, together with any associated interest, is made in full.

• (6) The rate of interest applicable on any day is one percentage point above the Bank of England base rate.

• (7) In this regulation, “the Bank of England base rate” has the meaning given in regulation 28(6) of the Agriculture (Financial Assistance) Regulations 2021[^f00010].

PART 4 — Appeals

Appeals: general

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• (1) A person (“the appellant”) may appeal against any decision made in respect of that person by the Secretary of State under these Regulations.

• (2) An appeal under paragraph (1) must be—

• (a) submitted to the Secretary of State in writing in such form as the Secretary of State may specify;

• (b) received by the Secretary of State before the end of the period of 60 days beginning on the date on which the notification of the decision being appealed against is given to the appellant by the Secretary of State.

Grounds of appeal

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An appeal under regulation 11(1) may be submitted on any of the following grounds—

• (a) the decision was based on an error of fact;

• (b) the decision was wrong in law;

• (c) there has been a material procedural error.

The appointed person

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• (1) The Secretary of State must appoint no more than three persons to consider appeals.

• (2) The persons appointed under paragraph (1) must, upon considering an appeal, report in writing to the Secretary of State with conclusions on the appeal and a recommendation as to the manner in which the matter should be finally determined by the Secretary of State.

Final determination of appeals

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• (1) Following receipt of a report under regulation 13(2), the Secretary of State must make a final determination.

• (2) The Secretary of State must give notice in writing to the appellant, within a reasonable period, setting out—

• (a) the final determination; and

• (b) the reasons for that determination.

PART 5 — Termination of the basic payment scheme in England

Termination of the basic payment scheme in England

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The basic payment scheme ceases to exist upon the coming into force of this regulation.

Revocations and savings

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Schedule 3 has effect for the purposes of making—

• (a) in Part 1 of that Schedule, consequential revocations of the legislation governing the basic payment scheme[^f00011]; and

• (b) in Part 2 of that Schedule, a saving of the effect of that legislation for specified purposes.

PART 6 — Consequential amendments to other legislation

Consequential amendments

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Schedule 4 has effect for the purposes of making consequential amendments to legislation that are necessary by reason of the revocation in relation to England of the legislation governing the basic payment scheme.

SCHEDULE 1 — Calculation of delinked payments

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The Secretary of State must first calculate the reference amount that applies in respect of a person for each year within the delinking period. This is the amount described in paragraph 2 or 3 or, as the case may be, the sum of those amounts with any adjustment made under paragraph 4.

2

The amount described in this paragraph is the average amount paid to a person by way of direct payments under the basic payment scheme in relation to the reference period by virtue of payment entitlements activated by that person in England under Article 32 of the Direct Payments Regulation and before the application of any reductions or penalties under—

• (a) Article 19a of Commission Delegated Regulation (EU) No 640/2014[^f00012];

• (b) Articles 24 to 28 of Commission Delegated Regulation (EU) No 640/2014[^f00013]; or

• (c) paragraphs 2(c) and (d) and 3 to 5 of Article 6 of Commission Implementing Regulation (EU) No 809/2014[^f00014].

3

The amount described in this paragraph is the reference amount transferred by the Secretary of State to a person following a transfer request made under regulation 8(1) and Schedule 2.

4

The reference amount described in paragraph 2 or 3 or, as the case may be, the sum of those amounts, is to be adjusted as necessary by the Secretary of State to take into account the implications for that amount of any previous transfers of a reference amount made following a request under regulation 8(1) and Schedule 2.

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The Secretary of State must then calculate the amount of the delinked payment that is payable to the person for a year within the delinking period. This is the total value of the reference amounts calculated in respect of the person under paragraphs 2 and 3, adjusted as necessary under paragraph 4.

SCHEDULE 2

Part 1 — Requests for the transfer of the reference amount: general

1

A request may be made to the Secretary of State under this paragraph by a person—

• (a) for the transfer to another person of the reference amount calculated by the Secretary of State under Schedule 1 in respect of that person; or

• (b) for the transfer of a specified part or parts of the reference amount calculated by the Secretary of State under Schedule 1 to one or more other persons provided that the sum of the specified parts of the reference amount that are to be transferred does not exceed the total value of that reference amount.

2

A request may be made to the Secretary of State under this paragraph by a person for the transfer to that person by the Secretary of State of the reference amount calculated by the Secretary of State under Schedule 1 in respect of another person only in the circumstances described in paragraph 6.

3

A request under paragraph 1 or paragraph 2—

• (a) must be made to the Secretary of State in such form, and before the end of such period, as the Secretary of State may specify[^f00015];

• (b) may not be made by a person who has submitted an application to the Secretary of State for a lump sum payment under regulation 4 of the Agriculture (Lump Sum Payment) (England) Regulations 2022 unless the Secretary of State has decided, under regulation 11 of those Regulations, not to pay a lump sum payment in connection with that application.

4

This paragraph applies where—

• (a) the reference amount calculated by the Secretary of State under Schedule 1 in respect of a person exceeds £30,000.00; and

• (b) the transfer request is made by a person under paragraph 1(b).

5

This paragraph applies where the transfer request—

• (a) is made by a person under paragraph 1(a) or (b); and

• (b) relates to all or part of a reference amount that has previously been transferred to that person under paragraph 1(a) or (b).

6

The circumstances described in this paragraph are that the transfer request relates to all or part of—

• (a) the reference amount that applies in relation to a business which has ceased trading whether by reason of a change in the legal structure of the business or otherwise; or

• (b) the total sum of the reference amounts that apply in relation to two or more businesses which, for the purposes of the Direct Payments Regulation, were treated by the Secretary of State as a single business in respect of the basic payment scheme claim year 2022 or 2023.

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Where paragraph 4 or 5 applies, the Secretary of State must only transfer the reference amount, or any part of that amount, to any other person or persons specified in the request (“the transferee”) where the Secretary of State is satisfied that the person requesting the transfer completed the transfer of eligible land in England to the transferee between 15th May 2020 and 16th May 2023.

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