Guidance

How to make a complaint to ASCA

Published 8 July 2024

1. The adjudicator and what we do

1.1 Role of the adjudicator 

The Agricultural Supply Chain Adjudicator (ASCA) enforces the Fair Dealings Obligations (Milk) Regulations 2024. The ASCA, acting on behalf of the Secretary of State for Environment, Food and Rural Affairs, will carry out the enforcement functions under the Regulations.

The Regulations come into force in the UK on 9 July 2024, at which point they will apply to all new contracts made for the purchase of milk from a producer. There will be a transition period of 12 months for existing agreements, after which all such contracts will need to be compliant with the Regulations by 9 July 2025. 

The ASCA will investigate relevant complaints about milk purchase contracts raised by producers.

Where the ASCA finds that a purchaser has failed to comply with a requirement under the Regulations, the ASCA may require the purchaser to pay a civil penalty or compensation or both.  

The maximum amount of a civil penalty is 1% of the purchaser’s turnover, to be paid into the government’s consolidated fund.   

Any unpaid civil penalty can be recovered as a debt. 

The ASCA has also published guidance to help producers and purchasers understand the regulations, including:

• what factors will be considered when calculating any civil penalty or compensation  following an enforcement decision
• how a producer or purchaser can make representations to the ASCA after receiving a notice
• how a producer or purchaser can appeal a decision that has been made 

The ASCA will also review the Regulations within the first 5 years of them being made, and at least every 5 years after that, and publish a report setting out the conclusions of each review.

The ASCA will be committed to engaging with industry and making sure the Regulations are understood and complied with.

1.2 What you can make a complaint about 

You (the producer) have the right to complain to the ASCA about milk purchase contracts that fail to comply with the regulatory requirements, or the obligations not being met by the purchaser you have contracted with.  

You can make a relevant complaint to ASCA about:  

1. Not having a written milk purchase contract in place at all. 
2. Where something required by the Regulations has not been included in your milk purchase contract.
3. Where something included in your milk purchase contract is contrary to the Regulations.  
4. For contracts that use a variable price determined by the purchasers: failure of the purchaser to respond within 7 days to your request for an explanation as to how a new price has been determined following a price review.  

The ASCA can only investigate your complaint after you have made the complaint to the purchaser using the dispute resolution process in your contract and 28 days have passed, unless: 

1. You have no written contract in place. 
2. Your written contract has no provision for a dispute resolution.
3. The dispute resolution procedure in your contract does not comply with the Regulations.

1.3 What we are unable to help with 

The ASCA cannot provide specific assistance or information as to whether a potential complaint, if made, will comply or not with these Regulations. Doing so may result in a conflict of interest if you submit a complaint to the ASCA.

However, the ASCA is able to answer general enquiries about the scope of the Regulations and direct you to potentially relevant parts of our guidance. In the first instance, refer to our Regulation Guidance. If you are still unsure whether your concern is one that can be referred to ASCA, contact us or seek independent legal advice before submitting a complaint. 

If your enquiry is a general one about policy intent of the Regulations or the Adjudicator, refer to our guidance. We will not respond to these enquiries.

Complaints that have already been decided

The ASCA is unable to investigate a complaint that has already been decided, unless it is a complaint where new evidence has become available, and no civil penalty or compensation has been imposed in the past. 

Disputes

There may be some instances of contractual disputes that would fall under contract law rather than the ASCA’s remit. In these situations, seek independent legal advice as to how you can take a dispute forwards.  

If your enquiry is about a Freedom of Information request, email data.protection@defra.gov.uk.

2. Making complaints

2.1 How to make a complaint 

If you wish to make a complaint, download a complaints form.

To make a relevant complaint, you must submit the following information through this form: 

• the details of the alleged failure to comply
• any evidence of the alleged failure to comply
• a statement as to whether the producer is seeking compensation from the purchaser concerned
• the amount of any compensation sought
• the reasons why such compensation is sought

Once you have filled in this form, return it to asca@defra.gov.uk.  

2.2 How we deal with complaints    

If you are making a complaint, we will acknowledge receipt and let you know next steps.  

If a complaint has been made against you, we will contact you to let you know the details of the complaint and how you can respond to the allegations.

2.3 What happens once you submit a complaint (for producers) 

Once you submit a complaint, we will acknowledge receipt and assign a case handler. This will be your point of contact throughout the complaint process.  

The ASCA office will then check your complaint form to make sure it is complete and we have all the evidence required from you to consider the complaint fully. We will contact you if we require any further information from you at this stage.  

The complaint will then be triaged in order to assess whether the grounds of the complaint are in accord with the criteria set out in the Fair Dealing Obligations (Milk) Regulations 2024. 

If we are not able to take your complaint forward, we will write to you notifying you of this decision and our reasons for it.  

Processing a complaint

If your complaint is one we can investigate, we will notify you that we will begin the investigation procedure. This involves contacting the Purchaser and giving them a notice that you have made a relevant complaint to ASCA. This notice will include the allegations you have made against them, and to ask for their response to the complaint, including supporting evidence of their position. Purchasers are under a legal obligation under the Regulation to cooperate with the investigation.  

When investigating a relevant complaint, the ASCA may also consider other failures to comply with the Regulations that did not form part of that complaint.

During the investigation we may require more evidence from you.

The types of evidence we may request include: 

• documents, including those in digital format
• witness evidence, whether provided by written statement or orally
• any other evidence the ASCA considers relevant to the complaint.

Our request for evidence will be in writing and will include: 

• a statement that the request is made under paragraph (7)(b)
• details of the person from whom the evidence is being requested
• what evidence being requested
• how to submit the evidence
• where to submit the evidence
• the date by which the evidence must be provided

If the requested evidence is not provided, the ASCA may begin legal proceedings to require the information to be supplied. Failure to provide requested evidence may also lead the ASCA to draw an adverse inference against the person in respect of the complaint.

We may consult third parties, such as specialist lawyers and the Groceries Code Adjudicator, as part of the complaint process. If your business if based outside of the UK, we may seek input from the authorities in your jurisdiction during the course of your complaint.

Making a decision

Once the complaint has been investigated, the ASCA will make a decision as to whether or not they intend to impose a requirement to pay a civil penalty and/or compensation under the Regulations.

If there is no breach of regulations

If the ASCA finds there has been no breach of the Regulations, we will write to both parties setting out that the decision not to impose a civil penalty and/or compensation and the reasons for reaching the decision. The complaint  will then be closed by the ASCA office.

You have the right to appeal the decision not to impose a civil penalty or compensation to the First-tier Tribunal. Seek independent legal advice on appealing the decision to the First-tier Tribunal. For information on how to appeal, see the Fair Dealings Obligations (Milk) Regulations 2024 Statutory Guidance.  

If the ASCA intends to impose a civil penalty and/or compensation

If the ASCA intends to impose a requirement on the purchaser to pay a civil penalty and/or compensation, we will write to both parties setting out the breach which the ASCA considers has been committed, the evidence being relied upon and the civil penalty and/or compensation the ASCA intends to impose.

If the ASCA is proposing to require the purchaser to pay compensation, you will  have the opportunity to make written representations about the amount of that compensation. The  purchaser will also have the opportunity to make representations in relation to the breaches the ASCA considers has been committed and the proposed requirement to pay a civil penalty and/or compensation. 

Once the period to make written representations has passed, the ASCA will make a final decision on whether to impose a requirement to pay a civil penalty and/or compensation. Where the decision is to impose a civil penalty and/or compensation, we will write to both parties setting out the requirement being imposed, the reasons for this and an explanation of how the amount of the civil penalty and/or compensation has been calculated.

You have the right to appeal to the First-tier Tribunal against the amount of any compensation imposed. Seek independent legal advice on appealing the decision to the First-tier Tribunal. 

Please note that if the ASCA does find a breach, this does not necessarily mean the contract is void. Equally, a breach of the Regulations does not necessarily mean there has been a breach of the contract itself, so long as both parties have been performing their obligations within the contract.   

Seek independent legal advice about any breaches of contract or the extent to which you must continue to perform your obligations under it.

3. What happens if a complaint is made against me? (for purchasers) 

If the ASCA receives a complaint about you that it intends to investigate, a case handler  will contact you to give notice of the complaint. This will include the details of the complaint, will request your response to the allegations made in the complaint and provide the date by which your response is required. The case handler will be your main point of contact during the complaint investigation.

Once you have provided your initial response to the allegations, the ASCA office will assess your response and let you know if we require further details from you for the investigation.

The types of evidence we may request includes: 

• documents, including those in digital format
• witness evidence, whether provided by written statement or orally
• any other evidence the ASCA considers relevant to the complaint.

Our request for evidence will be in writing and will include: 

• a statement that the request is made under paragraph (7)(b)
• details of the person from whom the evidence is being requested
• what evidence being requested
• how to submit the evidence
• where to submit the evidence
• the date by which the evidence must be provided

If we request evidence from you, the ASCA may begin legal proceedings to require you to supply the information. Failure to provide requested evidence may also lead the ASCA to draw an adverse inference against the person in respect of the complaint.

When investigating a relevant complaint, the ASCA may also consider other failures to comply with the Regulations that did not form part of that complaint.

We may consult third parties, such as specialist lawyers, and the Groceries Code Adjudicator as part of the complaint process. If your business if based outside of the UK, we may seek input from the authorities in your jurisdiction during the course of your complaint.

Once the complaint has been investigated, the ASCA will make a decision as to whether or not the Regulations have been breached. 

If there is no breach of regulations

If the ASCA finds there has been no breach of the Regulations, we will write to both parties setting the decision out and the reasons for reaching the decision. The complaint will then be closed.

The producer has the right to appeal to the First-tier Tribunal the ASCA’s decision not to impose a civil penalty or compensation.

If the ASCA intends to impose a civil penalty and/or compensation

If the ASCA intends to impose a requirement on the purchaser to pay a civil penalty and/or compensation we will write to both parties setting out the breach which the ASCA considers has been committed, the evidence being relied upon and the civil penalty and/or compensation the ASCA intends to impose.

If the ASCA intends to impose a civil penalty and/or compensation, you will be have the opportunity to make written representations in relation to the breaches the ASCA considers has been committed and the proposed requirement to pay a civil penalty and/or compensation, before a final decision is made.  

Once the period to make written representations has passed, the ASCA will make a final decision as to whether to impose a civil penalty and/or compensation. Where the decision is to impose a civil penalty and/or compensation, we will write to  both parties setting out the requirement to be imposed, the reasons for this and an explanation of how the amount of the civil penalty and/or compensation has been calculated as well as how to pay. You will have 28 days to make any payment. 

You also have the right to appeal to the First-tier Tribunal about the ASCA’s decision to impose a civil penalty and/or compensation and the amount you have been ordered to pay. Seek independent legal advice on appealing the decision to the First-tier Tribunal .

4. Statutory guidance for producers and purchasers

This guidance is provided by the Secretary of State for Environment, Food and Rural Affairs under Regulation 22 of The Fair Dealing Obligations (Milk) Regulations 2024. 

The guidance covers the imposition by the Secretary of State of a requirement to pay a civil penalty and/or compensation under Regulation 21(1) of the Regulations. 

The Secretary of State must have regard to this guidance when exercising the powers under Regulation 21(1) of the Regulations. 

Accordingly, as required by Regulation 22, this guidance sets out: 

• the matters to be taken into account in determining the amount of the civil penalty or compensation payable for breaches of the Regulations
• the rights of the purchaser and seller to make representations under regulation 24 of the Regulations
• the right of the purchaser and seller to appeal against a decision to impose a requirement under section 26 of the Regulations

Read the Statutory Guidance for The Fair Dealing Obligations (Milk) Regulations 2024 here.

5. Additional guidance for producers and purchasers

This additional non-statutory guidance has been produced to help parties to milk purchase contracts understand the requirements in the Regulations.

Read the non-statutory guidance for The Fair Dealing Obligations (Milk) Regulations 2024.

6. Complaints about the ASCA and the service provided

We are dedicated to dealing with your complaint under the Regulations fairly, consistently and promptly.  

If you have a complaint about how ASCA or the Office has handled your enquiry or complaint, or the standard of service you received, contact the Defra Service Standards Adjudicator at service-standards.adjudicator@defra.gov.uk.

Read more about Defra’s service standards.

This cannot be used to complain about the decision the ASCA has made. See the previous sections on representations and appeals.