Answers to Pieter Omtzigt's questions

2023Z07764 (submitted May 1, 2023) Questions from member Omtzigt (Omtzigt) to the State Secretary for Finance about court rulings about the recovery operation and the fact that the judge found that the state acted unlawfully

1 Do you remember that in July 2019 (even before the parliamentary interrogation was initiated), the House unanimously adopted the Omtzigt et al. motion (Parliamentary Paper 31066, No. 503) which states: “The House,... finding that the tax authorities acted unlawfully,... asks the government to individually compensate affected parents as soon as possible...”?

Yes.

2 Do you remember that motion received “Chamber Judgment” from the cabinet?

Yes.

3 Can you explain why the cabinet then pretended not to act unlawfully for four years, while the Parliamentary Interrogation Committee concluded “The committee finds that fundamental principles of the rule of law were violated in implementing the childcare allowance” (Parliamentary Paper 35510, No. 2) and the cabinet itself sent an overview of 13 laws that had been violated for years to the House?

In the recovery operation, the State acknowledged that mistakes were made, resulting in a lot of damage to parents who were affected in some situations. It is clear that in some situations, unlawful action has also been taken. However, as stated in previous Parliamentary letters, this requires an assessment per individual. The recovery operation was set up to generously compensate affected parents and to compensate the full individual damage, more than just in situations of wrongful action. In cases pronounced by the courts, the State acknowledges liability for the decisions for which the UHT has offered compensation and not for the decisions for which the UHT has not offered compensation.

4 Can you explain why all reparative legislation is based on compensation, but not on unlawful action, while it was clear that unlawful action was taken?

The Recovery Operation Surcharges is not only available for parents if acts have been acted unlawfully, but also in situations where legal action may have been taken but, for example, the legislation has worked too hard for these parents. The starting point of the Recovery Operation Allowances is to generously compensate the affected parents in an accessible way and to compensate the full damage regardless of the wrongfulness. In addition, the CWS is in line with civil compensation law, but the burden of proof in compensating the actual damage is lighter than in civil law (plausibility).

5 Have you taken note of the rulings of the courts in Almelo (ECLI:NL:RBOVE: 2023:1459) and Rotterdam, both of which ruled that the State acted unlawfully against affected parents of the benefits affair?

Yes.

6 Have you taken note of paragraph 4.17 of the ruling: “Furthermore, claimants have rightly argued that the reparations regulations do not allow recognition of a wrongful act on the part of the State. This recognition can only be obtained through (a declaratory judgment by) the court, especially since the State does not want to recognize that it acted unlawfully against claimants through its decision-making. For that reason, too, claimants are admissible in their claim.”?

How do you assess the fact that the court states this so explicitly?

Legally speaking, reparative arrangements cannot indeed obtain recognition of a wrongful act on the part of the State. Nevertheless, the State has already acknowledged that mistakes have been made in the past and may have acted unlawfully in some situations. This requires an individual assessment. However, in order for the parent to receive full compensation in the Recovery Operation Surcharges, it is not necessary to establish the State's unlawful actions. In all situations where UHT finds that a parent has been duped, the State wants to generously compensate the full damage as well as resolve any debts and municipalities offer wider help in the five habitats. The State does not want to litigate and does not want to try to show (afterwards) that the Surcharges Department has taken sufficient account of the principle of proportionality in the past when making decisions for which the UHT has offered compensation. In cases pronounced by the courts, the State acknowledges liability for the years for which the UHT provided compensation and not for the years in which UHT did not provide compensation.

7 Will parents who won these cases receive compensation

It has always been the intention to compensate these and other affected parents. The wish to compensate these parents for the damage remains unaffected even with these statements, and that will also be the purpose of the follow-up interviews.

8 What are the consequences of this ruling for recovery surgery?

Beneficiaries have always had the option to hold the State liable for an action. That does not make these statements different. The recovery operation has been set up to compensate affected parents, where the full damage will be reimbursed. For affected parents, it is therefore not necessary to also hold the State liable through civil law.

9 In your estimation, how many parents and children will be entitled to compensation because the State has acted unlawfully?

The State will focus on carrying out the recovery operation and generally cannot make statements about wrongfulness and numbers. The State does not want to show in individual legal proceedings (afterwards) that the Surcharges Department has taken sufficient account in the past when making the decisions for which the UHT has offered compensation. The State can reimburse the full damage for affected parents.

10 Can you make the State's plea note and submitted documents public (in the Almelo case) so that the House can check what the State has submitted, for example with regard to recital 4.41 (The State states that, under the Wko and Awir, even after the change in the case law of the ABRVs (and, by the way, under also the currently applicable articles 13b and 26 Awir), the review and complete recovery of childcare allowance remains the starting point)?

The starting point of the Fees Service is to be as transparent as possible. She does this within the applicable laws and regulations. The general line here is not to discuss individual files and these documents are therefore not made public.

In general, it can be said that, with regard to this point, the State referred to the explanatory memorandum to the legislative amendment to article 26 of the Awir (Parliamentary Documents II 2020-2021, 35574, No. 3, p. 28-29).

11 What did the State really bring to the procedure with regard to recital 4.41?

See answer to question 10.

12 Do you remember your answer to Member Omtzigt's question about how the compensation scheme relates to a civil claim in tort, (note in response to the report August 30, 2022 (Parliamentary Paper 36 151-7) :¨That does not mean that everyone is free to go to civil court, for whatever reason.

Yes.

13 Despite this commitment, why was the State defended the proceedings: “The State takes the view that claimants, as victims in the childcare allowance affair, can have their damage assessed and reimbursed through the recovery arrangements created by the State as a result of the allowance affair”?

Affected parents can have their damage assessed and reimbursed through the recovery arrangements. The Recovery Operation Surcharges is not only available for parents if acts have been acted unlawfully, but also in situations where legal action may have been taken but, for example, the legislation has worked too hard for these parents. Any going to civil court is therefore not necessary to compensate for damage, and this remains the intention in the future with the parents concerned.

14 Did you take note of the Rotterdam District Court's ruling that the State has 12 weeks to make a decision (ECLI:NL:RBROT: 2023:3474), while the Central Netherlands District Court had made a different decision a few weeks earlier?

Yes.

15 Are you going to prioritize people who appeal to the Rotterdam Court and are given a period of 12 weeks differently than people who appeal to the Central Netherlands Court and receive a period of more than 1 year before their file is fully assessed?

It is very important to clarify the decision deadlines in the short term for parents who do not file appeals in time. It is not fair that parents receive a different decision period with one judge than in the other court. For that reason, an appeal has been lodged against both rulings. It is important to clarify the case law about judicial decision periods as soon as possible in order to arrive at a uniform policy.

16 Can you answer these questions one by one and within two weeks?

No, the letter to parliament dated 9 May this year already indicated that this was not possible. However, these questions will be answered within the regular period of three weeks.

Explanation:

These questions are in addition to previous questions concerning member Leijten (SP), submitted 1 May 2023 (question number 2023Z07763)