Lessons from the childcare allowance cases

The Administrative Jurisdiction Division of the Council of State regrets that it has backtracked too late from the strict line in rulings on childcare benefits. This is stated in the reflection report of the Department of Administrative Justice published on November 19, 2021.Bart Jan van Ettekoven, chairman of the Administrative Law Department: “We could and should have changed the strict line earlier. We struggled with that, took half measures and did not move forward. Parents who have run into trouble because we have applied the strict line for too long, we apologise. We should have offered these parents better legal protection.”

Read the report (pdf, 583 kB)

Looking back: from 'all-or-nothing' to proportionality

The Childcare Act does not regulate what should happen if parents cannot or only partially justify childcare benefits received. The Tax Authority/Surcharges has used a strict line in these cases. The Department of Administrative Jurisdiction accepted this line in 2011. As a result, parents had to fully repay advances paid out by the Tax Administration/Surcharges if they were unable to prove payments or were only partially able to prove payments. The reflection showed that the consequences of this explanation of the law were appropriate for parents. nought were able to justify. But this explanation led to difficult situations when partial accounting for surcharges received and was not appropriate for those cases. The Department of Administrative Justice left the “all-or-nothing” line in October 2019 and exchanged it for the so-called proportionality line, balancing the extent of the shortcoming and the right to a supplement. That change of direction could have been done earlier and should have been done sooner.

Looking ahead: lessons for the future

During the reflection, a critical review was taken. The findings were analysed. Lessons have been learned from this for the future. These lessons have been translated into recommendations and action points. The three most important ones are:

1. Critical (r) attitude

The administrative judges of the Administrative Law Division should be more critical of the accuracy and completeness of the information provided by the government body. If the relationship between litigants is unbalanced, such as in childcare allowance cases, the administrative court must lend a helping hand to citizens, including by actively investigating the relevant facts.

2. Dialogue and Contradiction

The reflection has shown how important sufficient space for internal debate is, especially when the outcome of a line of justice in an individual case is not convincing and feels unfair. The Department of Administrative Justice is aware of the importance of internal “contradiction” and will stimulate it by training skills and adapting working methods. But dialogue with the outside world is also important in order to identify bottlenecks in legislation and implementation in a timely manner. That is why the Department of Administrative Justice is (renewed) cooperation with the courts, the National Ombudsman and legal science. More use will also be made of advice (“conclusions”) from State Councils, Attorney General. In 2021, two additional State Councils (Advocates General) were appointed.

3. Lines in the case law

Legal practice cannot exist without fixed lines. If legislation is unclear, it must be explained, even by the administrative court. Before the administrative court sets a line, there must be sufficient insight into the range of cases and questions. If that insight is missing or still insufficient, a “case-by-case” approach is recommended. When plotting lines, they should not be “boarded up” immediately. Lines must leave room for an equitable outcome in the individual case. If the application of the law is too strict, the administrative court must use its judicial instruments to see whether this harshness can be removed or limited. If a previously chosen strict line no longer works out equitably due to a change in circumstances, the administrative court must recalibrate that line and adjust it if necessary.

External guidance committee

The reflection program was supervised by an external and independent committee led by Professor Henk Kummeling, Rector Magnificus of Utrecht University. In its statement, the guidance committee states that the Department of Administrative Justice has done a lot of work and that the investigation has provided many legal instruments and organizational recommendations. She notes that the Department of Administrative Justice has taken an important step with the reflection program to ensure the quality of administrative justice.

News Hour

On 13 January 2022, the chairman of the Department of Administrative Law was a guest at Nieuwsuur.

Lessons from the childcare allowance cases - Council of State