Council of State apologises for too strict line in the benefits affair

The Council of State regrets that it came back too late from the strict line in statements about childcare benefits. This is stated in the reflection report by the Department of Administrative Justice published last Friday.In recent months, the department has investigated its role in the benefits affair. This at the request of theParliamentary Interrogation Committee on Childcare Allowanceand under the supervision of an external and independent committee led by Professor Henk Kummeling, Rector Magnificus of Utrecht University. The research resulted in thepublished reflection report.

“All or Nothing” line

It states, among other things, that the department used the “all-or-nothing” line from 2011 to October 2019. Because of this strict method, parents who were unable to justify only a small part of their advance also had to pay back the full amount. “Not appropriate,” saysthe department, because this led to the now well-known “difficult situations”. 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.”

Lessons for the future

In addition to the conclusion about the strict line, three other important lessons from the research emerge. The administrative judges of the administrative law division, for example, should become more critical of the accuracy and completeness of the information provided by a government body. If there is a skewed relationship between litigants, such as in the benefits affair, the administrative court should lend a helping hand to citizens, including by actively investigating the relevant facts. The reflection also shows how important internal debate is, “especially when the outcome of a line of justice in an individual case is unconvincing and feels unjust”. The department of administrative law will therefore encourage internal contradiction, “but dialogue with the outside world is also important to identify bottlenecks in legislation and implementation in time”. Finally, the last lesson concerns “fixed lines” in legal practice — such as the “all-or-nothing” line. Important, according to the department, but when legislation is unclear, it is better to take a “case-by-case” approach. And if lines are plotted, they should not be boarded up immediately: they should leave room for an equitable outcome in the individual case. If the application of a law, or a previously chosen strict line, is too strict due to circumstances, the administrative court must see whether this harshness can be removed and adjust the line if necessary.

Response from Gonzálex Pérez

Eva Gonzalez Perez,the lawyerthanks to whom the benefits affair was uncovered, has now responded to the report. “It is good that the council has done critical self-examination, but at the same time, my clients are still empty-handed. In addition, the procedures that parents face are once again based on distrust,” she says tothe ANP. The lawyer also believes that the council should and could have changed the strict line earlier, and “did not listen” to legal protection in general and to clients' private circumstances. “The tax authorities have indeed misled people, but that does not affect the recourse by the Council of State itself. After all, the Supreme Administrative Judge himself has a responsibility there. The council has missed that assigned task,” says Gonzálex Pérez. DECEMBER 22, 2021|CURRENT

Bart Jan van Ettekoven (Council of State) reflects on childcare allowance cases: from all-or-nothing to proportionality

On December 20, Bart Jan van Ettekoven (Chairman of the Administrative Law Department of the Council of State) spoke to journalist and policy officer Miek Smilde (NVvR) about the reflection report “Lessons from childcare allowance cases”, released in November 2021.The Department reflects with thereportthe all-or-nothing explanation of the law and draws lessons for the future. These lessons have been translated into action points and recommendations. Van Ettekoven discusses the events of the past year, the reflection program of the Department of Administrative Justice and about the steps to take to prevent recurrence in the future.The conversation ishereto look back. (Duration: 33 min.) Bart Jan van Ettekoven was previously (on January 25, 2021) a guest at the NVvR in response to the final report “Unprecedented Injustice” by the Parliamentary Childcare Allowance Interrogation Committee. This interview is alsohereto look back.