Council of State investigates its own statements after the benefits affair: 'It could have been different'

Bart Jan van Ettekoven: “It's incredibly unfortunate for the parents who have borne the brunt”. Image: Werry CroneThe Council of State will investigate its own statements in recent years to see whether, in addition to the benefits affair, there may be more areas where citizens have been disproportionately affected by strict legislation.Wendelmoet BoerseMajan Kleinnijenhuis January 9, 2021, 01:00 The chairman of the Administrative Justice Department of the Council of State, Bart Jan van Ettekoven, finds this necessary after the harsh criticism that his institution received from the parliamentary interrogation committee in the investigation into the benefits affair.From other mediaYes, I want to receive a newsletter every day with the most important online articles from 11 kranten.voorbeeld@domein.nlDe the country's top administrative judge never responds publicly to criticism. But in the benefits affair, Van Ettekoven finds the accusations against his department “so heavy and serious that it is appropriate to respond”. The Council of State wants to learn from the affair. Van Ettekoven wants, among other things, a 'scan' of previous statements, which also include tough legislation. “We're going to review our entire cabinet of cases and statements. We want to see if there are disproportionate consequences for citizens in other areas, even if the law requires strict action.” Although such an investigation has yet to begin, Van Ettekoven cites the example of the Declaration of Conduct (VOG). Without that statement, people are not eligible for many occupations, so “there is a real blockade in people's lives” if they do not receive a VOG. “At the same time, of course, you don't want to undermine the purpose of that statement — testing people with a criminal or sexual history.” “Administrative law has neglected its important function of (legal) protection of individual citizens.” Bart Jan van Ettekoven was awake to this harsh opinion by the childcare benefits committee, he says. At the Administrative Justice Department of the Council of State, which he chairs, they had not seen these firm conclusions coming. “And not expected either, to be honest,” says Van Ettekoven. According to the committee, the administrative justice department was one of the authorities that played a part in the “systemic failure”, leaving citizens out in the cold for years. In a series of cases, the Supreme Administrative Court has repeatedly confirmed the tax authorities's harsh all-or-nothing approach to recovering the entire allowance in case of errors, fraud or irregularities. The legislation (the Wko and Awir laws) has no “pressure valves” and is mandatory law.Van Ettekoven: “Judges create laws and do not implement laws themselves. The legislator wanted it that way at the time; there was a political climate where combating fraud was a priority. The tax authorities then asked us: is it true? And we said, yes.” According to him, in all those years before, there had been little or no comment on these statements from legal science. Nevertheless, the Supreme Administrative Court made a change. In October 2019, the Administrative Justice Department abandoned the hard-hitting all-or-nothing explanation of the legislation, which had led to so much disproportionate suffering for parents. In this ruling, the judges point to the “seriousness and extent of the financial consequences of the case law” so far, and state, among other things, that from now on, the Tax Authority/Surcharges has more options to provide customized solutions in individual cases, for example by not withdrawing the entire right to the allowance if errors are found. Van Ettekoven still calls it a “judicial remedy”, because such a hardship clause was missing in the legislation itself. The national lawyer pointed out as early as 2009 that a less harsh explanation of the legislation was possible. The key question is: why hasn't that been seen before? “In that first period, from 2008 to approximately 2014, we saw no cases of parents who had done absolutely nothing wrong. There was always something going on in those lawsuits. What's more, here in court, we see the tip of the iceberg of all those millions of tax authorities/Allowances decisions, about a hundred cases a year.” Yet, from that tip, you drew conclusions that affected thousands of parents... “I looked for explanations why we made that choice for years. At that time, more parents used rogue agencies. An attempt was made to recover fraud from those rogue entrepreneurs, but legally, the parents who worked with them were also responsible. The allowance was an advance; the entitlement to it was only determined later. In the event of non-compliance and incomplete compliance with the law, the entire advance was revised and set to zero, so that everything had to be repaid.”

Council of State investigates its own statements after the benefits affair: 'It could have been different' Image by Werry Crone Could that have been done differently? “Yes, looking back, I call that an unfortunate decision. I regret that the legal system was explained in such a way that all parents were given the same digital, all-or-nothing brush. While, if you looked through it carefully, there were big differences between the things of one parent and the other. But in 2008, we didn't get the idea that all parents were duped by the tax authorities.” What image did you have then? “That the legal rules were not complied with by parents.” Do you mean that 200 euros of personal contribution had not been paid and therefore 15,000 euros had to be repaid in advance? “I'll ask you a counter-question: what if there is no childminder agreement while grandpa and grandma take care of the children at an additional cost? The law prescribes such a contract. If you didn't have that, the right to a supplement will expire and I still think that's an appropriate response in such a case, actually. Admittedly, because of that digital explanation, we lost sight of the nuances, for example when there was an agreement but without a signature underneath.” For the parents, the statements were often devastating. The National Ombudsman also pointed this out in 2017. Isn't “unfortunate decision” too lenient a word for the many parents who lost their jobs or their homes due to debts? “I agree with you, these are very big consequences.” Is unfortunate the right word? “Yes, I think so. Afterwards, however, more distinction should have been made when recovering. We've learned from that. Imagine if things had turned out differently and the tax authorities had taken a different approach from the start, with more distinction and more proportion in recovering childcare benefits. What would we have done then? I suspect we would have gone along with that explanation.” We don't understand that: if the tax authorities had been able to do that, based on formal laws that you thought were mandatory law, wouldn't the judge have given a different interpretation to the law earlier than in 2019? “But that's not how it just happened. We had to make an opinion about the legality of the actions of the Tax Authority/Surcharges. See, that's an incredibly hard lesson from this whole affair. The front surcharges involved hundreds of thousands of decisions per year, an enormous allowance factory. At the back, people got into trouble, between the cogs of the government. This is largely due to the harshness of the legislation, the fierce action of the tax authorities and decisions by judges that we have to say afterwards were very bad. “In the end, it would have been much better if the legislator had built in more space, a hardship clause for people who got stuck. As judges, in October 2019, we found it not easy to overrule the formal law by invoking the general principles of good administration and the principle of proportionality. That was a judicial remedy, not repeatable. Legally, it's chafing. Afterwards, it's sour: the Council of State's advisory department warned twice at the time that there should be a hardship clause in the law. That did not happen. The minister did not want to do it. And neither does parliament.” Let's just talk about the tax authorities, who often met you in court here. The interviews before the committee, and also earlier, showed that the tax authorities themselves did not always follow the law and the legal deadlines. The service withheld documents in the files, did not tell parents they were part of a fraud investigation, and even searched submitted forms. This has been argued more than once by lawyers. Shouldn't you have been suspicious about that earlier? “I don't remember the files that we were presented with in cases here as incomplete. We had sufficient factual information to judge the individual lawsuits.” Nevertheless, a case involving a parent with an incomplete file prompted Trouw to dive into the affair in 2018. Parents were accused more than once at the hearing by the tax authorities for not providing papers, even though they had tried with all their might. “It's good that you're raising this. It makes me think: what information do we need to do our job well? To my knowledge, we have always asked parents to provide missing documents if necessary for the hearing of the lawsuit. “I am now also thinking of the Ombudsman, who said that providing information to parents was insufficient, about the risks of not being precise enough with their forms. Nor did we always have insight into the consequences. Some files may not have sufficiently emphasized the tax authorities's duty to investigate and whether the tax authorities have sufficiently informed parents about their obligations and the major consequences if they did not comply with them.” That sounds a bit cautious. Let's try it again. A work instruction from the tax authorities just surfaced, stating which documents were allowed in the file, which were not. An instruction that is clearly against the law. “I don't know enough about that. It is therefore not appropriate for me to comment on that. All governing bodies have work instructions, including how to act in court proceedings. It is clear that they must comply with the law in this regard. If that doesn't happen, that's bad. Should we have asked more questions? You don't know what's in the front that you can't see. From my rule of law DNA, I am deeply sad when I read the report of the parliamentary committee. Bias, forms of discrimination, that is extremely serious. But again, we had no insight into that in individual lawsuits.” Perhaps the tax authorities got the benefit of the doubt too often? “This is how administrative law works in a general sense. This assumes that government agencies act lawfully and implement the law. The judge does not assume the failure of the entire system.” In that sense, the many settlements in benefits cases between parents and the tax authorities were a signal that perhaps was more supportive. That the tax authorities wanted to settle if they felt he couldn't win. “Those settlements were a solution for parents in individual cases. Afterwards, we can blame ourselves for not looking at the underlying problem. By that, I mean that implementation and case law are disproportionate in more cases. If we had gotten to the bottom of that earlier and translated it into our statements, that would have had an effect for many more parents. It is harsh to note, but perhaps the practice in which many things became appropriate has actually delayed the final change in case law. “Nevertheless, since 2015, the Department of Administrative Justice has also highlighted the sharp edges of the recovery practice in a number of rulings. Those statements were the harbinger of the change of course. But it could have been done earlier.” Is that an apology or a statement of fact? “For the parents who have borne the brunt of it, it's incredibly unfortunate.” We get that. But you are the highest judge that a citizen can apply to. “We are not afraid to look in the mirror and ask: should we not have forced the tax authorities to put an end to this sooner.” And what do you see in the mirror? “That it's a shame that it lasted until 2019. I really think so.” Can we summarize it like this: it could have been done differently, it could have been done earlier, but your words should not have been different by law? “I think you said that right.” That's quite a harsh conclusion. And it's hard on yourself that, as the highest judge, you have had insufficient insight into the full consequences for thousands of people. “That's one of the lessons for the future. We are going to review our cabinet of cases and rulings, from environmental law to immigration law and general administrative law. Are there other categories of things in which we can determine: this is very strict and tightly designed. Are there the right pressure valves, do people get disproportionately stuck, questions like that.” What statements or things do you mean then? “It is risky to delve deeper into this without further investigation. But you can think of the Statements of Conduct. These regulations and, in particular, the way in which they are implemented, sometimes block citizens from returning to employment. The consequences for citizens who do not or never receive such a statement again can be incredibly significant. “We also reflected internally on why things worked out this way and how things could be better. We want to talk to the courts, with the tax authorities, with the other players in the rule of law. We have to learn from this. But first of all, if the parents appreciate that, we would like to meet them with their lawyers and listen to them. Just sit on our hands and listen. That is essential.” Read also: OM: No criminal investigation into the tax authorities in connection with the benefits affair The Public Prosecutor's Office waives criminal investigation into the tax authorities in the benefits affair. According to the Public Prosecutor, “after a careful assessment of the facts and circumstances”, there is no criminal suspicion.Allowance affairAnd there is another call for the abolition of the surcharges. Why hasn't that happened yet?Harsh report on the benefits affair: 'Any one of us can still be crushed by the government'How can the government restore trust?