Judges compete over the all-or-nothing line

Judges were often cut short by the Administrative Justice Department of the Council of State if they wanted to solve parents' problems.

Geerten Boogaard
May 26, 2023
The benefits affair has left a lot of trauma in many parts of the government. One of them is the line in which the courts have had to walk. They had desperate parents in front of them who were filled to their brim with debts by the tax authorities due to minor administrative imperfections.

But judges who wanted to make it work out were decisively cut short on appeal by the Administrative Jurisdiction Division of the Council of State. For years, that high Board of State neatly blessed the tax authorities's strict “all-or-nothing line”, allowing the Combiteam Approach Facilitators to go about its business.

In the report Finding law in court, the lower judges were among the first to reflect on their contribution to the misery. Had they done enough? The Rotterdam District Court had been bothering and sailing its own line for a year, but that had made no impression on the Kneuterdijk.

The Hague District Court, like a kind of mayor, had oscillated between saying yes and doing no during wartime. And several other courts had cut corners in evidence law to avoid absurd outcomes. But on balance, most judges had eventually complied with the settled case law. Partly because they did not want to give parents false hope for legal protection and partly for reasons of legal unity and equality of law.

Afterwards, the judges would have liked to do more, their reflection showed. Limit the formal requirements and spend more time looking for legal instruments to achieve a proportionate outcome for citizens with thorough and case-specific justification. “If appellate court case law seems to give little room for this, that is no reason to refrain from doing so.” Just like municipalities could do more often, frontline judges should fight harder for what they see as the most equitable solution in law. If this is how differences arise, that is not the end of the world.

At the beginning of this month, we saw an example of the new decentralized assertiveness. This time, the resistance was in Utrecht, where three administrative judges clapped unusually loud at the Central Appeals Board. The purpose of the dispute was whether a healthcare office can withdraw complete PGBs from a disabled budget holder if his paperwork is not in order through no fault of his own. Yes, certain established case law of the Central Council. According to the system of the law, the vulnerability of the budget holder should be taken into account in the civil law question whether the debt is actually collected and not when determining the PGB.

Better not, the judges from Utrecht had already ruled last year. Leaving large debts above the debt collection market causes stress and uncertainty among vulnerable people who have an administrator for a reason. Nevertheless, the Central Council responded six months later. The problems were now known and the Minister for Long-Term Care had already announced that she was considering measures.

The trauma of the benefits affair turned out to be too deep

That's what the administrative judge should have been waiting for. The new line they had wanted to set out in Utrecht thus seemed to be breaking the appeal button. But the trauma of the benefits affair turned out to be too deep for that. Because when they had to rule again in Utrecht early this month about a vulnerable PGB holder whose care office wanted to determine a debt of 60,000 euros because his brother did not have the papers in full order, they took up the fight again.

In an unprecedented frontal rejection of the Central Council's ruling, the court still refused to burden someone who needs an administrator to manage their affairs with the stress of 60,000 euros of debt because their affairs were not properly arranged. The fact that the legislator is working to repair the case was of course nice, the court considered, but in the meantime, individual legal protection must also be provided.

We are now waiting for the Central Council's response. He will undoubtedly hope that the legislator is in a bit of a hurry.