Benefits affair: secret advice from a national lawyer from 2009, public and how tragic that it was not followed

Wednesday, January 27, 2021, 17:12, analysis by Mr. Geert Jan Hamilton
The National Attorney's Advice on Revision of Childcare Allowance of 18 December 2009 covers eight sides, with a wide range of lines. So not much text at all, nor complicated. It clearly describes what the Tax Administration/Allowances should do if people had applied for a childcare allowance but had not paid part of their own contribution or had not paid part of their own contribution: assess the circumstances of the case; give parents the opportunity to demonstrate that they are (well) covered by childcare costs. “In principle, we consider an initial reduction in the childcare allowance (if it appears that no personal contribution is being made by the questioning parents) to be understandable and justifiable, but we can imagine that permanent further reductions (ultimately to zero) will be treated more carefully.” According to the national lawyer, not contributing to the costs of childcare yourself can definitely be a reason to reduce the childcare allowance. How much the reduction may be depends on the concrete circumstances of the case and depends, among other things, on the answer to the question to what extent childcare still does not receive any contribution from the questioning parents even after a possible reduction in the childcare allowance. The state attorney therefore calls for good research and interaction with citizens who have not fully met the requirements for obtaining childcare allowance. “It sometimes appears that childcare receives nothing at all, because it believes that 'the children' need this money more than they do,” the national lawyer had received from the tax authorities.

“You have to make do with that”
Until January 19, 2021, this advice from the state attorney was secret. As recently as December 2020, State Secretary Van Huffelen (Finance — Surcharges and Customs), in letters to and in oral consultation with the House of Representatives, exhausted herself in arguing that the advice requested by MP Omtzigt could not be provided. On December 4, 2020, she reiterated that, in this case, she saw no reason to deviate from the cabinet's policy that the national lawyer's advice is not made public. “This is about advice from a lawyer to his client. These confidential relationships are fundamental to our rule of law, even if the government is a client.” On December 14, 2020, she wrote that she had raised her intention not to provide the advice to Omtzigt in the Council of Ministers on 11 December and that the Council of Ministers had expressed its support. However, she had by now shared the core of the advice with the House in condensed terms. This showed that the state attorney had recommended a proportional approach.

In the NOTA meeting with the Secretary of State on December 15, 2020, Omtzigt persisted in his wish for the national lawyer's document to be made public. He says he fully understands that advice from the state attorney will not be made public if it concerns advice to the State when the State is a party to the proceedings. “Of course, you also understand that, because the other party to the proceedings would be extremely pleased to have the lawyer's advice. That will be festive in the procedures.” But, the MP argues, this was advice about explaining the regulations, a fairly clear one. In that case, there are several precedents of an opinion from the state attorney being made public by the government. The Secretary of State insists on her refusal: the crux is that I shared the content of the advice with you by paraphrasing what it says. “Otherwise, the cabinet looks at it differently than you do, and you have to make do with that for a while.” Omtzigt asks the committee chairman to put it back in the Presidency as a violation of article 68 of the Constitution, the article that requires the government to provide each individual MP with the information he asks for. Only when the State's interest is at stake can the government refuse to provide the information. This, says Omtzigt, is a very essential document that could show that the government acted unlawfully against 10,000 taxpayers. “Then it is not the interest of the State, but the interest of the government, and those two things are not exactly the same, I can assure you.”

On December 17, 2020, the devastating report of the Parliamentary Interrogation Committee on Childcare Allowance, “Unprecedented Injustice”, will be published. This briefly refers to the national lawyer's advice from 2009. What happened within the Tax Service/Surcharges is that, according to the national lawyer, the strict “all-or-nothing” approach, about which the service asked for advice, is “pleadable”. The service then opts for the strict course; in the view of the Tax Authority/Surcharges, this is about parents who are cheating. The service presents the course to the court. The Council of State does not condemn the chosen course. This is where the Tax Authority/Surcharges see an indication to continue on the same path. According to the report, the rulings almost completely disappear the space to choose a different course within the existing law and case law. The Tax Authority/Surcharges then applies the “all-or-nothing” not only in the absence of a personal contribution, but also in the event of administrative shortcomings. This is also not condemned by the judge. The result is that, through the interplay of law, implementation and case law, the principle of proportionality will be deprived of its significance in practice until well into 2019.

WOB request
The report's presentation of the facts made me curious about the full text of the national lawyer's advice. On December 31, 2020, I submitted a “WOB request” (a request based on the Public Administration Act) to the Secretary of State for Finance asking for the draft advice from the national lawyer that Mr. Omtzigt had asked for as a Member of Parliament, as well as documents showing what position in response to the draft advice within the Ministry of Finance/the tax authorities regarding the cessation of surcharges and recovery of benefits surcharges have been taken. In a column on this website dated 6 January 2021, I explain why, in my opinion, the advice should be made public.

On 15 January 2020, the cabinet's response to the report “Unprecedented Injustice” will be published. In this response, the cabinet expresses, among other things, that the Interrogation Committee's highly critical attitude towards the provision of information by the government has seen reason to radically change this. Documents underlying a decision by administrators will now be actively made public. The cabinet will also be more transparent in making documents made for internal deliberation public. Personal policy views will no longer be covered up in internal deliberation documents sent to the House of Representatives. The cabinet is also completely 'involved' with regard to the national lawyer's advice from 2009. At the meeting of the Council of Ministers on 11 December 2020, the cabinet still explicitly confirmed that the 2009 advice in the benefits affair should not be provided to Member of Parliament Omtzigt, a month later, the cabinet wrote to the House of Representatives: “Given the exceptional nature of the events surrounding the childcare allowance and the seriousness of this case, the advice of the national lawyer that has been provided to the POK is exceptionally also provided to the National Attorney for inspection. made public.”

On January 18, 2021, I will receive confirmation of receipt of my WOB request from the Ministry of Finance. The processing of my request required coordination with several stakeholders, which is why the decision on my request, which normally has to be taken within four weeks, was adjourned by four weeks. Immediately, I will inform you that I could imagine the need for consultation on the other documents, but that I believed that the core document, the national attorney's advice from 2009, could no longer remain out of the public eye after the cabinet response on 15 January.

Phone beeps
A day later, Tuesday, January 19, 2021, I was watching the Parliamentary debate on the childcare allowance and the fall of the Rutte III cabinet in front of the television. Especially in the afternoon, it was very exciting and emotional. My call beeps and an email from the Department of Legal Affairs of the Ministry of Finance arrives. It states that the letter I received the day before was indeed overtaken by current events. The draft advice is now public and I find it in a link.

While Mr. Omtzigt was speaking, I was able to read the national lawyer's advice from 2009 that, when asked for information about the benefits affair, had been kept away from the House of Representatives for eleven years. It is a nuanced advice, with a wise administrative, but also legally correct approach. But the Tax Authority/Surcharges had only read that the tough approach to paying a bit of personal contribution or making an administrative mistake was “pleadable”. And so thousands of decisions were made with the cessation of surcharges and harsh recoveries of surcharges that had been paid. Often without a good explanation. If you have any questions, please file an appeal. Appeals came in a heap and were sometimes not answered for 18 months. In 2017, the National Ombudsman made recommendations that are in line with the approach advocated by the national lawyer in 2009. As a secret, the advice of the national attorney will not have been in NO's file.

How easy it could have been: explain to people that a childcare allowance in the legislator's system is a cost allowance, not a cover for all costs. “As a parent, you do have to pay a bit yourself”. “Yes, but the daycare said I could leave that personal contribution behind.” “Oh, you say I have to pay it. Now that you've explained it, it's clear to me, thank you.” Is it strange that people with little income who rely on the announcement that they can afford to pay their own contribution relatively low on the total amount often did not realize that not paying them or not paying them in full would put a noose around their neck that would take their breath away for years? Every day, hearing aid suppliers advertise on radio and TV that if you buy a hearing aid from them, you don't have to pay a personal contribution. Does going into that mean that you will not be reimbursed for health costs at all if you really get sick? That will not be experienced that way and it is not the case. But this is the case with childcare, and the tax authorities should have explained that very well and made it understandable in each individual case before coming up with draconian measures.

stomach ache
It is incomprehensible that employees of the Tax Authority/Allowances, urged to do so by the management of the ministries of Finance and Social Affairs and Employment, have been following the tough road of stopping and recovering for years, without taking the necessary administrative route of properly explaining, adjusting and making sure that citizens have understood. It is incomprehensible that the officials who told each other that they had a terrible stomachache at what the benefits policy meant for citizens in practice, and often asked themselves: “There's no other way around this”, did not actually investigate whether there was no other way around it, and that did not resort to the advice of the national lawyer from 2009, who clearly indicated how things could be done differently.

In 2017, the Notes palms could disappear silently into a desk drawer, just like in 2009, the national attorney's advice as a legal hoax was not really well read and certainly not followed. In the last century, the tax authorities were often led by tax specialists, at least legally trained. Under the carousel policy of the General Administration Service, top positions now often appoint public administrators and ICT specialists who, until the day they take office at the head of the tax authorities, have not been caught with any special expertise with regard to the service's important core business within our rule of law. That may not be a bad thing, but the least that should be expected of managers is the realization that if they don't know something (like, is there a legal way to do it?) , they include the expertise needed to adjust a disastrous performance practice. Having a huge stomach ache, wanting to do something about it but then saying: “Let's go ahead, the Council of State should do it like this” is not enough.

The government's failure in this case led to great misery for thousands of families. A cabinet fell over and it costs taxpayers one and a half billion euros to repair the damage somewhat. As Vondel wrote in the Gijsbrecht: What can blind greed brew, When it races out of misconfidence!

Geert Jan Hamilton is a former clerk of the Senate of States General and former Director of Legislation and Legal Affairs at the Ministry of Health, Welfare and Sport.

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