Incident: A rule read literally, applied to everyone

Module 8 · Incident file · About 35 minutes

What happened

In the Netherlands, parents who use childcare can claim a means-tested allowance, paid in advance by the Tax and Customs Administration and checked afterwards. In 2019 more than three billion euros went to 656,000 parents, according to the Council of State's own reflection report (Raad van State, "Reflectierapport: lessen uit de kinderopvangtoeslagzaken", November 2021, in Dutch; quotations below are our translation).

The account here comes mainly from the Venice Commission of the Council of Europe (Opinion No. 1031/2021 on the legal protection of citizens, 18 October 2021031-e)), which draws on the Dutch parliamentary inquiry report "Unprecedented injustice" (2020). Until 2021 the law said that when an allowance was revised, "the person concerned shall owe the entire amount of the recovery". The administration read this as the "all or nothing approach": if a parent acting in good faith could not prove the hours used or their own contribution, "the parent had to repay the full amount for the whole year". It led to high repayment demands for 15% of the parents, in some cases about 30,000 euros a year, for several years back.

The Council of State's highest administrative court accepted this line from 2011 and left it on 23 October 2019. On 15 January 2021 the Prime Minister apologised to Parliament for "unprecedented hardship", and the government stepped down the same day. In November 2021 the court apologised too: it "could and should have changed this line sooner".