Confusion about the roles of public authorities affects citizens | 11
the authority has the necessary power to make
the decision.
Normally, the same requirements for legal power
do not apply when the authority acts as private
negotiating party. In these situations, the authority can act in more or less the same way as other
private parties in the negotiation process and is
also not bound by the Public Administration Act’s
requirements for consultation of parties, reasoned
grounds and guidance.
If authorities have difficulties distinguishing between the roles of decision-making authority
and negotiating party, it may affect the citizen’s
legal rights. The Ombudsman has seen several
examples of this.
An offer or a decision
The Ombudsman received a complaint from a
woman who had applied for a cancellation of her
student loan debt (Case No. 2019-16).
According to the rules on cancellation of debts
to the public sector, including student loan
debts, citizens may have debts to the public sector cancelled – fully or partially – if they prove
that they ‘are unable to and within the next few
years have no prospect of being able to meet
their debts’.
SKAT (the Danish Customs and Tax Administration, now the Danish Debt Collection Agency)
replied to the woman’s application in a letter
headed ‘Offer of partial cancellation’. The woman
was offered a partial cancellation of her student
loan debt, after which the balance was to be
repaid over a period of five or seven years. However, the partial cancellation was contingent on
her accepting the offer within four weeks. If she
did not accept the offer within the time limit, her
student loan debt would not be cancelled – either
fully or partially.
The Ombudsman stated that SKAT had no authority to make its decision on (partial) cancellation conditional on the woman accepting the
‘offer’ within a specified time limit.
In addition, the Ombudsman stated that it appeared that SKAT was not aware that a decision
within the meaning of administrative law was
made. He pointed out that SKAT used the term
‘offer’ and made the legal effect conditional on
the woman’s acceptance. The procedure could
give the woman the impression that it was a negotiation with SKAT acting as a contracting party
– and not exercise of public authority which was
binding on the citizen.
Further, the Ombudsman pointed out that the
woman might get the wrong impression that by
accepting the offer she would commit herself
to an instalment plan without the possibility of
changing it, for instance in case her financial
situation changed.
In other words, the Ombudsman stated that
SKAT had misunderstood its role as decisionmaking authority.
When the authority negotiates with
the citizen
In another example, an authority also got the
roles as decision-making authority and private
negotiating party mixed up. The case was part
of a larger own-initiative investigation at the Ombudsman institution (Case No. 2018-10).
A man who owned a rental property wanted deduction for a number of maintenance expenses
– among other things for upgrading the sewer
system. SKAT had accepted deduction for some
of the expenses and suggested in a so-called
preliminary letter of intent (a kind of consultation of the man as a party to the case) that only a
part of the sewer expenses were deducted.
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