12 | Annual Report 2019
The man protested against SKAT’s suggestion,
and then the caseworker at SKAT wrote to the
man: ‘I think I have treated you well by not cutting
into the maintenance expenses. We may discuss
whether it is a fair part of the sewer expenses
I have accepted.’ So, it would appear as if the
caseworker at SKAT did not make a decision but
entered into a negotiation with the citizen where
the caseworker would meet the citizen halfway
in some areas if he in return yielded in other
areas.
The Ombudsman stated that SKAT’s e-mail
could give the taxpayer a problematic impression of SKAT’s processing of the case, thereby
damaging the trust in SKAT.
The Ombudsman also stated: ‘Tax authorities’
task is to administer the legislation which applies
to taxation matters. By handling this task, the
authorities must maintain citizens’ trust that the
authorities abide by the legislative framework.
This trust is not maintained if the authorities
give the taxpayer the impression that a decision
regulated by law – for instance a tax assessment
– is a matter of negotiation with SKAT.’
In this case, the actual statement is directed at
the authorities but the considerations apply in
relation to all authorities making decisions within
the meaning of the law.
The cases mentioned are examples of what can
happen when authorities get their roles as decision-making authority and negotiating party
mixed up. The decisions do not appear as clear
statements from the authority as to what is
applicable law for the individual citizen. On the
contrary, there is a risk that the citizen receives
a decision with, for example, requirements and
conditions which the authority is not allowed at
all to stipulate. Therefore, one is easily left with
the impression that the decision is not based
on statutory rules and factual assessments but
instead is an expression of the individual caseworker’s (good)will.
‘Just’ a decision or a decision within
the meaning of the law
Confusion about roles does not only take place
between decision-making activities and situations involving negotiations.
When authorities engage in what is called actual
administrative activity, they make several decisions every day. But sometimes it can be hard to
distinguish between whether a decision is ‘just’
a decision or a decision within the meaning of
the law.
Among other things, this applies to schools, daycare institutions and other places where actual
decision-making only rarely takes place.
One example is a case (Case No. 2015-19) where
a boy in the 9th grade had grossly harassed a
girl in the 8th grade. The boy had also been involved in previous incidents at the school.
Therefore, the school decided to transfer the
boy to another school.
The school had made a decision within the
meaning of the Public Administration Act by unilaterally and finally determining that the boy was
to continue his schooling at a different school.
But the school itself was not aware that it was
making a decision within the meaning of the Act.
That it was a decision within the meaning of the
Act meant that the rules of the Public Administration Act applied and that the school ought
to have consulted the boy’s legal guardian prior
to the decision. The school also ought to have
given adequate grounds for the decision and
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