Nav will not reopen the case of a parent who lost much of their parent’s fee. If you go to court, you get free legal aid, says the Civil Ombudsman.
– Nav now had the opportunity to rectify what many have experienced as a great injustice. When they don’t understand this, it is difficult to see that there is more than prestige behind it.
That’s what Gunnar O. Hæreid says, one of the many parents who have lost all or part of their paid parental fee.
– After the many scandals Nav has been through in recent years, I was hoping they would have gone further, he says.
Hæreid ended up in the so-called parental fee trap: he had applied too late to withdraw the parental fee. He applied for the deadline set by Nav and missed 67 days of paid paternity leave.
This summer he had new hopes.
Complaint before the Civil Ombudsman’s Office – confirmed
Hæreid is a lawyer and has worked in administrative law throughout his professional career. He did not settle for a denial of a complaint to Nav or the Social Security Court. Finally he complained to the Ombudsman of the Civil People. He broke up with civilian ombudsman Hanne Harlem this summer asking Nav to reconsider her case.
“Nav and the Social Security Court have had a long-standing practice that relies on a different understanding of the law than what we believe is correct,” he said.
The ombud believed that the Nav deadline had not been authorized by law.
The Directorate of Labor and Social Welfare (Nav) had a deadline of September 1 to respond to the statement of the Civil Ombudsman. The deadline was then postponed until October 15. But it wasn’t until Monday afternoon that Nav’s reply came.
Nav says not to re-examine the case and believes they have interpreted the regulations correctly.
This provokes the reaction of the Ombudsman of the Civil Town. The ombud now does a long time recommending that Hæreid take the case to court.
– It is obvious for us to recommend legal action, if the whistleblower so wishes, says Harlem.
The civil ombudsman declares that the complainant will receive free legal assistance. Hence, you get your legal costs covered.
The plaintiff himself, Gunnar O. Hæreid, tells Aftenposten that he will, of course, carefully consider whether he is suing Nav.
– It’s me or someone else. Someone has to do it, he says.
It is unusual not to follow the statements of the Civil Ombudsman
Harlem responds that Nav does not comply with the statement of the Civil Ombudsman. Remember that it is a prerequisite of the Storting that the ombud statements are followed.
– I register that this is one of the few cases in which, contrary to the assumption of the Storting, the affirmation of the ombud is not followed, he says.
Harlem adds that this is something the Ombudsman will mention in his annual report to the Storting. He notes that the Storting has assumed that ombud statements will also be followed in situations where management disagrees with the ombud.
Nav: Our argument stands in court
“We are sorry that it took us a long time to respond,” writes Nav in his response to the ombud.
The Directorate does not see “that there is a basis for delivering the case to the complainant.”
Nav notes in the letter that the legal understanding of the Civil Ombudsman deviates “from the legal understanding that the Social Security Court and we have based on our application of the law – and on our dialogue with the ministry.”
Nav believes his argument will stand up in court.
– Yes, I would say that. Of that we are sure. We believe that we have support in the drafting of the law and the preparatory work, says the Acting Legal Director of the Directorate of Labor and Welfare, Haakon Hertzberg.
He adds that Nav also believes that the Storting has accepted this interpretation by changing the practice and the entire law in June this year.
Hertzberg denies that there was any prestige in the case.
– We have taken the case very seriously, we have familiarized ourselves with the arguments of the Ombudsman and we have carried out an exhaustive assessment of the allegations it makes. We have come to the conclusion that we believe this is the intention of the legislator with the consequences it has for these individual cases.
– Is it not so common that the administration does not follow the statements of the Ombudsman?
– No, they are given a lot of weight. But there is still no one-to-one relationship between the Civil Ombudsman and the changing administration.
– But has the Civil Ombudsman done a bad legal job?
– No, he has done a very good legal job, but we do not agree on which elements to emphasize in the legal assessment, he says.
The opposite conclusion would be costly for the state.
If Nav had come to a different conclusion, it probably would have led to Nav having to return large sums of money to the parents of the country. Because there are many who have totally or partially lost their parental quota. Last year alone, there were 772.
Hæreid and many others have applied for paternity leave after the mother’s paid paternity leave ended. According to Nav regulations, you must apply before the last mother’s day to withdraw parental benefits. This is because the law states that leave must be taken continuously. If you do not want to, you must request a deferral of the father’s fee before the mother’s paid leave ends.
Hæreid asked where in the law it says that one has had to submit an application within this period. And so it was ratified by the Civil Ombudsman, who considers that this period has not been authorized by law.
Civilian ombudsman reacts to Nav’s argument
In his response letter, Nav notes that his practice has “strong support in law writing, preparatory work, long-term fixed practice at the agency and the Social Security Court …”
In the response letter to the Civil Ombudsman, Nav also notes that the Storting “joined in this practice through consideration of Prop. 127 L (2020-2021).” Here, Nav refers to the consideration of the bill that removes the entire parent fee trap. It was approved at the Storting in early June.
The Ombudsman does not consider it reasonable to conclude that the Storting agrees with such an interpretation.
Harlem believes that the ministry in the bill only describes the practice as it has been.
– If one had described the practice to the Storting according to what we believe to be the applicable law, it would have been sensational, he says.
Current practice dates back to 2007
Nav has had a long-standing practice in the area. The current practice dates back to 2007. Nav notes that the Supreme Court has previously ruled that “a long-term uniform and social security practice should carry considerable weight.” Harlem says this is relevant, but remember they looked at that side of the case as well.
– But we don’t think it’s heavy enough, he says.
She adds that a sample (The Harberg Committee) has also assumed that the Ombudsman will examine the work of the Social Security Court.
– Then we cannot simply say that we must base the practice of the Social Security Court. So we don’t do our work for the Storting, he says.
Hæreid believes that Nav’s response does not contain anything new and notes that all arguments have been reviewed by the Civil Ombudsman in his statement.
– All the articles in Aftenposten and the amendment to the law passed by the Storting repealing the parental fee trap have shown that it has never been the desired policy to have such a trap, he says.
Now he hopes that the newly appointed Minister of Children and Families can see the matter with fresh eyes.