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– These denials give me a déjà vu to the circular change in 2016, about exceptions to the maximum time in AAP races. We who received AAP (work authorization allowance, editor’s note) were well aware of the changes and Nav supervisors said that the legislation had been tightened. However, then-Labor Minister Anniken Hauglie denied that any changes had been made to the regulations; it was just a clarification in the circular, says Elisabeth Thoresen, who leads the AAP campaign from her home in Drammen.
In hindsight, all the figures show that the practice of the law was more strictly enforced, long before the Storting passed the controversial new AAP regulations in June 2017, where the maximum period was reduced from four to three years, and the conditions for the extension tightened dramatically.
This ignited Thoresen’s engagement. As a former Nav employee, she saw right away what kind of consequences this would have for sick and vulnerable people, so she started the AAP campaign.
Through his huge network of contacts on social media, he now hears more and more often that people who win against Nav, by being able to prove they are entitled to a benefit, still do not cover their legal costs. This is not how Nav has practiced before, and that worries Thoresen greatly.
Elisabeth Thoresen, a former Nav employee, disability retiree and campaign leader for the AAP, has become a clear voice in the debate when it comes to the rights of the sick and disadvantaged. Photo: Pernille Vestengen
– Nav users and lawyers see what is happening, but are not heard. Nav and the ministry claim that this is not happening. Again, we see a big gap in understanding reality, says Elisabeth Thoresen.
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i haven’t experienced it before
– Have you heard of the control exception ?, asks social security lawyer Anders H. Rosenberg, from the Andersen law firm in Oslo.
He has written page up and down about what he describes as some of the most absurd he has come across. In early September, he was one of several lawyers who spoke about the phenomenon in Klassekampen, under the title “Nav knip att pengesekken.”
The lawyers have experienced the same as Thoresen; that people are increasingly being denied reimbursement for legal costs, usually legal fees, even if they win in Nav’s appeal body. Nav justifies its refusals with the so-called control exception. Paradoxically, it would be better if Nav only let the case go to the Social Security Court, because if a decision is reversed there, you will always be reimbursed for the expenses you have incurred. It is when the Nav itself reverses a decision that the problem with the control exception arises.
This is an exception to article 36 of the Public Administration Law, where the main rule establishes that whoever wins, after a complaint against a public body, will have their legal expenses covered. The exception refers to matters “outside the control of management.” In Nav’s own circular, this especially applies where there have been changes in actual circumstances, or in legislation, after the refusal was made.
– There is no disagreement that the exemption from control is relevant in case of changes in the time after a denial. For example, if it turns out that a user has become much sicker after a benefit is denied. The problem is that Nav increasingly claims that any new information that comes up during an appeal means that the original denial was out of its control. They do so despite new information, such as statements from the new doctor or reports of inability to work, only confirms that Nav’s refusal was incorrect.
Rosenberg says that for 16 years as a social security attorney, it wasn’t until 2015 that he experienced Nav using the control exception. In 2018, the law firm received three claims for legal costs rejected on this basis, and in 2019 six. He believes there will be at least the same amount this year. Rosenberg notes that fellow lawyer Anders Andersen, who worked at Nav since the 1980s and as a social security attorney since the 1990s, is equally surprised by the change in practice.
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Affirm that nothing has changed
Many other attorneys have also experienced greater use of the exemption from control, but there are no written sources that can justify the change in practice. The legislation has not changed since 1995, nor have any changes been made to regulations or circulars. When they ask questions about this new practice, the attorneys experience that Nav will not even agree that there has been any change in the practice.
In March, the minister himself was asked what had happened, when SV representative Eirik Faret Sakariassen asked Labor and Social Affairs Minister Torbjørn Røe Isaksen (H) written questions about the background to the change in practice.
Minister Torbjørn Røe Isaksen consulted with management and concluded that Nav has not adjusted or changed its practice, despite several lawyers saying otherwise. Photo: Pernille Vestengen
“The Labor and Social Welfare Service has not strengthened its practice compared to before, or interpreted the wording of the Public Administration Law § 36 in a more restrictive way ”, answered Isaksen after consulting with the Directorate of Labor and Welfare. He agreed that there has been an increase in the number of rejections of applications for legal costs, but the Minister believes that this is due to the number of cases related to disability benefits and AAP has increased, and that all claims for legal costs As of January 1, 2019, they are processed by two, newly created Departments. Isaksen writes that this may have led to a more uniform practice, but that the purpose of centralization is not to harden.
When the Klassekampen journalist repeated the question to Isaksen in the aforementioned article, he referred to his response to the Storting in March and insisted that there had been no change. The same was answered by deputy director of knowledge Haakon Hertzberg.
– That’s what makes everything so absurd. The mere fact that in early 2019 they established their own case costing departments clearly shows changes in costing practices. For those of us who have worked in this field over time, it is quite obvious that austerity measures have been taken. I do not know if the denial is due to an attempt to cover up the facts or to pure ignorance, but the result is that the legal security of an already vulnerable group is considerably weakened. To say that this is not happening is like saying that the earth is flat. It’s actually completely wrong to claim that Nav doesn’t use the control exception much more often today than it did five, 10, or 15 years ago, Rosenberg tells Dagsavisen Fremtiden.
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On the rule of law loose
He also has no doubt that the risk of keeping costs, even if he wins, will cause many people to refuse to contact an attorney and take up the fight, in cases that would have otherwise been reversed. Rosenberg believes that this undermines the legal security of people in the face of the welfare state.
– This is so ugly and scares people not to claim their right. Imagine that you yourself become seriously ill and in the long term, so you have to quit your job. Even if your doctor, other therapists, and Nav locally believe that you are entitled to disability benefits, Nav denies the job and benefits. You are denied a living wage and have no choice but to obtain legal assistance and appeal the decision. Then you win and Nav must reverse the decision. Still, you have to pay for all the expenses you incurred, just to prove that Nav made a mistake. Nav says that the specialist statement he has obtained, which only confirms what the GP has established for a long time, is out of his control. To top it all, they deny that this happens much more frequently than before.
The lawyer is clearly upset. A client who has, who has just won his claim for disability benefits, after being forced to go through the grievance and appeals process, is now going through the same thing, only with an even more serious reason for denial. Here, Nav believes that a statement from its own collaborating specialist is “beyond its control.”
– I am willing to take this case as far as possible, because it is very obvious that Nav is making a serious mistake. This is not how they can keep up. I just hope the customer can bear this. He’s seriously ill and of course he didn’t want this fight. It really shouldn’t have been necessary either, Rosenberg sighs.
Attorney Anders H. Rosenberg does not intend to give in to the fight so that clients who win against Nav in court have their legal costs covered, as they have always received before. Photo: Private.
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Røe Isaksen responds
In a lengthy written observation to Røe Isaksen’s response to the Storting, in addition to Rosenberg himself, several high-profile social security lawyers confirm that they have also seen a sharp increase in Nav’s use of the control exception, including Inga Kjernlie, Olav Lægreid, Osloadvokatene and the Egeland Law Firm. Elisabeth Thoresen also confirms that she knows what is happening.
“Several political parties, in addition to SV, which is already getting involved, should realize the irrationality that more and more Nav users are denied their legal expenses when decisions are changed in favor of the user. Not least in a situation with Nav crises, big and small, over time. Most dramatic is probably the practice of Nav towards sick and particularly vulnerable users in relation to sickness benefits.
The increased corona status in Nav users also raises the issue of refund.
costs for Nav users, who are forced to conflict with Nav over livelihood benefits, but then win, “concludes the six-page article, written by Rosenberg in collaboration with Anita Lesteberg and FØL (Association for rising standard of living).
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