NAV's right to reverse its own decisions

In November 2016, on behalf of a client, I argued a case before Agder Court of Appeal with the reference LA-2015-91783, which concerned the fundamentally important question of whether NAV is entitled to reverse its own decisions to the disadvantage of the user several years after a grant decision.

Is it the case that the administration is completely free to reverse its own decisions that are based on a difficult and discretionary legal-medical assessment - just because a new case officer several years later concludes differently in this difficult discretionary assessment? To what extent does the user's legal certainty and need for predictability restrict the administration's right to reverse decisions to the disadvantage of the user?

Section 35 of the Public Administration Act authorises an administrative body to reverse its own decision without an appeal if «the decision must be considered invalid». The Act does not specify any limitations with regard to time, who can be blamed for the error, the consequences of reversal, etc.

It was argued before the Court of Appeal by the State represented by the Norwegian Directorate of Labour and Welfare that invalid decisions can be reversed irrespective of whether it is the administration or the party that can be blamed for errors that have led to invalidity.

The majority of the Court of Appeal concluded in the case in question that the cancellation decision contained errors, so that the cancellation decision was invalid for this reason. In my opinion, the second judge highlighted an important point: the interests of the party favoured in the decision being considered for annulment must also be included as part of the invalidity assessment pursuant to Section 35 of the Public Administration Act.

In cases where the user cannot be blamed for the fact that NAV originally made the wrong decision, the Court of Appeal thus correctly ruled that the fact that the user has complied with the granting decision must be included as part of the invalidity assessment. This is the only way for the administration to ensure that the user's legal protection and need for predictability are safeguarded. It now remains to be seen whether NAV adjusts its practice according to the Court of Appeal's guidelines.