From Sanction to Sentence: Comparing Apples and Oranges in the Enforcement of Dutch Social Security Law

Paulien de Winter, Associate Professor, Institute of Constitutional, Administrative Law and Legal Theory, Utrecht University

Keywords: social security law, enforcement, administrative sanctions, criminal sanctions, welfare state

In various countries, enforcement in social security has steadily intensified, often leading to discussions about the emergence of a 'repressive’ or ‘punitive’ welfare state (Adler 2018; Tollenaar 2018; Hertogh 2023; Vonk 2014). In the Dutch system, the belief was that all benefit recipients were potential fraudsters and that fraud shouldn't pay. In the UK, there were concerns about 'benefit scroungers' and in the US about 'welfare queens.' As a result, the rules became stricter and the sanctions more severe.

One of the most important rules, with its associated severe sanctions, is the duty to provide information. Within the Dutch social security system, the obligation to provide information requires beneficiaries to report to the municipality anything that may be relevant to the right to social assistance benefits (Participation Act).

Interestingly, there is a division between administrative sanctions and criminal sanctions depending on the ‘disadvantaged amount’. (In some exceptional cases, it is also possible to deal with cases below the threshold under criminal law. For example, when there is social security fraud in combination with other criminal offences.) The disadvantaged amount is the sum that has been wrongly received due to failure to comply (properly) with the obligation. Cases under €50,000 are subject to administrative sanctions imposed by municipalities and cases exceeding €50,000 are handled through criminal proceedings by the court. Paradoxically, the common belief held by municipal enforcers is that administrative sanctions tend to be more severe than criminal sanctions (sentences) when imposed (De Winter 2019). With funding from an SLSA small grant, I investigated whether this was true.

Apples: Sanctions under Administrative Law

In consultation with penalty officers from two municipalities, I mapped out the administrative system. In cases of violations below the €50,000 threshold, the municipality will recover the full disadvantaged amount and then impose an administrative fine. The Fraud Act stipulates that violation is punishable by a fine of up to 100% of the disadvantaged amount (and up to 150% for repeat offenders). The imposition of a fine consists of three steps. The first step is that the municipalities take into account the degree of culpability: in cases of ‘intent’ the fine is set at 100% of the disadvantaged amount; in cases of ‘gross negligence’ at 75%; in cases of ‘ordinary culpability’ at 50%; and in cases of ‘diminished culpability’ at 25%.

The next step is that the municipalities take into account the ability-to-pay principle. A beneficiary must be able to pay the fine within a maximum term, taking into account that a person is deemed to live at the absolute minimum of the protected earnings threshold. The maximum repayment terms are then aligned with the degree of culpability.

The last step is that fines may not exceed the criminal fine that could be imposed if the case were to be dealt with under criminal law. In cases of ‘intent’ the maximum fine is €103,000. In cases of ‘gross negligence’ the amount is €10,300. For ‘ordinary’ and ‘diminished culpability’ the maximum amount of €10,300 is applied proportionally.

In 2024, a total of 3,370 administrative fines were imposed in the general social assistance scheme for violations of the obligation to provide information involving a disadvantaged amount. Regarding the degree of culpability, 60 fines were imposed for proven intent (2%), 130 for gross negligence (4%), 2,390 for ordinary culpability (71%), and 710 for diminished culpability (21%). For 80 fines, the degree of culpability was unknown (2%).

Oranges: Sentences under criminal law

If the threshold of €50,000 is exceeded, the case will be handled under criminal law. The National Consultative Body on Substantive Criminal Law has established sentencing guidelines (‘orientation points’) for offences. With regard to fraud, the orientation point for a disadvantaged amount up to €70,000 is a prison sentence between two to five months and/or a community service order.

In 2024, six cases were published on rechtspraak.nl, which publishes a subset of rulings from Dutch courts, in which the disadvantaged amount was known and fell between €50,000 and €125,000, and in which the violation of the duty to provide information under the Participation Act was the core offence:

	Disadvantaged amount	Sentence
1	€60,892.26	Community service order of 180 hours and a suspended prison sentence of 3 months
2	€71,414.71	Community service order of 120 hours and a suspended prison sentence of 2 months
3	€82,008.40	Community service order of 180 hours and a fine of €40,000
4	€86,116.93	Community service order of 90 hours and a suspended prison sentence of 3 months
5	€86,665.10	Community service order of 100 hours and a suspended prison sentence of 3 months
6	€114,517.38	Community service order of 160 hours, of which 80 hours suspended

A small side note: I analysed all rulings in the period between 2018 and 2024 and case 3 is the only case in which the judge imposed a fine, however no reasoning can be found in the judge’s ruling.

Conclusion: A cautious comparison  

In both systems, the beneficiary faces a recovery claim equal to the disadvantaged amount. In addition, the recipient receives either a fine (administrative law system) or a community service order and/or a prison sentence and/or a fine (criminal law system). Based on the few criminal law cases published, it appears that sanctions for violations of the duty to provide information with a disadvantaged amount between €60,000 and €115,000 consist of a community service order between 90 and 180 hours, and in most cases a suspended prison sentence between 2 and 3 months with a probation period of 2 or 3 years.

By way of comparison, the administrative sanctions could be as follows. For a violation of the duty to provide information with a hypothetical disadvantaged amount of €49,000, the administrative fine, assuming the ability to pay and the maximum fine, would be €1,614 in cases of ‘intent’. In cases of ‘gross negligence’ it would be €1,210; €807 for ‘ordinary culpability’; and €403 for ‘diminished culpability’.

In administrative law, a sanction for a violation of the duty to provide information just below the threshold is therefore a fine between €403 and €1,614. In criminal law, a sanction for a violation above the threshold is a community service order between 90 and 180 hours, possibly combined with a suspended prison sentence between 2 and 3 months with a probation period. Of course, this is comparing apples and oranges. At the same time, the "gap" between these systems seems not as large as enforcement officers' statements might suggest.

However, a crucial caveat must be added. In the first years after the introduction of the ‘Fraud Act’, municipalities did not consider the degree of culpability (determined by the Administrative High Court November 2014), the ability to pay or the repayment terms (determined by the Administrative High Court January 2016). Initially, the comparison was thus a fine of €49,000 in the administrative system, and for a hypothetical violation lasting a few months longer (depending on the size of the benefit claim and the type of violation) and therefore exceeding the threshold, a prison sentence of 2 to 5 months and/or a community service order in the criminal law system (the orientation point was the same in 2013). While this remains a comparison between apples and oranges, here the apples could be seen as oversized (or perhaps ‘rotten’) and the oranges as small (maybe even ‘fresh’). This could account for municipal enforcers’ view that administrative sanctions for intentionally defrauding the benefits system are harsher than criminal ones.

These findings give rise to important questions for future research. How aware are sanctioning officers and judges of the existence and operation of ‘the other’ sanction regime, and do they actively take these differences into account in their decisions? What are the actual experiences of benefit recipients with these diverse sanctioning systems? And finally, how does the Dutch approach compare to welfare sanction systems in other countries?