19 Sep '25
We previously wrote about a ruling by the Arnhem Administrative Court, which held that WGA advance payments could not be attributed to a self-insured employer (eigenrisicodrager, ERD). According to that court, the legislation provided no clear legal basis for such attribution. The administrative courts in Utrecht and Almelo reached the same conclusion. However, on 5 September 2024, the Central Appeals Tribunal (Centrale Raad van Beroep, CRvB), ruling on appeal in the Almelo case, took a different view. WGA advance payments may in fact be attributed to a self-insured employer.
An employer that is a self-insured employer (ERD) bears the costs of the WGA benefit paid to (former) employees. Due to backlogs at the UWV, decisions on WIA applications are often not taken in time. If, in such cases, the UWV pays WGA advances, the question arises whether the UWV may also attribute those advances to the ERD employer and recover them from that employer.
Until 2022, there was no statutory basis for attributing and recovering advance payments. For that reason, the CRvB ruled in March 2023 that such attribution was not permitted. However, the Social Affairs and Employment (Miscellaneous Provisions) Act 2022 (Verzamelwet SZW 2022) added an additional sentence to Article 84(3) of the WIA Act with effect from 1 January 2022. That sentence provides that the rules on recovery of benefits also apply to advance payments.
In its September 2024 ruling, the CRvB confirmed that this amendment means that the UWV may attribute WGA advance payments to, and recover them from, ERD employers. According to the CRvB, the legislator has created an explicit statutory basis for recovery, which also implies the power to attribute such payments. If advance payments could be recovered but not attributed, the amendment introduced by the Verzamelwet SZW 2022 would be meaningless. The fact that this amendment was adopted through a Miscellaneous Provisions Act does not affect its validity.
The ruling of 5 September 2024 marks a shift in the case law. Whereas in 2023, under the previous legal framework, the CRvB still held that advance payments could not be attributed to ERD employers, and several administrative courts held that this was also the case under the current law, the CRvB has now confirmed that attribution and recovery of advance payments have indeed been possible since 1 January 2022.
The consequences for ERD employers are limited: if the (former) employee is entitled to a WGA benefit, the recovered advance will be set off against that benefit; if no entitlement to a WGA benefit exists, the UWV will refund the recovered amount with interest (and any additional damages). Nevertheless, ERD employers are well advised to take this into account in their financial planning and in their coordination with their insurer — which generally pays out only after a final WIA decision, meaning that the ERD employer temporarily bears the costs itself.
Want to know more? Please contact our Employment Law team.
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