The Superior Court of Justice of Catalonia considers that Social Security cannot require a pensioner to return the 38,795.11 euros for collecting his permanent absolute disability while continuing to work beyond his ordinary retirement age as a security assistant. The court points out that the organization knew about this since 2014 (nine years before) and never warned the pensioner that, from that age onwards, pension and employment are incompatible.
The man, born in 1953, had a recognized absolute permanent disability, which prevents him from carrying out any type of work activity, with a regulatory base of 885.21 euros (the amount on which the pension is calculated). The problem is that since 2007 he started working part-time, and in July 2014 he started as a security assistant in a company and then moved on to others, always with a working day of 62.5%, until July 2022.
That same 2014, Social Security decided to review the pension, since he had precisely returned to work, and even so decided not to change the grade, and there is no evidence that it did so afterwards. In October 2021, he began a medical leave and, in this case, when he exhausted it, Social Security decided to deny him disability, since he was of retirement age. A month later, the INSS demanded that he return everything collected between December 2019 and November 2023, the total amount of which was 38,795.11 euros.
Regarding this claim, the General Law of Social Security explains in its article 198.3 that, from the retirement age, the absolute permanent disability pension is incompatible with any job that requires registration, under the same terms as the retirement pension, which allows working part-time and receiving less pension. That is, the pensioner could not continue collecting the entire pension while working.
When going to court, the Social Court number 2 of Granollers ruled in favor of the worker, annulling the claim. The INSS, not being satisfied, decided to go to the Superior Court of Justice alleging that the pension was already incompatible with their work since 2014 due to the criteria that the Supreme Court established in April 2024 for absolute disability and work. The TSJ rejects it because in the trial it had only claimed the retirement age and not the incompatibility since 2014, which left the pensioner unable to defend himself.
He paid his leave without notifying him of the incompatibility
The Court recognizes that there is an incompatibility, but wonders if money can be required to be returned when the situation was “known, consented to and maintained for years by the Managing Entity itself.” Social Security knew what his working life was and when he reached ordinary retirement age, and never informed him of this, as required by article 17.2 of the same law. On the contrary, he paid for his medical leave and processed another permanent disability, and it was only then that he realized the problem.
That is why the Chamber applies the Cakarevic doctrine, of the European Court of Human Rights, with which the Supreme Court indicates that responsibility cannot be placed on the citizen when he has acted in good faith and the error has been solely on the part of the organization. There is also an error when the Administration “omits for a prolonged period of time any action aimed at reviewing the legal situation created,” adds the Chamber.
For this reason, he will not have to return the 38,795.11 euros that Social Security claimed from him, something that did not happen with another pensioner, who had to return 18,313.68 euros overcharged, when the TSJ of Andalusia understood that he did not meet the economic vulnerability requirements to forgive the debt.