Juana, a 66-year-old worker, has been denied her retirement pension even though she had paid Social Security contributions for more than 26 years (9,626 days) throughout her working life. The reason is that he spent more than 15 years collecting the subsidy for those over 52 and not working before retiring, so he did not meet the deficiency requirement. For this reason, the Superior Court of Justice of the Basque Country determines that it does not meet the minimum required to be able to collect the pension.
Apparently, this woman requested the contributory retirement pension for the first time on February 23, 2021, at which time her causative event was set for April (when she reaches the ordinary age) of that same year. However, Social Security denied it for not meeting the “generic deficiency” that requires having a minimum of 15 years of contributions throughout one’s working life (which is equivalent to 5,475 days), a requirement known as generic deficiency. Juana only had 4,542 days of effective contributions.
In addition, Social Security saw that it did not comply with the specific deficiency regulated in the law, which requires having at least two years of contributions (730 days) within the last 15 years prior to the application, having zero. That is, for contribution purposes he was 26 years old, but Social Security does not take into account the contributions generated by the subsidy for those over 52 years of age.
The subsidy contributes for retirement, but not to access the pension
The worker, not satisfied, decided to go to court defending that, adding the more than 5,000 days in which she was collecting the subsidy for those over 52 years of age (aid she had received since 2007), she far exceeded the legal requirements. Although at first the Social Court No. 3 of Vitoria agreed with him, granting him a monthly pension of 672.18 euros, the TSJ of the Basque Country has overturned that ruling after an appeal filed by Social Security.
The TSJ explains that, as established in article 280 of the General Social Security Law (available in this BOE), “contributions during the receipt of the subsidy for those over 52 years of age do not have legal validity or effectiveness to prove the periods of minimum contribution.” That is, those “fictitious” contributions that are generated by collecting the aid serve to calculate the final amount of the pension (the regulatory base and the percentage), but never to fill in the years that you are missing to have the initial right to collect it.
The ruling also rejects the plaintiff’s attempts to add extra days for having carried out Women’s Social Service or for caring for her daughters (the so-called fictitious contributions). The court clarifies that, given that her daughters were born in 1980 and 1983, periods in which the woman was already working and discharged, the same time cannot be counted twice.
The ruling ends by saying that, by deducting the years of unemployment aid, the woman is left with 4,542 real days, “therefore not reaching the necessary 5,475 days.” For all these reasons, the court agrees with the INSS, revokes the granting of the pension and leaves the plaintiff without access to contributory retirement.