The Supreme Court has confirmed the sentence to a man who must return 231,306.91 euros for continuing to charge for 16 years his father’s retirement pension, who died in 1999. The pensioner’s son did not communicate his death or social security (in this case the Social Institute of the Navy) or to the bank being this Caixabank Cotitular. This remained until 2015, when CaixaBank notifies it to Social Security.
When this pensioner who had been charging a retirement pension from the Social Institute of the Navy, his wife Margarita, communicated it for her to request and collect her own widowhood pension, which was recognized shortly after. However, due to an administrative error, the ISM did not unsubscribe the benefit, which causes it to continue to pay in the same bank account, this being then General Savings Bank of the Canary Islands (CajaCanarias), which then became CaixaBank.
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Months later, in May 1999, the son of this marriage was included as a cotular account, assuming management as well as the full knowledge that his father had died and the pension continued to pay. Despite knowing it, he never communicated it to the Social Security or the Bank, and for 16 years he was charging the pension, so in total a total of 317,465.19 euros from the retirement pension of his father, according to the sentence.
This fraud remained like this until July 2015, when CaixaBank notified social security. The entity returned 79,682.36 euros, corresponding to the last four years of undue payments, so the remaining part of the Social Security was claimed to the son of the retiree, whose remaining amount was 231,306.91 euros.
Not responding and not obtaining the voluntary reimbursement, Social Security filed a complaint for a crime against social security, understanding that its conduct was not the result of a mere administrative error, but a deliberate concealment with profit.
From acquittal to the obligation to return 231,306.91 euros
In the first instance, the Court of Instruction No. 4 of Santa Cruz de Tenerife proved the Social Security, so it put a fine of 400,000 euros and the obligation to return 231,306.91 euros to the Social Institute of the Navy. The Court explained that “he knew that his father’s pension continued to enter the account and took advantage of it, having the amounts for his personal benefit,” and that his prolonged silence “led to the continuity of improper collection for years.”
After this decision he decided to resort to the Superior Court of Justice of the Canary Islands, which revoked the conviction, acquitting it from all the charges. The TSJ understood that the error was exclusively administrative, since there had been no direct deception or an initial concealment by the defendant. According to this resolution, the Social Institute of the Navy “already had knowledge of the death of the pensioner, having been communicated by his widow,” which broke the link between the defendant’s fact and the behavior.
For all, Social Security decided to submit a appeal before the Supreme Court, claiming the violation of the law by an incorrect application of article 307 ter of the Criminal Code and error in the assessment of the evidence. The Fiscal Ministry supported the appeal, defending that the defendant’s silence maintained the deception and damage to the public system.
He took advantage and did not notify him
The High Court explains that the silence held by the Son for more than 16 years was not a simple passivity, but an “omisive and misleading” behavior that allowed perpetuating the error. “Hiding a death is considered a suitable deception and quite a lot, since the administration is not obliged to check the pensioner’s survival every month,” explains one of the speakers. For the high court, the defendant “fed the error of deliberately”, keeping the account open and having the money as if everything remained in order.
For all the explained, the Supreme Court forces to return all amounts unduly charged, that is, 231,306.91 euros. In this judgment, the key is that, once the death is communicated so that social security ceases to pay the pension or benefit, if it continues to be paid by error, it must be notified, since otherwise it can be understood as an improper charge.