The Superior Court of Justice of Catalonia has ruled in favor of Social Security through the regional administration to suspend the non-contributory retirement pension for a man who was outside Spain for more than 90 days and who did not report it. For this reason, the court confirms that in addition to losing the pension, he must return 10,361.52 euros received improperly, since the law establishes that prolonged absences from the national territory imply the loss of the right to this pension.
As the ruling explains, it all begins when the Department of Social Assistance and Family of the Generalitat of Catalonia receives a letter from the National Police warning of the “absence from the national territory of a holder of a non-contributory pension.” In this sense, after checking the passport stamps, it was found that this pensioner, of Moroccan nationality, “had remained outside the national territory for a period of more than 90 days” in recent years, mainly due to trips to Morocco.
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Due to this infraction, the administration notified a sanction for failing to comply with the continuous residence requirement provided for in article 10.2 of Royal Decree 357/1991, which develops non-contributory Social Security benefits. For this reason, the administration proceeded to suspend the pension and request the return of 10,361.52 euros in undue payments.
The retiree presented a previous claim, which was rejected because absences from the country “interrupt continuous residence when they exceed 90 days throughout the calendar year.” Not being satisfied, he decided to go to court.
Being outside of Spain for more than 90 days broke the residency requirement
For the TSJ of Catalonia, the beneficiary failed to comply with the requirement of continuous residence in Spanish territory, which is a mandatory condition to continue collecting the pension. The court explains that, according to article 10.2 of Royal Decree 357/1991, “the continuous residence prior to the application for the pension and that after the recognition of the right will not be considered interrupted by absences from Spanish territory of less than ninety days throughout each calendar year.”
In this case, the Administration confirmed that the pensioner exceeded that 90-day limit by spending 109 days in Morocco between December 2017 and August 2018, that is, 19 more days. For this reason, the Generalitat acted in accordance with the law by extinguishing the pension and demanding the return of the amounts unduly received. As stated in the ruling, “not having been given a reason to justify the absences from the national territory for a period of more than ninety days, the reason for the termination of the non-contributory pension arose.”
Thus, the Court confirms that he must repay 10,361.52 euros, corresponding to the monthly payments collected while he was outside the country without complying with the legal requirement of effective residence.
He did not report his departure or justify his absences.
The key to this ruling is that the pensioner, in addition to not communicating it, spent more than 90 days outside Spain. That is to say, Social Security or the regional administration in this case does not suspend the pension for leaving the country, it does so by exceeding the maximum duration, a fact that we must understand does not affect in the case of contributory pensions.
If this obligation is not met, the Administration is authorized to extinguish the right and demand the return of the money improperly collected. In the case of force majeure, it must always be reported, as is the case with unemployment benefits from the State Public Employment Service (SEPE).