A man has obtained the ability to simultaneously collect a total permanent disability pension with partial retirement and a job, after Social Security denied him this because it considered that both benefits were incompatible. The Superior Court of Justice of Madrid explains that it is possible to collect both pensions at the same time when they derive from different jobs, so Social Security must pay the pension not collected from August 2023.
Since 1990, this worker had been receiving a total permanent disability pension for occupational illness as a baker whose regulatory base was 1,499 euros (249,450 pesetas appears in the sentence). Years later he began working at the Municipal Transport Company (EMT) as an auxiliary station driver, a different position from the one that had caused him the disability, and he easily combined his salary with the pension he had been receiving.
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In August 2023, with more than 40 years of contributions, he requested partial retirement (which allows him to reduce his working hours to start collecting his pension). Social Security recognized it, but without economic effects, alleging that it was incompatible with the total permanent disability pension that he already received. According to Social Security, both benefits were calculated with the same contributions and, therefore, “they could not be collected at the same time because they coincide with the same beneficiary”, as explained by the incompatibility rule of article 163 of the General Law of Social Security.
Given this refusal, the worker presented a previous claim in September 2023, which was dismissed due to administrative silence. Only then did he decide to go to court to defend that the two pensions came from different work activities and that, therefore, there was no duplication of protection.
He had the right to collect both pensions at the same time.
After the Social Court No. 25 of Madrid ruled in favor of the worker, the case reached the Superior Court of Justice of Madrid, after a petition from both the National Institute of Social Security and the General Treasury of Social Security, which also ruled in favor of the worker.
Despite the fact that Social Security insisted that the beneficiary “intends to collect two public pensions from the general regime for the calculation of which the same contributions have been taken into account”, which according to its criteria would place him in a situation of “hyperprotection not protected by law”, the TSJ explained that the incompatibility provided for in article 163 of the General Law of Social Security (which can be consulted in this BOE) only applies when the pensions come from the same work activity.
In this case, the permanent disability derived from his former job as a baker, while the partial retirement came from the new job at the EMT. For this reason, he concluded that “the benefits are not incompatible”, which is why he ordered Social Security to pay the partial retirement with economic effects from August 2023, for which, according to estimates, he would collect a pension of 3,172.01 euros (combining both), since the partial retirement would have an approximate amount of 1,887.61 euros.
The two pensions were compatible
The reason why the Superior Court of Justice of Madrid ruled that the two pensions were compatible was because not all duplication of pensions within the General Regime implies incompatibility. That is to say, although article 163 of the General Social Security Law prohibits collecting two pensions, there is an exception and that is found in article 14 of Royal Decree 1131/2002 (which can be consulted in this BOE), which regulates partial retirement.
The court explains that this incompatibility only operates when the permanent disability and the partial retirement come from the same job, something that does not occur in this specific case, since the total permanent disability was recognized by his former job as a baker, while the partial retirement derives from his subsequent employment as an auxiliary driver at the EMT.
Therefore, these are different activities within the same regime, and both pensions respond to different work contingencies. “The total permanent disability pension covers the loss of working capacity for the previous profession, while the partial retirement replaces the income that is no longer received due to the reduction of working hours in the new job,” explains the ruling.
For all that has been explained, it is possible to collect both pensions without violating the principle of incompatibility. Of course, once they reach full retirement, the worker must opt for a single pension, as provided by law.