A self-employed worker has managed to have a retirement pension of 2,625.40 euros per month recognized after Social Security denied it despite having more than 35 years of contributions, since it did not take into account the contributions for unpaid contributions as a self-employed person. The Superior Court of Justice of Catalonia explains that this person complied with the judicially approved payment plan, so since he was current with his obligations, all his contributions should be taken into account for the calculation of his pension, so he will be entitled to 108% of his regulatory base of 2,240.48 euros.
The conflict begins when this worker with 35 years and 9 months of contributions requests a retirement pension, which is denied by Social Security. The reason was that he was not up to date with the contributions to the General Social Security Treasury (TGSS), that is, the self-employed contributions had not been paid. Specifically, he was not “up to date with the payment of Social Security contributions as of the date of the causative event, October 31, 2022”, which prevented the requested pension from being recognized.
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Not being satisfied, he filed a claim with Social Security, which was approved, but partially. In other words, Social Security only took into account the contributions made in the general regime, setting a regulatory base of 945.80 euros, with a percentage of 69.74%, which translated into a monthly pension of 659.60 euros. As the file explains, self-employed contributions were not considered because there were overdrafts of contributions between May 2012 and November 2014, and between December 2018 and December 2019.
Right to 108% of the pension
Now, in the resolution letter, Social Security recognized that if he paid the amounts he owed, the pension “would be recalculated according to a regulatory base of 2,240.48 euros, with a total percentage of 108% and a pension of 2,625.40 euros”, that is, almost four times higher.
In this sense, the worker had simultaneously obtained a provisional exoneration order for unsatisfied liabilities, in which a payment plan was approved to settle his debt with the TGSS at a rate of 7,650.29 euros per year for five years, which he obtained from the Commercial Court No. 2 of Barcelona. Despite this, Social Security maintained its decision, so this man decided to go to court.
Thus, the Social Court No. 1 of Mataró agreed with him and recognized his right to a retirement pension with a regulatory base of 2,240.48 euros and a percentage of 108%, with effect from November 1, 2022. For the judge, compliance with the judicially approved payment plan should have the same effects as a deferral of installments, that is, the installments cannot be considered unpaid.
Deferring payment is not a non-payment to lower the pension
The Social Security was not satisfied, so it appealed the resolution to the Superior Court of Justice of Catalonia, alleging that the unpaid contributions could not be computed because “they are not actually made” and, therefore, “they cannot be computed either for the purposes of minimum deficiency, nor for regulatory basis or percentage.” It held that unpaid installments could only be counted when they were due and had been paid, even if there was a waiver or a payment plan in progress.
Despite this, the TSJ did not agree with Social Security, explaining that the exoneration of unsatisfied liabilities with a payment plan “is assimilated to cases of deferral of contributions, so it must produce the same effects.” It also adds that, as long as the worker meets the conditions established judicially, “he must be considered up to date with his obligations with Social Security for the purposes of recognition of benefits.”
In short, the deferred contributions can be computed “to cover the previous contribution period required for the recognition of the pension and to determine its amount.” For all this, the worker will not only have the right to his pension, but will also receive 108% of his regulatory base of 2,240.48 euros.
The reason why he is entitled to that 108% is that according to the ruling, the worker delayed his retirement age by approximately 13 months, which gave him the right to collect a pension higher than that percentage. This is so, since this is what article 210 of the General Social Security Law regulates (can be consulted in this BOE), which states that those who voluntarily delay their retirement can obtain an additional percentage on their pension.