A worker will have to return the 21,309.80 euros to the National Social Security Institute (INSS) after making compatible the subsidy for those over 52 years of age and a total permanent disability pension. Although the affected person claimed that he acted in good faith and that the error was on the part of Social Security, the Superior Court of Justice of Asturias considered that collecting both benefits was incompatible, since they were based on the same contributions.
Apparently this man had contributed to both the General Regime and the Self-Employed Regime and for which he had been recognized as having a total permanent disability resulting from a common illness since September 30, 2004. As it is a total degree (allows you to work in a profession other than your usual one) he returned to work and, after becoming unemployed, requested the subsidy for those over 52 years of age.
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In this way, for several years he was collecting the two benefits in parallel, until Social Security reviewed the file and realized that the collection of both was incompatible. Thus, the organization verified that he did not reach the 15 years of contributions required to retire, because part of those contributions had already been used to recognize permanent disability.
Given this situation, the organization warned him that, if he wanted to continue collecting the subsidy for those over 52 years of age, he had to suspend the total permanent disability pension. The worker opted for this route, and the pension payment was suspended on July 31, 2022.
Despite this, Social Security considered that the benefits already received should be returned, which is why it claimed the return of 21,309.80 euros as undue charges. According to the organization, the contributions that gave rise to total permanent disability could not be “counted for the purposes of recognizing another benefit,” so that the coexistence of both aids was incompatible.
Permanent disability is incompatible with the subsidy for those over 52 years of age when they come from the same contributions
Both the Social Court No. 1 of Avilés in the first instance, and later in the Superior Court of Justice of Asturias, ruled in favor of Social Security. The court understood that the total permanent disability pension and the subsidy for those over 52 could not be collected at the same time, since both had been granted using the same contributions.
The TSJ of Asturias ratified this interpretation by explaining that the subsidy for those over 52 years of age requires proving all the requirements to access retirement, except age. This implies having at least 15 years of contributions, but the plaintiff did not reach that period because part of his contributions were already linked to the total permanent disability pension recognized in 2004. As the ruling literally states, “the contributions that gave rise to the total permanent disability cannot be computed for the purposes of the recognition of another benefit.”
The court also noted that, although the error in the simultaneous payment of both benefits could have been due to the administration, the worker’s situation was not comparable to the cases resolved by the European Court of Human Rights, since he did receive another source of public income and was not in a vulnerable economic or personal situation. Therefore, the European doctrine that exempts reimbursement when the beneficiary acts in good faith and depends on the aid to survive was not applicable.
Thus, and for everything explained, the TSJ of Asturias confirmed that this man must return the 21,309.80 euros improperly collected for the total permanent disability pension.