A retiree will have to return 10,027.66 euros of his retirement pension to the National Social Security Institute after the Superior Court of Justice of Madrid confirmed that these were undue charges for having received 100% of the pension while he remained registered in the RETA (Special Regime for Self-Employed Workers). In this sense, the court agrees with Social Security when considering that there was an incompatibility, even if it had not carried out any activity, as stated in the General Law of Social Security.
According to the ruling, Belarmino retired in 2014 through the General Regime, but “he registered in the special self-employed regime on November 15, 2021, informing Social Security of the start of RETA activity.”
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Given this situation, Social Security realized that the pensioner continued to collect 100% of his retirement pension while he was registered as self-employed, something that is incompatible (except in the cases provided for in the General Social Security Law). For this reason, he sent a resolution letter in which he said that he “suspends the pension and declares the origin of the reimbursement of the amounts improperly amounting to 9,465.15 euros.”
But apparently, this pensioner never received such notification, since the address that appeared in the file was listed as “unknown.” In this situation, Social Security proceeded to communicate it in the BOE, as established by the regulations. Months later, this retiree tried to regularize his situation, indicating that he wanted to take advantage of the active retirement modality, which allows work and pension to be made compatible at 50%.
Social Security explained that the months prior to that request it was an improper charge, since he had been receiving the full pension without requesting any of the modalities that allow it. For this reason, he demanded the reimbursement of the amounts, which led the retiree to file an administrative claim “which was denied”, alleging that he had never really worked and that the Administration should have managed his withdrawal from the RETA.
The pension is incompatible with remaining registered in the RETA
After going through the Social Court, the case reached the Superior Court of Justice of Madrid, which finally ruled in favor of Social Security. The Chamber ruled in favor of the INSS, so the pensioner incurred an incompatibility by remaining registered as self-employed while collecting his entire pension, contrary to the provisions of article 213 of the General Social Security Law, which regulates situations of incompatibility between pension and work.
The ruling states that the court explained that “the INSS acted in accordance with the law by suspending the pension and claiming the amounts unduly received in the amount of 9,465.15 euros”, since during that period the retiree was still registered in the RETA. Furthermore, the ruling explains that the fact of not having worked effectively does not exempt from compliance with the obligations with Social Security, because the determining factor is the administrative situation: “the notification was made by publication in the BOE as the address was listed as unknown, being valid in accordance with article 44 of Law 39/2015.”
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In this ruling, the error was that the pensioner was registered with the RETA without requesting his discharge, believing that it was enough to not be active to keep the pension. Despite this, the Court remembers that what is relevant is not whether work has been done or not, but rather the status of registration in the system. In the words of the resolution, “there has been no defenselessness, as shown by the fact that the appellant had the opportunity to access the entire administrative file of the INSS and formulate allegations.”
Therefore, the Court understands that the retiree improperly collected his full pension during the months in which he was registered as self-employed, which makes the Social Security decision consistent with the law. The ruling concludes that the notification defects do not annul the administrative act, since “no material damage or defenselessness has been proven, and the actions of the INSS were in accordance with current regulations.”