A retiree must return 14,457.39 euros to Social Security, for having gone to work while collecting 100% of his retirement pension, as it was an improper payment. The Superior Court of Justice of Andalusia has ruled in favor of the National Social Security Institute by considering that starting to work on your own is incompatible with collecting the pension except in the cases included in the General Social Security Law.
It all starts when this man, who had been collecting his retirement pension since December 2016, decided to register in the Special Regime for Self-Employed Workers (RETA) to work as a hotel administrator. During several alternating periods between March 2018 and May 2019, he was carrying out his activity. As stated in the sentence, although he managed to process the registrations and cancellations, “there was no express request for compatibility in the referred periods.”
For this reason and upon realizing it, Social Security proceeded to notify the pensioner that an incompatibility had occurred, declaring “the amount of 14,901.87 euros was improperly received.” After subtracting a small settlement of 444.48 euros in favor of the actor, Social Security asked the retiree to return the pension collected in those months, that is, a debt of 14,457.39 euros to be repaid through deductions from his pension. Due to this situation and given that the previous claims were dismissed, he decided to go to court.
Working and collecting the pension are incompatible
Although the man argued in his appeal that the Administration was perfectly aware of his periods of activity because it presented the current registration and cancellation models, the Superior Court of Justice of Andalusia confirmed the initial ruling in favor of Social Security.
In this sense, the court explained that the general rule is that “the enjoyment of the retirement pension will be incompatible with the pensioner’s work”, as stated in article 213 of the General Law of Social Security. Therefore, if a retiree wants to work, he or she must strictly meet the requirements.
The TSJ added a key point for this type of situation: there is no point in communicating the registration as self-employed if it is not specified why it is being done. In fact, the ruling literally emphasizes that “the communication must not only be prior, but at the same time it must be indicated that compatibility is requested for the purposes of active retirement”, something vital so that Social Security can verify whether the retiree complies with the legal requirements of this modality.
Furthermore, the resolution itself, based on the jurisprudence of the Supreme Court, explains that, if the pensioner works without making this communication in the correct way, “he incurs the obligation to reimburse what was unduly received”, because from the first day on which he works his pension automatically becomes illegal.
Return more than 14,000 euros of your pension
The ruling was clear and the TSJ established that the retiree must return the monthly pension payments collected during the periods of incompatibility, that is, the total owed of 14,457.39 euros, since the law states that “the pension is considered undue from the date of the start of the corresponding activities.”
In this ruling, it is necessary to know that working and collecting the pension are incompatible, except in the cases included in the regulations (such as active or flexible retirement), so before starting any activity it is not only necessary to communicate it, but it is also mandatory to clearly and expressly request the active retirement request from the INSS.