A widow has managed to get the court to recognize her right to collect two widow’s pensions at the same time, according to a ruling from the Superior Court of Justice of Madrid. The National Social Security Institute (INSS) had denied it, alleging that they were incompatible and, subsequently, rejected its last application. Even so, justice has ruled in favor of the woman to collect both benefits, collecting the arrears since 2014, due to a “fatal” procedural error by the Administration.
It all starts when Rosario, who was already receiving a widow’s pension from the General Regime, requested a second pension, this time from the Passive Classes Regime. Her argument was that this new benefit was based on 15 years of her late husband’s services that were not simultaneous with those that generated the first pension and, therefore, she believed that they were compatible.
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Arrate Aranceta (79 years old), widowed since she was 40 years old and with 4 children, speaks clearly about her pension: “It was 400 euros to pay for food and studies, it was not enough”
Social Security will deny the widow’s pension in marriages of less than one year if the death was due to a common illness and without children in common or proven previous cohabitation.
The Administration itself informed him that he had a maximum period of four months (which expired on July 16, 2021) to notify him of a resolution, and warned him that if he did not do so, “the request may be deemed to have been approved due to administrative silence.”
This is where the Administration’s key error occurs, since on June 21, 2021, within the deadline, Social Security issued a resolution to reject Rosario’s request. Even so, the Administration attempted to notify this resolution at the old address in Madrid, despite the fact that the interested party had formally communicated a month before (on April 28) that its new address for notifications was in Segovia. As was logical, the notification attempts in Madrid failed.
A notification error voids the denial of Social Security
Not being satisfied with the situation and not receiving the resolution, Rosario requested a certificate of positive silence. The Administration denied it (this time notifying correctly in Segovia), alleging that there was an “express resolution.” Faced with this situation, the woman decided to go to court and that is where the Superior Court of Justice of Madrid ruled in favor, confirming that positive silence had indeed occurred.
The court explains that the resolution of inadmissibility was never effective because it was not notified to the correct address. As the court says and the ruling states, the attempted notification in Madrid “must cause the invalidity of the notification actions (…) and their ineffectiveness in order to interrupt the four-month period.”
So for everything explained, the TSJ ended up agreeing with the widow, annulling the denial of the certificate and ordering “the defendant Administration to issue the certificate accrediting the positive silence produced.”
This, in practice, grants you the compatible pension, so you will collect two widow’s pensions at the same time. In this sense, the Chamber harshly criticizes the “confusing and incongruous administrative action” and emphasizes that the Administration, in addition, did not admit the request based on an error, since it believed that there was a pending contentious appeal that in reality had already been finalized due to withdrawal.
What does the law say about administrative silence and compatible pensions?
To understand this sentence we must know that it focuses on two pillars. The first is article 24 of Law 39/2015 on Common Administrative Procedure (consultable in this BOE). This law establishes that in procedures initiated by an interested party (such as a pension application), if the Administration does not notify a resolution within the maximum period, the application can be understood to be approved due to “administrative silence.”
The second is that according to the State Passive Classes Law (available in this BOE), although the general rule is the incompatibility of pensions, this article is what allows the recognition of compatible pensions between different regimes (such as Passive Classes and the RGSS) as long as the service periods used to calculate each pension are not the same (not simultaneous).