A mother will not have to return 19,758.70 euros of child benefit to Social Security, after she claimed it for her son with a 65% disability that she received for four years. The Superior Court of Justice of Extremadura has agreed with her, understanding that the woman acted in good faith and that the error was exclusively on the part of the Social Security that improperly paid the aid.
As the ruling explains, the son born in 1984 was granted an orphan’s pension in May 2005, with an ordinary amount of 20%, which was later modified to include “a disability supplement of 65%, setting the liquid amount of the pension at 418.26 euros per month.”
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But what happened? Well, in May 2010, the beneficiary’s mother, Elisabeth, requested and was given the dependent child benefit, since her son had a 65% disability, which she was receiving without problems until July 2023. At that time, Social Security detected that both benefits were being collected (the orphan’s pension with disability supplement and the dependent child benefit), which are incompatible with each other.
For this reason, the INSS proceeded to demand from the mother the return of the 19,758.70 euros, which it had “improperly collected in the period between August 2019 and July 2023.” Social Security explained that it was a “duplicate charge for the same concept” and that it had suffered “considerable damage due to its error, as the right to claim the amounts paid had expired for nine years.”
The mother objected, explaining that she had not acted in bad faith and that the error in granting the aid was an administrative failure on their part. So since they could not agree, they decided to go to court.
acted in good faith
In the first instance, the Social Court No. 1 of Cáceres agreed with the woman, absolving her from returning the money. Social Security appealed to the Superior Court of Justice of Extremadura, insisting that the benefit should be revoked and that Elisabeth was obliged to repay the amounts received.
Even so, the TSJ once again agreed with him, although in part. The Chamber recalls that “the recipient of the benefit has not acted in bad faith, abusing or wanting to defraud” and that “the only person responsible for the improper payment is the National Social Security Institute, as no act or omission of the beneficiary of the benefit has been involved in the erroneous granting of the benefit.” To do this, they applied the doctrine of the European Court of Human Rights (ECHR), also assumed by the Spanish Supreme Court (STS 530/2024), which is known as “Cakarevic”.
This says that the beneficiary should not assume the payment of improper charges when the error is the administration’s. Furthermore, it adds that “it is a benefit that satisfies basic subsistence needs” and that “it does not seem appropriate that the burden of the error falls on the beneficiary of the benefit, and the managing entity must assume the consequences of the error.”
For this reason, although the Court recognizes that there is a legal incompatibility between the two aids, it only agrees to “the revocation of the benefit for a dependent child with a disability equal to or greater than 65% from the moment the judicial demand was notified”, the moment in which the beneficiary became aware of the error.
Ultimately, the Superior Court of Justice of Extremadura determines that the woman should not return the 19,758.70 euros received, considering that she acted in good faith and that the error was exclusively attributable to Social Security, although she does lose the right to continue collecting the aid since the claim was communicated to her.