The Superior Court of Justice of Asturias has proved the right to a worker and now retired in front of the State Public Employment Service (SEPE) and will not have to return 11,811.74 euros that the agency claimed for improper charges in the contributory benefit for unemployment. The reason is that the court considers that the beneficiary acted in good faith and that the error in the recognition of the aid was the exclusive responsibility of the SEPE, so it should not assume the consequences of said mistake.
Apparently, it all started when in September 2021, Dolores, which was 66 years old, requested the contributory for unemployment. This was approved by the SEPE after accrediting 2,192 days quoted, entitled to 720 days of benefit, so it began to collect unemployment until it exhausted it completely, that is, until August 30, 2023 and being 68 years old.
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What happened, then, that Dolores, at the time of requesting it, had already fulfilled his ordinary retirement age so he had no right to unemployment, as stated in articles 272.d) and 266.d) of the General Law of Social Security. For this reason, the SEPE proceeded to claim 11,811.74 euros for undue charges.
In the letter of resolution, the SEPE explained that “the right to unemployment perception will be extinguished by compliance with the ordinary retirement age” and that among the access requirements to this benefit is “not having fulfilled the ordinary age required in each case to cause the right to the retirement tax pension, unless the worker did not have the required contribution period accredited”.
The worker filed a claim explaining that he had not acted in bad faith and that the error was from the SEPE, being dismissed by the public employment service. Before the disagreement he decided to go to court.
The error of approving the unemployment benefit was from the SEPE
Both the Social Court number 4 of Oviedo and subsequently the Superior Court of Justice of Asturias (TSJA) gave the reason to the worker, acting in good faith. The Social Court explained that Dolores had provided all its data transparently, including its date of birth, and that SEPE itself recognized the benefit without consulting social security until two years later.
In fact, it was stressed that the late agency’s action was disproportionate: “The claim made by the SEPE almost 2 years after recognizing the right to receive the subsidy is disproportionate.” Given this resolution, the SEPE decided to present a resource of supplication. Although the SEPE filed an appeal for supplication to the Superior Court of Justice of Asturias, he gave the right to the now retired.
In this room, the magistrates recalled that the woman did not hide information and that it was Sepe himself who, not verifying the requirements with the INSS at the time of recognizing the aid, incurred an administrative error. Therefore, they applied the doctrine of the European Court of Human Rights (ECHR), in the Cakarevic vs. case. Croatia (2018), according to which errors attributable only to the administration should not be remedied at the expense of the citizen. In this sense, the Chamber stressed that “the errors attributable only to the state authorities must not, in principle, remedy at the expense of the interested person.”
You will not have to return 11,811.74 euros
The TSJ of Asturias concluded that the return of the almost 12,000 euros would have meant an excessive burden for the retirement, especially considering that the perceived was destined for its subsistence and that it always acted in good faith. Thus, the Court ruled that “the application of the doctrine of the ECHR in the Cakarevic issue” is appropriate, and rejected the argument of the SEPE that there was no damage to the subsequently recognized pension.
Therefore, the appeal filed by the SEPE was dismissed and the judgment of the Social Court of Oviedo was confirmed. The worker will not have to return the money, although the sentence recalls that the agency could still try a appeal for the unification of doctrine before the Supreme Court.