The Supreme Court establishes that retirees who combine collecting their pension with a job will receive the maternity supplement on 100% of the recognized benefit and not on the reduced 50% that they receive each month. This was determined by the High Court in a ruling from a few weeks ago where article 60 of the General Social Security Law applies. For this reason, it rejects the Social Security criterion of paying only the proportional part and forces it to pay 1,800 euros in damages to the beneficiary who was initially denied the right.
Article 60 of the General Social Security Law, before the 2021 reform, established that the amount of the supplement for demographic contribution (currently being the supplement for reducing the gender gap or better known as the maternity supplement) was 5% for two children, 10% for three children and 15% for four or more biological or adopted children. This percentage was applied to the “initial amount” of the retirement, widowhood or permanent disability pension.
Social Security refuses to raise the pension for retirees who earn below the minimum if they receive extra income greater than 9,442 euros
Several retirees over 70 years old: “My father started shepherding when he was 10 or 11; he walked in the rain and wind and exchanged milk for bread.”
The Supreme Court clarifies in its ruling (can be consulted at this link) that the term “initial”, according to the Dictionary of the Royal Spanish Academy, refers to the beginning or beginning of recognition. Therefore, it refers to the amount recognized first, before any subsequent reduction. The ruling adds that article 214.2 of the LGSS defines the active retirementa modality that allows you to collect the pension and continue working, such as 50% of the amount resulting from the initial recognition.
The ruling recalls that article 60.6 of the LGSS links the complement to the legal regime of the pension in terms of “birth, duration, suspension, termination and, where appropriate, updating.” This remission, concludes the Supreme Court, does not include the vicissitudes of active retirement, that is, the cut of the amount to 50% to make payment compatible with work.
A self-employed pensioner manages to collect 100% of the supplement
This ruling comes as a result of the case of a pensioner, a self-employed worker, to whom the INSS recognized in March 2018 a pension of 1,370.62 euros in the active retirement modality. During the years in which he maintained his self-employed activity, until December 2023, he collected 685.31 euros per month, 50% of the pension. He had two children, so he was entitled to the 5% supplement.
Social Security calculated that 5% on the 685.31 euros and paid 34.26 euros per month during active retirement. The Supreme Court ruling requires the percentage to be applied to the full amount of 1,370.62 euros, which raises the supplement to 68.53 euros per month. Only as of January 2024, when the activity ceased and 100% of the pension began to be collected, Social Security applied the percentage to the full amount. The beneficiary died in March 2024 and it was his heirs who maintained the litigation, finally agreeing with him.
Furthermore, the Social Chamber condemns Social Security to pay 1,800 euros in damages to the beneficiary who had to litigate to have the supplement recognized.
The doctrine affects the beneficiaries of the initial maternity supplement. That is, as we have explained before, this supplement was replaced in February 2021 by the current gender gap reduction supplement, which sets an amount per child and different calculation rules. The ruling also applies to men, who can receive this aid since the ruling of the Court of Justice of the European Union (CJEU) of December 12, 2019 that declared their exclusion discriminatory, something that also explains the Social Security official, Alfonso Muñoz Cuenca.
Five years to claim the differences from Social Security
Pensioners in active retirement who collect the original maternity supplement can request a review of the calculation before the Provincial Directorate of the INSS corresponding to their domicile. The limitation period to claim the economic differences not received is five years, in accordance with article 53.1 of the LGSS. In case of denial, those affected must submit a prior claim and, subsequently, they can file a claim before the Social Court.