A Spanish pensioner saw her widow’s pension suspended by Social Security, which considered that the benefit was incompatible with the retirement pension she already received. In addition to losing the subsidy, she was notified to return 10,421.56 euros, an amount that the organization understood to have been paid unduly.
The decision led the woman, identified as Lina, to go to court, after more than a decade of receiving her pension without any challenge.
A pension granted in 2012
According to the Spanish digital newspaper Noticias Trabajo, Lina began receiving the widow’s pension in 2012, following the death of her de facto partner. The request was approved under Law 40/2007, which already recognized the right to this benefit for couples who were not married.
The pension was set at 835.43 euros per month, subject to the condition that earnings did not exceed one and a half times the Interprofessional Minimum Wage. At that time, legislation allowed accumulation, as long as all income remained within the established limit.
Two years later, in 2014, Lina began receiving a contributory retirement pension, amounting to 2,060.22 euros per month. From that moment on, Social Security suspended her widow’s pension as it considered that the sum of her income exceeded the maximum amount allowed.
The replacement and the surprise
With the entry into force of Law 21/2021, known as the second pension reform, Lina decided to request the reinstatement of her widow’s pension again. The request was accepted, and the pension was recalculated at 1,042.45 euros per month, with retroactive effect to January 1, 2022.
However, a few months later, Social Security reversed itself and notified the woman of the annulment of the decision. The entity considered that the new additional provision 40th of the General Social Security Law prevented the accumulation of a widow’s pension with any contributory pension. Furthermore, he demanded the return of all amounts received since reactivation, alleging undue payment.
The woman then decided to appeal to the Navarra Superior Court of Justice, arguing that her right to a widow’s pension had been recognized almost ten years before the new law came into force and, therefore, could not be revoked based on criteria created later.
Interpretation of the law
The question posed to the court was clear: could the new legislation be applied to a pension granted in 2012? The answer required determining whether the so-called “causative fact” of the right, the moment in which it was born, prevailed over subsequent legal changes.
The legal debate ended up focusing on this point. On the one hand, Social Security maintained that the new rules applied to all situations in force. On the other hand, Lina’s defense argued that her pension could not be reviewed based on a law that did not yet exist when the right was acquired.
And in Portugal?
In Portugal, the legal framework protects, in general terms, the idea of acquired rights and imposes limits on legislative retroactivity, especially when the application of a new standard may affect the legitimate expectations of beneficiaries. The Constitutional Court and the Basic Law of the Social Security System have been reinforcing the protection of these rights, at least as a guiding principle for the interpretation of norms.
In practice, this translates into the possibility of a beneficiary challenging before the courts an administrative decision that applies, to its detriment, rules introduced after the date of the triggering event. The result depends on the specificity of each case, the wording of the rule and the interpretation that the courts make on concepts such as the triggering fact and legitimate expectations.
The court finds in favor of the beneficiary
According to , the Superior Court of Justice of Navarra ended up clarifying that the applicable regime is the one in force at the date on which the right was recognized. The court emphasized that the replacement requested in 2022 did not constitute a new pension, but rather the reactivation of a benefit previously recognized in 2012.
For this reason, requirements introduced by subsequent legislative reforms could not be required from the beneficiary, nor could the additional provision 40th of the General Social Security Law be applied retroactively.
With the decision, Lina regained the right to accumulate both pensions, for a total value of 3,102.67 euros per month, and no longer had to return the 10,421.56 euros claimed by Social Security.
The case, according to the same source, reinforces the importance of the principle of non-retroactivity of laws and could serve as a reference for other similar situations in which the application of new rules jeopardizes rights recognized under previous legislation.
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