Requests for early retirement due to disability continue to generate legal disputes, especially when there are differences between the date on which the disability is administratively recognized and the date on which the person actually lives with this limitation. This theme, centered on the rights of workers with severe disabilities, has been the reason for several court decisions in Spain and other European countries.
The Superior Court of Justice of the Basque Country recently recognized the right of a woman, identified as Gracia, to retire at the age of 56 with her full pension, worth 2,070.20 euros per month. Social Security had initially refused the request, even though the worker had a disability of 68% and had a contributory career of more than 36 years, according to the Spanish digital newspaper Noticias Trabajo.
Initial Social Security Denial
Gracia became completely deaf and mute at a young age, a condition that has always affected auditory communication. Despite living with this disability throughout his life, the administrative recognition of the 68% level only occurred in 2005. When he submitted his request for early retirement due to disability, under Royal Decree 1539/2003, Social Security rejected the claim, claiming that he did not meet the minimum age required to access the scheme.
For the worker, the decision ignored the reality of her disability, which had existed since birth and not just since the year of administrative recognition. After an initial complaint was also rejected, it went to Social Court No. 2 of Vitoria-Gasteiz, which ruled in favor and declared that it met all legal requirements.
Error in applying coefficients
The decision was subsequently assessed by the Superior Court of Justice of the Basque Country, which confirmed the understanding of the first instance. The court considered that Social Security had incorrectly applied the age reduction coefficients provided for people with a disability equal to or greater than 65%, according to the same source.
According to the ruling, the coefficient of 0.25 should have been applied to the entire contributory career and not just to the period after the administrative recognition of incapacity. Recognizing that the disability had been permanent since birth, the court recalculated the access age, concluding that Gracia was effectively entitled to retire at 56 years of age.
Full pension and retroactive payment
With this correction, the worker is now entitled to the full value of her regulatory base, without penalties, which corresponds to a monthly pension of 2,070.20 euros. The decision also obliges Social Security to pay amounts outstanding since the date of the initial refusal.
Early retirement schemes due to disability in Spain
Royal Decree 1539/2003 provides for the reduction of the retirement age for workers with a disability equal to or greater than 65%, allowing the application of a coefficient of 0.25 over all time worked. In situations where assistance from a third person is required, the coefficient may increase to 0.50, making it possible to reduce the age to a minimum limit of 52 years.
Royal Decree 370/2023 establishes different rules for disabilities equal to or greater than 45%, as long as they are associated with specific diseases listed in the legal annex, in accordance with .
Framework of Portuguese reality
In Portugal, a similar case would be assessed in light of the general Social Security old-age protection regime and the specific disability pension age anticipation scheme. Decree-Law No. 187/2007 establishes the protection regime in the event of disability and old age for beneficiaries of the general regime, to which special regimes have been added over the years.
The bringing forward of the legal disability pension age is currently regulated by Law No. 5/2022, of January 7, which created this regime, and by Decree-Law No. 18/2023, of March 3, which regulates it and amends Decree-Law No. 187/2007. This framework allows access to early retirement, without application of the sustainability factor or early penalties, as long as the following requirements are cumulatively met:
- aged 60 years or over
- disability with a degree of disability equal to or greater than 80%
- at least 15 years of contributory career carried out with that degree of disability, counting only the last 15 years of effective work in that condition
Proof of disability and its degree is provided through a medical certificate of multipurpose incapacity, issued by the competent medical boards. This document must indicate the degree of disability and, whenever possible, the date of onset or manifestation of the disability.
In a situation identical to Gracia’s, the essential issue would be to determine the effective start date of the disability for the purposes of accessing early retirement. Given the way in which the Portuguese legal system already treats the actual date of disability in other areas, it is likely that the courts would value the proven clinical condition, even if prior to the certificate.
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