A Spanish pensioner was refused access to the so-called child supplement to his retirement pension after the Court concluded that the permanent fostering of a minor is not comparable, for this purpose, to birth or adoption. The case was considered by the Superior Court of Justice of the Basque Country, which confirmed the decision of the National Social Security Institute (INSS) and rejected the argument that years of care and coexistence could replace the legal bond of affiliation.
According to Noticias Trabajo, a Spanish website specializing in legal and labor matters, Social Security rejected the request in November 2023, in a process in which the pensioner, retired since March 2017, wanted to have a second “child” assigned to him based on a permanent foster care situation.
Request refused by Social Security
According to the Spanish publication, the INSS understood that the pensioner did not meet the legal requirements to access the supplement.
The family book included only one daughter, while the other minor, although integrated into the household through permanent foster care, had not been adopted.
The applicant argued that the family reality experienced should be treated as equivalent to full parenthood and took the case to court.
First instance and appeal
According to , after a first unfavorable decision, the case reached the Social Room of the Superior Court of Justice of the Basque Country, which ended up confirming the refusal.
Law does not allow analogies
The decisive point was the reading of article 60 of the Spanish General Social Security Law, in the version applicable to the case.
The court considered that, for this type of supplement, only born or adopted children are counted, and there is no legal basis for including foster care situations by analogy.
The publication also cites the understanding that permanent foster care, although relevant from a social point of view, does not create a legal bond of affiliation comparable to that of adoption.
Legal bond is decisive
In practice, the court concluded that the pensioner was unable to meet the minimum legal requirement based on foster care, keeping only the daughter with recognized parentage in the count. As a result, the appeal was rejected and the administrative decision was maintained.
And in Portugal?
In Portugal, the framework is not directly comparable. Under the general regime, the old-age pension is calculated based on recorded earnings and years of deductions, under the terms of the regime approved by Decree-Law no. 187/2007, and there is, as a rule, no “child supplement” in the old-age pension equivalent to that discussed in this Spanish case.
Still, the practical lesson is clear: when the law conditions rights to a specific legal bond (such as filiation by birth or adoption), situations such as foster care may not produce the same effects.
In case of doubt, the recommendation is to confirm the specific framework with Social Security and, if there is a refusal, evaluate the reasons and the available means of objection.
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