A man was ordered to return around 20 thousand euros to Spanish Social Security after having received, for several years, a benefit for a dependent child with a disability which, in this specific case, the court understood to be already reflected in the orphan’s pension awarded under the regime then in force. The case reached the courts and the final decision changed the initial understanding.
According to the Spanish website, which specializes in legal matters, the beneficiary received an orphan’s pension since 2004. According to Royal Decree 364/2004, this pension could be increased with the amount corresponding to the benefit for a dependent child of over age with a disability greater than 65%. Although Spanish law has now accepted, as a rule, compatibility between these benefits, the case analyzed by the court concerned an amount that was already integrated into the pension recognized in 2004.
Doubled support for years
According to the same publication, in January 2012, the beneficiary’s mother submitted a new request for the benefit for a dependent child over 18 years old with a disability greater than 65%, which ended up being approved by Social Security on February 2 of that year.
According to Noticias Trabajo, it was this second, autonomous attribution that led to the doubling of the payment: one part was received as part of the increased orphan’s pension and the other as an independent benefit.
Review led to demand for return
According to the same source, Spanish Social Security reviewed the situation in 2023 and notified the beneficiary to return the amounts received unduly.
The amount initially claimed was R$19,182.80, but ended up being fixed at R$19,962.60 in the legal process. Initially, the Juzgado de lo Social no. 5 of Murcia understood that there was nothing to be returned as it considered the debt claim time-barred.
Superior court rules in favor of Social Security
The case then went up to the Superior Court of Justice of Murcia. According to Noticias Trabajo, the judges understood that, in the request presented in 2012, it was not communicated that this amount was already included in the orphan’s pension, which constituted a relevant omission.
According to article 146 of the Ley Reguladora de la Jurisdicción Social, as summarized by the Spanish website, the four-year period to review the recognition of the benefit does not apply when the review is based on material omissions or inaccuracies by the beneficiary.
What does the law say in these cases?
The court distinguished the period for reviewing the attribution of the benefit from the period for demanding reimbursement of the amounts paid. According to Noticias Trabajo, although the 2012 resolution could be annulled despite the time that had elapsed, the return was limited to the four years prior to the review, in accordance with article 55.3 of the Ley General de la Seguridad Social.
Good faith was under analysis
Another point analyzed was the possible exclusive responsibility of the administration for the error. Also according to Noticias Trabajo, the court rejected the application of the Cakarevic doctrine, from the European Court of Human Rights, as it understood that a simple administrative error was not at stake: the beneficiary already received this amount and requested it again.
And in Portugal?
In Portugal, improper receipt of social security benefits also generates an obligation to repay. Article 60 of the Social Security Basic Law provides that benefits paid to those who were not entitled must be refunded, and Decree-Law No. 133/88 establishes the regime applicable to the recovery of these amounts.
This diploma determines that, when the undue payment results from facts that should have been communicated by the beneficiary, the refund may cover all undue amounts. It also provides for notification, the possibility of compensation with other installments and payment in installments over up to 150 months, with the right to refund prescribing, as a rule, within a period of five years from the notice to refund.
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