Supreme Court building, in Madrid.
Supreme Court building, in Madrid.Alberto Ortega (Europa Press)

Requesting the retirement pension is not irreversible and you can renounce your concession and continue working. This has been pointed out by the Social Chamber of the Supreme Court, which has handed down a ruling establishing that the beneficiary of a retirement pension can cancel it, even though they have already received notification of its concession by Social Security. In this case, the beneficiary considered requesting it again later, at a time when it would be more favorable to his interests. The court emphasizes that it is not an “irreversible” situation or a waiver of the right to retirement.

The worker requested a retirement pension that was recognized by the INSS through a resolution dated June 2018, with a regulatory base of 764.48 euros, a percentage of 85.49% and effects of January 24, 2018. Against said resolution , the beneficiary made a previous claim renouncing the retirement pension and asking that said request be left without effect. The claim was denied by resolution dated August 2018.

The question raised before the Chamber consisted of determining whether it is possible to annul a recognized retirement benefit at the will of the beneficiary, immediately after its notification, in order to be able to request it later, at a later time that may be more favorable to him by increasing his listing period. A Court in Alicante agreed with the applicant, annulling the INSS resolution that recognized his retirement pension, and ordering the return of everything he had received for this concept.

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However, the Superior Court of Justice of the Valencian Community revoked that ruling when upholding the appeal filed by Social Security. The court argued that it is not possible to waive a retirement pension once it has been recognized, since the only cause for termination of the retirement pension established in our legal system (in addition to the sanction of loss due to incompatibility ), is, in keeping with its lifelong nature, the death of the pensioner, without the possibility of waiving the retirement pension being provided by law or regulation, which would contravene the principle of inalienability of rights of article 3 of the General Law of the Social Security.

The beneficiary filed a cassation appeal for the unification of doctrine before the Supreme Court, invoking a ruling of the Superior Court of Justice of Andalusia, which gave an opposite response to a similar claim. In both cases, they were applicants for the retirement pension who requested, after it was recognized, to cancel it because they were not satisfied with the amount in order to be able to request it again later. Faced with the negative response of the Valencian Supreme Court, the Andalusian Supreme Court agreed with the plaintiff, considering that it was not a waiver of rights prohibited by law.

The Supreme Court establishes, with the support of the Prosecutor’s Office, that the correct doctrine is the latter, since the action contemplated in the compared judgments is not a waiver of the right to retirement benefits, which, as such, would be prohibited by our legal system. “It is true that such a possibility is not expressly provided for in the standard; but it is not expressly prohibited either, because the situation described does not imply, in any way, a waiver of the right to retirement benefits, but the manifestation of not wanting to enjoy it in the recognized amount to request it later “, when it deems it most convenient for their interests, and there are other circumstances (lack of grace and contribution) that may entail a greater benefit.

For this reason, it is not “an action that can be considered illegal, nor can it be understood as a waiver of the right to a public Social Security benefit that, on the other hand, could not be enjoyed simply by never requesting it. There is no unilateral abdicative waiver of the rights granted by the Social Security system”.

They add that it should also be taken into account that the retirement application is not mandatory for those who reach the ordinary retirement age; and, on the other hand, that the system itself allows and even encourages the prolongation of active life and, with it, the delay in applying for retirement.

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By Nail

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