The Supreme Court has rectified its doctrine on access to permanent disability from early retirement due to disability. In a ruling issued less than a month ago, which can be consulted at this link, argues that if the person has not reached retirement age (65 or 67 years) this situation is possible. The Social Chamber thus rectifies the line that it had maintained since 2018 by virtue of different resolutions of the Constitutional Court issued last year, relating to the principle of equality and non-discrimination.
Specifically, the magistrates had been maintaining that this path was not possible because a kind of “double positive discrimination” was produced, but now they argue that it is about “different value planes”. Thus, they defend that “the legislator, in the legitimate exercise of its freedom to configure the system, has not established another requirement than that of a certain age (65 or 67 years) to access the benefit, so that it does not prevent access from a situation of early retirement, nor does it distinguish between the causes or budgets of this type of retirement to access permanent disability.
Therefore, they understand that, if the law makes no distinction in this matter, “the establishment of a difference in treatment for cases of early retirement due to disability could entail discrimination proscribed by the general principle recognized in article 14 , second paragraph, of the Spanish Constitution”, regarding equality and non-discrimination.
Based on the doctrine of the Constitutional Court, the magistrates point out that some rulings issued by the Social Chamber of the Supreme Court in 2018 “produce unjustified discrimination against the appellant with a disability as a result.” This is because any person who is in a situation of early retirement could access a benefit for permanent disability, except for people with disabilities, despite meeting the only requirement required by the regulations, which is a certain age. “This generates a difference in treatment not provided for in the rule, without objective and reasonable justification, derived exclusively from the fact of having agreed to an early retirement situation precisely because of their disability situation.”
The position of the INSS
In the case under trial, the plaintiff was registered with Social Security in 1977. In 1982 he suffered a traffic accident that caused various injuries that made him need a wheelchair to get around. Since 1987 he had recognized a disability of 90%. However, from 1998 to 2015 he worked as a sales agent for ONCE. In that year, an early retirement pension was recognized for disability. In 2017 he applied for a permanent disability before the National Institute of Social Security (INSS), which was denied for not presenting “anatomical or functional reductions that diminished or annulled his work capacity.” The worker sued, but the Social Court number 3 of Logroño dismissed his claims.
However, in 2018 the Superior Court of Justice (TSJ) of La Rioja agreed with him, declaring him highly disabled. The sentence understood that it was possible to access permanent disability from the situation of early retirement due to disability. Although the National Institute of Social Security and the General Treasury of Social Security appealed for the unification of doctrine, now the Supreme Court has confirmed the contested resolution. The rapporteur of the sentence has been the magistrate Maria Luisa Segoviano.