Parents' right to claim maternity allowance for their pension is not time-barred.
The Supreme Court, in its ruling of February 21, 2024, has admitted the right of retirees between January 1, 2016 and February 3, 2021 to claim the maternity supplement in their benefits if they had two or more children, since this does not prescribe. Until now, Social Security denied their requests.
We inform you that, in an important ruling dated February 21, 2024, the Supreme Court (SC) has admitted the right of retirees between January 1, 2016, and February 3, 2021 to claim the maternity supplement in their benefits if they had two or more children, since this does not prescribe. And, therefore, it has ruled against the National Institute of Social Security (INSS) and the Treasury (TGSS).
This decision applies to a case in which the pension was granted on November 30, 2016, and the application was made after five years. The SC argues that the initial non-granting of the supplement constitutes discrimination, violating the right to equality, and that full reparation requires that the effects be applied from the date of the causal event.
The SC adds that the limitation period cannot begin before the judgment of the Court of Justice of the European Union of December 12, 2019, which declared the article discriminatory for excluding fathers from the supplement. In addition, it points out that the maternity supplement is accessory to the main pension and not an independent claim, so it was implicit in the original pension application.
Finally, the SC rejected the appeal of the National Institute of Social Security and the General Treasury of Social Security, which claimed that the right was time-barred based on Article 53.1 of the Law. The decision of the SC confirms the judgment of the High Court of Justice of Cantabria and the resolution of the Social Court number 1 of Santander, which recognized the worker’s right to receive the supplement with economic effects from December 1, 2016.
Which persons can claim this maternity supplement?
Anyone who retires and has two or more children is directly eligible for a bonus on their pension. The claims being made right now are not to access the supplement itself, which is already available to any parent who meets the requirements, but to retroactively collect this pay to which thousands of retirees were entitled between 2016 and 2021.
Male freelancers retired before 2021, or those who receive a permanent disability or widowhood benefit, and are fathers of two or more children, can claim from the Social Security the payment of the old maternity complement, in force between 2016 and 2021.
New INSS management criterion no. 5/2024, dated March 8, 2024.
By means of the new INSS Management Criteria No. 5/2024, dated March 8, 2024, the managing entity recognizes that the doctrine has been unified, declaring that the maternity supplement for men is imprescriptible and must be recognized retroactively from the date of recognition of the contributory pension. This decision is based on the accessory nature of the supplement with respect to the main pension and establishes that it cannot be time-barred once the pension has been recognized. In addition, it confirms that the supplement can be granted to the father without affecting that received by the mother and details the conditions of incompatibility with the supplement for the reduction of the gender gap (CRBG).
The criterion also clarifies that the maternity allowance may be granted to the father even if the mother already receives it for the same children, without implying a reduction of the mother’s allowance. In addition, it specifies that, in cases of revision due to aggravation or improvement of a permanent disability, the relevant date for the recognition of the supplement is that of the initial recognition of the pension, if this is after January 1, 2016.
This INSS criterion reinforces the right of parents to receive the maternity supplement and seems to bring forward the end of the administrative denial that had been occurring up to now.
As for the concurrence with the current contributory pension supplement for the reduction of the gender gap (CRBG) -applicable to pensions as of 02/04/2021-, the criterion states that they are incompatible and that the interested party must choose between one or the other, deducting from the maternity supplement the amount received by the CRBG in case of overlapping.
For further information, please consult with Labor consulting.
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