The Supreme Court guarantees that both parents collect the old pension allowance per child at the same time

Pensioners who once sought maternity allowance according to the demographic contribution They are entitled to the same even if the other parent of their children was already enjoying the bonus at the time they applied. Plenary session of the Social Chamber Supreme Court issued a judgment, published this Wednesday, which establishes as a doctrine that “maternity allowance for the demographic contribution can be obtained by women or men who qualify for it, without taking into account the fact that the other parent (or an assimilated person) also has or can have right to your perception.

In its ruling, the high court rejected the appeal to unify the doctrine it had put forward National Institute for Social Security against the judgment of The Supreme Court of Xustiza of Galicia (TSXG) which recognized the father’s right to maternity allowance for demographic contribution, despite the fact that the mother was already receiving it. Social Security argued that the demographic contribution maternity allowance is unique and that only one parent can be recognized.

According to the judges, the recognition of the right to maternity allowance for the demographic contribution of one of the parents should not prevent the other parent from receiving it as well if he meets the legal requirements.

This new high court doctrine affects the pensions accrued from January 1, 2016 to February 3, 2021, the period in which the regulations were in force that governed the maternity allowance for the demographic contribution, regardless of whether the applicant was male or female. In February 2021, the supplement to the maternity pension was reformulated, following the judgment of the Court of the European Union, which abolished the previous formulation due to discrimination against men. It has already been renamed to complement to reduce the gender gapthe new text explicitly prevents the simultaneous enjoyment of both parents, so that from that moment recognized pensions are not affected by this judgment of the Supreme Court.

If the higher court tries to “limit the compensation to only one parent (without the criteria of what it should be) under the argument that the originators of the compensation are minors, it not only ignores the tax requirements, but in the end it would act, without the regulatory authority to do so, contrary to egalitarian thinking about a rule that cannot rely on exceptions intended to restore previous imbalances.

The Supreme Court points out that the previous provision of Article 60 of the General Law on Social Security, which was examined in the lawsuit, completely omitted consideration of what happens when the non-applicant parent already enjoys the allowance. And “if the legislator wanted to abolish the privilege in such cases, he should have expressed it”, since in matters of protection in need (Art. 41 of the Constitution), if the norm does not require more requirements, the translator also cannot do so.

Furthermore, the court indicates that the right to supplement must be recognized regardless of the gender of the person requesting it, because “it would be paradoxical and illogical if a benefit created to compensate for the disadvantage many women find themselves in ends up being denied to one of them on the basis that a male parent is already receiving it. It is a right that is born unrelated to a woman’s biological condition, so it makes no sense to worry about the situation in which the parent is except for the one that activates his enjoyment.