I.CONCEPT AND TYPES OF PERFORMANCE
Benefits are configured as a set of technical measures or economic system which recognizes the Social Security to prevent, repair or overcome certain situations of misfortune or need states arising from the planned contingency. As defined by the Constitutional Court, the benefits of Social Security are compensation, in cash or in kind, against damage, which generates overspending or defect income produced by updating a contingency in terms provided by law (Constitutional Court ruling 103/1983).
It is true subjective rights, which means that-meet the requirements establecidos- right is generated from the state regarding the granting of the benefit.
Among the different types of benefits, we must refer to:
- –The distinction between contributory and non-contributory benefits, as required or no prior quote. The former condition the exercise of a professional activity. The second is sufficient to meet the legal requirements, without requiring quotes.
- –The distinction between -Performances compensation consisting of a lump sum or only- pay, pensions and economic -Performances newspaper and subsidies vitalicio- economic -Performances newspaper and character temporary basis.
- –The distinction between basic benefits both contributory and non-contributory and supplementary benefits. Additional benefits are economic services and aid granted by the Social Security to the persons included in its scope when showing states or situations of need, upon proof of the lack of necessary resources to deal with such states or situations.
These and other classifications may be proposed, they are not mutually exclusive, on the contrary, as you can see there are points of connection between them.
In any case, the legislature makes clear that any provision of a public nature that is intended to complement, extend or modify benefits of Social Security in its contributory forms part of the system of Social Security, without prejudice to the aid of any other nature, in the exercise of its powers, to establish the autonomous communities for the benefit of pensioners living in them.
II.CHARACTERS OF BENEFITS
The legislature has established a number of intrinsic characteristics for benefits, as a genuine guarantees that are either imposed on the recipient or to third parties. They are:
- to)Unavailability. beneficiaries are forbidden to have benefits by undertaking any legal transaction involving a transfer to third parties of their right credit on them; specifically, the total or partial transfer of right, except quoted is prohibited in the case of maintenance obligations in favor of relatives in legal terms and obligations of the beneficiary itself within the system, such as reimbursement of undue benefits (Article 44.1 Consolidated text of the General Social Security Act 2015).
- b)Indispensability. Any agreement is void, individually or collectively, by which the worker waives rights conferred by the social security legislation (Article 3 Consolidated General Social Security Act 2015).
- c)Inembargabilidad. As wages are attachable in the amount indicated to the minimum wage; with respect to the additional amount, exceeding that threshold subsistence a percentage ranging from 30 to 90 100, according to the scale in the art applies. 607 of Law 1/2000 of Civil Procedure.
- d)Taxation. Perceptions derived from the protective action of the Social Security are subject to taxation under the terms established in the regulations for each tax. (Article 44.2 Consolidated Text of the General Social Security Act 2015).
- and)credit privileges. The amounts owed by the employer in respect of provision have privileged nature concur with other credit when credit (Article 162.2 Consolidated Text of the General Social Security Act 2015). Now this character set only for certain benefits:
- –Which must satisfy employers responsible for its liability for the breach of its obligations (Article 167.2 Consolidated Text of the General Social Security Act 2015).
- –Surcharge performance measures for breach of health and safety at work (Article 164 Consolidated General Social Security Act 2015).
- –Temporary disability allowance by the employer resulting from common risks (Article 173.1 Consolidated Text of the General Social Security Act 2015).
- –Which must satisfy employers for their cooperation in management.
They enjoy also the status of privileged claims the benefits must satisfy the Mutual of Accidents and Occupational Diseases Social Security system settlement (Article 162.2 Consolidated Text of the General Social Security Act 2015); in particular, the benefits arising from occupational hazards and economic benefit for temporary disability arising from common risks (Article 80 Consolidated General Social Security Act 2015).
1.Prescription and limitation
The right to recognition of benefits shall lapse five years from the day following that on which the cause of the provision in question actually takes place, though:
- –Imprescriptible character have the right to recognition of the retirement pension and the right to recognition of death and survival benefits except the death grant.
- –The effects of recognition in the circumstances described in the previous section will occur from the previous three months from the date it is filed that request.
Prescription is interrupted by ordinary causes of Article 1973 of the Civil Code, plus:
- –For the complaint to the Social Security Administration or to the Ministry of Employment and Social Security.
- –Under dossier process the Inspectorate of Labor and Social Security.
Upon expiration, the legislator said that the right to receive benefits lump sum and one-time expires one year after their respective due dates, starting from the day following have been notified granted as the interested day. If, however, it is periodic benefits, the right to collect each monthly payment expires one year after their respective maturity.
Without prejudice to their more concrete analysis should be considered incompatible with each service work and incompatibilities benefits each other.
Pursuant to the legal provision, pensions Social Security under their contribution regime, including the amount of the minimum pension, should revalue the beginning of each year, depending on the rate of revaluation provisions of the relevant Act State Budget (Article 58.1 Consolidated Text of the General Law on Social Security) concept introduced by Law 23/2013, of 23 December, regulating the sustainability factor and the rate of revaluation of the pension system Social Security (until then, the revaluation was performed based on the price index annual consumption, although in the current crisis situation the last revaluation under that parameter took place in 2011).
To ensure the purchasing power of pensioners, ex lege fixed a warranty clause: the result may not result in an annual increase of less than 0.25 per 100 pensions or higher than the percentage change in the price index consumption in the previous year period to December t, plus 0.50 per 100.
For the calculation of the above formula will consider the total income and aggregate expenditures of the system by non-financial transactions without taking into account the INGESA and IMSERSO, after deduction by the General Intervention of the Social Security non-recurrent items.
However, they will not be included:
- to)Of earnings, contributions for cessation of activity of self-employed and government transfers to finance non-contributory benefits, except for the financing of minimum pension supplements.
- b)Of earnings, contributions for cessation of activity of self-employed and government transfers to finance non-contributory benefits, except for the financing of minimum pension supplements.
The Ministry of Economy and Competitiveness must provide the Social Security Administration forecasts necessary for estimating revenues and expenditures year t + 1 to t + 6 macroeconomic variables.
In any case, during the first half (ie, from January 1, 2014 to December 31, 2018 both inclusive) the α parameter will be 0.25.
Four.Limiting the amount of benefits
The initial amount of contributory pensions of Social Security per beneficiary may not exceed the monthly full amount is established annually by the Law on State Budget (Article 57 Consolidated General Social Security Act 2015).
Pension beneficiaries of the system of Social Security in its contributory, who do not receive capital income or personal work or, perceiving them, do not exceed the amount that annually establishes the Law on State Budget, are entitled to receive supplements required to reach the minimum level of pensions, in the terms determined by law or regulation.
6.Reimbursement of undue benefits
The general rule is that workers and other persons who have improperly received benefits of Social Security are obliged to refund the amount (Article 55.2 Consolidated Text of the General Social Security Act 2015). And who, by action or omission, they have helped make possible misappropriation of alternative provision must respond with the recipients of the obligation to repay unless proven good faith.
The period of limitation of the obligation to repay the amount unduly received benefits prescribed four years, counted from the date of collection, or since it was possible to bring an action to demand its return, regardless of the cause which it caused the misappropriation, including assumptions benefits review error attributable to the Manager.