Permanent disability is a work-related situation in which a person is entitled to secure a pension due to a reduced ability to work caused by a limiting health condition or bodily injury. The National Institute of Social Security (INSS) handles its recognition and assessment.
Graduation of Permanent Disability in Spain
The INSS classifies permanent disability, regardless of its cause, into four degrees:”
Partial Permanent Disability for the Usual Profession
Partial permanent disability in Spain is a disability that affects a person’s ability to perform their usual occupation without reaching the level of total permanent disability. A partial permanent disability reduces an individual’s performance in their occupation by at least 33% but does not prevent them from performing the essential tasks of their job.
Workers covered by the General Social Security System (Régimen General) who meet the general conditions are entitled to partial permanent disability benefits, no matter the cause of the disability.
Permanent Total Disability for the Usual Profession
In Spain, permanent total disability is a disability that prevents a person from performing all the essential functions of their usual profession but allows them to pursue another occupation.
Workers covered by the General Social Security System (Régimen General) who are declared totally and permanently incapacitated are entitled to benefit, provided they meet the necessary conditions.
Absolute Permanent Disability
Absolute Permanent Disability in Spain refers to a disability that completely prevents a person from exercising any profession or trade.
Workers covered by the General Social Security System who are declared totally and permanently disabled are entitled to this benefit, no matter the cause of the disability, provided that they meet the necessary conditions.
Major Disability
In Spain, major disability is a situation in which a person with a permanent disability needs the help of another person to perform vital activities such as dressing, eating, or other similar tasks.
Workers covered by the General Social Security System who meet the required conditions are entitled to a Severe Disability Benefit.
Compatibilities and Incompatibilities of Permanent Disability in Spain
Partial Permanent Disability
In Spain, partial permanent disability is compatible with any work, including the work previously carried out by the person concerned.
Total Permanent Disability
Total permanent disability is compatible with any job except the one the person was doing before the disability-
Absolute Permanent Disability and Major Disability
These conditions allow for activities compatible with the individual’s state of health. However, once the individual reaches retirement age, they are incompatible with any form of employment, whether self-employed or salaried.
In all these cases, the individual must register with the Social Security system and pay contributions if they engage in work covered by one of its schemes.
Reevaluation of Disability Doctrine Following Supreme Court Ruling 544/2024 of April 11, 2024
As previously analysed, the Supreme Court’s doctrine was that Absolute Permanent Disability and Major Disability were incompatible with any work activity. However, after more than thirty years of established doctrine, a new criterion was adopted in January 2008, which declared that these disability conditions were compatible with paid work in numerous rulings.
Recently, the Supreme Court returned to its original interpretation in judgement with ruling 544/2024 of April 11th, 2024, reaffirming that Absolute Permanent Disability and Major Disability benefits are incompatible with any work that requires registration and Social Security contributions. Only “minor” work which does not require registration or contributions is now allowed.
This change in criteria relies on two main ideas:
- The literal interpretation of the rules governing both types of benefits.
- The benefit system’s sustainability is clearly and extensively argued in the ruling.
The legal compatibility established for Absolute Permanent Disability or Major Disability relates to occasional or minor work that does not involve registration or Social Security contributions. These benefits intend to compensate for the loss of income due to the inability to work caused by the disability. If there is no loss of revenue, the benefit does not apply, as there is no real need for protection.
Eduardo De Sousa Gama
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