Attention, contributors! Court changed the way of calculating the weeks contributed to pension: benefits to many
On July 27, the Constitutional Court issued Ruling T-156-23, in which it concluded that pension funds must take into account the weeks contributed and paid late when paying the disability pension.
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With the decision, the pension funds must take into account the late contributions in order to guarantee the preservation of the applicant’s fundamental rights.
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What did the Court say about the way of calculating the weeks contributed?
In the event that pension contributions are made late, the pension funds may not exclude the amount paid when calculating the disability pension. In other words, even if the contributions are made in arrears, the weeks contributed must be taken into account for the determination of the disability pension and cannot, in any way, be excluded.
According to the ruling, the pension funds will have the obligation to include the total contribution in the process of obtaining the disability pension, regardless of whether they are late payments or payments made within the established deadlines.
Thus, in cases in which, for example, the employer has not enrolled the worker on time, the pension fund must take into consideration all the contributions, including those made late, when applying for the disability pension.
The Lucas case
Ruling T-156-23 presents the case of an employee with medical conditions that diminish his capacity to work by 76.75%. The clinical picture consists of chronic renal insufficiency with the need for permanent dialysis treatment, ischemic heart disease and refractory heart failure.
The previous employer did not complete the affiliation of its employee, so when the employee requested the disability pension, the Court obliged the employer to make all the corresponding social security contributions that were not made during the period of work.
It is worth mentioning that the applicant is affiliated to the Individual Savings with Solidarity Regime (RAIS). Under this regime, it is possible to make additional contributions in the event of an increase in the user’s income. The Private Pension Fund Administrators (AFP), Porvenir, Protección, Colfondos and Skandia operate under this scheme.
When applying for the disability pension, in accordance with the provisions of Colombian law in cases of loss of working capacity exceeding 50%, the pension fund excluded the weeks contributed after the initial ruling, which obliged the former employer to make the payments out of time.
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The calculation of the amount of the disability pension was more than double when contributions made after the initial judgment were taken into consideration. Thus, Lucas initiated a new legal process with the objective of receiving a disability pension that included the total number of weeks contributed.
Thus, the Chamber determined that the private pension funds have the obligation to recognize and include in the calculation of the disability pension all the contributions, even when they are made out of time.
The foregoing, provided that: “(i) the employer has omitted the payment of contributions that support the recognition of the benefit; (ii) the PCL [qualification of the loss of labor capacity] was structured after the termination of the labor relationship; (iii) the AFP received the payment of the actuarial calculation corresponding to the omitted period; and (iv) there is no evidence of any purpose of fraud to the pension system”.
With this, the Court concluded that the fundamental rights to social security, to life with dignity and to the minimum vital were violated by the pension fund, by not granting the full payment of the disability pension.
Thus, it emphasized the obligation of the private pension funds to grant and pay the disability pension, regardless of whether the payment of contributions was made within the correct period of time.
For more information on the ruling of the Constitutional Court, you can consult this link.
Requirements to apply for a disability pension
The Colombian legislation, through Article 11 of Law 797 of 2003, establishes certain requirements to apply for a disability pension.
The applicant must have a minimum of 50 weeks contributed in the last 3 years and a contribution density that represents 25% of the weeks elapsed between the age of 20 and the date of the structuring of the disability.
It is worth mentioning that in the case of disability due to an accident, where there is no time to modify the contributions, only 50 weeks contributed in the last 3 years are required. You can learn more about the disability pension here.
