By Charlotte Reid 
The pensioner’s son was aware that the retirement pension was still being paid, but decided not to report it to either the Social Security or the bank.
The Supreme Court has upheld the conviction of a man who must return €231,306.91 for continuing to collect his father’s retirement pension for 16 years after his father’s death in 1999. The pensioner’s son did not report his death to either the Social Security (in this case, the Social Marine Institute) or the bank, CaixaBank, and therefore continued to collect the pension each month into his father’s account, of which he was a joint holder. This continued until 2015, when CaixaBank notified the Social Security.
When this pensioner, who had been receiving a retirement pension from the Social Marine Institute, died, his wife Margarita reported it so that she could apply for and receive her own widow’s pension, which was granted shortly afterwards. However, due to an administrative error, the ISM did not cancel the benefit, which meant that it continued to be paid into the same bank account, which was then Caja General de Ahorros de Canarias (CajaCanarias), which later became Caixabank.
Months later, in May 1999, the couple’s son was added as a joint account holder, assuming responsibility for managing the account and fully aware that his father had died and that the pension was still being paid. Despite knowing this, he never reported it to either the Social Security or the bank, and for 16 years he continued to collect the pension, receiving a total of €317,465.19 from his father’s retirement pension, according to the ruling.
This fraud continued until July 2015, when CaixaBank notified the Social Security. The bank returned €79,682.36, corresponding to the last four years of undue payments, and the Social Security claimed the remaining amount from the pensioner’s son, which amounted to €231,306.91.
As he did not respond and did not make a voluntary repayment, the Social Security authorities filed a complaint for a crime against the Social Security system, on the understanding that his conduct was not the result of a mere administrative error, but rather a deliberate concealment for financial gain.
From acquittal to the obligation to return €231,306.91
In the first instance, Investigating Court No. 4 of Santa Cruz de Tenerife ruled in favour of Social Security, imposing a fine of €400,000 and the obligation to return €231,306.91 to the Instituto Social de la Marina (Social Marine Institute). The court explained that ‘he knew that his father’s pension was still being paid into the account and took advantage of this, using the money for his own personal gain’, and that his prolonged silence ‘led to the continued undue collection of payments for years’.
Following this decision, he decided to appeal to the High Court of Justice of the Canary Islands, which overturned the conviction and acquitted him of all charges. The High Court of Justice understood that the error was exclusively administrative, as there had been no direct deception or initial concealment on the part of the accused. According to this ruling, the Social Marine Institute ‘was already aware of the pensioner’s death, as it had been reported by his widow,’ which broke the link between the fact and the accused’s conduct.
As a result, the Social Security decided to file an appeal before the Supreme Court, alleging a violation of the law due to the incorrect application of Article 307 ter of the Criminal Code and an error in the assessment of the evidence. The Public Prosecutor’s Office supported the appeal, arguing that the defendant’s silence perpetuated the deception and damage to the public system.
He took advantage and did not notify
The High Court explains that the son’s silence for more than 16 years was not simple passivity, but ‘omissive and deceptive’ behaviour that allowed the error to continue. ‘Hiding a death is considered sufficient deception, as the Administration is not obliged to check the pensioner’s survival every month,’ explains one of the rapporteurs. For the High Court, the defendant ‘deliberately perpetuated the error’ by keeping the account open and disposing of the money as if everything were in order.
For all these reasons, the Supreme Court ordered the return of all amounts unduly received, i.e. €231,306.91. The key point in this ruling is that, once the death has been reported so that Social Security stops paying the pension or benefit, if it continues to be paid by mistake, this must be notified, as otherwise it may be considered an undue payment.