First, it is important to mention that the early old-age pension is different from the disability pension and they are even incompatible, despite the fact that many people tend to confuse them. Now, we will proceed to explain each of the two types of pensions and the conditions required to access each of them.
EARLY OLD-AGE PENSION
Article 33 of Law 100 of 1993, as amended by Article 9 of Law 797 of 2003, sets forth the requirements to obtain the old-age pension. However, paragraph 4 of said article establishes an exception to the general rule of age and weeks contributed required to obtain the old-age pension, so that said exception can be applied as long as the person meets the requirements or conditions for it.
Indeed, the requirements that must then concur for a person to access the early old-age pension are the following:
- Be 55 years of age or older (for both men and women).
- Have contributed, continuously or discontinuously, at least 1000 weeks to the social security system of Law 100 of 1993 (whether in a private fund or in Colpensiones).
- Have a physical, mental, or sensory impairment of 50% or more.
Now, regarding this last requirement, confusion tends to arise because many people interpret it as if a total loss of work capacity of 50% or more were needed, or, on the contrary, a total deficiency of 50% in its literal sense, but these interpretations are erroneous.
The norm as such requires that the person must suffer a physical, mental, or sensory impairment of 50% or more, a criterion that corresponds only to one of the three components that make up the sum to qualify disability and obtain the final percentage of loss of work capacity, namely: 1) impairment, 2) disability, and 3) handicap.
Regarding the interpretation that should be given to this last requirement, the Supreme Court of Justice in ruling SL083-2020 has stated the following:
...according to the percentage distribution of the criteria for the total disability rating established by Article 8 of Decree 917 of 1999, a maximum percentage of 50% is assigned to the impairment, which ultimately equals 100% of it. In this sense, it is sufficient to obtain 25% in the assessment of this component to understand that the requirement established to access the early old-age pension is met.
The foregoing means that the person who intends to access this pension, in addition to the age and weeks contributed requirements, must have an impairment of 25% or more in said assessment, since it is understood that 25% is 50% of the total impairment criterion. For example, a 55-year-old person who has contributed 1000 weeks in a private fund and, in addition, in the PCL rating appears to have an impairment of 30%, in this case, said person is an ideal candidate to access this type of pension.
In that same ruling, the Court indicated that said interpretation responds to a hermeneutic criterion of special importance, such as the principle of the useful effect of legal provisions, since the text of a norm must be interpreted so that everything it prescribes produces legal consequences, achieving in practice an effective protection of the right enshrined therein and not merely theoretical, since in this case a different understanding would cause the norm that establishes this special pension not to produce full effects, as it would have no reason to be when it refers to an impairment of more than 50%; in addition, it is a favorable interpretation of the norm.
DISABILITY PENSION
Now, the disability pension has different conditions to access it, and in this case it is important to identify the origin of the disability (whether due to illness or accident of common or occupational origin) unlike the early old-age pension, since depending on its origin, the entity that recognizes it is different.
In either case, it is necessary that the person has a total PCL equal to 50% or more. If the person does not meet this, they cannot apply for this pension.
In addition, the person who intends to access this pension, if it is due to illness or accident of common origin, must prove the following conditions stipulated in Article 39 of Law 100 of 1993:
- Disability caused by illness: that they have contributed fifty (50) weeks within the last three (3) years immediately prior to the date of structuring.
- Disability caused by accident: that they have contributed fifty (50) weeks within the last three (3) years immediately prior to the event causing it.
- Those under 20 years of age only need to prove that they have contributed 26 weeks in the last year immediately prior to the event causing their disability or its declaration.
- When the affiliate has contributed at least 75 percent of the minimum weeks required to access the old-age pension, it will only be required that they have contributed 25 weeks in the last three years.
On the other hand, if the origin of the disability is due to an occupational illness or accident, they only must meet the requirement of having a PCL rating equal to or greater than 50% and be affiliated with the ARL, that is, they do not have to meet the weeks contributed requirements (Law 776 of 2002).
Another difference between both pensions is that the disability pension requires a periodic review of the pensioner's disability status, because the disability pension is temporary as long as the pensioner's disability condition persists, so that if the pensioner recovers, then the disability pension is withdrawn, unlike the early old-age pension, since it is the same old-age pension but, as its name indicates, it is early.
To conclude, it is important to mention that the Supreme Court of Justice in ruling SL3732-2021 indicated that both pensions are incompatible, that is, if a person is already pensioned for disability, they cannot access the early old-age pension, but they will be able to access the old-age pension when they meet the general age and weeks contributed requirements.
Juliana Tobón T. – AZC CONSULTING ATTORNEY