The survivor's pension represents an economic aid for the family of the deceased affiliate, materializing the possibility of overcoming the state of vulnerability to which they are subjected as a consequence of the disappearance of the one who guaranteed their minimum subsistence and tending towards the reduction, even minimal, of the economic contingencies that arise with the death of the one who watched over their well-being, thus constituting an economic protection in extenso for those who had forged ties of affection, solidarity, assistance, and dependence with the deceased[1].
The requirements for the recognition of this pension benefit, as well as the determination of beneficiaries and the order of granting to the latter, are regulated in Law 100 of 1993, for all existing pension regimes. However, even though the law is clear regarding the aforementioned points, there is great ignorance on the part of the community regarding their pension rights and how to enforce them, leading consequently to the fact that pertinent and conclusive evidence is not provided by those claiming the right, or on the contrary, they are forced to comply with requirements that the law does not demand, due to the express requirement of the pension fund administrators – AFP – and other entities responsible for recognizing benefits of a similar nature.
Well then, in light of the situation presented here, this legal study highlights the need to guide the interested party in this pension benefit, on the current regulations and some of the different pronouncements that the high courts of the Colombian State have offered in this regard, facilitating the information and necessary instruments to access the right, without it being truncated by non-legal obstacles:
– What must be proven before the pension fund
Both for the Individual Savings Regime with Solidarity[2] and for the Defined Benefit Premium Medium Regime[3], the requirements to be accredited for the timely recognition of the survivor's pension in favor of its beneficiaries have been structured.
The first thing that must be accredited to access the right is the contribution that the deceased affiliate has made in favor of the Pension System. Thus, if the deceased contributed fifty (50) weeks or more in the three (3) years prior to their death or the total number of weeks required to access the old-age pension, the first legal requirement for the granting of the pension will have been met.
Parallel to the density of weeks contributed, Law 100 of 1993 in its articles 47 literal c and 74 literal c has prescribed that the status of beneficiaries is held by “invalid children if they were economically dependent on the deceased, as long as the conditions of invalidity persist”, therefore, for the matter at hand, children with disabilities, the beneficiary must demonstrate before the competent entity their status as a child, their condition of invalidity (presenting a loss of work capacity greater than 50%)[4] and the economic dependence they had on their father.
What is stated here, in addition to being clearly found in the law, has been ratified by the Constitutional Court in a plurality of Judgments, rulings where it highlights that for the recognition of the survivor's pension in favor of children with disabilities it is necessary (i) that the filial relationship be accredited; (ii) that it be proven that the child is in a situation of invalidity; and (iii) that there is economic dependence on the deceased[5].
The rule set forth above constitutes the pillar of protection for the beneficiary seeking the survivor's pension before the entities responsible for recognizing said benefit when they require requirements not set forth in the law or that, being in the literal text of the norm, aggravate and condition them for their own benefit, since as the judicial corporation in question has stated, the entity competent for pension recognition is only constitutionally and legally authorized to require documents that demonstrate filiation, invalidity, and dependence, being prohibited “the requirement of additional documents, when they do not have a support provided for in the legal system” because they constitute for the beneficiary “an obstacle of a merely formal nature” that results in the impairment of fundamental rights to the minimum vital, human dignity, social security, and due administrative process.
– What should not be required by the competent entities for the recognition of the survivor's pension
Having said the above, it is necessary to highlight some of the non-legal requirements invoked by the AFPs and companies with competence to recognize survivor's pensions, to oppose the recognition of said benefit and cause beneficiaries to wander in search of those capricious requirements of the one obligated to grant the right.
One of the most opposed “non-legal” requirements by pension entities is the “judicial sentence declaring the interdiction of the child with a disability”, a requirement they oppose when the applicant for the right has a mental disability or in some occasions, when the person claiming the right acts as attorney or informal agent of the beneficiary. Regarding this matter, the highest Constitutional Court has been emphatic in establishing that “in those cases where the invalidity is the product of a mental disability, the person must not necessarily have been declared interdicted, nor have a curator to claim the recognition of the survivor's pension, but yes to receive the effective payment of the monthly payments and the retroactive that corresponds”[6], and this is so, for the simple reason that, for the right to accrue or be born, it is not necessary for the pension beneficiary to be declared interdicted, nor much less to have a curator for the administration of their assets.
Regarding what is stated here, clarity must be provided on three important aspects for the beneficiary or interested party; first, the birth of the right should not be confused with the enjoyment of it, since in the latter (effective payment), the presence of a curator is required, in principle, for the protection of the pensioner's assets and the general interest; second, when the payment of the monthly payments is urgently required in order to overcome their state of vulnerability and total defenselessness, the same pension entity, may designate a provisional or temporary curator for the receipt of the money until a Family Judge designates a permanent curator for the child with a disability[7]; and third, when the beneficiaries studied here do not suffer from mental disability or it is relative or mild (allowing the disabled person to self-determine and administer their assets without assistance), the AFPs cannot condition the payment of the pension monthly payment and the retroactive pension on the declaration of interdiction.[8]
Like the requirement mentioned above, it is common for pension entities to require beneficiaries of the survivor's pension, “original documents or authentic copies” so that their documents are assessed within the administrative process of pension recognition. Well, in the face of such a requirement, the Constitutional Court has highlighted the inexistence of a technical legal tariff in pension matters, which is why the party seeking the right in their favor has evidentiary freedom to accredit filiation, invalidity, and economic dependence, without any ritualism or solemnity that does not appear expressly in the law being able to be opposed, as is the requirement of an authentic copy or original within the pension recognition process. [9]
Now, although “the expert opinion on loss of work capacity” turns out to be suitable to prove the invalidity of the beneficiary child, in accordance with the evidentiary freedom that prevails in pension matters, it cannot be subject to solemnities foreign to the legislation nor much less can it be limited in its evidentiary value due to the origin of the document (entity that issues it), as some pension entities do by requiring “that it be issued by specific entities”. In the face of such objections from pension entities, it is highlighted that article 41 of Law 100 of 1993, modified by article 142 of Decree 019 of 2012, establishes that those competent to determine the loss of work capacity in a first stage are the Social Security Institute, Colombian Pension Administrator -COLPENSIONES-, the Occupational Risk Administrators – ARL-, the Insurance Companies that assume the risk of invalidity and death, and the Health Promoting Entities – EPS-, and upon appeal of the opinion provided by these, the Regional Boards for Disability Qualification and the National Board for Disability Qualification[10], which is why the validity of the opinion issued by each of the aforementioned bodies can be affirmed, provided they are subject to the provisions of the Single Manual for the Qualification of Disability[11]. Once the above is clear, it is pertinent to note that the binding nature of the opinion or the quality of “final and enforceable” does not depend on an annotation indicating so in the document, since the finality does not depend on the recognition of the issuer but on the exhaustion of the disability qualification process, thus, in the face of the last opinion on loss of work capacity, which has been notified without any appeal, the pension entity cannot oppose as a requirement the “annotation of being final and enforceable” or additionally require, disregarding the one provided in the process[12].
– Within what timeframe must pension entities recognize the right
For your information, unlike the term granted for the recognition of the old-age pension, the entities responsible for recognizing the survivor's pension, by express prescription of Law 717 of 2001, must recognize the pension benefit no later than two (2) months after the request is filed by the petitioner, with the corresponding documentation accrediting their right.
Thus, if along with the recognition request the appropriate documentation was provided to prove the filiation, invalidity, and economic dependence of the child with a disability, the entity will have to recognize the survivor's pension to the beneficiary within the illustrated term, under penalty of being forced to pay the moratory interest referred to in article 141 of Law 100 of 1993, once the second month from the filing of the request has expired.
To conclude everything stated here, it is revealed to the reader that the pillars set forth here regarding children with disabilities as beneficiaries of the survivor's pension apply equally when what is sought before pension entities is the “Pension Substitution”, with the only exception to the process being the accreditation of the weeks contributed, given that it is a requirement of this figure that the deceased holds the status of pensioner, without any variation regarding the beneficiaries and order of granting.
[1] More specifically, the main purpose of this social benefit is to help them bear the economic risks inherent in widowhood and orphanhood, without significantly affecting their social and economic situation, as well as the effective enjoyment of their fundamental rights to a minimum vital, health, education, and decent housing, among others.
[2] Commonly known as Private Pension Administrators or Private Pension Funds
[3] Commonly known as Public Pension Administrators or Public Pension Funds, ISS, Colpensiones.
[4] In accordance with article 39 of Law 100 of 1993
[5] Constitutional Court; Judgment T-611 of 2016; M.P. AQUILES ARRIETA GÓMEZ.
[6] Constitutional Court; Judgment T-317 of 2015; M.P. MARIA VICTORIA CALLE CORREA
[7] Constitutional Court; Judgment T-187 of 2016; M.P. MARIA VICTORIA CALLE CORREA
[8] “Based on the considerations set forth, the Eighth Review Chamber considers that in the case under study Colpensiones violated the fundamental rights to social security, a dignified life, and the minimum vital of Mr. Luis Felipe Hernández Jaime, since (i) the mental disability suffered by the plaintiff is mild and, accordingly, it is not necessary to condition the payment of the benefit on the declaration of interdiction and; (ii) the illness and its consequent loss of work capacity does not prevent him from managing his economic resources”. Constitutional Court; Judgment T-509 of 2016; M.P. ALBERTO ROJAS RÍOS
[9] “Therefore, the imposition of forms or rites not enshrined in current regulations, such as that of providing an authentic copy of the medical opinions on loss of work capacity, or other documents of equal importance, supposes the creation of extra-legal requirements that make access to pension rights more difficult. […] Thus, pension entities cannot diminish the evidentiary value, nor reject outright, documents provided in simple copy or without meeting all the required formalities. This is because the legal system, first, recognizes the aptitude of simple copies as a means of proof and, second, considers relevant the information provided by the plaintiff and, obviously, the evidence with which they accompany their request, but if formalities are required, these can be requested by the competent official”. Constitutional Court; Judgment T-187 of 2016; M.P. MARIA VICTORIA CALLE CORREA
[10] It corresponds to the Social Security Institute, Colombian Pension Administrator -COLPENSIONES-, the Occupational Risk Administrators<6> – ARP-, the Insurance Companies that assume the risk of invalidity and death, and the Health Promoting Entities EPS, to determine in a first opportunity the loss of work capacity and qualify the degree of invalidity and the origin of these contingencies. In case the interested party does not agree with the qualification, they must express their disagreement within ten (10) days following, and the entity must refer them to the Regional Boards for Disability Qualification of the regional order within the following five (5) days, whose decision may be appealed before the National Board for Disability Qualification, which will decide within a term of five (5) days. Against said decisions, legal actions proceed. Article 41 of Law 100 of 1993
[11] The authority responsible for determining whether a person is in a condition of invalidity, setting the respective percentage of loss of work capacity and the date of its structuring, varies according to the origin of the limitation. Depending on the particularities of each case, the Social Security Institute, Colpensiones, the Occupational Risk Administrator, the Insurance Company that assumed the risk of invalidity and death, or the EPS to which the person is affiliated may be competent. The medical opinion they issue must comply with the standards set in the Single Manual for the Qualification of Loss of Work Capacity and Occupational Disability that is in force; currently, that enshrined in the technical annex of Decree 1507 of 2014. The opinions issued by these entities are binding and are understood to be final and enforceable after they are notified”. Constitutional Court; Judgment T-187 of 2016; M.P. MARIA VICTORIA CALLE CORREA
[12] Every person who requests the survivor's pension due to their invalidity has the right to the qualification process indicated in this section which, as stated, comprises a minimum of one (1) and a maximum of three (3) stages. Their condition of invalidity must be understood as fully accredited when they provide a copy of the medical opinion issued by the last entity that assessed them, since this becomes definitive if none of the interested parties objected to it in a timely manner. Consequently, the pension fund that requires an additional opinion will violate their fundamental rights to social security and the minimum vital. Constitutional Court; Judgment T-187 of 2016; M.P. MARIA VICTORIA CALLE CORREA