Although the birth of the right to a pension and the appropriateness of its effective payment are issues that have been addressed by the high courts, their relevance and the need for knowledge persist over the years as a result of the lack of information or erroneous knowledge held by members of the social security pension system.
To provide a simple but precise answer to the matter, we must resort to the concepts of accrual and enjoyment of the pension, for an objective understanding of the birth of the right to a pension and thus be able to establish its difference and autonomy with respect to the moment in which I can enjoy such right, which materializes in pension payments.
The social security pension regulations have determined in their wording what the accrual and enjoyment of the pension are, as well as when the obligation of the member to continue contributing and making contributions to the pension system ceases. The first aspect is regulated by Decree 758 of 1990, which approves Agreement 049 of the same year, which in the wording of its Article 13 provides:
ARTICLE 13. ACCRUAL AND ENJOYMENT OF THE OLD-AGE PENSION. The old-age pension shall be recognized at the request of the interested party once the minimum requirements established in the previous article are met, but it will be necessary for the member to disaffiliate from the system in order to begin enjoying it. For its calculation, up to the last week effectively contributed for this risk shall be taken into account.
On the other hand, regarding the obligation of the member to make contributions to the social security pension system, Law 100 of 1993 in its Article 17, as amended by Law 797 of 2003, has indicated that “the obligation to contribute ceases when the member meets the requirements to access the minimum old-age pension, or when the member retires due to disability or early retirement.”
Thus, the accrual of the pension occurs when the member of the pension system or the General Pension System proves compliance with the necessary requirements to become a creditor of the benefit, that is, when the total number of contributed weeks required and the minimum age required by law are effectively met. On the other hand, the enjoyment of the pension occurs as a consequence of the accrual but is conditioned on the effective withdrawal or disaffiliation from the General Pension System.
The mere fact of meeting the required contributed weeks and age is not sufficient for the effective payment of the pension payment to proceed, since not being part of the pension system is the essential requirement for that purpose.
On this matter, the Supreme Court of Justice has ruled on numerous occasions, especially highlighting that:
“The central issue under dispute in the extraordinary appeal is limited to determining whether to enjoy the old-age pension it is sufficient to meet the age and contribution requirements or whether disaffiliation from the system is required.
Contrary to what the appellant stated, the Tribunal did not incur the legal errors alleged by the accusation, because as the Chamber has mostly defined, it is from the disaffiliation of the insured from the defined benefit average premium regime that the obligation to pay the old-age pension arises, since although the duty to make contributions ceases when the requirements are met, its enjoyment only occurs from the definitive disaffiliation”.[1] (Bold and underlining added outside the original text).
In consideration of the above and having retroactive effect – payment of pension payments as materialization of enjoyment, it must be concluded that to obtain the latter, it is not enough to meet the age and weeks required by law; it is necessary to proceed with the disaffiliation from the pension system before making the request for the benefit to the Pension Fund Administrator. However, situations may arise where the right to the pension coincides with its enjoyment, because at the time the legal requirements to acquire the right (age and contributed weeks) are met, the beneficiary may have disaffiliated from the Social Security Pension System. However, on many occasions, it happens that the person seeking the pension for meeting the legal requirements for that purpose is not recognized the right to retroactive payment or it is recognized at a date after the accrual of the pension; this is a consequence of having proceeded with the disaffiliation from the system after meeting the age and density of weeks, or failing that, for not having made the aforementioned disaffiliation before requesting the pension.
It is valid to emphasize at this point that what is required is disaffiliation from the Social Security Pension System and not withdrawal from the General Social Security System, since the obligation to contribute to the social security health system does not cease upon meeting the requirements to obtain the pension, given the different nature of each of these systems and their regulation, nor has legislation prescribed such a requirement for the enjoyment of the pension. This was recognized by the Constitutional Court in Judgment C-529 of June 23, 2010, as follows:
“It is important to note that the cessation of the obligation to contribute upon the occurrence of the assumption established in the challenged rule –that the member meets the requirements to access the minimum old-age pension-, does not extend to the obligations derived from the social security health system or the general occupational risks system. The causes of extinction of the obligation to contribute to these systems are governed by different rules, and the cessation of the obligation to contribute referred to in the challenged rule only applies to the pension system.”
Likewise, in Judgment T-705 of 2006, this same corporation indicated:
“The withdrawal of a person from the General Pension System –SGP- constitutes a requirement for the effective payment and enjoyment of the legal pension that has been granted to that person by virtue of meeting the requirements of time of contributed weeks and age. It is reiterated that the general rule is affiliation to the General Pension System and in order to access the enjoyment of the old-age pension, persons must prove to the entity to which they are affiliated their withdrawal or disaffiliation from the General Pension System – SGP-.”[2] (Bold and underlining added outside the original text)
DISaffiliation IS NOT THE SAME AS WITHDRAWAL NOTICE NOR IS IT A CONSEQUENCE OF REPEATED NON-PAYMENT.
Given the relevance of the act of disaffiliation with respect to the enjoyment of the pension, as outlined above, for the reader's clarity it is pertinent to indicate that disaffiliation from the General Pension System is a voluntary act whereby the member or employer requests the pension administrator the disaffiliation and withdrawal from the General Pension System, as a consequence of meeting the minimum legal requirements to acquire the right to the pension. From the above, it follows that the failure to make contributions to the system does not per se imply disaffiliation from the system, since the non-compliance with this obligation does not have as an immediate consequence the removal from the pension system or the loss of member status. Likewise, although the withdrawal notice from the System may constitute evidence or indication of disaffiliation, this act within the social security system does not have such nature.
This has been recognized and confirmed by the Supreme Court of Justice – Labor Cassation Chamber in its Judgment SL 5515 of April 20, 2016, in which this corporation concludes:
“From that distinction, a conclusion springs spontaneously: affiliation to the social security system, in no case, is lost or suspended because contributions cease to accrue or are not effectively paid.
“This arises from the provisions of Article 13 of Decree 692 of 1994, which regulates the permanence of affiliation, providing: “Affiliation to the general pension system is permanent and independent of the regime selected by the member. Said affiliation is not lost for having stopped contributing for one or more periods, but it may pass to the category of inactive when there are more than six months of non-payment of contributions”.
“Now, it should be clarified that a withdrawal notice of a worker in the service of an employer is not the same as the request for disaffiliation from the pension system, because with the former one simply informs a fact that implies a change in the labor situation of the member and that, of course, as a general rule, does not imply disaffiliation from the system; while the request for disaffiliation acquires a definitive character and, since affiliation is permanent, it can only occur when the requirements to obtain the right to an old-age or disability benefit have been met, as stated above, so that it is possible that, even if disaffiliation from the system is requested, the worker continues working for his employer or for another”. (Bold and underlining added outside the original text).
Regarding the lack of disaffiliation from the General Pension System, the corporation under study has ruled, emphasizing the assessment of other determining aspects and indications regarding it, such as the non-payment of contributions and the fulfillment of the requirements to access the right to an old-age pension, which allow creating certainty of the member's will to disaffiliate and not just the reluctance to pay contributions or the withdrawal from work[3].
Having understood the above, to conclude it is vital to indicate that, although the obligation to contribute to the System ceases upon meeting the requirements to access the minimum old-age pension, it is the member's option to proceed with the disaffiliation request in order to enjoy the pension or, on the contrary, to continue contributing to the system as a member, in order to increase the number of contributed weeks and thereby increase the base index for calculating their old-age pension up to the maximum allowed[4].
[1]Supreme Court of Justice – Labor Cassation Chamber; Judgment 38375 of July 19, 2011; Rapporteur Judge ELSY DEL PILAR CUELLO CALDERÓN.
[2]Constitutional Court; Judgment T-705 of August 22, 2006; Rapporteur Judge Dr. HUMBERTO ANTONIO SIERRA PORTO.
[3]Supreme Court of Justice – Labor Cassation Chamber; Judgment 38776 of February 1, 2011; Rapporteur Judge GUSTAVO JOSÉ GNECCO MENDOZA: “Notwithstanding the foregoing, the Court does not ignore that, exceptionally, as explained in the judgment of October 20, 2009 (case 35605), when there is no evidence of the act of disaffiliation from the system in a proceeding, it can be inferred from the concurrence of several facts, such as the termination of the member's employment relationship, the lack of payment of contributions, and the fulfillment of the requirements regarding age and contributions, which leave no doubt of the member's intention to cease their affiliation to the system in pursuit of obtaining the pension right” (Bold and underlining added outside the original text)
[4] Constitutional Court; Judgment T – 626 of September 2, 2014; Rapporteur Judge Dr. JORGE IGNACIO PRETELT