The TSJCV Recognises Gender Gap in Pension for an Elche Grandmother Caring for Her Grandchild

The Social Chamber of the Superior Court of Justice of the Valencian Community (TSJCV) has, for the first time, recognised in a ruling the right of a retired woman to receive a gender gap supplement in her pension for caring for a granddaughter, whom she had in family fostering for years.

The Valencian High Court thus overturns the ruling issued in May of the previous year by a Social Court in Elche, which dismissed the pensioner's claim and upheld the decision of the National Institute of Social Security (INSS) in the first instance.

The right to receive a gender gap supplement in contributory pensions is regulated in Article 60 of the General Social Security Law (LGSS), which, however, limits it to the care of each child the woman may have had.

The appellant in this procedure, who has two recognised supplements for the care of her two children, requested a third supplement in her pension for the care of her granddaughter, whom she had taken under permanent fostering, arguing that the situation should be equated to natural or adoptive filiation.

The INSS denied her request in a resolution issued in March 2022, which was confirmed two years later by a court.

However, the Social Chamber of the TSCV has now ruled in favour of the pensioner, understanding that this case cannot be excluded from the right to receive the supplement in question, especially since the applicant, the grandmother, opted for family fostering to care for her granddaughter because she could not adopt her due to her status as an ascendant, as prohibited by the Civil Code.

"If the declared purpose of Article 60 of the LGSS is to compensate parents for the impact that caring for children may have had on their insurance career, we must conclude that a case like the one under review in this procedure cannot be excluded from the right to the supplement," the judges state.

The Superior Court's ruling recalls that the applicant "has been dedicated to caring for her granddaughter as a foster carer from 1995 until her retirement in 2021."

"The right to the supplement claimed is not subject to biological fact in our legislation, but to the care of children, whether biological or adopted, and what greater demonstration of care and dedication than that shown by the applicant in relation to her granddaughter, with whom she could not formalise an adoption due to legal impediment," adds the Chamber.

Similarly, the judges refer to Organic Law 1/1996 on the Legal Protection of Minors, which imposes on the Administration "the obligation to recognise the same rights to the foster family as it does to other family units."

The ruling, which thus upholds the appeal filed by the pensioner against the judicial decision issued in the first instance, may be appealed in cassation before the Supreme Court for the unification of doctrine.