Decision T-406/10. Writ for the protection of constitutional rights filed by Eduardo Bernal Navia v. Social Security Agency (ISS). File T-2560709
Constitutional action (tutela) brought to protect the right to receive disability benefits. Whether, and in which cases, the tutela is the right procedure to obtain disability pension and to protect minimum core obligations; application of the favorability principle when two laws are applicable to one particular situation.
Ninety-year-old Eduardo Navia brought this tutela action seeking to receive disability payments from the State. He had undergone heart surgery in May 1998 and January 2008, with both surgeries limiting his ability to work. Relying on a certification of disability issued by the Social Security Agency (ISS) Section of Bolivar on September 14, 2007, he applied for disability benefits to the ISS on October 5, 2007. The ISS determined his date of disability to be March 6, 2007, but denied his application claiming that he had failed to comply with the requirements of Art. 39 of Law 100 of 1993, modified by Article 1 of the Law 860 of 2003, which required workers to pay contributions for at least 50 weeks in the three years immediately prior to the date on which the individual acquired the disability. Mr. Navia argued that because the certificate of disability stated that he had lost working capacity in June 1998, at the time of his first heart surgery, the law in effect at that time (Law 100 of 1993) should control and thus entitle him to disability benefits. The questions presented were whether the denial of benefits violated Mr. Navia’s fundamental rights to a living wage, social security, and favorability in the application of social welfare laws, and which law should apply when there is a conflict.
The Court first declared that the tutela is the proper action to resolve a benefit controversy if, as is true in this case, the complainant is in a situation of manifest weakness, the disputed benefits are the principal or only source of his or her income, and without those benefits he or she could suffer irreparable harm. The Court next determined that, pursuant to the favorability principle in Art. 53 of the Constitution, where there is a conflict over the law applicable to, in this case, disability benefits, the more favorable law applies. Because the 1993 requirements (in place when Mr. Navia acquired the disability) entitle him to benefits and the 2003 requirements (in place when Mr. Navia applied for benefits) do not, the ISS should have applied the 1993 requirements. Finally, the Court determined that disability benefits should be paid as of March 6, 2007. The Court noted a desire to balance the claims of both parties by guaranteeing the entitlement to the benefits but declining to decide definitely how far back those benefits extend, instead relying on the determination of the ISS. However, the Court expressly left open the option for Mr. Navia to pursue further legal action should he wish to argue that the benefits should extend further back in time.
The Court ordered that the ISS recognize the disability benefits owed to Mr. Navia within five days of the decision, pay the allowed disability benefits owed since March 6, 2007, and continue paying such benefits month by month.
The president of the ISS reported in 2011 that it was overwhelmed with 75,000 claims totaling over 50 million dollars. Claimants alleged irregularities in payments owed and failure to comply with judicial orders to make payments. In January 2012, Colombia's deputy labor minister announced that the government would not raise the retirement age in the near future to deal with the strained system, despite pressures from some to do so. The ISS has been substituted by Colpensiones (Colombian Administrator of Pensions), a state agency linked to the Ministry of Labor. Colpensiones has inherited a lot of the problems of the former ISS.
This decision is important because it declares that where changes in legislation make application and interpretation of the law unclear, the application that would be more favorable must be applied to ensure fundamental rights are protected.