DFrom the point of view of the Federal Social Court, the distinction between existing pensioners and new pensioners when calculating the disability pension is legal. With this decision, the BSG rejected the appeals of a plaintiff and a plaintiff on Thursday, as a spokeswoman said (AZ: B 5 R 29/21 R and B 5 R 31/21 R). Both receive a disability pension and saw an unjustified unequal treatment in a reference date regulation, with which the calculation bases are determined.
The decision affects around 1.8 million pensioners whose disability pension began before January 1, 2018 or before January 1, 2019.
In view of the falling disability pensions from the statutory pension insurance system since 2001, the legislator changed the calculation basis on July 1, 2014. Accordingly, the end of the supplementary period was postponed from the age of 60 to the age of 62. People who received a disability pension before reaching the statutory retirement age were treated as if they had continued to work with their previous average earnings until their 62nd birthday.
Violation of the principle of equal treatment
This was followed by an extension of the imputation period by three months on January 1, 2018 and by a further three years and five months on January 1, 2019. However, the improvements only benefit those pensioners whose disability pension began again on the specified dates; the previous calculations remained for existing pensioners. The two plaintiffs – a man and a woman – saw this as a violation of the principle of equal treatment.
However, the Senate did not follow this, said the BSG spokeswoman. The reasons given by the legislature for the distinction between existing and new pensioners are understandable. In addition, there is the structural principle of pension insurance, according to which people who are already drawing a pension should not be disadvantaged by new regulations. In addition, it was permissible that the legislature did not include the existing pensioners in the betterment because of the considerable additional financial expense to be expected. The plaintiffs announced that they would probably have the judgments reviewed by the Federal Constitutional Court.