At least 18,285 retirees, who availed themselves of this right between August 4, 2017 and April 28, 2021, continue to be affected by an illegal calculation of their retirement pensions. after the sRuling 16-18-IN/21 of the Constitutional Court of May 2021 and Resolution 641 (of October) of the IESS Board of Directors itself, they expected to receive their pensions in December according to with an average of the best five years of salaries.
However, the Ecuadorian Social Security Institute continues to apply the formula that has been considered unconstitutional and that harms them between $50 and $200 a month each.
According to Henry Llanes, vice president of the Association of Affiliates, Retirees and Pensioners of the IESS, the Social Security entity would be failing to comply with its own resolution and the judgment of the Court.
It is that last October, the Board of Directors of the IESS issued Resolution 641 that in its first article repealed the Twenty-Seventh reformatory provision of Resolution CD 554 of August 4, 2017. This provision had changed the way of calculating the retirement pension that appears in the Social Security Law in article 229. This provides that the retirement pension for the affiliate who has reached 60 years of age and who has 30 years of contributions will be equivalent to 75% of an average of the best five years of salary you have had.
However, during administration of Richard Espinosa, Resolution 554 was issued, which indicated that the amount of the pension would be calculated based on the sixtieth root of the product of the 60 contributions of the five best years of salaries or wages.
Thus, an arithmetic method of calculation was changed for a geometric one, which ultimately reduced the pension. However, the issue was sued before the Constitutional Court by the jurist Marco Proaño Maya. In the end, in May 2021 there was a ruling in favor of retirees.
Then the IESS, after repealing the resolution of the Espinosa era, also indicated that re-established the content of article 2 of Resolution No. CD 100 of February 21, 2006. This indicated that the calculation will be made according to the average of the five (5) years of better wages or salaries on which the contribution was made.
Llanes explained that the recent resolution indicated that from the effective date of the resolution, the Provincial Directorates, through the Provincial Coordinations and Units for Pensions, Occupational Hazards, Third-Party Funds and Unemployment Insurance, should immediately start ex officio the reliquidation processes for the benefits granted as of May 4, 2021, the date on which the Constitutional Court notified Social Security of judgment No. 16-18-IN/21.
In addition, the Directorate of the Pension System, within five days from the effective date of this Resolution, had to send the functional requirements for the modification of the calculation to the National Directorate of Information Technologies. Then it would take another 30 days to put it into effect.
Llanes commented that it was Francisco Cepeda himself, current president of the IESS, who informed them in a meeting with his organization that the calculation formula that had been in force since 2006 was coming into force again. and that this would be applied both to those who retired from now on and also to those who were affected since 2017, but adjusting the pension as of May 2021, the date of the Court’s ruling. He had also clarified that since the law was not retroactive, then nothing could be done to compensate for the reduced pensions they received between 2017 and 2021.
On this matter, Llanes said that he explained to Cepeda that although he accepted what was resolved by the IESS, he would sue the entity so that the affectation of that particular period is also recognized.
Llanes affirmed so far neither the increase in the pension nor the corresponding refund has been made since May 2021. Moreover, he said that he has spoken with personnel from the legal department of the IESS and that they explained to him that they were not going to make the payment, because they did not want to have problems with the Comptroller. Llanes said that this response only showed that there is ignorance in the IESS representatives who ignore that the entity’s resources are different from those of the treasury.
Faced with this panorama, he maintained that in the next days will file a compliance action against the entity before the Constitutional Court. This will be sponsored by the jurist Luis Fernández Piedra, he said.
Proaño Maya, an expert in Social Security and plaintiff of Resolution 554, said that it is not possible that the institutions do not comply with the laws. The authorities must respect the legal system of the country. He explained that Resolution 554 could not modify the Social Security Law and its article 229. Therefore, he decided to sue said resolution and the Court agreed with him.
He commented that if non-compliance persists, those affected could resort to protection actions, since what is happening at the moment is that the IESS is acting arbitrarily and discretionally.
The debate on the calculation of pensions is ongoing at the moment. According to statements given this February 15 by Cepeda, in Teleamazonas, it is hoped to work on a recalculation formula that takes into account not only the five best years of salaries, but ten or fifteen. (I)
Source: Eluniverso
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