Comparability of the situations of Permanent Invalidity (Total, Absolute and Severe) to a disability degree equal to or greater than 33 %, ex art. 4.2 of R.D. Legislative 1/2013, which approves the Revised Text of General Law of rights of persons with disabilities and their social inclusión, or the becoming ultra vires of an impertinent rule

Abstract

Following the entry into force of the Royal Legislative Decree 1/2013, rises the question (sufficiently debated and resolved) concerning the determination of the degree of disability in cases where a beneficiary has recognized the degree of Total Permanent disability, Absolute Permanent disability or Serious disability. This resurgence is due to the literalness of the standard fruit of the recast changes with respect to the recast Regulation. The Supreme Court (Social), in judgement n. 992/2018, of November 29 th. (in majority, but not unanimous decision), reaffirms that 33 % of disability is not attributed automatically in such cases because article 4.2 contains a regulation ultra vires related to the development mandate of the Revised Text which granted Law 26/2011 of August 1st, because it kept on its own terms repealed article 1.2 of the Law 51/2003, that the traditional doctrine of the Court on this subject rested on, which for that reason remains in force under the new regulation. and that 33 % is exclusively attributed to the effects of the Law 26/2011, not "for all purposes". The judgment has a particular vote, to which two more members of the Chamber.