The Court of Appeal in its deliberations held that the fact that the Appellant retired in 2015, before the Legal Notice became enforceable, is irrelevant. What is relevant, the judgement says, is that the Appellant satisfied the requisites of Article 64A of the Social Security Act.
In its judgement on 5 March 2025, the Court of Appeal held that the interpretation of the Director General in the Department of Social Security was discriminatory.
The judgement delivered by Mr Justice Lawrence Mintoff concerned the case Paul Spiteri vs Director General Social Security.
This appeal followed a decision given by the Arbiter for Social Security, which had rejected Spiteri’s claims. The Appellant (Spiteri) received an email from the Department of Social Security that since he retired in 2015 at the age of 62, the budgetary measures introduced in 2016 did not apply and therefore, the pension increases did not apply in his case.
The Appellant worked with a private company which suffered from a lack of orders. Since Spiteri was at the age of retirement, he left his job, but renounced his pension to be able to work as a tourist guide. He continued to pay his national insurance contributions. He pointed at the Legal Notice 289 of 2016, and argued that he should benefit from that law, since he was eligible to a pension in terms of Article 64A of the Social Security Act. He further argued that when the law came into force, he qualified to receive an increase of 5% on his pension.
The Director General explained that the Appellant received the two thirds pension from February 2015. The Legal Notice introduced a deferment of the pension to have the pension increased. But this took place from 1 January 2016. The Director General held that budget measures are never retroactive.
The Arbiter quoted from LN289/2016, which reads:
“2.(1) Every person who satisfies the conditions laid down in article 64A of the Social Security Act and who chooses to remain in his insurable employment in the private sector or who is self-occupied shall not be given the pension referred to in article 64A of the said Act when he has the right for it.
(2) The aforementioned pension should be renounced for a period of not less than one year from the date when a person has the right for it and who chooses to remain in his insurable employment in the private sector or who is self-occupied”.
The Arbiter held that there is no reference as to whether the law is to be retrospectively applied and states that it comes into effect from 1 January 2016. Therefore, the Arbiter turned down the Appellant’s claim.
The Appellant argued the Arbiter’s interpretation was causing unjust and illegal treatment. The appeal sought to determine whether the Legal Notice was applicable to his case.
Those who were born in 1952 and 1953 could retire at 62. The Appellant was born in 1952 and therefore eligible for an increase in the pension. Spiteri argued that the Arbiter’s interpretation was discriminatory against persons born in 1952.
The Director General put forward the same arguments he presented to the Arbiter, insisting the Legal Notice is not retroactive.
The Court of Appeal in its deliberations held that the fact that the Appellant retired in 2015, before the Legal Notice became enforceable, is irrelevant. What is relevant, the judgement says, is that the Appellant satisfied the requisites of Article 64A of the Social Security Act.
The date of retirement is not to be considered. The only criteria used is with regard to when the person opts to take a pension. The Court agreed that the interpretation of the Arbiter and the Director General is discriminatory and went on to annul the Director General’s decision. The judge ruled that the provisions of Legal Notice 289/2016 are applicable to the Appellant.
Av. Malcom Mifsud
Founding Partner
Mifsud & Mifsud Advocates
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