The question to be decided in this unifying cassation appeal is to determine whether it is appropriate to increase the percentage of the orphan's benefit to a beneficiary who is an orphan of a mother, whose father has been deprived of parental authority for not having been interested in or covering the needs of the daughter for approximately nine years, and who does not receive a widow's pension.

The plaintiff's guardian requested an increase in the orphan's pension due to the concurrent circumstances, alleging that her situation was comparable to that of absolute orphanhood, but the National Social Security Institute (INSS) denied it, alleging that the father was alive.

The lower court ruling, from the Social Court number 3 of Barcelona, ​​upheld his claim and recognized the increase in the benefit by the amount requested. However, the ruling under appeal here, of the Social Chamber of the Superior Court of Justice of Catalonia, of December 13, 2018, upheld the appeal of the INSS, revoked the appealed ruling and dismissed the claim. Reasoning that by carrying out a literal and systematic interpretation of the applicable regulations, increasing the orphan's benefit with the widow's pension is only possible in the event that there is absolute orphanhood, therefore, since the father is alive, it does not apply.

The Supreme Court understands that the case is comparable to that of an absolute orphan's pension for the purposes of increasing his orphan's pension, in the percentage of the widowhood pension not recognized to the living father. Considering that article 38.2 of the Social Security benefit regulations contemplates the requirement of absolute orphanhood as alleged by the TSJ of Catalonia, but also the existence of analogous circumstances as occurs in this case, since it causes a state of need comparable to that of absolute orphanhood due to the deprivation of the parental authority of the orphan by a final judgment as a consequence of a lack of attention to the needs of the daughter.

Failed: The Supreme Court increases the orphan's benefit, upholding the appeal filed by his guardian, annulling the sentence handed down by the TSJ of Catalonia. And declaring the finality of the sentence of the Social Court 33 of Barcelona.