Can You Obtain a Preferential Pension Without Clarifying Certificates?

From what date should a pension be granted, and what can you do if it is impossible to obtain clarifying certificates confirming preferential service?

When applying for a preferential pension based on employment under List No. 1 or List No. 2, the Pension Fund may require documents confirming the nature and conditions of the applicant’s employment. In particular, where the employment record book does not contain all the information necessary to establish preferential service, a clarifying certificate from the employer or its successor may be required.

However, applicants may find themselves in a situation where obtaining such a certificate is objectively impossible. This is particularly relevant where the employer, its records or archival documents are located in a temporarily occupied territory or an area to which access is restricted.

In practice, the Pension Fund has sometimes refused to grant preferential pensions because applicants were unable to provide such clarifying certificates. However, the objective impossibility of obtaining a particular document does not necessarily mean that a person must lose the right to have the relevant period of employment recognised.

An important legal position on this issue was expressed by the Supreme Court in its judgment of 28 August 2020 in Case No. 423/2198/16-а.

What were the circumstances of the case?

The claimant applied to the Pension Fund for a preferential pension. The application was refused because he had not submitted clarifying certificates confirming his preferential service.

The difficulty was that the claimant had worked for an enterprise located in a territory outside the control of the Ukrainian authorities, where access to the employer’s records and archives was restricted.

The claimant argued that the absence of clarifying certificates could not, in itself, constitute sufficient grounds for refusing the pension because his preferential employment was confirmed by other evidence.

In particular, the relevant periods and nature of his employment were supported by entries in his employment record book and information from the personalised social insurance records concerning contributions made in connection with his employment.

The court of first instance upheld the claim. It established that the claimant had accumulated sufficient qualifying service to receive a pension on preferential terms.

The appellate court upheld that judgment.

However, the claimant disagreed with the courts concerning the date from which the pension was to be granted. The lower courts had determined a later commencement date, while the claimant maintained that he was entitled to receive the pension from an earlier date.

He therefore lodged a cassation appeal with the Supreme Court.

When should an old-age pension be granted?

The Supreme Court upheld the claimant’s cassation appeal.

The Court agreed with the lower courts that the claimant’s preferential service could be established despite the absence of the clarifying certificates in the circumstances of the case. However, it concluded that the lower courts had incorrectly determined the date from which the pension should be paid.

Under paragraph 1 of part 1 of Article 45 of the Law of Ukraine “On Compulsory State Pension Insurance”, an old-age pension is generally granted from the day following the date on which the person reaches the relevant pension age, provided that the application for the pension is submitted within three months after reaching that age.

In this case, the claimant had applied within the statutory three-month period. The Supreme Court therefore concluded that the pension had to be granted from the date determined under Article 45 rather than from the later date established by the lower courts.

As a result, the Supreme Court corrected the error and fully upheld the claimant’s cassation appeal.

What is the practical significance of this judgment?

The case demonstrates that the absence of a clarifying certificate does not automatically deprive a person of the right to a preferential pension. If obtaining such a certificate is objectively impossible, the Pension Fund and the courts should assess the other available evidence confirming the relevant employment period and working conditions.

Depending on the circumstances, important evidence may include the employment record book, personalised social insurance records and other documents confirming the applicant’s employment and preferential service.

The case also demonstrates the importance of determining the correct commencement date of the pension. Even where the right to a pension itself is recognised, an incorrect commencement date may result in the loss of pension payments for several months.

Therefore, when challenging a Pension Fund refusal, it is important to verify not only whether all qualifying periods have been counted, but also whether the pension has been granted from the correct date established by law.