Numerous are the email inquiries that we receive regarding social security benefits. On this subject, we draw attention to the communication issued recently by the National Social Security Institute (INPS), which reconfirms that disability allowance, like other social security payments, is only payable to those who have an indefinite permit to stay.
This is an issue that we have dealt with many times in the past, especially regarding finance law no. 388 published on 23rd December 2000, (“Arrangements for the establishment of the State’s annual and multi-annual budget [law on finance of 2001 published in the Gazzetta Ufficiale no. 302 of 29th December 2000] – Supplemento Ordinario no. 219), which in article 80 substantially altered the right to equal treatment of Italian citizens and immigrants with regard to the social security benefits enumerated in article 40 of the Consolidating Act (Testo Unico) on Immigration.
The original text of the Act provided for equal treatment not only for all foreigners in possession of an indefinite permit to stay, but also for those holding a temporary permit to stay. However, this provision has now been limited to only those holding an indefinite permit (article 9 of the Consolidating Act on Immigration), meaning that those with a temporary permit are ineligible for disability allowance, non-contributory pension, etc.
Over to the Courts
In order to highlight the significance of this discriminatory amendment, the issue of constitutional legitimacy has been raised by the Employment Courts of Milan and Monza, with reference to holders of a temporary permit to stay who have requested and been denied social security benefits.
The arguments presented to the Constitutional Court (decision still pending) regard, in particular, the violation of ILO (International Labour Organisation) Convention 143 of 1975, which has effect in Italian law and which, furthermore, takes precedence over ordinary law. Convention 143 provides for equal treatment extending to the enjoyment of social security payments.
Moreover, it is interesting to note the inaccurate terminology used in the Italian translation of the Convention (originally published in French) and the resulting distortion of a fundamental principle.
The difference between the French text and the Italian translation…
The official French text speaks of equal treatment with regard to the enjoyment of all sécurité sociale, that is social security. This term covers both social security benefits where eligibility depends on contributions (for example, pensions) and traditional social support benefits guaranteed to persons in specific circumstances, regardless of whether or not they have made any contribution (disability allowance, for example).
According to the official French text, there should be no difference between contributory and non-contributory social security benefits, as no difference is specified in the definition of social security and the principle of equal treatment is guaranteed.
However, we have noticed that the Italian translation of the same Convention speaks of benefits for previdenza sociale which would limit the applicability of the Convention to contributory social security schemes only. This means that the only schemes covered would be those dealt with by the National Social Security Institute (INPS) where benefits are decided on the basis of how much claimants have paid via obligatory contributions.
As we said earlier, the question of constitutional legitimacy has been raised, but unfortunately we have not yet had any news. In the meantime, we continue to receive numerous inquiries about this subject.
Read inquiries related to this topic:
Civil disability allowance – minor excluded because not in possession of an indefinite permit to stay
Exclusion from housing aid for those without an indefinite permit to stay