The Supreme Court dealt with the extortion of over 39 thousand from ZUS PLN for an allowance paid on the basis of an apparent employment contract. The payer and the insured entered into an employment contract with no actual intention of establishing an employment relationship and performing work, and the insured person did not perform work under this contract. The pension authority issued a decision obliging the contribution payer to return the sickness benefit paid in accordance with the principle resulting from Art. 84 sec. 1 of the Act of October 13, 1998 on the social insurance system.
The text of the act states that the obligation to return an unduly collected benefit lies with the person who collected it. The return of unduly collected benefits may be claimed from the contribution payer or another entity, if the collection of undue benefits was caused by the submission of false data by the contribution payer or another entity affecting the right to benefits or their amount.
In the resolution of the Supreme Court of 11 December 2019 (reference number III UZP 7/19), it was found that the pension body may select the contribution payer as the entity obliged to return the benefit unduly received by the recipient. The judges decided that ZUS may claim the money back directly from the entrepreneur, it does not have to try to claim the refund from the recipient.
The Supreme Court pointed out that recovery from beneficiaries may be ineffective. Obtaining a refund from the payer is easier in practice, as they are often employers conducting extensive business activity. If they are responsible for the payment of the undue benefit from ZUS, they should be used to claim its return. ZUS is obliged to ensure the effective recovery of unduly received benefits from the Social Insurance Fund, because it is in the interest of other insured persons and the state.
Therefore, the employer must return to ZUS the benefit paid on the basis of a fictitious contract with the employee, which, according to the judges, should curb the abuse of fictitious contracts at the expense of the insured who honestly pay their contributions to ZUS.
KS