The INSS (National Social Security Institute) insured is entitled to the amounts overdue from the judicial process even if he managed to retire administratively, after having made a new request.
The judgment of topic 1018, made by the 1st Section of the STJ on the 8th, should be applied to all cases of this type in the country as it is a repetitive appeal. To be entitled to the arrears, the retiree must have won a court victory.
In the case discussed by the ministers, the worker sought justice after the INSS denied the administrative request. As the action took a long time to complete, he made a new request at the institute and was granted retirement.
With the decision, he will be able to receive the late amounts, which are the differences not paid by the INSS in the period in which he should have been retired, but was denied the right. Retroactive payments will be made between the date of the initial application and the day on which the administrative benefit was granted.
“The insured is entitled to receive arrears from the date of the DER [Data de Entrada do Requerimento] from the first benefit to the date on which the second application begins. This was the decision of the STJ in 1018”, explains Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law).
According to lawyer Roberto de Carvalho Santos, from Ieprev (Brazilian Institute of Social Security Law), the courts can take years to decide on a case. If the insured person remains in the job market, years later, he manages to have better conditions to apply for the benefit at the INSS and, in this way, retirement is administratively granted.
Another advantage, the lawyers point out, is that even conquering the right to the first benefit in court, the STJ understood that it is possible to continue receiving the second, if the social security income is higher. “It happens a lot, because justice takes too long,” says Santos.
At the trial, Justice Mauro Campbell agreed with part of what was proposed in the report and indicated that the ministers had the following thesis: “the insured person has the right to opt for the most advantageous benefit, administratively granted in the course of the legal action in which the less In this case, while the judgment is being complied with, the right to enforce the amounts between the initial term set in court for granting the benefit and the date of entry of the administrative request that granted the overpayment is legitimate, a situation that is not to be confused with the institute called by the doctrine as unretirement”.
Who can benefit from the judgment
Social security lawyers consulted by the Sheet state that there are several profiles of policyholders who can benefit from the decision, since the delay in lawsuits is a constant. However, two factors need to be considered. The first of them is that there will only be certainty of the established thesis after the publication of the decision, which has not yet occurred.
A second point is that the INSS may also appeal to the STF (Supreme Federal Court) so that the ministers define whether the issue is constitutional. If they judge by constitutionality, the insured may benefit. Otherwise, they lose.
The decision taken, however, addresses policyholders who had their request denied because the INSS failed to recognize any period of work or did not accept evidence in the administrative process and is valid for all types of benefits: retirement, aid, pensions and BPC (Benefit of Continuing Payment).
This is common to those who ask for the recognition of a special period, for example, which guarantees a more advantageous count of the contribution time, to those who have activities with a formal contract and periods as self-employed, in which the time of work on account paid by card may not be recognized, or who asks for a pension for death claiming a stable union.
If, at the post, he does not obtain the right to the benefit because the INSS did not accept the evidence presented, it is common for the insured to go to court and, even so, after some time, return to the institute with more convincing evidence or more advantageous conditions and obtain The payment.
The orientation, in these cases, is to receive the administrative social security income and continue to wait for the response of the action in Justice.
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