INSS cannot cancel pension for old death, decides Justice

The INSS (National Social Security Institute) cannot cancel old benefits, paid for more than ten years, according to a decision by the TRF-4 (Federal Regional Court of the 4th Region).

The Judiciary’s understanding was taken in the case of a pensioner who received the pension for death from Social Security since 1979, more than 40 years ago, when her husband died.

In the res judicata, the insured was summoned by the institute in April 2021 to send her personal documents, her husband who died and the dependents that prove the right to the benefit. She received a letter from Social Security informing her that the pension would be reassessed.

In September, the pensioner appealed to Justice against the review instituted by the body. In her action, she claimed that the period for reviewing social security benefits is up to ten years after the granting, as determined by law 8,213, of 1991, and asked the Court to prohibit the cancellation or suspension of payment.

In January, the first response from the Judiciary was negative, which made the pensioner go to court. At the end of August of this year, the 5th Class of the TRF-4 understood that the INSS review period had expired and it was therefore not possible to cancel or suspend the benefit.

The magistrate responsible for the case in court, Alexandre Gonçalves Lippel, understood that there is no longer a possibility of reviewing the benefit, but that the body can ask beneficiaries to update the data, if necessary.

Government says system identified inconsistencies in concession

In a note, the AGU (Advocacy-General of the Union), which defends the INSS in lawsuits in court, reported that the institute promotes periodic review of benefits based on article 69 of law 8.212/1991 and “respects the decadence in relation to benefits granted for more than ten years”, unless there is evidence of bad faith on the part of the insured or dependent.

According to the agency, in the final case, the INSS requested documents after the payroll verification system, implemented in 2019, found inconsistencies in the granting of the death pension.

The AGU says that the fine-tooth comb, in these cases, is annual, and that the document requirement is legal. With this, he understands that the sentence was favorable to both the INSS and the insured, ensuring that the request for documentation for the review of data can be made.

What does the INSS benefit review law say?

According to lawyers Roberto de Carvalho Santos, from Ieprev (Institute of Social Security Studies), and Rômulo Saraiva, columnist for Sheet, Social Security may review benefits after a period of ten years, but only in cases where there is bad faith, that is, the possibility of fraud. “In this case, the burden of proof is on the INSS”, says Santos.

In 2021, pensioners across the country began to receive letters from the INSS requesting documents. “The legislation even authorizes income review at any time, with the threat, including, of the benefit being interrupted, but in cases of fraud, which is not the hypothesis of these letters. The letters charge basic documents. And, from there, it is believed that they will assess any nonconformity”, says Saraiva.