See 7 times when Justice guaranteed disability retirement and BPC

When the INSS (National Social Security Institute) denies a benefit to the insured because it understands that there is no right, the way to obtain social security income is to seek justice.

Disability or assistance benefits, such as disability retirement and the BPC (Continued Provision Benefit), for example, are often the reason for lawsuits after the institute’s denial.

The Judiciary, in this case, has guaranteed the right to the insured, focusing on social security protection for those who are sick or in a vulnerable situation.

THE Sheet brought together seven court decisions that give the right to these benefits in federal courts in São Paulo, Mato Grosso do Sul and the southern region of the country. Among the beneficiaries are a housekeeper, a day laborer, a locksmith, a woman with schizophrenia, as well as teenagers with mild disabilities. There is a possibility of appeal.

Permanent incapacity pension — the former disability pension — is granted to an insured person who is totally unable to work. It is necessary, however, to undergo medical expertise that recognizes total and permanent disability. In general, before granting this benefit, the citizen receives sick pay.

The BPC is an assistance benefit, paid to the elderly over 65 years of age and people with disabilities from low-income families. It is necessary to have an income of up to one third of the minimum wage per person in the family. For those who have a disability, it is necessary to pass an expertise.

See 7 cases in which the Justice ordered the INSS to pay benefits

1 – Domestic with depression, mental disorders and alcoholism achieves retirement

A 55-year-old domestic worker with mental disorders and alcoholism was able to obtain a disability pension in court.

In the decision of the 7th Panel of the TRF-3 (Federal Regional Court of the 3rd Region), which serves policyholders in São Paulo and Mato Grosso do Sul, depression and mental disorders caused by alcoholism were decisive for the judge to grant the benefit, even after the expertise considers the employee fit for the job.

According to the judge, the maid developed personality changes and cognitive impairments that make interaction and reintegration into the job market difficult. As the judicial expert had found mental and behavioral disorders linked to alcoholism, the magistrate granted the benefit, adding that alcoholism is a disease recognized by the WHO (World Health Organization).

2 – BPC is given to women with schizophrenia

The TRF-3 granted a woman with schizophrenia the right to the BPC after the INSS denied the benefit to the insured, alleging that she lived with a niece who, therefore, did not meet the income requirements.

In the decision, the understanding was that nephews are not included in the legal concept of family, according to the law that regulates the BPC.

The social expert attested that the citizen does not have income and there is no way to have them, as she has schizophrenia and mental deficiency characterized by “disconnection with reality, hallucinations, and absence of structured thinking”.

4 – Diarist with chronic diseases gets disability retirement

Renal failure, hypertension and low back pain were reasons that led the TRF-4 (Federal Regional Court of the 4th Region), which serves the southern states of the country, to determine the granting of permanent disability retirement to a 56-year-old day laborer.

The insured went to court in 2015, after the INSS cut the sick pay. Although the institute’s expertise considered her fit for work, she claims that her conditions worsened, preventing her from performing physical effort.

The decision in favor of the worker was taken in August this year. The 9th Panel understood that there was incapacity for work when considering the age of the insured and the illnesses. In this case, the judge responsible for the action also disagreed with the judicial report that denied the benefit.

5 – Locksmith with diabetes and obesity is entitled to BPC

A locksmith with type 2 diabetes mellitus obtained the BPC in court, after a decision by the TRF-3. The benefit had already been granted by the Judiciary in Batatais, in the interior of São Paulo, but the INSS appealed. In court, the 10th Panel confirmed the sentence.

According to the judge in the case, it was proven a situation of social vulnerability and illness that prevented him from working, since he had been using insulin since he was 27 years old and had vision failures, in addition to an injury to his right ankle.

The family income, made up of him, his wife and three children from his wife from a previous marriage, was R$91, paid through an assistance program.

“I understand that the evidentiary set demonstrates that the plaintiff proved her hyposufficiency, in view of the precariousness of the economic situation and her health problems, finding herself unable to perform work activity and earn income”, concluded the magistrate.

6 – BPC will be paid to young people with disabilities in their hands

TRF-4 awarded BPC to a 19-year-old who was born without two fingers on his right hand and one finger on his left hand. The 5th Panel understood that the worker’s condition prevented him from having a job, representing a disabling disability.

The young man lived with his mother and two brothers and, at the time he filed the suit, the family received R$1,141 per month plus an extra amount paid by the Bolsa Família program. For the INSS, however, there was no deficiency that justified the payment of the BPC.

Even with the institute’s allegation, the court understood that there was an impact, which limited the worker’s day to day, preventing him from achieving insertion in the job market.

7 – Adolescent with hearing impairment will receive the BPC

In TRF-3, a 15-year-old boy with hearing impairment had his BPC released by the court. The family, composed of him, his parents and a sister, with the same disability, applied for the benefit with the INSS in 2012.

After several attempts to obtain income from the INSS, the family went to court in 2019, but the judicial expertise was only carried out in 2020, and the arrears will have to be paid from that date.

In the examination, it was proven that the teenager has profound bilateral hearing loss, diagnosed when he was one and a half years old. The sister, whose age has not been revealed, has the same disease. The family’s per capita income is R$405 per month.

When to go to court against the INSS?

According to a rule defined by the STF (Supreme Federal Court), the insured can only go to court against the INSS after having the benefit denied at the post. The exception is for cases in which the institute no longer recognizes the right.

Depending on the value of the action, the worker can sue the Judiciary without a lawyer, which is not recommended because, if the INSS appeals, it will be necessary to appoint a defender within ten days. In the Federal Special Court, actions of up to 60 minimum wages (R$ 72,720 this year) do not need a defender.

Causes of greater value must be discussed directly in the TRF. The insured will undergo judicial expertise, which is usually more complete than the INSS, according to social security lawyers. However, the decision could take years to come out.