Judgment of the review of the whole life of the INSS will be resumed in the STF

The review of the entire life of the INSS (National Social Security Institute) will be resumed at the STF (Supreme Federal Court) after an extraordinary appeal that discusses the case is released by Minister André Mendonça. The judgment may be included in the agency’s agenda at any time, but the decision to include it is made by Minister Rosa Weber, president of the court.

The whole life review is a lawsuit in which retirees ask that all their contributions to the INSS, including those made before the creation of the real, in 1994, be considered in the calculation of the average salary to increase the benefit.

The process came to be judged in the virtual plenary in March 2022, after being stopped for about a year after a request for a view from Minister Alexandre de Moraes. The final result, in favor of retirees by 6 votes to 5, was never proclaimed, as there was a request that removed the case from the agenda.

The trial was interrupted minutes before the deadline after a request from Minister Kassio Nunes Marques, who presented a highlight. In the virtual plenary, where the topic was discussed, ministers have one week to indicate their votes. Until the end of the term, it is possible to change the vote or ask for a highlight, which takes the case to trial in the physical plenary, as it happened.

In June, however, a new STF decision brought changes to the case. The plenary decided that the votes of retired ministers presented in cases in the virtual plenary should be maintained in a new trial. The Supreme Court’s understanding affects the lifetime review, whose rapporteur —and who voted in favor— is retired minister Marco Aurélio de Mello.

Under the previous rules, the judgment should start from scratch in the physical plenary, with a new report on the subject. In this case, the rapporteur would be made by Minister André Mendonça, contrary to the subject. With the decision, there will be no new report.

What can happen with the lifetime review?

The decision on the lifetime review trial will be taken by Justice Rosa Weber. According to the internal regulations, she can indicate a new physical trial in the plenary of the STF. However, lawyers see the possibility that there may be a proclamation of the result or even a new virtual trial.

“It is a very unusual situation, but the minister can follow three paths: physical plenary, which would be normal; proclaim the result, because we already have a vote for the victory of retirees; or rule in the virtual plenary”, says social security lawyer Fernando Gonçalves Days.

Lawyer Carolina Centeno, Arraes & Centeno Advocacia, says that the expectation is for the minister to guide the trial later this year and proclaim the final result, but the situation of reviewing a lifetime is different from other cases in the Supreme Court, according to her.

“There has been no change [no regimento interno] in the sense of how this procedure will be done from now on. That’s why there is this doubt, whether it will go to the physical, to the virtual or if there will only be the proclamation.”

Roberto de Carvalho Santos, president of Ieprev (Institute of Social Security Studies), says that if it goes to the physical plenary, the judgment already begins with a favorable vote. “In theory, the process returns to the physical plenary, with only one vote signed, which is that of the retired minister. We hope that the others, who have already pronounced the vote, do not change.”

For lawyer João Badari, from Aith, Badari e Luchin Advogado, there is no reason to change votes. “Eleven ministers have already voted. No new act or fact has brought anything to this process, it remains the same. I don’t see why any minister could change the vote.”

WHO HAS THE RIGHT TO A LIFETIME REVIEW

The insured person who retired in the last ten years is entitled to a lifetime review of the INSS, as long as it is before the Social Security reform of November 13, 2019.

It is also necessary that the benefit has been granted based on the rules of Law 9,876, of 1999. In this case, the average salary calculated by the INSS to pay the retirement was made with the 80% highest salaries since July 1994, when the Real Plan came into effect.

The correction pays off, however, for those who had high wages before the start of the Real Plan. Workers who earn less will not have an advantage. If they include old, low-value wages, they could reduce the pension they earn today.

“A review of the whole life is an exception action. It needs calculations, because it doesn’t pay off for everybody”, says Badari.