People with serious illnesses are entitled to benefits; see what they are and how to get them

All people affected by illnesses that make them unable to work and who have contributed to the INSS (National Social Security Institute) for at least a period of 12 months are entitled to receive a monthly social security benefit, including the 13th salary. . They are: aid for temporary disability (better known as sickness aid) and aid for permanent disability (known as disability retirement).

“People affected by serious illnesses, such as cancer, do not need to prove the minimum contribution of 12 months —which is what we call a deficiency, but they must prove, in addition to the disabling disease, that they contributed in the last year before becoming ill”, he explains. social security lawyer Lísia Daniella Ferro.

The amount is calculated based on the average of the last 12 contributions made by the beneficiary, with the lowest benefit amount being the current minimum wage and the maximum amount having to respect the INSS ceiling, which is currently equivalent to R$7,087.22.

“People who started working, but who have not yet added a year of contribution, will have this history considered, but, probably, they will be limited to receiving a minimum wage due to the calculation. Nobody receives less than that”, says Ivandick Rodrigues , lawyer and professor of labor and social security law at Universidade Presbiteriana Mackenzie.

In relation to time, the benefit must be granted while the incapacity for work lasts for temporary concessions. However, in cases of concession due to permanent disability, it must be reassessed by the INSS every 2 years to prove the continuity of the disability.

On the other hand, if the person recovers and is able to return to work, but continues to receive the benefit, the INSS has the right to sue that patient and request their money back, paid in an undue period.

In specific cases of serious illnesses, there is the inclusion of some rare disabling diseases, which also give the right to exemption from grace period in the granting of social security benefits. However, if requested to the INSS and denied, the benefit can be obtained through a judicial process, as well as other rights that these patients have, such as the cost of medications and differentiated food.

Which diseases are exempt from deficiency?

The professor of labor and social security law at Universidade Presbiteriana Mackenzie explains that the shortage works as a kind of investment. Therefore, people cannot apply for the benefit with a pre-existing illness.

“The concession of the benefit is conditioned to a medical evaluation, so these people will necessarily undergo the expertise. It is not just because the diagnosis was given that the expertise becomes dispensable, on the contrary, it is fundamental”, emphasizes the professor.

However, there is a list of serious illnesses that waive the grace period. They are backed by law, the decree of which is known as the social security regulation, and are updated from time to time.

Currently, these serious diseases are:

• Active tuberculosis;
• Leprosy;
• Mental alienation;
• Multiple sclerosis;
• Severe liver disease;
• Malignant neoplasms (cancers);
• Blindness;
• Irreversible and disabling paralysis;
• Severe heart disease;
• Parkinson’s disease;
• ankylosing spondyloarthritis;
• Severe nephropathy;
• Advanced stage of Paget’s disease (osteitis deformans);
• Acquired immunodeficiency syndrome (AIDS); or
• Radiation contamination, based on conclusion of specialized medicine.

This list, however, is just a basic example of what cannot be disregarded by the INSS, so much so that the Ministry of Health and Labor and Social Security may add other diseases.

Ferro says that there are already decisions by the Brazilian Courts of Justice that admit that this list is exemplary. “That is, other diseases, if demonstrated the degree of gravity, may entitle to exemption from the grace period, but will need a court decision to condemn the INSS to pay the benefit”, says the social security lawyer.

It is also worth noting that the right belongs to people with illnesses who are unable to work. This means that the disease, by itself, does not entitle the benefit, but the disabling disease does.

And that same decree of law 3,048 points out that, only in cases of disability retirement (such as people who became quadriplegic, for example), there may be an additional amount of up to 25% of the benefit paid by the INSS. “But here we are talking about people who were working, who contributed for a significant period and were absolutely unable to carry out a job”, comments Rodrigues.

Even without contributing, there is a possibility of benefit

On the other hand, people who have not contributed to the INSS, such as children or informal workers, but who prove the existence of a long-term impediment, that is, of illnesses that incapacitate them for at least 2 years, and who belong to a family of low income, who earn less than 1/4 of the minimum wage per capita (with rare exceptions), can obtain a BPC (Benefit of Continued Payment), in the amount of one minimum wage per month, without the right to 13th salary.

“In addition to the issue of the disease, normally, the person will have to prove the impossibility of contributing to the INSS and, consequently, claim some benefit from assistance”, says the university professor.

This benefit, popularly called assistance benefit, is guaranteed by the Organic Law of Social Assistance (Loas) number 8,742, established in 1993, in article 20.

It was requested by teacher Simone Guedes Inácio, 49, in 2017, when her son, Kauã Henrique, then 7, was diagnosed with Hodgkin’s lymphoma, a type of cancer that originates in the lymphatic system —a part of the immune system. , of defense of the organism. However, it was not easy to achieve.

“I only found out that he was entitled to this benefit after about four months that we were already in the halfway house, because one of the mothers commented that she received it. But not even the social worker from the Support Group for Adolescents and Children with Cancer (Graacc ) commented that he had some right. Until then, I only knew that he had the right to receive elderly people, even if they had not contributed to the INSS”, reports Simone.

At the time, it was a relief to know that he could also receive it, since the mother had left the rest of the family, home and work in São Vicente (SP), to accompany her son during treatment at a halfway house in São Paulo, capital.

“I applied in 2017 and got the benefit in 2018. I took a medical report with the disease well specified and what medications he was using, but it took a while, because even before he passed the expertise, the benefit was denied” , says the mother.

Faced with this situation, Simone did not conform and sought help from the tutelary council of her city. The counselor, in turn, issued a letter that was delivered directly to the INSS social worker, who received the documentation and, after just over a month, the medical examination was scheduled.

“And it was from then on that we began to receive the welfare benefit. But I have a friend who had to go to court and still hasn’t received it, and that’s been 4 years ago. And many others haven’t received it either”, vents the teacher, stating that even the mother having to dedicate herself 100% to the sick child and not being able to work, the benefit is often denied to the children.

The INSS was contacted several times to clarify how many people received some social security or assistance benefit since 2020, but we had no response until the publication of this report.

“I look favorably on the assistance benefit when the child gets it, because it is a lot of bureaucracy and humiliation for the family to have to run after something that is in the law. And the population, unfortunately, is not informed of everything that we are entitled to “, evaluates the mother, saying that, currently, Kauã is in remission of the disease, but continues to receive the benefit, because he has not yet been discharged.

“As a rule, only one person in the family can receive the assistance benefit per family. However, if there is more than one elderly or disabled person who is entitled to the assistance benefit, there may be more than one benefit in the same family group”, clarifies Ferro .

To be clear: there are two different state mechanisms. One of them is the social security that is foreseen in the constitution, it is contributory and designed for those who contribute to the INSS; the other is the Social Assistance Law —defined precisely for people excluded from the INSS.

“But if the person starts working registered, he loses that right, because it demonstrates that the disease no longer generates an impediment to work”, explains Rodrigues.

How to apply for these benefits?

To receive the social security benefit, the starting point is to request it from the INSS through the channels: telephone 135, Meu INSS or INSS Digital through a lawyer. It is imperative that there are certificates and tests proving the disease at the time of the request.

In a second scenario, in which there was no previous contribution, whether from an adult or a child, citizens can look for the Social Assistance Reference Center (Cras) in their city to receive information about the Continuous Provision Benefit (BPC) and how require it. Remembering that to receive the benefit, it is not necessary to pay intermediaries or agents.

The patient does not choose the type of benefit he will possibly receive. Its nature, whether temporary or permanent (retirement), will be defined, based on the analysis of the medical documentation and the clinical status of the person in the expertise.

The law professor recalls that “only in cases of total or partial incapacity will the benefit mechanisms be activated”.

Another common point, according to experts, is the refusal of the INSS to grant the social security benefit. In that case, the only way out is for the person to look for a private lawyer or the Federal Public Defender’s Office to analyze their right and, if applicable, take the matter to court, which also applies to the BPC.

Out of Home Treatment

Provided by law, patients assisted in the public or insured/contracted network of the SUS (Sistema Único de Saúde) who depend on treatment outside their home are entitled to receive an allowance to ensure the necessary displacements, whether in ambulances or not.

This benefit is called Out-of-Home Treatment (TFD), whose purpose is to cover expenses related to air, land and river transportation for the patient and his companion, as well as per diem for food and overnight, which must be authorized according to availability. budget of the granting municipality or State.

The request for Out-of-Home Treatment is usually made by the patient’s doctor and, if denied, he can also request it at the Municipal Health Department. Authorization, however, depends on the municipal or state manager.

Another benefit, according to the Caixa Econômica Federal press office, is that the titular worker will be able to request the withdrawal of the FGTS due to a serious illness through the FGTS app, or, if he/she prefers, go to a branch of the bank with the documentation evidence, as stated on the website.

“Once the withdrawal request has been made, the supporting documentation of the worker’s state of health is analyzed by the federal medical expert within a period of 30 (thirty) working days, so that Caixa can then carry out the analysis of the merits of the request and, if necessary, case, carry out the withdrawal”, said the bank in a note sent to BBC News Brasil. In 2022 alone, Caixa pointed out that there were withdrawals from the FGTS that totaled R$ 796,633,202.86.

Finally, Mackenzie’s law professor points out that people with serious or rare diseases have several other rights. “On the tax side, for example, it would be possible to deduct certain income tax expenses or even exempt them completely; buy a house or car at a discount, be exempt from IPVA. But everything will depend on the disabling disease, age, or whether the person is Person with Disability (PwD).

This text was published here.