See who can apply for INSS retirement with more advantageous rules

The worker who met the requirements to retire before the Social Security reform of November 13, 2019, but did not apply for the benefit at the time, cannot be harmed by the change in legislation. This is the so-called acquired right, that is, the insured person cannot be harmed by the implementation of any law subsequent to fulfilling the requirements to receive the retirement.

This means that anyone who has completed 30 years of contribution, in the case of women or 35 years, for men, before the reform takes effect has the right to request the benefit for contribution time under the old rules, which do not require a minimum age or toll. of the transition rule.

The same goes, for example, for policyholders who were waiting for a labor process, before the move, to prove to the INSS (National Social Security Institute) that they had complied with the rules. When requesting retirement, the system makes calculations based on registered contributions and must grant the most advantageous benefit.

“Once the requirements are met, the acquired right is incorporated into the legal assets of the person concerned, even if he only requests its application to the INSS later. As social security law is an area that changes frequently, it is important for the worker to be aware, as it can interfere in social security planning, postponing or anticipating the benefit”, explains Rômulo Saraiva, social security lawyer and columnist for Sheet🇧🇷

The worker who has the acquired right, but continues to contribute, needs to be aware when requesting the benefit, since the transition rule may be more advantageous. By law, the INSS must grant the benefit that is most advantageous to the worker.

To find out which rule is more worthwhile, the ideal is to carry out a pension plan, analyzing the old and current requirements, as well as the contribution time until November 13, 2019.

“The insured person can simulate the transition rules and the old rules on the Meu INSS website, but there he cannot find out the value of the benefit. the benefit at the right time and with the best income”, advises Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law).

How to prove the acquired right

Saraiva warns that it is not uncommon for the INSS calculator to offer erroneous estimates, as there may be inconsistency in the CNIS database (National Social Information Register). Therefore, in addition to looking for a specialist to assist in the retirement application, it is necessary to gather as many documents as possible to prove the acquired right.

The required documents vary according to the professional history of each insured person. However, the main means of proof are the work card, the GPS (Social Security Guide) and the social security statement provided by the INSS.

Proof of military service requires a specific certificate, as well as professionals exposed to harmful environments need to present the PPP (Professional Social Security Profile). Those who sued the former employer also need to prove wages and amounts earned in the labor court with procedural documents.

In addition, Bramante recalls that periods as a rural worker, in another social security system, such as municipal or state social security systems, and individual contributions as a self-employed person, entrepreneur, occasional minister or minister of religious confession, for example, also enter into the account.

When to go to court

If the retirement request was denied or did not consider the most advantageous rule, the first thing the insured person should do is file an administrative appeal. “The Social Security Appeals Council is an autonomous body and can be a strategic way out in some cases, instead of filing a lawsuit”, says Bramante, from the IBDP.

The recommendation is to resort to Justice only when the possibility of administrative appeal is exhausted. However, Saraiva claims that there are controversial situations in which the INSS does not usually recognize the right to the benefit – as is the case of the lifetime review, approved by the STF (Federal Supreme Court) in early December.

In these cases, the courts become the only option. “Even the STF having complied with the workers’ right, the INSS does not usually recognize this demand administratively”, says the social security lawyer.

It is worth remembering that all administrative steps —initial request, sending additional documents and requests for administrative resources– can be done through the Meu INSS application. All communication between Social Security and the user —such as the need for extra documents, as well as justifications for rejection— is also handled by the platform.