How to receive INSS arrears after winning in court

The insured person who wins in court the right to grant, or review, a benefit from the INSS (National Social Security Institute) can also obtain the right to receive arrears.

Arrears consist of the accumulation of retroactive amounts that the insured would be entitled to receive monthly, but which were not being paid, in whole or in part, due to rejection by the INSS.

If, after having the claim denied, the insured person files a lawsuit in court and obtains a favorable judgment, the federal government is obliged to pay the amounts due for the period prior to the judgment. Generally, from the date the application was made.

This can occur in cases of retirement requests, for example. In the case of an insured person who won the right to retirement in court two years after having the application rejected by the INSS, he must retroactively receive the amount referring to the 24 months in which he should have been receiving the benefit.

The same logic is valid in cases where the insured person requests a review of a benefit. If the judge decides that the action is valid, the INSS will have to retroactively pay the months in which the insured person stopped receiving the amount due from the date of rejection.

In cases where the insured person requests a lifetime review, the arrears comprise a period of five years prior to the filing of the action plus the time that the process took place, says lawyer Roberto de Carvalho Santos, president of Ieprev (Institute of pension studies).

“For example, if the action took three years. He will receive the previous five years plus the three years that the action took to become final and unappealable. So, he will have eight retroactive years to receive”.

The process can take years, because, after filing the lawsuit, it is necessary to wait for the final judgment of the knowledge phase and then inaugurate the execution of the action, says Paulo Bacelar, director of the IBDP (Brazilian Institute of Social Security Law).

In some cases, it is in the execution phase of the process that the review and calculation of the amount to be paid by the INSS will be carried out. “After defining the correct value of the author’s credit, the following phases will depend on a series of factors, such as the Court where the action is processed and what is the value of the credit”, he says.

Paulo Carvalho, a lawyer for the Trench Rossi Watanabe social security group, points out that the deadline for payment begins to count from the moment the judge determines the issuance of the payment, and not from the date on which the action becomes final and unappealable.

He explains that after the action becomes final and unappealable, the insured has the right to execute the judgment. For this, it is necessary that he initiates the execution of the sentence, and thus, arrives at the amount effectively due and that there is no appeal against this execution.

“That is, there will be a new final and unappealable decision in the execution of the sentence. Only after the final and unappealable decision of this execution should the plaintiff request the issuance of RPV or precatório, an opportunity in which we could consider that the legal deadlines for payment would begin to take effect “, says Carvalho.

If the amount is less than 60 minimum wages (equivalent to BRL 72,700 in 2022), payment will be made through a RPV (Small Value Request). On average, the payment period after an RPV is issued is 60 days.

However, if the amount exceeds 60 minimum wages, the payment must be made in the form of a writ. In these cases, the deadline is longer because it is subject to registration in the federal budget.

Precatories are released only once each year. In 2022, part of the values ​​came out at the end of August.

The insured who had the overdue amounts released by the Justice can consult the amounts at the TRF (Federal Regional Court) of the Region in which the lawsuit is being processed.

Santos explains that the insured does not have the option of receiving part of the arrears by writ and another part by RPV.

For example, in cases where the amount of arrears exceeds the amount of R$ 100,000, if he chooses to receive via RPV, he will only have access to the amount of R$ 72,700 (referring to 60 minimum wages). To receive the full amount, he would need to wait for the deadline stipulated by the Union.

Under the current rule, if the payment is dispatched by April 2, the person receives the money in the following year. If the payment order is given after that date, receipt will only be in the following year.

For example, if the expedition took place in February 2022, the precatório will be paid until December 31, 2023. But, if the expedition took place on May 1, 2022, the insured person will only have access to the money in 2024.

Where the values ​​are deposited

The amounts of arrears, whether RPV or precatório, can be deposited in a current account to be opened at Banco do Brasil or Caixa Econômica Federal in the name of the insured person.

The average term for payment of RPVs is up to 60 days after the judge releases the appeal. However, the money can be released earlier, as the courts automatically process it.

Through a certificate, the lawyer can receive the amount and transfer the client’s share, subject to accountability.

After the arrears enter a Federal Court lot, the court informs which bank will receive the deposit and from which date the money will be available. The monthly corrected amount enters the same account from which the insured usually receives.

How to check when you will receive

For policyholders in São Paulo and Mato Grosso do Sul, the consultation can be done on the TRF-3 website (Federal Regional Court of the 3rd Region), which serves both states.