See who can still ask for a lifetime review of the INSS

The decision of the STF (Supreme Federal Court) ministers in the judgment of the lifetime review, which will be resumed between February 25th and March 9th, will be definitive for INSS (National Social Security Institute) retirees who seek to increase the value of the benefit including all salaries.

The lifetime 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 social security income.

According to social security lawyers, those who are entitled to correction and have not yet filed a lawsuit can make the request even before the Supreme Court’s final response to issue 1,102, which has general repercussions. What is decided will apply to all such processes in the country.

The insured person who retired in the last ten years is entitled to review, provided it is before the pension reform, instituted by amendment 103, on 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 pension 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 salaries before the start of the Plano Real. Workers who earned less will have no advantage. If they include old, low-value wages, they can reduce the pension they earn today.

“Lifetime review is an exceptional action. The insured person must answer these questions to find out if he or she fits the profile. In addition, it needs calculations, as it does not pay off for everyone”, says lawyer João Badari, a partner at Aith , Badari and Luchin Lawyer.

Should a retiree apply?

For lawyer Roberto de Carvalho Santos, from Ieprev (Institute of Social Security Studies), the insured person who is entitled to a review must file the request as soon as possible. The request, according to him, can be made directly in court, since the correction only comes out with legal action, but it can also be in the INSS.

“Anyone who is close to losing their rights because of decay has to go straight in. Some advise asking for a review in the administrative way to suspend the deadline. It’s an interesting alternative. But I’ve been advising going to court because there may be some modulation, that is, the Supreme Court can grant the review to those who have already filed a lawsuit by a certain date”, says Santos.

The lawyer Hilário Bocchi Junior, from Bocchi Advogados, advises the insured to make the request administratively, at the institute, before going to the Judiciary. Thus, according to him, the worker freezes the period of ten years to have the benefit review.

Lawyer Gisele Kravchychyn, from the IBDP (Brazilian Institute of Social Security Law), says that it is necessary to carefully calculate the risks of the lawsuit. “If the benefit is approaching ten years from the beginning of payment, it may be worth entering. For others, especially those who do not have free justice, it may be better to wait. But, to know what to do in each case, look for a specialized lawyer. I don’t advise entering without a lawyer because you may be giving up high values”, he says.

For Rômulo Saraiva, lawyer and columnist for sheet, both strategies – waiting or taking action before judgment – ​​have advantages and disadvantages. “Waiting for the STF to file the action only after that avoids the risk of paying costs, procedural expenses and fees in cases where the insured is not a beneficiary of free justice. But it’s bad because you can lose late installments and not receive a correction so big,” he says.

Judgment is tied in the Supreme

The life review trial began in the Supreme Court in June last year. At the time, there were 5 votes in favor and 5 votes against. The only thing missing is the position of Minister Alexandre de Moraes, who asked for a view of the process in order to analyze it better.

The decision takes place in the virtual plenary of the STF, in which the ministers register their votes in a pre-established period. In this case, the decision will be between February 25th and March 9th.

If they decide against the review, the ministers will prevent the insured from winning the right in court, as the issue has general repercussions. If the STF is favorable, all the processes of the type, which are currently on hold, will resume. There should be modulation of effects, which is when the Supreme sets additional rules on the subject.

In last year’s trial, minister Kássio Nunes Marques opened the dispute on the subject. He presented a technical note from the Ministry of Economy indicating that the review would bring a breach of R$ 46 billion to the public coffers in ten years.

At the time, Ieprev sent a petition to the rapporteur, Minister Marco Aurélio, for the presentation of economic studies that prove the impact of the decision favorable to the insured. For lawyers, the impact should be small, as the review is not comprehensive for all policyholders.