STF approves lifetime review of the INSS; see who is entitled

The Federal Supreme Court (STF) formed a majority, this Friday (25), to ensure that INSS (National Social Security Institute) retirees earn, in court, the right to lifelong review. Theme 1,102, which has general repercussions, received six votes in favor and five against. The ministers’ understanding will be applied in all such processes in the country.

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. The correction can result in arrears of more than BRL 100,000.

The trial of the case, which takes place in the virtual plenary of the court, began in June last year, but was interrupted after a request for a view by Minister Alexandre de Moraes. All that was missing was your vote, which was delivered in the early hours of this Friday. The score was tied at 5-5, and Moraes’ favorable vote was decisive.

At the time, the rapporteur, Minister Marco Aurélio, was in favor of the review, accompanied by ministers Edson Fachin, Cármen Lúcia, Rosa Weber and Ricardo Lewndowski. The divergence occurred with the vote of Minister Nunes Marques, which was followed by Dias Toffoli, Roberto Barroso, Gilmar Mendes and Luiz Fux.

In the early hours of this Friday, Moraes presented his vote, guaranteeing that the insured person who implemented the retirement conditions after the changes in the Social Security made in 1999 is entitled to the best benefit.

“The insured who implemented the conditions for the social security benefit after the enactment of law 9,876, of 11/26/1999, and before the new constitutional rules, introduced by the EC in 103/2019, which made the transitory rule definitive, have the right to opt for the definitive rule, if this is more favorable”, says the vote of the minister

The inclusion of old salaries in retirement began to be requested in court to try to correct a distortion created by the 1999 Social Security reform. At the time, the transition rule applied to INSS insured persons created two formulas for calculating the average salary used in the calculation of pension benefits.

According to the rules, those who were already insured by the INSS until November 26, 1999 would have their average salary calculated on the 80% greater contributions made from July 1994. As for workers who started their contributions from November 27, 1999 , the permanent rule established that the average salary would be calculated with the highest salaries of the entire contribution period.

The new rule harmed policyholders who had many contributions paid in larger amounts to the INSS before the implementation of the Real Plan. Upon obtaining the right to retire under the transitional rules, the worker had his benefit reduced, as he was prevented from earning higher wages than before July 1994.

In its defense, the INSS tried to argue, in the 2021 judgment, that the review would bring a breach of R$ 46 billion to the public coffers in ten years, which was used in the negative vote of Nunes Marques. At the time, Ieprev (Institute of Social Security Studies) asked for the suspension of the trial, requesting details of the amounts. For experts, the review is limited and will not bring these expenses.

Check who is entitled to a lifetime review

With the decision, actions that were stopped in court will go back to walking. However, the review is not a worthwhile thesis in all cases of workers who had contributions to the INSS before July 1994.

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.

The correction pays off, however, for those who had high salaries before the start of the Real Plan. 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.

Badari celebrated the Supreme Court’s decision. “The STF brought social justice to the retiree. It overrode any economic argument brought by the INSS to maintain legal security,” he said.

According to lawyer Priscila Arraes Reino, from Arraes & Centeno Advocacia, the final result of the trial should be announced on March 8. Until then, the ministers, with the exception of Marco Aurélio, who has already retired, can change their votes, which, according to specialists, does not usually happen.

Gisele Kravchychyn, director of judicial action at the IBDP (Brazilian Institute of Social Security Law) and advisor to the OAB (Brazilian Bar Association) in Santa Catarina, also celebrated the decision on her social media.

“The review of a lifetime passed in the STF. Minister Alexandre voted in favor, determining that people can, yes, choose the most advantageous rule as long as they have fulfilled both options. Congratulations to us; we will celebrate this Carnival the victory of the review of a lifetime.”

2019 SOCIAL SECURITY REFORM LIMITED CORRECTION

The pension reform of the Bolsonaro government, which came into effect on November 13, 2019, again modified the calculation of the average salary, limiting the possibility of revision.

The new rule says that, for everyone who reaches conditions to retire from November 13, 2019, the average salary is calculated with all contributions from July 1994, that is, it brought clarity about the period of contributions that enter into the calculation of social security benefits paid by the INSS.

Therefore, the lifetime review could only be applied to those who completed the requirements to retire by November 13, 2019.

In addition, it is necessary to have received the first retirement payment less than ten years ago, respecting the decay period for the request for correction of social security benefits. The review pays arrears for the past five years.