Review of the lifetime of the INSS can yield arrears of over R$ 100 thousand; see cases

The Federal Supreme Court (STF) formed a majority in favor of the lifetime review, in which retirees can add up all retirement salaries, including those from before 1994, to earn more. With the lawsuit, there are cases in which the insured is entitled to more than R$ 100 thousand in arrears.

With the decision taken on topic 1,102, which has general repercussions, that is, it applies to all processes of this type in the country, the actions that were stopped will resume. There are cases, however, of policyholders who have already obtained a review in court even before the final decision of the Supreme Court.

For those who have not yet asked for the correction, but believe they are entitled, lawyer Rômulo Saraiva, from the Social Security Commission of the OAB (Brazilian Bar Association) and columnist for Folha, suggests going to court as soon as possible.

The reason is the ten-year period to request a review of the INSS, called decadence. “The worker can take action now, because corrections would begin. In addition, there is the issue of decadence. Whoever is on the verge of decadence cannot wait that long”, he says.

Many of the policyholders who have already won the decision in court because the process has completely come to an end, whether because the INSS has given up appealing, missed the deadline or for some other reason, await the so-called execution of the sentence, which is when payments must be made. .

The release of the amounts, however, may not occur so quickly, since those involved in the trial are entitled to file motions for clarification, asking that the points of the thesis to be signed be clarified.

Lawyers, however, celebrate the victory. “Usually when there is a decision with general repercussion in this way, the INSS can make the automatic, administrative application”, says Saraiva. In this case, the insured would gain the right to correction in an administrative manner.

According to João Badari, from Aith, Badari and Luchin, there was great expectation in this trial. “This is the main point that Brazilian society expects from the Federal Supreme Court, the guarantee of a fundamental precept: legal certainty. Pillar of the democratic state of law.”

In the actions, there are cases of policyholders who have already obtained the right and will receive more than R$ 100 thousand in arrears from the INSS. Saraiva explains that, depending on the insured’s professional profile, the payment of retroactive amounts can exceed R$ 200 thousand.

See some cases

Example 1:

• The 64-year-old retiree, whose profession was a physiotherapist, applied for the benefit to the INSS in October 2016
• The initial value of his retirement was R$ 1,962.16, at the time
• Before 1994, he had 214 contributions. Then it was 210 months
• With the review, requested in October 2020, the pension amount is BRL 2,256.22
• The amount of arrears to which he was entitled was BRL 17,457.71

Example 2:

• The insured retired by age in September 2018, with a benefit of BRL 954
• He had, in all, 312 contributions, many of them between the minimum wage and the ceiling.
• With the review, requested in 2019, the benefit amount increased to R$ 5,194.41
• He is entitled to R$ 88 thousand in arrears

Example 3:

• The insured retired for the period of contribution in 2014, with a benefit in the amount of R$ 2,839.15
• He had 192 contributions; between 70% and 90% of them were in the amount of the INSS ceiling
• The review was requested in 2017
• Retirement rose from BRL 4,453.84 to BRL 5,778 this year
• The amount of arrears is BRL 106 thousand

Example 4:

• The insured applied for retirement by contribution time in 2009
• The value was R$ 1,352.81 at the time
• In all, there were 220 ceiling contributions for most of the time before 1994
• The benefit went from BRL 2,944.75 to BRL 3,945.97 in 2022
• The amount of arrears is R$ 105 thousand

understand the fix

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 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 consider the 80% highest salaries of the entire time of contribution.

As a result, those who were already insured by the Social Security and concentrated their largest contributions at the beginning of their professional life, before the creation of the Real Plan, in July 1994, were harmed. It is this distortion that retirees try to reverse in court.

CHECK WHO IS RIGHT

The review of life 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 the review, as long as it is before the retirement of Social Security, established 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 must answer these questions to find out if he or she fits the profile. Furthermore, it needs calculations, as it does not pay off for everyone”, says Badari.

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.