Court authorizes withdrawal of FGTS to families of autistic children

Families that have dependents with ASD (Autistic Spectrum Disorder) have obtained the right to withdraw the balance of the FGTS (Fundo de Garantia do Tempo de Serviço) in court. The disorder is not among the hypotheses provided for in the law that authorize the worker to use the fund, but the courts understand that it is possible to withdraw the money to help with expenses to cover professional follow-up.

In early March, the TRF-3 (Federal Regional Court of the 3rd Region), which serves São Paulo and Mato Grosso do Sul, confirmed a ruling in this regard. The decision was unanimous and determined that Caixa Econômica Federal, manager of the FGTS, release the loot to the father of an autistic boy.

When he filed the suit, in 2019, the worker had R$119,000 in the FGTS, adding up deposits from four jobs since 2011. He claimed that he needed the money to pay for multidisciplinary treatment for his son, diagnosed with ASD when he was two years old.

As usual in these cases, the request to withdraw the FGTS was denied by Caixa. Both in administrative requirements and in legal proceedings, the bank claims that it cannot release the movement of the balance outside the hypotheses listed in federal legislation.

Although the money belongs to the worker, the law allows access to the fund in specific cases. In addition to unfair dismissal and purchase of a home, there are situations related to the health of the worker or dependent. Among them are people with HIV, people with cancer or with a serious illness in the terminal stage.

Strictly speaking, autism does not fit into any case.

In the lawsuit that reached the TRF-3, the worker brought medical reports that prove the diagnosis of ASD and the need for specialized monitoring for the child.

In the first and second instances, the Federal Justice understood that the worker had the right to withdraw the FGTS, citing other precedents of the TRF-3 itself related to cases of autism. There is appeal.

Federal public defender Luísa Ayumi says that the ideal would be a change in the law or a judicial decision in a class action that would determine the authorization of the use of the FGTS to all families with autistic dependents. In the meantime, Caixa is obliged to deny the requests, based on the literal interpretation of the legislation.

“Caixa manages to release administratively only in the cases provided for by law. In other cases, not expressly provided, the solution is to file a lawsuit, to seek an interpretation in accordance with the social purposes of the program”, says Ayumi.

The understanding of TRF-3 is not isolated. All five federal regional courts have decisions authorizing the withdrawal of FGTS for families with an autistic dependent. The STJ (Superior Court of Justice), responsible for standardizing federal jurisprudence, does not have a specific judgment on cases involving FGTS for autistic dependents, but has already decided that the list of diseases provided for in the law is only exemplary – and, therefore, admits situations not described.

System coordinator Ricardo Rockenbach Nascimento, 40, filed a lawsuit with the Federal Court of Paraná in May 2020 to ask for access to R$99 thousand reais he had in the FGTS at the time. He is the father of Felipe, who is now 4 years old, diagnosed with ASD at 2.

Through a medical report, Ricardo proved that the son has level two autism (there are three levels, which advance according to the severity of the symptoms) and needs continuous treatment indefinitely. Later, Maria Clara, Felipe’s twin, would receive a diagnosis of autism level 1.

The process took eight months for the judge to sentence Caixa, but the money was only released after the court confirmed the sentence, three months later.

Carina Nascimento, 39, the twins’ mother, says that Felipe’s treatment alone includes psychotherapy, speech therapy and occupational therapy sessions that cost a total of R$1,200 per week. Other expenses are added, such as specialized educational toys, necessary to encourage children at home, and medicines.

“Parents of autistic children shouldn’t have to explain why they need [do FGTS]. It’s our money rightfully and that helped us a lot”, says Carina. The couple is now facing another legal dispute, this time against the health plan, to collect the reimbursement of expenses with the treatment of the twins in Guaratuba (PR), where live.

HOW TO FILE ACTION TO ASK FOR FGTS RELEASE

Actions to request the release of the Guarantee Fund withdrawal are the responsibility of the Federal Court.

The DPU (Public Defender of the Union) assists families with a monthly income of up to R$2,000 or who prove inability to pay a lawyer for free. Check this link for DPU service points and contacts.

If the total amount requested in the action is up to 60 minimum wages (R$ 72,720), it is possible to file the request directly with the Federal Special Court, without the need for a lawyer. Above this value, it is necessary to enter a Federal Court, always with a lawyer.

Priscila Zangiácomo, a specialist in labor and union relations, says that it is not recommended to file a lawsuit without the guidance of a lawyer, due to the particularity and complexity of the procedure.

According to the lawyer, the following documents are required to file the lawsuit:

• Identity document (RG or CNH, including CPF)
• Work card (can be digital version)
• Up-to-date proof of residency (ideally no more than three months)
• FGTS extract (which can be obtained on the Caixa website or on the FGTS application)
• Copy of medical exams, reports or clinical data that have been informed in the form “Medical Report of Serious Illnesses for FGTS Withdrawal Request”
• If the request is based on the illness or disorder of a dependent, proof of the dependency relationship (such as a birth or adoption certificate) will be required.

See the diseases that guarantee the release of the FGTS:

• mental alienation
• severe heart disease
• Blindness
• Radiation contamination, based on completion of specialist medicine
• Parkinson’s disease
• Ankylosing spondyloarthrosis (ankylosing/ankylosing spondylitis)
• Advanced stage of Paget’s disease (osteitis deformans)
• leprosy
• severe liver disease
• severe nephropathy
• Irreversible and disabling paralysis
• active tuberculosis
• HIV/AIDS
• Cancer
• end-stage disease