INSS revision can even reduce retirement; see how to avoid mistakes

When reader José Roberto Gonçalves, 60, won the appeal against the INSS (National Social Security Institute) and had more contribution time included in the calculation of his retirement, he expected an increase in the benefit. The opposite happened: after the review, the retiree started to receive 15% less than he earned before.

Unwanted surprise is possible, according to experts. When the INSS begins a benefit review process, all documentation goes through a fine-tooth comb, not just the new documents presented. In this process, if the institute finds any previous error that modifies the calculations, the benefit may increase, decrease or even be cancelled. But there are cases, such as the retired José Roberto, in which the INSS errs when reviewing and calculating the new benefit.

INSS corrects calculation and insured starts earning more

contacted by Sheet, the INSS revised Gonçalves’ retirement calculations again and recognized that it had been wrong in reducing the benefit amount. In a note, the institute says that the higher amount will count from the competence of April 2022, which starts to be paid this Monday (25).

“In response to José Roberto Gonçalves’ request, we clarify that the INSS carried out a review of the insured’s benefit. As a result of this review, the monthly retirement income will be increased from April 2022, paid in May 2022”, says the organ.

“He will also receive late amounts for the period from 05/20/2018 to 03/31/2022. The release of this amount is in process and will be deposited in the insured’s current”, complements the INSS.

Request for review should not be generic, say experts

Adriane says that the insured who is considering asking for a review of the benefit should start by studying and checking the administrative process and the concession letter, which includes contribution time, salaries, unhealthy periods (if applicable) and the calculations applied to grant the income. pension.

“Sometimes the insured asks for a review, but an empty review: ‘Oh, I want a review of my benefit because it’s low’. But that’s not good, because he doesn’t really know what he’s asking for” , explains Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law). “The ideal is to know exactly what the problem was with his benefit.”

The expert suggests that the insured redo the calculation before asking for the review, so as not to have surprises with the final value. However, as this is a difficult account, the ideal is to hire an expert so that the correction request does not result in a lower amount.

Who can request the review?

According to the INSS, requests for review can be requested by the person who wants a new analysis of the process, if they do not agree with any parameter used in the granting of their benefit.

“The request must be substantiated, that is, the insured must demonstrate which values ​​and indexes used in the granting of the benefit do not agree or think it is incorrect, and may present additional documentation”, says a note from the institute.

In addition, the review can only be requested in the first ten years of receipt of the benefit, counted from the first day of the month following the first payment. After that, it is no longer possible to question the initial value.

Should the request be made at the post office or in court?

The INSS itself informs that the request for retirement review must be made, initially, through administrative means, as the STF (Supreme Federal Court) has already decided. The request is made through the Meu INSS app or website, without the need to go to an agency.

According to Roberto de Carvalho, president of Ieprev (Institute of Social Security Studies), the legal deadline is 30 days to respond to the request for review.

There are three legal deadlines for responding to the benefit review. In general, the highest limit is 90 days, after which it is possible to file a writ of mandamus to demand that the INSS comply with legal deadlines.

The law of the General Social Security System (law 8.213/1991) establishes a maximum period of 45 days, extendable for another 45 days, if there is just reason. The administrative proceedings law (law 9,784/1999) provides for 30 days, extendable for another 30 days, if there is just reason. Finally, the agreement signed between the INSS and the Federal Public Ministry establishes a period of 90 days.

“It is not necessary to exhaust the administrative route, you can file a request for review and, if the INSS does not give you a response, it takes a long time, you can take legal action”, says Santos.

The lawyer’s orientation is, in the case of factual reviews, to try the administrative route as much as possible, filing complaints with the body’s ombudsman and internal affairs department. The advantage lies in the fact that, in general, the process through the INSS is simpler and faster than a judicial process. In addition, payment is made directly, without the need to release arrears.

In some specific situations, however, the orientation is already to seek the Judiciary first. “These are revisions that the INSS will already deny, like the revision of a lifetime, which is a revision based on a legal thesis”, explains Carvalho. The case is the same for the ceiling revision, granted to retirees who contributed with high amounts, but had limited benefit.

Some court decisions considered the INSS rules to be unconstitutional for calculating disability retirement and death pension quota. Those who were harmed by the original rule should also seek the judicial route to review the issue, without going through the INSS.

Bramante and Carvalho agree: due to the variety of possibilities and situations, it is interesting to look for a social security lawyer, who can analyze the case specifically to choose the most appropriate route.

March normative instruction changed review receipt rules

Normative Instruction (IN) 128, published on March 29, has more than 200 pages with rules and clarifications on the rights of policyholders and the institute’s internal processes. Bramante explains about arrears counting (backdated values ​​achieved in the review).

In cases where the request for review is based on documents that the INSS was already aware of since the granting of retirement, there is a right to differences since the granting of the benefit or, if the implementation takes more than five years, relative to the five years prior to the review request.

But if the review is requested based on new documents, which were unknown to the INSS when the benefit was requested, the arrears will only be counted from the date of the review request.