INSS: government will pay assistance and BPC expertise in Justice; see what changes

President Jair Bolsonaro (PL) sanctioned a bill that guarantees the payment of aid and BPC (Continued Benefit Benefit) in Justice. Law 14,331, published in the Official Gazette this Thursday (5), should unlock legal proceedings that had been stalled since September 2021.

The measure establishes the payment of expert examinations by the federal government when the INSS (National Social Security Institute) loses the case. On occasions when the institute is victorious, however, the insured may have to bear the cost, if he does not prove financial incapacity.

According to the new law, the government will pay only one expertise per process. To really start, a project is needed with the release of values ​​by the Ministry of Labor and Welfare.

According to lawyer Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law), in general, the insured who discusses the right to a disability benefit or an assistance benefit, as is the case of the BPC, has no income to pay for the values ​​and should not be charged, even if lost. With this, you will hardly have to pay for the expertise.

However, the citizen will have to prove, at the beginning of the process, that he does not have the money to pay for the payment if he loses the action. The ideal, according to her, is for the worker to request access to free justice, if he meets the criteria. In the Federal Special Courts, where the insured can file a lawsuit without the help of a lawyer, it is necessary to bring documentation that guarantees the gratuity.

Diego Cherulli, director of the IBDP, advises policyholders to have all the specific documentation related to their case, so that it is easier to prove their right to the benefit in court. “Get the medical record from your doctor, a report with a report and ICD [Classificação Internacional de Doenças] of the disease, also explaining why the disease disables him and what is the relationship between it and work”, he says.

Money will be released to the Federal Justice Council

The law determines that the CJF (Council of Federal Justice) will be responsible for distributing the money to the TRFs (Regional Federal Courts) and Courts of Justice, where there are actions when the release of sickness benefit is due to accident or illness at work.

There is also in the text of the law a determination of how the initial petition for the disability benefit in the Judiciary should be. The document must have:

1. Clear description of the disease and the limitations it imposes
2. Indication of the activity for which the author claims to be incapacitated
3. Possible inconsistencies in the medical-expert assessment discussed at the INSS
4. Statement as to the existence of a previous lawsuit on the same case

Approved in March by Congress, the bill was sanctioned on the last day of the deadline.

“I think the law was not ideal, the ideal was for the Executive power not to question and make the payment, but the way it was, it’s not the end of the world. It solves the problem of expertise, creates others, which will be solved in legal matters”, says Cherulli.

End of single contribution

Law 14,331 ends a rule approved in the 2019 Social Security reform, which allowed the insured to obtain retirement counting, in the calculation of the benefit, with only a high-value contribution. The possibility is no longer valid from now on, although the INSS was already barring such requests.

The 2019 reform created the possibility for the worker to discard, in the calculation of retirement, as many contributions as are necessary to increase the average salary on which the benefit will be calculated.

This only occurs, however, if the insured has the minimum number of payments required to claim the benefit, which is 180 contributions, and provided that the discarded contributions are not used either in the INSS or in another social security system.

An example of retirement with a single contribution would be that of a worker who has completed 15 years of INSS before July 1994 and, currently, has reached the minimum age required.

With six more contributions paid in reais, in smaller amounts, and a contribution towards the INSS ceiling (R$ 6,433.57 in 2021), there was, until the publication of the new law, the possibility of discarding these six payments and using them as a reference for the calculation only the contribution by the ceiling.