INSS insured will have to return injunctive relief, decides STJ

The INSS (National Social Security Institute) policyholders who received advance amounts of benefits through guardianship will have to return the amount to the institute if they lose the process, according to a decision of the STJ (Superior Court of Justice).

In judgment last Wednesday (11), the ministers defined thesis for the repetitive theme 692. The decision taken will apply to all processes of the type that involve discussions about social security benefits, disability and assistance, of the general and specific regimes of states , municipalities and the Federal District.

According to lawyer Fernando Gonçalves Dias, who defended the policyholders at the trial, there is only one exception that will allow the policyholder not to return the money, if the worker receives the advance in action on which there is already established jurisprudence. If this jurisprudence falls and the new decision is contrary to what the beneficiary had already achieved, no refund will be necessary.

As a rule, the INSS may charge up to 30% per month from insured persons who lose the process, including cases that discussed assistance benefits such as the BPC (Benefício de Prestação Continuada), paid to needy elderly people and people with disabilities who prove to be in a situation of vulnerability. . In these cases, the insured receives only a minimum wage, currently at R$ 1,212.

Dias says he will appeal. “The decision will cause hundreds of thousands of people to receive less than one minimum wage in the country. Because most have a payroll loan and the limit is 35% today. A person with a minimum salary who has a payroll loan already receives less, around R$ 800. The Social Security will be able to consign another 30%, but on the R$ 1,212. This person will receive around R$ 460 per month, for many years”, he says.

The issue 692 was judged at the STJ in 2014, according to the lawyer, but a decision taken by the STF (Federal Supreme Court) on another issue, number 709, understood that amounts received in good faith by the insured did not need to be returned.

With the Supreme Court’s definition, judges from all over the country started to follow the court, so that the insured did not need to return the money to the INSS if they lost the lawsuit. As there were resources, the case reached the STJ again.

For lawyer Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law), the goes against the Supreme Court’s position, harming policyholders. According to her, there was a thesis previously signed by the STJ, but the issue was under review, with the intention of knowing whether assistance or disability benefits would be left out.

“The established thesis now maintained the previous decision, reaffirming the need to return, even in assistance benefits. It still limited the value to 30% of the benefit”, says Adriane.

Insured must be careful when going to court

Among the precautions that the INSS insured should take when going to court against the institute is to know exactly in which cases the injunctive relief should be requested, says lawyer Roberto de Carvalho Santos, president of Ieprev (Institute of Social Security Studies).

“The protection must be requested in cases where there is already dominant jurisprudence in a repetitive appeal, in a matter already judged by the STJ, STF or TNU, that is, in cases where there is already a precedent, which are already defined in the instances superiors”, he explains.

He also says that there is increasingly a limitation on the insured to enter the Federal Special Court, where he can file a lawsuit without a lawyer. “The risk of the person losing the action and having to return the money is much greater now. The lawyer who is very well updated will know the time and whether to ask for guardianship or not”, he says.

Supreme was against the return of values ​​in the special retirement

In 2021, in the judgment of the embargoes of theme 709, the STF decided that the special retiree who returned to activity in a harmful area does not need to return the amounts already paid by the INSS. The understanding, at the time, also applied to those who receive retirement through early guardianship.

The judgment dealt with embargoes for clarification on a decision that prohibits the payment of retirement for those who have special benefits and return to the unhealthy area or remain there.

“Individuals who had been receiving the social security benefit due to requests granted by the Judiciary – or even voluntarily by the administration – are exempt from any obligation to return the amounts received until the proclamation of the result of this judgment”, said Minister Dias Tóffoli. , rapporteur of the case at the time.

Collaborated with Ana Paula Branco