INSS: 1 in every 6 benefits went through the courts in 2023 – 12/08/2023 – Market

For every six benefits granted by the INSS (National Social Security Institute) between January and September 2023, one was established by court decision, show official government data compiled by Sheet.

According to information from Beps (Social Security Statistical Bulletin), 697.5 thousand of the 4.3 million new benefits granted this year result from a court decision, which represents a proportion of 16.2%.

The situation reveals an unprecedented degree of judicialization in Social Security, which worries experts in the field. In addition to being a symptom of inefficiencies in the administrative process, with negative impacts on the lives of Brazilians, excessive judicial concessions generate extra costs for public coffers.

Once convicted, the Union must pay late amounts with monetary correction and interest, not counting remuneration for judicial services such as expertise (carried out by a professional hired by the Judiciary itself).

The phenomenon is not new, but it is undergoing a real escalation. In 2001, only 1% of benefits were established through the courts. This percentage reached 8% in 2010, 13% in 2020 and continues to rise. Last year, the degree of judicialization was 14.8%.

In some modalities, the situation is even more serious. In the special retirement, given to insured people who work under conditions that are harmful to their health or physical integrity on a habitual and permanent basis, the Court granted 94% of the benefits established in September 2023, while only 6% were covered by the INSS itself.

One of the possible explanations for the problem is the operational difficulties of the INSS, exacerbated in recent years with the reduction in the number of employees, the increase in waiting times for benefits analysis and the congestion in the queue for medical examinations.

In the opinion of experts and the president of the INSS himself, Alessandro Stefanutto, the delay in providing assistance to the insured person encourages him to seek justice to access the benefit.

In September, the queue accumulated 1.635 million administrative or medical expertise requests, of which 45% were awaiting a response for more than 45 days. In modalities that depend on expertise, the average waiting time is usually even longer.

The body’s lack of operational capacity has already been the target of warnings from the TCU (Federal Audit Court).

“I don’t believe that the Judiciary is any nicer. The INSS’s inability to respond means there is a lot of judicialization”, says Stefanutto to Sheet.

“In the queue I received, there are hundreds of thousands of retirements due to contribution time with special time. Why am I not doing [a análise]? Because there are more emergencies”, he explains.

The granting of special retirement depends on the analysis of the request by the medical expert, whose staff is overburdened with the evaluation of benefits due to temporary incapacity (such as sickness benefit) or BPC (Continuous Payment Benefit) for low-income people with disabilities.

At the end of November, Stefanutto issued an ordinance making procedures more flexible for those who work exposed to noise, allowing administrative staff to analyze the documentation detailing the worker’s exposure. This is an attempt to reduce bottlenecks, but is still far from solving the structural problem.

According to data from the AGU (Attorney General of the Union), the INSS received an average of 1.4 million new legal demands per year in the last three years. In 2023 alone, the municipality was successful or settled in 64.5% of cases and was convicted in 35.5% of first-degree sentences.

A panel from the CNJ (National Council of Justice) shows even higher figures, with 2.56 million new cases linked to social security law filed in special or first-degree courts in 2023. Last year, this number was 3.16 million .

Former president of the INSS and former secretary of Social Security, Leonardo Rolim believes that the courts get most of the decisions right when it comes to reviewing administrative denials. He explains that the retirement rules in Brazil are complex, and so is the work history of the insured, as they go through different positions and are not always able to gather all the necessary evidence to obtain the benefit claimed.

“Within the INSS there is a system that analyzes the quality of civil servants’ decisions, developed in 2019. It is a sample audit. [Os resultados mostram que] When it grants a benefit, it almost always grants it correctly, but when it denies it, there is a very high percentage of errors, between 20% and 30%, largely due to this culture of ‘when in doubt, deny it'”, he states.

In actions involving medical expertise (more than half of the cases), there is a problem linked to management. According to Rolim, the absence of the federal expert at the judicial hearing, whether due to lack of personnel or lack of integration with the AGU, is usually decisive for the defeat of the Union. “When the INSS expert accompanies [a audiência]in most cases the judicial expert is convinced”, says Rolim.

Technicians who have already worked in the area state, under condition of reservation, that the INSS is experiencing “administrative chaos” that crosses administrations. While trying to gain efficiency to cover all requests made by policyholders in an appropriate time, the body needs to incorporate new court decisions that modify already consolidated understandings and further burden the benefits analysis structure.

The change in jurisprudence, according to one of the technicians, means that the INSS spends more time looking at the past than solving current problems.

The whole life review is cited as the most recent example. In December 2019, the STJ (Superior Court of Justice) decided that policyholders can request the inclusion of contribution salaries prior to July 1994 in the retirement calculation, invalidating the 1999 law that established the launch of the Plan as the cut-off date. Real.

The judgment on this review still needs to be concluded in the STF (Supreme Federal Court), but, according to technicians, part of the initial grant requests are already made based on the whole life review thesis.

The server’s decision ends up being between holding the analysis to await the judgment or granting the benefit under the current calculation rule. In both situations, the risk of the citizen taking legal action is high.

The coordinator of IBDP (Brazilian Institute of Social Security Law) Joseane Zanardi also cites the whole life review as a possible source of a greater number of lawsuits against the INSS. She assesses that the increase in judicialization is a reflection of undue rejections, which she attributes to the more intensive use of automation in analysis. “Unfortunately, the courts will also not resolve the issue as quickly as the insured needs,” she says.

Rolim raises the hypothesis that a change made in the Social Security reform has accelerated judicial decisions. Previously, any action involving benefits could be filed with the State Court, despite the INSS being a federal body, through so-called delegated competence.

In the reform, the scope of this jurisdiction was greatly reduced, taking more cases to the Federal Court, where processing tends to be faster. If this is the case, the former president of the INSS highlights that convictions may increase initially, but the government will have a lower cost in interest and fines.

Stefanutto, from INSS, states that facing the slowness of analyzes comes up against some interests. According to him, a minority of lawyers see advantages in delay, since the bill for arrears — on which fees are calculated — becomes larger.

“There is a good intermediary and an evil intermediary. The good intermediary, he does everything, charges an appropriate fee, but there are people who [pensam] ‘The longer it takes to deliver the benefit to the person, the more I will receive'”, he criticizes.