INSS: see how to ask for a lifetime review in court – 07/03/2023 – Market

The CJF (Conselho da Justiça Federal) is proposing a working group for the analysis and payment of the review of the entire life in Justice. The correction, which guarantees the inclusion of old salaries in the INSS (National Social Security Institute) retirement to increase the benefit, was recognized by the STF (Federal Supreme Court) in December 2022.

In April, the Supreme Court published the decision, confirming the right of the insured. In the document, with about 190 pages, the thesis defined in the judgment prevailed, without alterations.

“The insured person who implemented the conditions for the social security benefit after the effectiveness of Law 9.876, of 11.26.1999, and before the validity of the new constitutional rules, introduced by EC 103/2019, has the right to opt for the definitive rule, if this be more favorable”, says the thesis.

The INSS appealed, with a request for a motion for clarification, requesting the stoppage of the actions that are being processed in court, but the STF did not comply with this request. Meanwhile, thousands of lawsuits in various courts across the country progress differently, depending on the judge in the case. There are those that are in the execution phase and can already receive the amount, there are those that are in the initial phase and there are those that are stopped.

Concerned about the high number of judicial requests, the judges of the CJF gathered, in a document published in May, proposals for the progress of the review. According to the council, most insured persons will be entitled to amounts of up to 60 minimum wages, with actions proposed in the Federal Special Court.

The CJF document says that there are at least 17,000 actions in the TRF-3 (Federal Regional Court of the 3rd Region), which serves the states of São Paulo and Mato Grosso do Sul, and 21 collective actions in the TRF-4 (Regional Federal Court of the 4th Region), which serves the southern states, proposed only after the approval of the review by the Supreme Court.

The body’s concern is with the complexity of the review, which requires analysis of the entire contributory life of the insured person.

“For a lifetime review, the entire contributory history of the insured person should be reviewed to verify whether, with the extended basic calculation period, there will be an advantage for the insured person. It turns out that the INSS, due to successive legislative changes and changes in forms and record of collections over decades, does not have all this data in its computerized bases, in a structured and reliable way, extractable from the plan for calculating administrative and judicial reviews”, says the body.

How do I know if I’m entitled?

The insured person who believes he is entitled to review his entire life must, first of all, know if he fits the rule defined by the Supreme Court. You must have been retired for less than ten years, and have had the benefit granted between 1999, when there was the Social Security reform that resulted in the calculation change, and 2019, the date of the last Social Security reform.

This is because, with the 2019 reform, it was defined that the INSS must consider the entire contributory period of the insured person to calculate and pay retirement and there is no possibility of changing the calculation.

In addition, it is necessary that the whole life review results in an advantage for the insured person, that is, that the basic period of extended calculation generates a greater benefit than that calculated by the current rule. In addition, the review is not automatic, and it is necessary to request it in court.

How to go to court?

In order to go to court with the request for a lifetime review, the insured person needs to have a lawyer. Although this action can be proposed in the Special Federal Court, which does not require a lawyer, Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law), does not recommend that the retiree do this.

“In the whole life review, it is important that the insured person presents the calculation sheet proving that his review is favorable, even knowing that there will not be a reduction. It is necessary to show the interest to act, that is, interest in the review”, she says.

In the last week, Adriane and lawyer Rodrigo Sodero, member of the Social Security Law Commission of the OAB (Order of Lawyers of Brazil) in SP, detailed live the statements published in the TRF-3 (Federal Regional Court of the 3rd Region) on the review of life.

The statements bring the rules for claims for policyholders served by this court, which receives cases from those who live in São Paulo and Mato Grosso do Sul.

According to Sodero, one of them claims that information on wages must be in the Cnis (National Social Information Register). “How do I calculate the contribution salary when I don’t have the contribution salary at the Cnis?”, he asks.

“The INSS can accept changes to the work card as proof of revision or granting of social security benefits, but ideally we have all the information about the contribution salary at the Cnis. The problem is that, in the case of former employees to 1982, we don’t.”

The solution, say the lawyers, is to ask for the correction of the Cnis administratively at the INSS. The review is requested in court.

What are the problems involved in proving the lifetime review?

The problem is that old salary records are not registered with the INSS, and the insured person will have to prove them with some kind of documentation. The institute’s databases began to be fed more frequently after 1976, with the obligation for employers to register their employees annually in the Rais (Social Information List).

Until 1976, there was no such obligation, nor was there the Cnis (National Social Information Register). From 1976 to 1981, information on insured employees was provided by employers through the annual Rais, in the month of December. After that, until 1994, the information became monthly.

Also, for individual taxpayers, there is no information on the Cnis.

What documents are needed to have the review?

Social security lawyer João Badari, from Aith, Badari and Luchin, says that the work card is the main document to make this request, and must be accepted by the INSS, without the need to include old wages in the Cnis.

Lawyer Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law), says that anyone who wants to request a review in the TRF-3 region must, first, request a change from the Cnis to the INSS, which can facilitate the recognition of the right to review.

Can a lifetime review be requested at the INSS?

According to lawyer Rômulo Saraiva, specialist in Social Security and columnist for Sheet, although the INSS has opened a space for reviewing your entire life in Meu INSS, this request should not be made at the institute. The insured must go straight to court.

This was one of the resolutions of the CJF’s Social Security Law Conference last month, in Brasília (DF). In one of the statements, which will still be published, the council defined that the whole life review must be requested in court and does not need to be requested by the INSS beforehand.

“Insureds must continue to take steps to carry out a review of their entire lives, considering that the INSS remains inert at the administrative level in making this right effective. By filing the action, without waiting for the STF, the retiree is able to freeze the decay period increase the value of arrears”, he says.