INSS: What can happen with the lifetime review – 02/01/2024 – Market

The STF (Supreme Federal Court) resumes, this Thursday (1st), the judgment of the so-called whole life review, which allows INSS (National Social Security Institute) insured to use all their social security contributions to calculate benefits , not just those made after July 1994.

The review was approved in December 2022, by 6 votes to 5, maintaining the understanding of the STJ (Superior Court of Justice), that, in the face of changes in social security rules, the insured person has the right to choose the one that is most favorable to them.

However, after recognition, the AGU (Attorney General’s Office), which represents the INSS in court, filed an appeal to limit the effects of the decision and the scope of the payment. The institute is also trying to annul the STJ’s decision that considered the review constitutional.

Minister Alexandre de Moraes interrupted the trial to resume it in the physical plenary session of the STF. The session should begin at 4 pm, after the opening session of the 2024 Judicial Year.

So far, seven ministers, including Moraes, have voted, in different directions.

Moraes, rapporteur of the process, wants to set a time frame to allow retirees to choose the most favorable retirement rule. For the minister, the reference is December 1, 2022, when the STF judged the merits of the action.

Rosa Weber, who has since retired, also understood that there should be modulation of effects. But, for her, the milestone is December 17, 2019, when the STJ confirmed the right to correction for retirees.

Edson Fachin and Carmén Lúcia followed Rosa’s vote.

Cristiano Zanin, Ricardo Lewandowski’s replacement (who voted in favor of the lifelong review), welcomed the INSS’s claim to annul the STJ’s ruling. He proposed returning the case to the STJ. For him, there was an omission in Lewandowski’s vote, as he did not observe what Article 97 of the Constitution says. If the annulment is unsuccessful, the minister proposes that the time frame for modulating the effects of the decision be December 13, 2022, when the minutes of the judgment on the merits were published.

Luís Roberto Barroso and Dias Toffoli followed Zanin’s vote.

Ministers Gilmar Mendes, Luiz Fux, Nunes Marques and André Mendonça have not yet voted.

Upon resumption, all ministers will have to speak out, and those who have already voted will be able to change their votes. Only Rosa Weber’s cannot be changed, as she has retired. She will be replaced by Flávio Dino.

The review has been awaited by retirees and pensioners for 20 years. The institutes that participate in the process as “amicus curiae” (friends of the court), IBDP (Brazilian Institute of Social Security Law) and Ieprev (Institute of Social Security Studies), defend that the initial decision be complied with in its entirety.

For Diego Cherulli, director of IBDP, any decision that would revoke the right to arrears (retroactive amounts) would be a precedent of enormous harm to INSS policyholders.

Regarding the possible annulment of the process, the presidency of the OAB-SP presented a statement opposing Minister Zanin’s vote.

The entity asks for the maintenance of the vote of retired minister Ricardo Lewandowski, as well as the recognition of the impossibility of re-discussing the merits in clarification embargoes.

Until the trial is concluded, all processes related to the topic are suspended.

WHO HAS THE RIGHT TO A LIFETIME REVIEW

The lifetime review is a limited correction, which does not benefit any retiree, but only those who received higher salaries before July 1994.

Furthermore, some of the beneficiaries who did not go to court within the deadline may have already lost their right.

For those who did not go to court, the correction can only be requested within ten years, starting from the month following the first payment of the benefit.

If the payment of the first pension was made in November 2014, for example, the deadline to request a calculation review ends in December 2024.

Another point to note is that the benefit must have been granted based on the rules of law 9,876, of November 1999.

Payments made to Social Security in other currencies before the real are only considered when counting the total time of contributions, that is, the values ​​are not included in the calculation of the average salary, which is the basis of the benefit.

The retiree must meet the following requirements:

• Entered the formal job market (with a formal contract or contributing individually) before July 1994

• He made a considerable part of his highest contributions to the INSS until July 1994 and then concentrated payments on lower amounts

• Received the first retirement payment less than ten years ago (maximum period to exercise the right to review the benefit)

• He retired before the start of the last pension reform, in November 2019

• The benefit was granted based on the rules of law 9,876, of 1999

CHECK THE REVISION TIMELINE

• In December 2022, the STF considered the constitutional review calculation model
• In March 2023, the INSS requested the suspension of review processes while the appeal is judged by the Supreme Court. The Institute also requested that the thesis not apply to social security benefits that have already been extinguished, such as in the event of the death of the beneficiary
• Since July 2023, retirement review processes have been suspended by decision of Minister Alexandre de Moraes, rapporteur of the case
• On August 11, the STF began judging the appeal, however minister Cristiano Zanin Martins requested a review and suspended the process for up to 90 days
• In November, the plenary returned to the review trial, but the final decision will be given in 2024, after the Judiciary recess