Lifetime review comes to an end in the STF; understand – 04/13/2023 – Market

The STF (Federal Supreme Court) published, this Thursday (13), the final decision on the lifetime review of the INSS (National Social Security Institute), approved in December 2022 by 6 votes to 5. which has almost 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 whole life review is a lawsuit in which retirees ask for benefit correction to include contributions made before 1994 in the calculation of retirement benefits, benefiting those who had higher payments before the start of the Real Plan.

The decision of the STF has general repercussions and applies to all similar actions in court.

With the publication, processes that were stalled in court can start moving again. Since February, the INSS has been trying to extend the national suspension of actions, requesting that there be no judgment in lower courts before the judgment is published.

The final decision guarantees correction to whoever files the lawsuit. For lawyer João Badari, from the Aith, Badari e Luchin Advogados office, however, the insured person who is going to make the claim needs to be careful, because the correction is not always worth it. In addition, there are some rules that limit the right. He sees the whole life review as an exception.

To go to court, the retiree needs to have received the first benefit less than ten years ago. In addition, you must have documentation that proves the right to review and calculations that show the possibility of increasing income.

Among the documents are the Cnis (National Social Information Register), work card, payment booklet and copy of the Rais (Social Information List). INSS microfiches can also serve as proof.

For Priscila Arraes Reino, from the Arraes e Centeno office, the Supreme Court understood that there should be no harmful transition rule for those who were already in the labor market, contributing to the INSS, for the benefit of those who had not yet entered the system.

“That [a decisão] it is nothing more than the confirmation of some principles, such as the best benefit, which provides that whenever there is more than one rule, the one that is best for the insured, the most advantageous, will be granted. It’s confirmation of that principle,” he says.

Tonia Galetti, coordinator of the legal department of Sindnapi (National Union of Retired Persons), explains that the Supreme Court decided on the thesis of the best benefit. “The judgment is saying that every insured person has the right to choose the best benefit and, therefore, in this case, the right to choose the definitive rule instead of the transitional rule.”

Who is entitled to lifetime review

The insured person who retired in the last ten years is entitled to review, provided that it is before the pension reform, instituted by amendment 103, on November 13, 2019. It is also necessary that the benefit has been granted based on the rules of Law 9,876 of 1999.

Experts point out that those who asked for the benefit after the reform, but managed to retire with the old rules, through the acquired right, may also be entitled to review.

The correction pays off, however, for those who had high wages before the start of the Real Plan. Workers who earn less will not have an advantage.

UNDERSTAND THE WHOLE LIFE REVIEW

The 1999 Social Security reform created two calculation formulas for the average salary, which is the basis of the value of the INSS benefit. For those who joined the INSS until November 26, 1999, the average salary was calculated on 80% of the highest contributions made from July 1994 onwards. The lowest 20% were discarded.

However, for new policyholders, who began to contribute to the INSS as of November 27, 1999, the rule for calculating the average salary took into account the highest 80% payments of the entire social security life.

Workers with higher old wages were disadvantaged, because they were not included in the most advantageous calculation, which included 100% of wages.

The 2019 pension reform changed this rule, so new retirees are not entitled to review. Today, the calculation of the benefit is made taking into account all wages since 1994, and discarding the possibility of including old values.

What does the Supreme Court say in the final decision

In addition to confirming the thesis defined in the December judgment, the Supreme Court ruling reinforces the understanding of most justices regarding the decision. According to the document, the controversy of the action concerns the fact that the transition rule for those already in the labor market was worse than the new rule, for those who would still start paying the INSS.

“The transitional rule ended up widening the gap between those who earn more and progress and, over time, earning more, those who have more difficulties due to lower education and their average salary is decreasing”, says part of the ruling.

With that, the Supreme understood that the transition of the reform increased social inequalities, a hypothesis not foreseen by the legislator at the time.

“Accepting that a transitory norm implies more severe treatment for the oldest insured person in comparison to the new insured person goes against the principle of isonomy”, he says.

understand the case

The case that reached the STF was of an insured person who joined the INSS in 1976. In 2003, the worker applied for the social security benefit. The amount of income was calculated according to the transition rule of the 1999 Social Security reform, resulting in a pension of R$ 1,493.59.

The worker went to court requesting correction. The request was for the most advantageous calculation rule to be applied, which would result in a benefit of R$ 1,823. In the month, the difference is R$ 329.4. In the year, 4,282.33, considering the 13th salary.

Judged under Theme 1.102, the case reached the Supreme Court in 2020. Before, however, it was approved by the STJ (Superior Court of Justice), which determined the right, understanding that the insured person should always receive the best benefit, according to a previous judgment regarding of INSS pensions.