Review of a lifetime: INSS has 10 days to respond to the STF – 03/02/2023 – Market

The STF (Federal Supreme Court) gave the INSS (National Social Security Institute) ten days to present a schedule with the guidelines for compliance with the lifetime review.

In an order released on Wednesday (1st), Minister Alexandre de Moraes determined that the body should present a “schedule for the application of the guideline formed in Theme 1.102 on general repercussion”.

Approved by the ministers of the Supreme Court by 6 votes to 5 in December 2022, the lifetime review is a correction in which retirees can include contributions made before 1994 in the calculation of retirement, allowances and pensions, benefiting those who had higher payments before the start of the Real Plan.

In his decision, the minister says it is not “reasonable” for the institute not to give an answer to policyholders, even after the Supreme Court’s position in favor of the correction. “It is unreasonable that, once the Supreme Court has established guidelines for the matter, the practical result of the judicial order remains without any forecast.”

He also asks the INSS to present how and when it will make the payments. “Thus, it is necessary that the requesting social security autarchy inform how and within what deadlines it proposes to give effect to the understanding defined by the Federal Supreme Court.”

AGU asked for suspension of proceedings across the country

This is the first time that the minister has manifested himself in the process after a request by the AGU (Attorney General of the Union), made on February 13, for the national suspension of all processes on the subject in the Judiciary. The reason, according to the body that defends the INSS, would be the fines imposed on the institute in actions on the subject, even before the final decision.

In the document, the Advocacy General of the Union also stated that the review involves 51 million active and inactive benefits, which would require operational efforts from the INSS and Dataprev (a technology company of the federal government) above current technical possibilities.

Moraes’ decision was taken after studying the arguments presented by the AGU and considering arguments sent by Ieprev (Institute of Social Security Studies), which participates in the process as “amicus curiae”. Now, the INSS must present to the Supreme Court how the organization will be carried out so that the institute can pay the amounts in compliance with the court decision.

In the dispatch, he says he will respond to AGU’s request after presenting the requested schedule. “The measure of suspension of processes will be evaluated after the aforementioned plan is attached”, he says.

According to lawyer João Badari, from the Aith, Badari e Luchin Advogados law firm, who represents Ieprev in the STF’s lifetime review, this minister’s decision will define how to make payments of corrected and delayed benefits effective.

“The STF cannot change its position. It has already been in favor of reviewing its entire life. What the minister, in a very coherent way, did in this decision, is to give the INSS the opportunity to inform what would be the reasonable period for the institute to organize itself to give effect to the fulfillment of its decision.”

For lawyer Rômulo Saraiva, specialist in social security law and columnist for Sheetin this pronouncement, Moraes would be leaving the AGU’s request on hold and, as a result, the cases can continue to be judged in the Judiciary throughout the country.

“The practical effect of this is that the decisions that are in the lower courts can, in theory, be appreciated, even without the final and unappealable review of the whole life, because this order from the minister is making it clear that the requested suspension has not yet been accepted by the AGU”, he says.

Ministry of Social Security wants to make payments after agreement

according to Sheet he added, the Minister of Social Security, Carlos Lupi, intends to pay the review administratively, at the INSS, after an agreement. The payment schedule could be made as in the Article 29 revision agreement, in which the amounts were released in batches.

If it happens as it was done at the time, the Ministry of Social Security could propose a payment schedule for the amounts. The release of values ​​took place over ten years.

The review of article 29 was judged by the Supreme Court in 2012 and, in the same year, the agreement was reached. A payment schedule was published taking into account the age of the insured person, whether he was still receiving the benefit and the amount of arrears to define the dates of each batch.

For Saraiva, proposing an administrative payment agreement would be a way for the INSS to get ahead of what happened in 2012, when the Federal Public Ministry filed a public civil action requesting the payment of the right to all insured persons who had been harmed by an error in institute calculation.

Badari, however, believes that the whole life review case is different and administrative payment would not fit, but settlements in lawsuits.

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 calculation.

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

Those who went to court for the review asked for the right to the most advantageous calculation, using the legal argument that the INSS should pay the best benefit.

Who is entitled to lifetime review

The insured person who retired in the last ten years is entitled to review, provided that it was before the Social Security 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. In this case, the average salary calculated by the INSS to pay the retirement was made with the 80% highest salaries since July 1994, when the Plano Real became effective, leaving behind other values.

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. If they include old, low-value wages, they could reduce the pension they earn today.