The INSS (National Institute of Social Security) formalized a rule that prohibits the pensioner from receiving overdue amounts of the original benefit – the one that generated a pension – in administrative reviews.
This type of request already used to be barred by the agency in revisions of pensions due to death, but the publication of Normative Instruction 117, last Friday (21), fills a gap in the internal rules of the institute at the moment when the subject is ready to be tried by the STJ (Superior Court of Justice).
By creating a rule that clearly prohibits the payment of arrears due to a dead beneficiary to his heirs, the INSS tries to close a loophole that could be exploited in a judgment favorable to pensioners in a type of review “with the potential to pay arrears with high values ”, according to the lawyer and social security consultant Rômulo Saraiva.
“Although there is no single position in the Judiciary on the right to arrears generated by the revision of the benefit that gave rise to the death pension, many judges consider this to be a right of dependents,” says Saraiva.
The lawyer explains that the absence of regulations on the revision of the benefit that gave rise to the pension allowed even the insured’s heirs who are not entitled to the pension to request differences in the income correction.
“In many cases, when there is no pension, there are judges who determine the payment of retroactive amounts even as a way to compensate the relatives of the deceased insured for the mistake made by the INSS”, says the lawyer.
The normative instruction published by the INSS does not prevent pensioners from reviewing the original benefit to increase the value of their respective pensions.
Likewise, if the review results in an increase in the pension, the change in the standard does not affect the receipt of retroactive amounts from the date of granting the pension on death.
Origin of the death pension
The pension originates from the death of an insured person who contributes to the INSS – a worker with a formal contract, for example – or from someone who receives a retirement or disability benefit.
In order to have a pension, it is also necessary to have one or more dependents of the deceased insured, whose priority for receiving the benefit is the spouse (husband or wife) and children and stepchildren under 21 years old.
If the pension originated from a benefit granted less than ten years ago, revision of the original benefit is legally viable.
However, for the revision of the original pension arrears benefit to the pensioner, however, it is also necessary that this pension was granted less than five years ago, as this period is the maximum that can be charged for retroactive installments.
In June 2020, the STJ ruled that all judgments on this type of lawsuit are suspended until the court adjudicates the matter, classified in court by number 1,057.
The conclusion of the trial, still without a date to occur, may guide decisions in all instances, leaving the possibility of the defeated party questioning the constitutionality of the decision in the STF (Supreme Federal Court).
“The fact that the trials are suspended does not prevent pensioners and dependents from going to court,” says Saraiva. “In case of victory, the start date of the request for review is what determines the calculation of arrears.”
PENSION | ORIGIN REVIEW
- Who receives pension generated from a retirement can request the revision of the original benefit
- The result that the beneficiary will have after this review has different interpretations in the INSS and in the Court
What generates the pension
The death pension is generated, basically, from two situations:
- The death of a worker who collects for Social Security
- The death of a person who already receives retirement
Who receives the pension
The pension is paid to the insured’s dependents, according to the following order of priority:
- Spouse or partner
- Children and stepchildren under 21 (not emancipated) or disabled
- Brothers under the age of 21 (not emancipated) or disabled
- Anyone who receives a death pension has the right to request a review of the initial calculation of the benefit income
- This request must be submitted to the INSS within ten years after the first payment of the pension has been withdrawn.
- This is the same rule for reviewing pensions and the deadline also applies to reviews in court
Review of the original benefit
- When the pension is generated from a retirement, the pensioner can also request a review of the calculation of the original benefit, that is, the retirement of the deceased insured
- In this case, the ten-year period for requesting the review is counted from the first withdrawal of retirement (benefit that gave rise to the death pension)
- The INSS has just published a rule that confirms the pensioner’s right to revise the original benefit
- But this rule is clear in stating that this review only entitles you to increase the value of the death pension
- This means that, if the review finds that there was an error, the pensioner will not receive arrears of the original benefit
- In the event of the death of the pensioner, the instruction still prevents his dependents from asking for the review
Rule in Justice
- The Judiciary does not yet have a defined position on the subject, which is ready to be judged by the STJ (Superior Court of Justice)
- Many judges consider, however, that the pensioner and even his dependents are entitled to the arrears of the revision of the original benefit
- A man retired from the INSS in January 2019 with an income of R $ 998
- This retiree died in January 2020 and this generated a pension for his wife
- The widow now receives a monthly death pension of R $ 1,039
- In January 2021, the widow asks for the review and verifies that there was an error in the original benefit
- After the review, it appears that the initial retirement amount should have been R $ 2,000
- This means that the initial value of the woman’s pension, in 2020, should have been R $ 2,109
a) The husband’s retirement arrears correspond to R $ 13,026 (13 installments of the difference between R $ 998 and R $ 2,000, not including interest on arrears and monetary restatement)
b) Pension arrears correspond to R $ 13,910 (13 installments of the difference between R $ 1,039 and R $ 2,109, without interest and correction)
- The right to retroactive amounts of the original benefit, in this case, practically doubles the value of the pensioner’s arrears
WHAT TO CONSIDER BEFORE GOING TO JUSTICE
- The situation is undefined in court, which means that the insured can either win or lose the revision
- There is only an advantage in fighting for arrears of the original benefit if it has not yet been five years or more since the pension was granted, as it is not possible to charge amounts older than that
- It will not be possible to ask for the revision of the benefit that gave rise to the pension if it was granted ten years ago or more
- Judgments on the subject are suspended, but this does not prevent the insured from initiating the action and, in the event of victory, the waiting period will increase the arrears.
Sources: Normative Instruction 117/2021 of the INSS, lawyer Rômulo Saraiva and Repetitive Theme 1.057 of the STJ (Superior Court of Justice)