The STF (Supreme Federal Court) may decide until next Friday (11) if the rules present in the Constitution allow retirees to use all their social security contributions, including those made in currencies before the real, in the recalculation of the value of benefits.
This is the so-called review of life, whose right has already been judged legal by the STJ (Superior Court of Justice), which left the INSS (National Social Security Institute) to question the constitutionality as a last resort to try to make this lawsuit unfeasible .
The favorable position of the STJ to retirees and the apparent scope of the action are perhaps the main reasons for the popularization of the theme. But different from what it may seem, there is no guarantee of victory in the Supreme for the workers and, if it happens, it will certainly not be for everyone.
There is basically a retiree profile that can gain from the review of life: one who started working years before the creation of the real, in July 1994, and who during this period made the largest social security contributions of his life long enough to improve your entire average salary.
“It is a review that benefits workers with an inverted contributory profile, that is, who received the highest salaries at the beginning of their career and retired at a time when they had a lower income”, says Diego Cherulli, vice president of the IBDP (Institute Brazilian Social Security Law).
The argument that the review is limited to this group of beneficiaries is part of the support brought to the STF by the IBDP.
The institute, which brings together part of the main social security lawyers in the country, is trying to convince the ministers that the review will not result in significant damage to public coffers, in such a way as to harm the population in general.
To benefit from the lifetime review, the retiree would still need to fulfill a number of other requirements.
The main one is to have the beginning of retirement between November 1999 and November 2019, because during this period there was a legal loophole that allowed the review (see details at the end of the text).
Another fundamental condition is that the request for review takes place within ten years of receiving the first pension payment. After this period, the insured loses the right to review the initial benefit amount.
On the part of retirees, understanding the limits of this review, according to Cherulli, can avoid lawsuits from people who have no chance of being benefited.
As for the justices of the STF, the conviction that this is an action restricted to a few can prevent the repetition of situations such as the judgment of re-retirement.
At the time, the Supreme Court ruled that the recalculation of benefits based on contributions made after retirement was unconstitutional, even after the STJ had already recognized this right.
INSS REVIEW | ALL LIFE CONTRIBUTIONS
The STF (Supreme Federal Court) marked the judgment of the lifetime review, generating the expectation of an increase in income for some retirees.
Asking for a lifetime review means starting a lawsuit in court to request a recalculation of pension with the inclusion of contributions made before July 1994.
This possibility exists because a change in social security legislation in 1999 created a loophole for questioning the calculation used by the INSS. Understand:
CHANGE IN LAW IS BASIS FOR REVIEW
When carrying out the Social Security reform in 1999, the government created two calculation formulas for the average salary:
1. For those already insured by the INSS until November 26, 1999:
The average salary is calculated on 80% of the highest contributions made from July 1994
2. For those who started contributing to the INSS as of November 27, 1999:
The average is calculated over 80% of the highest collections since the beginning of contributions (without setting the start date of contributions)
What retirees ask for:
- Workers who started to contribute to Social Security until November 26, 1999 ask to apply the same rule to them as the group that started collecting from November 27 of that year, that is, the inclusion of all their contributions in the retirement calculation
- To use a technical term, these retirees ask the Court to review their PBC (Basic Calculation Period), to include the wages received before the creation of the real in the retirement calculation.
Period to be reviewed
- The government approved a new Social Security reform on November 13, 2019 and again modified the calculation of the average salary
- The new rule says that for everyone who is able to retire from November 13, 2019, the average salary is calculated with all contributions from July 1994
- That is, the new rule is clear regarding the period of contributions that enter into the calculation of social security benefits paid by the INSS
- Therefore, the lifetime review can only be applied to those who have completed the requirements to retire by November 13, 2019
WHO CAN BE RIGHT
In order to be able to go to court to demand the right to review the entire life, the insured must meet the following requirements:
- Have made contributions to the INSS or worked with a formal contract before July 1994
- Retired after November 27, 1999 and before November 13, 2019
- He received his first retirement payment less than ten years ago and, therefore, is still within the period before the expiration of the right to review the benefit
And for whom is it worth it?
- The Lifetime Review will only be worthwhile if contributions made before July 1994 were made on amounts that, on average, were higher than those made after that date.
- This could be, for example, the case of an industrial worker who had good wages in the 1980s and early 1990s, but was fired and started to work in activities that paid lower wages after July 1994
- But this review will not be of advantage to those who, for example, only reached the peak of their career and received the highest salaries in their professional life after July 1994
Only with calculations
- Before requesting the review, it is essential to consult law firms or accountants specializing in social security calculations
- The calculation of the lifetime review is one of the most complex, as it involves contributions made in other currencies, prior to the real
- Only after updating the values of old contributions will it be possible to assess whether it will be worth initiating the lawsuit
Sources: IBDP (Brazilian Institute of Social Security Law) and subject 1.102 of the STF (Federal Supreme Court)