Try modifications which can be seen as bombs for the federal government and hope for retirees
Government calculations indicate that cases in court can cost R$ 480 billion
The fiscal risks outlined by the 2022 Budget include actions and themes that are seen as hopes of gain for retirees. These are the cases of the lifetime review, judged by the STF (Federal Supreme Court) in early December, and special retirement due to the “noise peak”.
Most of these judgments do not have a definite financial impact. Those who have reach BRL 480 billion — the case of a lifetime review. In addition, calculations presented by the government in documents such as the fiscal risks of the LDO (Lei de Diretrizes Orçamentárias) and in actions before the Supreme Court are questioned by institutes and specialists.
In March, shortly after the entire life review went through the virtual plenary, the INSS (National Social Security Institute) announced that a judgment on the subject favorable to retirees would imply an extra expense of R$ 360 billion in public coffers in 15 years — value even greater than that calculated in 2021, of R$ 46 billion in ten years.
The Union, in accordance with the 2023 Budget Guidelines Law, estimates that the approval of the understanding could impact public accounts by BRL 480 billion.
In the calculation of Ieprev (Institute of Social Security Studies), the gain in retirement with the review is 3.1%, a figure 25% lower than that estimated by the INSS.
“It’s difficult to understand why there are so many discrepancies, especially if they were calculated by government agencies”, says Luis Eduardo Afonso, a professor at USP and specialist in Social Security.
“Every social security calculation can present differences, because we are talking about amounts distributed over very long periods of time”, says Afonso. “These are very high values and, at this moment in which the country is going through, fundamental to understand the impact of this measure.”
According to the AGU (Advocacia-Geral da União), the calculation of the impact of tax actions is calculated by the entity that conducts the affected public policy.
“The calculation methodology is not available due to potential compromise of procedural strategy”, says the institution.
See below for some of these topics. Lawyers Rômulo Saraiva, Fernando Goncalves Dias, João Badari, Gustavo Bertolini, André Bittencourt and Adriane Bramante were consulted.
The values presented by the government in the fiscal risks of the LDO can consider the impact over more than one year, but this period was not detailed in the document.
whole life review
- Tax cost estimated by the government: BRL 480 billion (the INSS has already estimated the STF to spend an extra BRL 360 billion over 15 years, but has also already presented an estimate of BRL 46 billion over ten years)
- Which is? The review, judged by the STF on December 1, corrected what the court understood as a distortion of the 1999 Social Security law. At the time, the reform created two formulas for calculating retirement —the transitional and the definitive one. Those who used the first had only subsequent contributions to the Plano Real, in July 1994, considered. Such a calculation may be unfavorable for part of retirees, especially those who had a higher income before 1994.
- Who has the right? Those who: 1) started receiving the benefit less than ten years ago are entitled; 2) acquired the right to retire before the Social Security reform, in November 2019; and 3) received or receives any benefit that has been calculated based on Law 9876/99, such as pensions and allowances. For the time being, the review is not automatic. For this to happen, a public civil action will be needed to force the INSS to pay the review automatically – even for retirees who do not make the judicial request.
Security guard retirement
- tax cost estimated by the government🇧🇷 BRL 151 billion (the INSS has already informed the STF that the concession would cost BRL 154 billion diluted over 35 years)
- Which is? The STF needs to decide whether security guards and other dangerous activities, in which there is a proven risk to physical integrity, can continue with the right to special retirement even after the Social Security reform, which began to take effect in November 2019. In December 2020, the STJ has already decided that, regardless of carrying a weapon, the security guard’s activity must be considered special. This category allows the worker to retire when he completes 25 years in the profession. In addition to completing the period of work, the citizen who started contributing after the reform must be at least 60 years old. For those who were already in the market, there is a transition rule.
- Who has the right? Who worked as a security guard and earned the right to retire after November 2019, when the pension reform came into effect.
- Contribution salary calculation in concurrent activities
- Tax cost: not available
- Which is? The review impacts those who worked in more than one place during the same period. Review requests happen because the INSS made the calculation with the activity considered primary —the one in which the retiree stayed for the longest time—, while the other entered the account proportionally. Now, contributions are added up, respecting the social security ceiling. The STJ (Superior Court of Justice) decided that way in May 2019, and it is still unknown whether the INSS will appeal – which would make the action go to the STF.
- Who has the right? Who worked in two or more companies or acted as self-employed and worked in a company at the same time, for example. The insured person must have started receiving the pension a maximum of ten years ago and have contributed to the INSS in the activities to be considered in the review. The insured person’s retirement is only reviewed if he goes to court. Those who retired after the May 2019 decision already have their contributions added up.
- Accident allowance resulting from interruption of sickness allowance
- Tax cost: not available
- Which is? The topic discusses whether a person who receives sickness benefit needs to make a new application to claim accident aid when the first benefit is interrupted. Justice has already decided that the INSS must make an assessment immediately after the interruption of the sickness benefit to find out if the insured person will have consequences that affect his work.
- Who has the right? The decision impacts those who have suffered an accident that generated a temporary disability, received sickness benefit and, later, had a sequel resulting from the same situation. The accident can be of any nature, not just professional.
- Receipt of judicially granted retirement installments
- Tax cost: not available
- Which is? The theme decided which benefit prevails when the applicant wins two retirement requests: in court and administratively. There are cases in which the citizen requests retirement, the benefit is denied and he then goes to court to have the request reviewed. The delay in the process, however, may lead the applicant to make a new administrative request. If, in the end, both processes are accepted, there is an impasse: is the insured entitled to the arrears of the first request, if he decides for the second, more advantageous one? In June of this year, the STJ decided yes. The retiree is entitled to the arrears of the process that was judicialized, at the same time that he chooses to receive the benefit for the second administrative request. The action has already become final, that is, it was closed and there are no more appeals.
- Who has the right? Those who: 1) have judicialized a denied retirement request; 2) made a new administrative request as a result of the delay in the process in court; 3) won the lawsuit and also got the administrative request; and 4) opted for the second administrative request, but are entitled to arrears from the first.
- Special retirement for ‘noise peak’
- Tax cost: not available
- Which is? The discussion of this theme refers to the criteria used to define the noise conditions to which the worker is exposed in his working life. The STJ recognized that the Normalized Exposure Level (NEM) should be used, when possible and, when not, the noise peak should be considered, that is, the highest measured noise. The measurements are made by means of a judicial technical expertise, which should measure the persistence of the noise. Such conditions may lead the worker to be entitled to special retirement.
- Who has the right? Workers who have in their PPP (Professional Social Security Profile, a document with the worker’s work history) a report that presents noise have the potential to obtain retirement. Review cases are possible for those who started receiving pensions less than ten years ago.