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Disability Retirement Should Not Be The Only One To Receive The Additional 25%; Bill Remains Stuck In Crucial Congressional Committee Following STF’s Decision To Impose Requirement Of Funding Source.
The right to the 25% increase in retirement benefits for those who require permanent assistance from third parties is one of the biggest controversies of the General Social Security Regime (RGPS). Currently, the Original Welfare Law (Art. 45 of Law No. 8.213/91) restricts the benefit, known as Companion Assistance, only to insured individuals receiving Retirement for Permanent Disability (formerly Retirement for Disability) who prove the condition of “severe disability.” The challenge for those receiving other types of retirement (such as old-age or time-contribution retirement) with the same need for assistance is now entirely in the hands of the Legislative Branch, with a Bill (PL) from 2018 that is “still in progress,” but is in a critical phase of fiscal analysis.
The extension of the additional benefit to all retirees was definitively decided by the Supreme Federal Court (STF) in Theme 1095 in 2021. The Court established that the change is not constitutionally possible through the judicial route, as it requires the creation of a law and the identification of a total funding source (Legal Reserve, Art. 195, § 5 of the Constitution). Since then, the only solution to extend the benefit is through the Legislative Branch, via proposals such as PL 10.772/2018, which aims to add provisions to Law No. 8.213/91 to encompass all types of retirement.
Why Did The STF Block The Judicial Extension Of The Benefit?
The controversy regarding who is entitled to the 25% increase has sparked an intense legal battle between the Superior Court of Justice (STJ) and the Supreme Federal Court (STF). Before the final decision, the STJ, in its judgment of Theme 982 (August 2018), had established a favorable understanding for the extension. The Court argued that the determining factor for granting the benefit was the assistance need (the severe disability) and that denying the increase to other retirees in the same situation of dependence would be an unjustified discrimination, violating Human Dignity and Equality.
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However, the STF reversed this thesis in June 2021, in Theme 1095 (RE 1.221.446), establishing the conclusive thesis that only law can create or expand benefits and advantages in the scope of the RGPS. The Supreme Court’s main rationale was the principle of Legal Reserve and the requirement for a Prior Funding Source (Art. 195, § 5 of the Federal Constitution). The Court understood that the creation or expansion of a benefit with a high fiscal impact must be carried out by the Legislative Branch, preventing the Judiciary from invading the budgetary sphere and violating the separation of powers.
The Funding Challenge: Where Is The PL Stuck?
After the binding decision of the STF, the focus entirely turned to the Bill (PL) 10.772/2018. The project, authored by Congressman Vicentinho, proposes the inclusion of the provision in Law No. 8.213/91 to extend the additional benefit to all types of retirement. The progress of the project perfectly illustrates why the change has not yet been approved, and the reason is essentially financial.
PL 10.772/2018 made a crucial advancement by being approved by the Committee on Social Security, Assistance, Childhood, Adolescence and Family (CPASF) on October 31, 2023. This approval signals political consensus regarding the fairness and social necessity of the benefit. The major barrier, however, lies in the current phase: the Finance and Taxation Committee (CFT), where the project has been under analysis since November 1, 2023.
The CFT is responsible for conducting the analysis of financial, budgetary, and fiscal adequacy. This stage is the most critical point, as it requires the indication of the total funding source, in compliance with Art. 195, § 5 of the CF/88, as reinforced by the STF. The extension of the 25% increase to millions of retirees who do not fall under Disability Retirement represents a significant additional cost for Social Security. Without clarity on this funding source, the project runs the risk of remaining stalled indefinitely or being shelved.
Who Is Eligible Today And What Is The Next Legal Step?
To answer the question of who is currently entitled, the response remains limited to the Original Welfare Law: the 25% increase is granted only to insured individuals receiving Retirement for Permanent Disability and who prove the need for permanent assistance from third parties (the severe disability).
For these eligible insured individuals, the increase can be requested administratively through the INSS, where the request is formalized with the service “Request 25% Increase,” requiring a detailed medical report. It is important to note that a crucial peculiarity of the benefit, which reinforces its assistive nature, is that the 25% increase is not limited to the INSS Ceiling, and the total amount may exceed the maximum limit of the General Regime.
For other retirees (other types): The only legitimate and legal way to obtain the benefit is through the approval of PL 10.772/2018. Is it worth filing a lawsuit? The judicial strategy is discouraged due to the binding understanding of the STF (Theme 1095). The focus of retirees who feel wronged should be on legislative monitoring and political pressure to ensure that the Finance and Taxation Committee advances with the project, guaranteeing the funding source.
The current deadlock regarding the extension of the 25% increase boils down to a dilemma between social justice (equality for all dependent retirees) and fiscal strictness (the constitutional requirement of total funding).
The progress of PL 10.772/2018, which seeks to guarantee the right to a full and dignified retirement for those in greatest need, is active, but its approval depends entirely on a solid financial solution.
Do you agree that the benefit, which aims to cover expenses with third-party assistance, should be extended to all retirees, regardless of the original modality? How do you think the Federal Government should secure the funding source required by the Constitution? Leave your opinion in the comments, we want to hear from those who live this reality in practice.
Cortar gastos, mordomias e retirar 50% do orçamento secreto (inconstitucional)dos políticos. Cortar gastos e rever os salários do judiciário. (Os salários que não condiz com a realidade do país). Pagar aluguel, água, energia, Internet, bujão, feira, medicação. Com 1500? Isso é só o básico.
Com tantas regalias dos politicos que já ganham um salário exorbitante.. se cortassem alguns benefícios daria pra fazer muita coisa no Brasil.. que vergonha um aposentado(a) viver com 1 mísero salário minimo.
O governo simplesmente deveria cortar dezenas de benefícios para todos os políticos em todas as esferas que daria para suprir todos os gastos com esse adicional e ainda sobraria.