RGPS Benefits and Services

11.3 Plano de Benefícios e Serviços do RGPS

• Focus on the benefits and services provided by the General Social Security System (RGPS).
• Expect questions on retirement, death pensions, benefit accumulation, and other related topics due to changes from Constitutional Amendment (EC) 103/19.

Espécies de prestações

• RGPS operates through granting social security benefits to insured individuals and their dependents.
• Benefits and services are outlined in law, notably Law 8.213/91 and Decree 3.048/99
• These break down into social security benefits and services.
• Social security benefits can be classified based on various criteria as per legal scholars

Benefit Classifications

based on legal scholarship

Nature of Benefit

• Benefits Involving Payment: occur via payments of social security benefits.
• Benefits Involving Services: involve offering services by social security, like social work and professional rehabilitation.

Type of Beneficiary

• Benefits for Insured Individuals: The general rule.
• Benefits for Dependents: primarily death pensions and imprisonment assistance.
• Mixed/Auxiliary Benefits: paid to insured individuals but linked to dependents like family allowance and maternity pay.

Program Scheduling

• Scheduled Benefits: the awarding can be anticipated, such as scheduled retirement.
• Unscheduled Benefits: the awarding is unexpected, like permanent disability retirement.
• Classifying maternity pay has doctrinal debate, but it is generally considered unscheduled.

Benefit Temporality

• Lifetime Benefits: payments lack a set end date lasting through the insured persons lifetime.
• Temporary Benefits: payments are set for a certain period. Death pensions currently follow this rule except in rare cases.

Function of Remuneration

• Benefits replacing insured earnings: Aim to ensure the insured person's subsistence by replacing their income, sometimes allowing them to still work in certain instances, such as retirement and maternity pay.
• Benefits that don't replace earnings: Supplement the persons income and can be lower than the minimum wage.

Need for Qualifying Period

• Benefits With a Qualifying Period: such as imprisonment assistance and scheduled retirement.
• Benefits without Qualifying Period: like death pensions and accident assistance.

Requirement for Work Absence

• Benefits Requiring time off work: precludes concurrent work for the insured, such as maternity pay and permanent disability retirement.
• Benefits not requiring time off work: allow the insured person to continue working like scheduled retirement.

Programmed Retirements

• Before EC 103/19, Brazilian law had old-age and contribution time retirement options.
• These retirements consolidated into programmed retirement which subdivides into:
  • Common Programmed Retirement: For urban workers, it demands age and contribution time based on art. 201, §7º, I, CF.
  • Professor Programmed Retirement: Tailored for teachers, requiring age and contribution time. It has age reduction (art. 201, § 8°, CF) and more favorable rules.
  • Rural Old-Age Retirement: Requires minimum age achievement without contribution time (art. 201, §7°, II, CF).

Common Programmed Retirement

• The basis is in the CF:
  • Art. 201, § 7: Social security retirement is guaranteed by law.
  • I - Age must be 65 for men and 62 for women, along with minimum contribution time.
• EC 103/19 fixed 65 as minimum retirement age for men and 62 for women.
• Retirement age is aligned with social needs covered by the benefit.

Restrictions and Exceptions

• Individuals can no longer retire only through contribution time without minimum age achievement.
• Exceptions exist in these cases:
  • Vested rights to rules predating EC 103/19.
  • Certain transition rules (arts. 15, 17, 21, 22 of EC 103/19).
  • Contribution time retirement of people with disabilities (art. 3º, Supplementary Law 142/13).
• Required contribution time for regular programmed retirement is not directly set by the CF.
• The responsibility falls on ordinary law, until ordinary law is established, art. 19 of EC 103/19 applies:
  • Art. 19: Insured person tied to the RGPS after this Constitutional Amendment is enacted, retire at 62 (women) or 65 (men), with 15 years (women) or 20 years of contribution (men).
• In general, retirement can no longer occur based solely on minimum age, because Contribution time is required.
• Exceptions include:
  • Vested Rights to regulations prior to EC 103/19.
  • Retirement by age for rural workers.

Rule Modification

• Even if EC 103/19 defined contribution time for common scheduled retirement, an ordinary law might later be passed to change the time.
• Ordinary law is able to changed what was instructed by the Constitutional Amendment that it will expressly say "until law provides for contribution time".
• Legal scholars deem this provision a transitional norm applicable until another law arises.
• Legislators employed a "temporary constitutionalization" technique, establishing a constitutional standard which may later be revised by sub-constitutional statute, in the area.

Programmed Retirement Essentials

• The summary of the main feature of common programmed retirement:
  • Age: 65 (male) or 62 (female).
  • Contribution Time: 20 years (male) or 15 years (female).
  • Qualifying Period: 180 monthly contributions.
• The qualifying period is not explicitly set by the CF or EC 103/19 and Decree 3.048/99 demands it.
• 180 contributions can be lowered under art. 142 scale of Law 8.213/91, fixing a qualifying period of 60 to 180 months for individuals who hit the minimum age from 1991-2011.

• Qualifying period for special insured persons must be 180 months in rural activity, because they don't make monthly contributions per art. 26, §1º, Decree 3.048/99.
  

• Counting contribution time
  • Periods before EC 103/19: Count is made by date to date calculation.
  • Periods after EC 103/19: Count is by competence, regardless of actual days worked in a month as long as contribution wage is above the minimum threshold.
• Insured persons contribution wage must be within minimal limits or they can supplement insufficient contributions to enable use of excess from another contribution.
• The common scheduled retirement has the RMI (Initial Monthly Income) which comes to 60% of the benefit, plus 2% for all contribution years exceeding 20 years if male or 15 year if female.
• There is no benefit wage cap.

Important Factors

• If someone wants to retire at 25 years, benefit RMI is 70% (60% + 10%).
• In the case of prior rural service under Law 8.213/91 before contribution was required, it cannot advance the RMI by 2% annually.
• This time counts towards minimum contribution time.
• The start date for benefits of employees and housekeepers:
  • If applied for within 90 days of job separation, the benefit dates back to separation date.
  • If there is no job separation date or if it is done after 90 days, it starts at the application date.
• For other insured people, it starts at the application date due to no employment separation.
• Maintaining insured status is usually unneeded so people can meet requirements out of sync, as per art. 3º, Law 10.666/2003 :art. 3º, Law 10.666/2003.
• As a rule, benefits apply to urban insured people vs retirement applies to rural insured people under differing regulations..
• Special insured people are also entitled for programmed retirement and entitled with the same benefits as other insured people from optional collection.
• Programmed retirement comes from substituting old age retirement/contribution time for:
  • Contribution time retirement cannot go to individual contributors/optional insured people who opted for the simplified social security inclusion and made reduced contributions under 11-5% of the base salary amount.
  • But the inability does not extend to programmed retirement with allowance still going to people opting for the simplified version since the former refers merely to contribution time for special needs people. Even if benefit were not given, certain insured people won't receive retirement unless not programmed like permanent disability
  • Benefits can be given as long as salaries are low to receive the minimal amount.
• Common payments go to those who are affiliated to security after the regulation has been completed and those who do not wish to retire via transitional means.
• Beneficiaries who satisfy earlier requirements are ensured permission at any time. It touches on protection to acquired permissions with the 3rd Amendment.

Restrictions

• The grant of retirement to federal civil servants attached to their own social security and to the RGPP and death payments have been secure for a while as long as they had requirements to gain any benefits or have had entrance of legislation.

• A legislative device made by the EC 103/19 that says Article 37, §14 states that a payment given with the utilization of the contribution time will result in the breaking of the bond. Article 37 (14) states payment entails automatic termination of the legal employment relationship.

• An employee who finishes and gains a payment by using time as an employee will result in the automatic termination of the link.

• The 6th EC 103/19 payment applies to those given after the date the payment was entered in order to protect earlier permissions with legal contracts that can't be harmed.

Jurisprudence

• Summarization 76 TNU- Non contributive service doesn't permit coefficient of payments due to previously shown amount of age payments listed in previous documents.
• Important decision in the 1007 STJ which says that distant rural service still counts that have been given before legislation as part of special and other circumstances that lead to permission.
• Public worker dismissals fall under theme 606 of supreme court cases which state legal action falls within their proper court.
• It is worth mentioning they should only be mentioned in age payments for the current payment plan.
• Those who do not are able to start their own cases with local worker laws.
• Before publication teacher work led to retirement payments, as shown in court documents.
• Teachers aren't really that specialized anymore with many getting ordinary work that can be minimized.
• Requirements stem from valid law.

Requirements

• The requirement to age has been reduced.
  • Teachers can get payments at 5 less the requirements from what has been listed.
• 2 important thing
  • It was shown that minimized age comes from prior law stipulations. At max, teachers are set at the age 60 but female teachers must hit 57
  • The need to contribute must come from law such as the 103/19
• Do not lose contribution with common payments that are planned with the time periods
  • payments must be granted for age and for work related requirements
  • The age for male teachers is 60 and for female is 57.
  • The listed and qualified circumstances must occur
• These measurements follow rules for contribution and all restrictions must adhere.
• After they are posted they must be competent and effectively working to earn as much payment as possible for the contributions.
• A specific fact is that contributions must be related to infantile and elementary work that is specialized and teachers must reach 25 years to get this.
• A certain part must be in teaching and another outside this. Some of the diverse activities can be appropriated with the 2% annual increase.
• Conceptually, payments that are made for teachers must include working with those in the school environment, but anything else will be exempted.
• Those who don't reach it might as well go to specialized sources.
• 11.301/2006 altered 9.394 with school directing being counted for specialized assistance with payments.

Rulings

• ADI 3.772- Guiding efforts are important for the career in that they must be from teachers and school people.
• Themes like 965 are important with the direction counted as help and elementary assistance.
• The teaching must be specialized and has been shown to work in school.
• It's possible to add activity that has been in directing schools.
• In September supreme court decided that activities will still have to be considered.
• The contribution includes wages, maternities and gaps still count.
• The rule is set by those at the high post.

Aposentadoria Hibrida

• There are specific laws to the payments made in the city in order to apply.
• It is easy to see everything about the law regarding urban land and land payments for those who cant do requirements for age.
• When we go with one idea being people working on those areas those payments can't ever affect the amount.
• This way people can use what the law puts to create it's own idea.
• Even if It was never brought in, the changes affect the area.
• The payments here lead to requirement of having a town worker where they have the age of the work and this has lead for them to be forced for this amount.
• With what we can say they can be good after 103/19 it's safe this is an exception for the 60 age.
• The town salary must be 1. By using an exception, the new rule cannot be applied especially after the 103 has.
• That type of rule that needs for those rural and for who are in the work force