O Benefício de Prestação Continuada como instrumento de garantia de direitos e as contradições decorrentes da inconstitucionalidade parcial sem pronúncia de nulidade do 3º § do Artigo 20 da Lei Federal de nº 8.742/93

Abstract

The federal Law number 8.742/93, known as the Organic Law on Social Assistance, was edited in order to regulate the provision of assistance by the State to those who need it, under the terms of the Federal Constitution. This law brings in your text the possibility of granting the Benefit of Continuous Service (BPC) in the amount of a monthly minimum wage to those are disabled person and to the seniors with 65 (sixty-five) years or more that prove that they do not have how to sustain themselves or to have it provided by their families. The benefit under for being care nature assistance, but administered by the Social Security, both considered constitutive policies of social security, and a tool against poverty, as well as a guarantee of dignified life for those who need it. However, income criterion per capita established by art. 20, § 3, of Law number 8.742/93 to ensure the BPC benefit has a contradictory character, once in the same time that ensures the benefit, it is based on this criterion of income criterion per capita to select who deserves to receive the benefit, summarized by an objective calculation the socioeconomic condition of the family. This issue was taken to the Federal Supreme Court, and the Court decided for the unconstitutionality of this law article, but did not make a pronouncement of nullity, and as a result, the objective criterion of the per capita continues to be used by the INSS to ensure or deny this benefit, which creates true legal insecurity and frustrates the expectations of many individuals who really need this state protection. Starting from this problem, the present study has as general objective to analyze the Continuous Benefit Benefit in its function of guarantee of right and to discuss about the (in) constitutionality of the criterion of income established by art. 20, § 3, of Law 8,742/93 to grant the benefit, and as specific objectives to verify the possible legal conflicts arising as a result of the economic requirement and the contradictions experienced involving the beneficiary of the benefit, pointing out the decision of the Supreme Court that declared unconstitutional without pronouncement of nullity remaining the criterion in the legal order.For that, as methodological aspects, the deductive method was used as approach, historical and interpretative methods as procedure and bibliographical and documentary research as research technique that guided the present study.