O conceito de miserabilidade do §3º, do artigo 20, da Lei Orgânica da Assistência Social: a relativização deste critério objetivo

Abstract

This monograph has the objective to make a study about the Continuous Benefit - called “BPC”, provided in item V of article 203 of the Federal Constitution of 1988 and regulated by Law nº. 8.742 of 1993 known as Organic Law of Social Assistance – called “LOAS”, and the criteria for its grant, using for this purpose, the method of literature review. One of the requirements analyzed for the granting of care benefit is the per capita income of the family group, which, according to the law, must be less than a quarter of the minimum wage to verify the condition of miserability of the applicant to the benefit. This economic criterion is exclusive and makes it difficult to access the continuous benefit, generating discussion about the possibility of relativization of the requirement for purposes of proving the condition of miserability of the applicant and his family. In decisions proclaimed by the Superior Courts, there was a favorable position to relativize the objective criterion defined by law, considering the use of criteria beyond income, that observe the factual situation of the aged people and disabled people to verify the degree of their social vulnerability. However, the objective criterion continues being used to reject the care benefit, because it remains present in the law, which leads the aged or disabled people whose benefit was denied to judicialize their claim in order to have guaranteed their constitutional right. Thus, the main objective of this monograph is to reiterate the position that the objective criterion present in paragraph 3 of Article 20 of LOAS, should be relativized, because, this way, the aged and disabled people will have their requests for the continuous benefit analyzed in a fairer way