Prior administrative request in cases of disability benefits request preceded by temporary disability benefits in light of STF Case 350 and full access to justice and reasonable process duration

Abstract

The present work aims to analyze the necessity of prior administrative denial as a requirement for entering judicial processes in the social security context. The discussion revolves around the rationale behind this requirement, based on the premise that the existence of a contested claim is essential for initiating a judicial process. This condition of action, outlined in the Civil Procedure Code in Article 17, aligns with the need-adequacy criterion, demanding that the plaintiff's claim can only be satisfied through access to the judiciary, and that the requested judicial remedy is capable of adequately resolving the contentious situation. A significant portion of legal doctrine understands that imposing prior administrative request as a condition for initiating legal proceedings violates the principle of free access to justice, as established in Article 5, paragraph XXXV, of the Constitution. This controversy culminated in Extraordinary Appeal 631,240/MG, a landmark decision that outlined the thesis of the unnecessary nature of prior administrative request before the National Institute of Social Security (INSS) as an essential requirement for forming the lawsuit. The mentioned judgment established a crucial distinction between claims that aim to obtain an entirely new benefit or advantage for the plaintiff's legal interests, and actions that seek the improvement or protection of an already granted advantage. When applying this understanding to cases of accident benefits, which are preceded by temporary disability benefits, there is resistance in the courts regarding the fact that accident benefits constitute an instance of improving the disability benefit, and thus, the insured individual should be exempt from making a new administrative request. Lastly the conclusion was based on the deductive method after researching the books and cases about the theme.