O impedimento de longo prazo como requisito à concessão de benefício assistencial: a inconstitucionalidade da sua limitação com critério temporal obejtivo

Abstract

Social protection has always been on the human relations agenda. In other words, mankind always paid attention to the needs of your own protection against social ills like, for instance, inability, old age, death and poverty. In Brazil, it is performed through Social Security, which brought as one of its instruments the Social Assistance. Within it, specifically for the disabled ones, the Magna Carta fixed the monthly payment of a minimum wage, under the law. This benefit was regulated by the Organic Law of Social Assistance (LOAS, in Portuguese), which listed the requirements needed to be granted. Yet, the Constitution failed to bring the concept of Disability, role that was assigned to the sub-constitutional legislation until the ratification and incorporation in the national legal system, as a constitutional amendment, from the Convention on the Rights of Persons with Disabilities. Thus, to update the LOAS provisions to the terms of the Convention, it was used the concept of disability brought by it, introducing, however, an objective time criterion that was not predicted in it. Therefore, we question the constitutionality of the amendment made by the statutory law. So, this study sought to examine the objective time criterion compatibility with the Constitution and the ratified Convention. Thus, the historical evolution of protection and Social Security was presented, as well as how it was positivated in the Magna Carta. After that, the Brazilian Assistance and the regency law of the benefit was analyzed, searching, through its collation with the Constitution, the adequacy or inadequacy of the time criterion imposed for its concession.