STF Benefit

In seara administrative, expert report ties the decision of the Previdenciria Autarchy. Therefore, a favorable finding to the petitioner will cause the administrative denial of the benefit. Already in seara judicial, the conclusions of the skill do not tie the judge, which in accordance with pronounces its decision the beginning of motivated judicial discretion. Related Law of Organization of Assistncia Social (LOAS) it not only characterized as deficient the incapable one for the work, but also for the independent life, much the Constitution has even so not mentioned this last requirement. Still as for the incapacity, the concession of the assistencial benefit must, according to majoritria jurisprudence, to pautar itself not only in the physical situation of the attended one, but also in its personal conditions, a time that if takes care of of a benefit of partner-economic and cultural character, in way that in face of the case concrete will only be able the magistrate to evaluate the effective possibility of it to play a laborativa activity that it assures the sustenance to it. For effect to survey the poverty of the familiar group, considered this the set of people elencadas in art. 16 of Law 8,213/91, since that they live under ceiling (Law 8,742/93 the same, art.

20, 1), the LOAS fixed as maximum platform the per capita monthly familiar income of (one room) of the minimum wage, having it to remain itself inferior to this limit. Such device was questioned in the Direct Action of Unconstitutionality n. 1.232, having the definite STF that the criterion of of the minimum wage is objective and cannot be conjugated with other indicative factors of the poverty of the individual and its familiar group, fitting to the legislator, and not to the judge, in the solution of the case concrete, the creation of other requirements for the gauging of the poverty state of that it pleads the assistencial benefit Ocorre that, judging the Claim of n.