CONSIDERAÇÕES ACERCA DO ESTADO DE MISERABILIDADE NA APLICAÇÃO DO BENEFÍCIO ASSISTENCIAL AOS DEFICIENTES

Abstract

The Federal Constitution of 1988 inaugurated the Social Security Policy, elevating social assistance to the category of fundamental right, with the creation of the so-called social welfare benefit (BPC), in order to ensure the subsistence guarantee to the needy and in a state of miserability, reflecting the principle of human dignity. Social Assistance guarantees the minimum existential, even to those people who have not contributed to Social Security. With the publication of the Organic Law of Social Assistance (LOAS), social assistance has become a public policy of social security, setting up the tripod of Social Policies: Health, Social Security and Social Assistance - citizens' rights and state duty. Fundamental rights have emerged to ensure that people can live a dignified, free and egalitarian life, and this is where the present work is justified, whose aim is to verify the proper application of constitutional norms and principles for the realization of citizenship rights as parameter in the application of the welfare benefit in the case of the disabled. For the development of the work it was used the deductive method, through the bibliographical research with consultation to the constitutional and infraconstitutional legislation, jurisprudence, books and scientific articles. It was concluded that the claim gravitates the constitutional list of fundamental and social rights and guarantees, precisely as a reflection of the right to life and the dignity of the human person. These subjects are not always contemplated with the assistance benefit, even with constitutional and jurisprudential support. In the analysis of judicial decisions handed down by the Brazilian Judiciary, it is verified that the miserability requirement, even having its concept expanded, does not reach the parameters referring to the dignity of the human person. Therefore, the application of this benefit requires effective measures to be taken for its guarantee and effectiveness, analyzing the set of factors that indicate the state of miserability and not separate factors, in order to guarantee the fundamental rights and guarantees.