O DIREITO AO “AUXÍLIO-ACOMPANHANTE”, PREVISTO NO ART. 45 DA LEI N. 8.213/91 E O TEMA 1095 DECIDIDO PELO SUPREMO TRIBUNAL FEDERAL À LUZ DA DIGNIDADE HUMANA NO BRASIL

Abstract

The present article was written with the purpose of analyzing the right to accompanying assistance in view of the decision signed by the Federal Supreme Court not to extend the aforementioned guaranteed assistance to insured persons retired due to disability for other types of retirements of the General Social Security System.

The Supreme Court's decision was given in the discussion of Theme 1095 on the constitutionality of the extension of the additional 25%, provided for in article 45 of Law 8.213/1991, to insured persons who prove the disability and need for permanent assistance of another person, regardless of kind of retirement.

The STF decided that, pursuant to the General Social Security System, only the law can create or expand social security benefits and advantages, with no provision for extending the aid for major disability to all types of retirement.

The analysis and study of this decision, the articles of law on the matter and international legislation were carried out based on doctrines of constitutional law, international law, the American Convention on Human Rights and the International Convention on the Rights of Persons with Disabilities.

Given the above, we understand that the decision taken by the Federal Supreme Court of Brazil is in disagreement with the Principles of Human Rights, Equality and Equity assumed in the Federal Constitution of 1988 for the reasons explained in the text presented here.