Perspectivas do benefício assistencial de prestação continuada a partir da declaração de inconstitucionalidade parcial por omissão do artigo 34, parágrafo único, do Estatuto do Idoso

Abstract

This exhibition aims to evaluate in a critic way the changes on the Social Security system and on the procedure of the concession of the Assistance Benefit of Continued Provision promoted by the legislative amendment resulting from the enactment of the Elderly Statute, especially by the innovation introduced by the single paragraph of the 34 article of the mentioned legal device. Therefore, the study proceeds to a historical and current analysis of the Brazilian Social Security, advancing, in a posterior moment, on the presentation of the general aspects and of the constitutional and legal requirements for the concession of the Assistance Benefit of Continued Provision. After, the study addresses the changes introduced by the edition of the Elderly Statute and by the prevision of the single paragraph of the 34 article of the mentioned legal device, which culminated in the declaration of the partial unconstitutionality by omission of the mentioned legal device by the Supreme Court, in incidenter tantum character, on the judgment of the Extraordinary Appeal nº 580.963/PR. To achieve the established purpose, the study applies the deductive methodology, using the exploratory and qualitative research of the doctrinal bibliography, the legislation, and the case law related to the theme. In a conclusive aspect of the study, it's evident that, despite the declaration of the normative-constitutional failure of the legal device in appreciation, the analysis of the miserability of the applicant’s family group still occurs in a casuistic way, based on subjective touchstones, on the federal forensic practice.