A análise jurídica da miserabilidade para a concessão do benefício de prestação continuada

Abstract

This scientific article addresses the current legal understanding about the criterion of misery to granting the Continued Benefit, regulated in the Organic Law of Social Assistance (LOAS), thus the benefit is the materialization of social rights guaranteed by the Constitution Federal of 1988. The methodology adopted in this research was based on bibliographic research, recalling the origin of the Assistance Benefit in Brazil until its concession criteria. In addition, the criterion of family income and the current jurisprudential understanding of misery and social vulnerability were emphasized, criteria established by Law n. 8.742/1993. The question of the study focuses on the divergence related to the subject, since most of the doctrine and a good part of the

1 Aluna do curso de graduação em Direito da PUC – Goiás. 5 jurisprudence understand that there is a discrepancy and divergence in the analyzes to characterize the misery, which raises doubts about its compatibility with the Magna Carta. The study seeks to present a guide for the methods used to determine the criterion of miserability of this benefit and how this reflects on the lives of the applicants. From the analysis, it appears that the lag of legislation demands an active and almost legislative role from the judiciary, however, depending on the scenario, there is a legal uncertainty of the beneficiary who is at the mercy of the subjectivity of the magistrate who must analyze his reality in a completeness of factors, which requires a broad social debate on the requirements for granting the benefit in question. Key words: Assistance Benefit. Federal Constitution. Miserability. Social assistance