Ineficiência do instrumento de avaliação e inconstitucionalidade do requisito temporal na concessão do Benefício de Prestação Continuada à Pessoa com Deficiência

Abstract

This article analyzes, through a qualitative methodology, the adequacy of the criteria for identifying disability in the granting of the BPC/LOAS to the constitutional concepts brought by the International Convention of the UN of 2006 on the Rights of Persons with Disabilities and its Optional Protocol, ratified by Brazil in 2009. It also questions the unconstitutionality of the temporal requirement for characterizing the long-term impairment, not provided for in the legislation. The theoretical framework of the research was the constitutionalization of the New York Convention and the conceptual and legislative evolution of disability in the Brazilian legal system. To analyze the observance of the constitutional criteria in the assessment of the requirements, a bibliographic and doctrinal research of the topic was carried out, as well as a historical study of the social protection of the person with disability. The results show that there is no, until now, Brazilian instrument or structure capable of carrying out the biopsychosocial evaluation of disability in the constitutional molds, and that the imposition of a restrictive temporal requirement contradicts the constitutional guarantees.