Uma análise jurisprudencial acerca do benefício assistencial ao deficiente: a efetivação da convenção sobre os direitos das pessoas com deficiência

Abstract

The assistencial benefit to the disabled, constitutionally fixed, has suffered changes, which were largely caused by the Convention on the Rights of Persons with Disabilities, signed in New York, bringing new forms of disability recognition and effectiveness to the assistance in Brazil. Therefore, the present research aimed to verify if the mentioned international treaty has been effectively incorporated internally. For that, the systematic and deductive method was used, since it integrated the dialogue between national norms and those of the international frame, using normative, doctrinal and jurisprudential research. The debate involved the legislative changes and, at the same time, examined the validity of the judicial decisions coming from the National Court of Uniformization and the Federal Regional Courts of the country, regarding the constitutionalized human rights. It was perceived a great evolution, both through the precedents edited by the National Court of Uniformization, which show the spirit brought by the international convention and the use of the Statute of the Person with Disabilities, including the recognition of the constitutionalisation of human rights evidenced by the international treaty. However, it was possible to note that many judicial bodies are still moving away from the new model of human rights for the identification of disability, distorting the goals embraced by the Brazilian State when regulating the institute and assuming responsibilities before international law, falling short on the application of the open concept of disability for BPCLOAS concession.