Courts are already aware that it is possible to withdraw funds to help with expenses and cover professional follow-up
Families with dependents with Autism Spectrum Disorder (ASD) got the right to withdraw the FGTS credit (Fundo de Garantia do Tempo de Serviço) in court. Disruption is not among the assumptions provided in the law that allows a worker to use the fund, but the courts recognize that it is possible to withdraw funds to help with expenses and cover professional follow-up.
In early March, the TRF-3 (Federal Regional Court for the Third District), serving São Paulo and Mato Grosso do Sul, confirmed a ruling in this regard. The decision was unanimous and it was decided that Caixa Econômica Federal, director of FGTS, would release the loot to the father of an autistic boy.
When he filed the lawsuit, in 2019, the worker had R$119,000 in FGTS, adding deposits from four jobs since 2011. He claimed he needed the money to pay for multidisciplinary treatment for his son, who was diagnosed with autism when he was two. year.
As usual in these cases, Caixa denied the FGTS withdrawal request. The bank claims, in both administrative requirements and legal procedures, that it cannot release balance movement outside of the assumptions listed in federal legislation.
Although the money belongs to the worker, the law allows access to the fund in specific cases. In addition to dismissal without just cause and the purchase of a home, there are cases related to the health of a worker or dependent. These include people with HIV, people with cancer, or those with a serious end-stage illness.
Strictly speaking, autism does not fit into any condition.
In the lawsuit reaching TRF-3, the worker brought medical reports proving the diagnosis of ASD and the need for specialized monitoring of the child.
In the first two cases, the federal judiciary understood that the worker had the right to withdraw the FGTS, citing other precedents for the TRF-3 itself relating to cases of autism. There is a call.
Federal public defender Luisa Ayumi says the ideal would be a change in the law or a court decision in a class action that would establish permission to use the FGTS for all families with autistic dependents. In the meantime, Caixa is obligated to reject the requests, based on a literal interpretation of the legislation.
“Caixa is only able to release administratively in cases provided by law. In other cases, not expressly stipulated, the solution is to file a lawsuit, and seek an explanation consistent with the social purposes of the program,” Ayumi says.
Understanding TRF-3 is not isolated. All five Federal Regional Courts have decisions authorizing the withdrawal of FGTS for families with autism dependence. The Supreme Court of Justice (STJ), which is responsible for standardizing federal jurisprudence, does not have a specific ruling on cases involving FGTS for autistic dependents, but has already decided that the list of diseases provided by law is only exemplary—and thus recognizes nondescript situations.
System coordinator Ricardo Rockenbach Nascimento, 40, filed a lawsuit with the Parana Federal Court in May 2020 claiming access to the R99,000 he had in the FGTS at the time. He is the father of Felipe, now 4 years old, who was diagnosed with Autism Spectrum Disorder at the age of 2.
Through a medical report, Ricardo established that the son had level 2 autism (there are three levels, which progress according to the severity of the symptoms) and needed ongoing, indefinite treatment. Later, Maria Clara, Felipe’s twin, will receive a level 1 autism diagnosis.
The process took eight months for the judge to rule on Caixa, but the money was only released after the court confirmed the ruling, three months later.
Karina Nascimento, 39, the mother of the twins, says Felipe’s treatment alone includes psychotherapy, speech therapy and occupational therapy sessions that cost a total of R$1,200 per week. Other expenses are added, such as specialized educational games, which are necessary to encourage children at home, and medication.
“Parents of children with autism shouldn’t explain why they need it [do FGTS]. Karina says our money is a right and it has helped us a lot.” The couple now faces another legal dispute, this time against the health plan, to get reimbursed for the treatment expenses of the twins in Guaratuba (PR), where he lives.
How to file a claim for FGTS release
The procedure for requesting release of the withdrawal of the guarantee fund is the responsibility of the Federal Court.
The DPU (Attorney General of the Federation) helps families with a monthly income of R$2,000 or who can prove unable to pay a lawyer for free. Check this link (https://www.dpu.def.br/contatos-dpu) for DPU service points and contacts.
If the total amount requested in the lawsuit amounts to 60 minimum wages (R$72,720), it is possible to submit the application directly to the Federal Special Court, without the need for a lawyer. Above this value, it is necessary to enter the Federal Court of Justice, always with a lawyer.
Priscilla Zangiacomo, a specialist in labor and union relations, says it is not recommended to file a lawsuit without the guidance of a lawyer, due to the specificity and complexity of the procedure.
According to the lawyer, the following documents are required to file the case:
Identity document (RG or CNH, including CPF)
– Business card (can be digital version)
Recent proof of residence (ideally for a maximum of three months)
– FGTS extract (obtainable on the Caixa website or on the FGTS app)
– A copy of the medical examinations, reports or clinical data reported on the “Critical Illness Medical Report for FGTS Withdrawal Request” form
If the application is based on a dependent’s illness or disorder, it will be necessary to prove a dependency relationship (eg birth or adoption certificate).
See diseases that warrant the release of FGTS:
Severe heart disease
– Radioactive contamination, based on completion of specialized medicine
– Parkinson’s disease
Ankylosing spondylitis (ankylosing spondylitis / ankylosing spondylitis)
Advanced stage of Paget’s disease (osteitis deformans)
Acute liver disease
– Irreversible and disabling paralysis