The Hypervulnerability of the Absolutely Incapable Dependent in the Incarceration Benefit of the General Social Security Regime: Legislative Failures of the Social Security System

Abstract

The objective of this study is to analyze the gaps in Brazilian legislation regarding the protection of absolutely incapable dependents receiving the prison assistance benefit, focusing on the concepts of hypervulnerability developed by Minister Herman Benjamin and the constitutional obligation of social security. The methodology was based on a literature review, document analysis of current legislation, case law, and a focus on specific cases. The research demonstrates that the current legal system, especially after the amendments to Law 8.213/91, creates a paradox: while the Federal Constitution and the ECA establish the full protection of children as an absolute priority, social security legislation imposes bureaucratic barriers and obstacles that leave hypervulnerable minors unprotected. The results indicate that the rigidity of the application filing date (DER) as the starting point for the benefit, combined with the ineffectiveness of automatic identification mechanisms for incapable dependents, violates fundamental constitutional principles. The conclusion is that a legislative reform is needed that prioritizes the welfare purpose of prison assistance over the bureaucratic rigidity of social security.