A nova aferição da deficiência para a concessão do benefício de prestação continuada após a recepção da convenção sobre os direitos das pessoas com deficiência com equivalência de emenda constitucional

Abstract

The present work consists to analyze the granting of continuous benefits, linked to Social Assistance, as a way of enforcement of fundamental rights of people with disabilities. To this end, focus has been given on the Convention on the Rights of Persons with Disabilities adopted by Congress through Legislative Decree No. 186 of July 9, 2008, according to the procedure of art. 5, § 3 of the Constitution of the Republic of 1988, giving it equivalent to the constitutional amendments. Preliminarily, we performed a brief study on the evolution of the welfare state, along with the rights related to equality, among which is the right to social assistance. Then, the peculiarities about the incorporation of standards from international treaties in domestic law were studied in detail, especially rules about human rights. Finally, the concept of disability was analyzed under the touchstone medical, legal, social, among others, and, in particular, the criterion adopted in the Convention on the Rights of Persons with Disabilities, which is the currently prevailing in national law. It was concluded that the concept adopted by the Convention should be applied in granting of continuous benefits, once besides being the currently adopted by national law, it is the criterion that can support the minimum existential of people with disabilities who cannot support themselves economically.