TN 13 (02-05)

GN 03920.032 Representative's Fee - Title II Past-Due Benefits Payable

A. Policy

1. Purpose of Past-Due Benefits Payable

The Act requires that after SSA approves a fee agreement, it must provide the claimant and his/her representative a written notice of the dollar amount of the past-due benefits and the dollar amount of the past-due benefits payable to the claimant (i.e., the amount the claimant will actually receive).

“Past-due benefits payable” may be an amount equal to or less than “past-due benefits.” (See GN 03920.030, Representative's Fee Title II Past-Due Benefits.)

2. The Past-Due Benefits Payable Calculation

Title II “past-due benefits payable” are the remainder, if any, payable to the claimant and any auxiliary beneficiary(ies) after subtracting from past-due benefits the amount:

  • SSA must withhold for direct payment of a representative's fee(s), if any (see GN 03920.017D., Direct Payment to Representatives - Title XVI Cases);

  • of the reduction for receipt of title XVI payments for the same period (i.e., a title II offset, if any) (see GN 02610.053 for title II offset); and/or

  • of a prior overpayment on the claimant's or auxiliary's(ies') record (see GN 03920.030B.5., Effect of Overpayment on Past-Due Benefits).

B. Examples

1. Current Overpayment

a. Situation

  • Claimant began to receive mother's benefits of $200 per month in 1/01.

  • In 1/03, a claims representative (CR) notified the claimant that her benefits were suspended because she has not had a child in her care since 7/02. The notice also advised the claimant that she was overpaid $1,200 ($200 X 6) because she was not entitled to the mother's benefits she received from 7/02 through 12/02.

  • In 3/03, the claimant retained an attorney who requested reconsideration on her behalf.

  • In 10/03, the claimant received the reconsideration determination which stated that the claimant has had a child in her care since 10/02. The claimant was, therefore, only overpaid $600 for the 3 months from 7/02 to 9/02.

  • In 2/04, the claims authorizer (CA) certified the claim for payment by transmitting the folder to a benefit authorizer (BA) with instructions for resumption of benefits payments.

b. Discussion

The period encompassed by the issue for which the claimant was represented (the past-due benefits period) is from 7/02, the first month SSA determined the claimant no longer had a child in her care, through 1/04, the month before the month the CA instructed the BA to resume benefits payments. The claimant was overpaid from 7/02 through 9/02 (3 X $200 = $600); she was entitled to the funds she received from 10/02 through 12/02. The claimant is due benefits from 1/03 through 1/04 (13 X $200 = $2,600). The past-due benefits amount subject to withholding is $2,000 ($2,600 - $600 = $2,000). SSA will withhold $500 (25 percent of $2,000) for direct payment of the attorney's fee. Therefore, the past-due benefits payable are $1,500 ($2,000 – $500).

2. Overpayment From a Prior Period

a. Situation

  • The claimant was represented by a representative who is eligible for direct fee payment.

  • The represented claimant became entitled to past-due benefits of $20,000 for 09/03 through 08/05.

  • The claimant has a $3,000 overpayment from 1992, a prior period of entitlement.

  • During the current period of entitlement, the claimant received workmen's compensation (WC) payments that resulted in an offset of $9,000.

b. Discussion

The past-due benefits amount subject to withholding is $11,000 ($20,000 past-due benefits – $9,000 WC). The claimant's 1992 overpayment has no effect on the past-due benefits amount because it occurred in a prior period of entitlement. However, SSA must reduce the $20,000 retroactive payment by $9,000, the WC offset amount, because SSA does not include benefits that a claimant will not receive because of a deduction event. SSA will withhold $2,750 ($11,000 X 25 percent of past-due benefits) for direct payment of the representative's fee, and reduce the retroactive amount by the $3,000 overpayment. Therefore, the past-due benefits payable amount is $5,250 ($11,000 - $5,750 ($3,000 OP + $2,750 withheld amount)).