The Act requires a distinction between the "past-due benefits" amount for authorizing
the fee under the fee agreement and the "past-due benefits payable" amount for notice
purposes. The terms are not interchangeable.
The first check SSA sends to a claimant may include payment(s) for months after the
month of effectuation and may include benefits or payments excluded from the definition
of past-due benefits (see GN 03940.007B.). In these situations, the "past-due benefits" amount for calculating the fee under
the fee agreement will differ from the "past-due benefits payable" amount (i.e., the
amount of the retroactive payment the claimant receives).
The following priority of payment order applies in title XVI claims, and the title
XVI portion of concurrent titles II and XVI claims, when there are past-due benefits
and direct payment of a representative’s fee:
SSA reimburses the State if interim assistance reimbursement (IAR) is involved.
SSA pays the representative’s fee, to the extent that the withheld past-due benefits
permit, if the claimant’s appointed representative is eligible for direct payment
and he/she has not waived a fee or direct payment. In concurrent titles II and XVI
claims, SSA calculates the 25 percent amount available for possible direct payment
after determining the amount of title XVI past-due benefits had the title II benefits
been paid timely. (See GN 02610.053, How to Process Title II Offset Cases When an Attorney Fee Is Involved – Action to
If there is an outstanding prior overpayment, SSA recovers the overpayment to the
SSA pays any remaining past-due benefits to the claimant.
See GN 03920.033 for policy on title XVI past-due benefits payable in specific situations and an example.
Also, see SI 02101.001, SSI Underpayment Definitions and General Rules; SI 02101.002, SSI Underpayment Due – Individual Alive; and SI 02101.003, SSI Underpayment Due – Individual Deceased – General.