SSA determines the representative's fee under a fee agreement based on past-due benefits
as defined in GN 03920.030, Representative’s Fee – Title II Past-Due Benefits, and GN 03920.031, Representative’s Fee – Title XVI Past-Due Benefits. As provided in those sections,
in concurrent titles II and XVI claims, for purposes
of calculating a representative's fee under the fee
agreement process, SSA determines past-due benefits before applying the offset provisions under § 1127 of the Act for the title II claim and
after applying the offset provisions under § 1127 for the title XVI claim. Therefore, for purposes
of calculating a representative's fee under the fee agreement process, SSA always assumes title II pays first (i.e., that title XVI offset applies), even
when this is not the situation.
The title II decision maker approves the fee agreement in concurrent claims when:
the fee agreement meets all statutory conditions and none of the exceptions apply;
there are past-due benefits under at least one title.
NOTE: Before disapproving a fee agreement, in a concurrent case it is necessary to determine
if there are title XVI past-due benefits.
Refer to GN 02610.000, Title II/Title XVI (Windfall) Offset, for guidance on title II and title XVI offset
cases and processing fee agreements.