PR 04505.017 Indiana

A. PR 04-200 Re: Karen Strbjak v. Robert S~, Lake County Superior Court, Civil Division, No. 284-0551

DATE: August 22, 1995

1. SYLLABUS

SSI payments cannot be garnished since they are not considered to be remuneration for employment.

The Social Security Act states that moneys, due from a United States government agency to an individual, shall be subject, in a manner as if the United States government agency were a private person, to state laws enacted to enforce the legal obligation of an individual to provide child support. 42 U.S.C. § 659(a). Thus, Mr. W~' benefits are subject to Louisiana laws governing child support garnishment orders.

2. OPINION

This is with reference to your April 3, 1995 order garnishing Robert S~ Social Security "S.S.I. benefit" in the amount of $78 per month. S.S.I. or Supplemental Security Income benefits under Title XVI of the Social Security Act cannot be garnished for the reasons that follow.

Section 207 of the Social Security Act, 42 U.S.C. § 407 protects Title II disability benefits from garnishment and other legal process.

(a) [N]one of the moneys paid or payable ... under this title [title II] shall be subject to execution, levy, attachment, garnishment, or other legal process....

(b) No other provision of law, enacted before, on, or after the date of the enactment of this section may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section. 42 U.S.C. § 407.

Congress extended the same protection to SSI benefits when it created the SSI program in title XVI. 42 U.S.C. § 1381(d)(1) (the provisions of section 207 ... shall apply with respect to this part to the same extent as they apply in the case of title II.

As part of the Child Support Enforcement Act of 1975, Congress enacted a limited waiver of the section 207 protection to allow garnishment of certain payments or benefits under the Social Security Act to enforce child support and alimony obligations. That enactment, section 459(a) of the Social Security Act, 42 U.S.C. § 407, provides as follows:

Notwithstanding any other provision of law (including section 207), effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States ... to any individual ... shall be subject, in like manner and to the same extent as if the United States ... were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments.

Effective September 3, 1991, the Office of Personnel Management amended its regulations to clarify that SSI benefits are not "remuneration for employment" and, therefore, are not subject to garnishment for child support and alimony. See 56 Fed. Reg. 36723 (August 1, 1991)(adding subsection (k) to 5 C.F.R. § 581.104). This clarification made explicit what was already implicit in the statute and regulations. Section 462(f) of the Act defines "remuneration for employment" to include "compensation paid or payable for personal services of the individual, whether such compensation is denominated as wages, salary, commission, bonus, pay, or otherwise, and includes but is not limited to severance pay, sick pay, and incentive way...." 42 U.S.C. § 662(f)(1). See also 5 C.F.R. §§ 581.103, 581.104. The definition specifically includes title II disability insurance benefits, 42 U.S.C. § 662(f)(2), but not SSI benefits. Additionally, the regulations authorize withholding child support obligations from disability insurance benefits but do not authorize withholding child support obligations from SSI. Compare 20 C.F.R. § 404.1820(b) with C.F.R. § 416.533.

As several state courts have recognized, SSI is a form of public assistance which has nothing to do with the earnings the recipient may have had. Tennessee Dept. of Human Services v. Charles, 802 S.W.2d 594, 597 (Tenn. 1990); Becker County Human Services v. Peppel, 493 N.W.2d 573, 574 (Minn. App. 1992). SSI provides a guaranteed minimum income for needy aged, blind and disabled individuals. See Schweiker v. Wilson, 450 U.S. 221, 224 (1981). As such, SSI is essentially a "safety net" to protect indigent persons. Tennessee, supra; Becker County, supra. This distinguishes SSI benefits from title II disability benefits, which are subject to garnishment for child support. "SSI was created to benefit persons who are entitled to little or not income from Social Security disability benefits." Tennessee, supra, citing S.Rep. No. 1230, 92d Cong., 2d Sess. 12, 13. See also Langlois v. Langlois, 441 N.W.2d 286, 299 (Wis. App. 1989)(SSI benefits are "exempt from every process and inalienable," and, therefore, "cannot be burdened by a child support order"); Moore v. Sharp, 143 A.D.2d 541, 532 N.Y.S.2d 811, 812 (N.Y. App. Div. 1988)(citing the subsistence nature of SSI income in finding a child support order against an SSI recipient improper).

I discussed with the Social Security Administration's concern with plaintiff's counsel on August 21, 1995. Counsel had no objection to the words "social security disability" being substituted for "S.S.I." in findings 4 and 7 as well as order entry 3. Likewise, he did not object to "social security" being substituted for "S.S.I." in findings 5 and order entry 1. The Social Security Administration will expeditiously implement any revised order incorporating these changes. The suggested changes have been marked in the enclosed April 3, 1995 order.

Very Truly Yours,
Thomas W. C~
Regional Chief Counsel

By: ___________________________
Edward L. K~ Assistant Regional Counsel


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PR 04505.017 - Indiana - 07/22/2004
Batch run: 11/29/2012
Rev:07/22/2004