SSA - POMS: GN 03920.036 - Title XVI Past-Due Benefits Subject to Withholding

A. Policy - General

1. Amount SSA Withholds

Beginning February 28, 2005, if the claimant’s representative is eligible for direct payment and has not waived a fee or waived direct payment, SSA withholds 25 percent of a claimant's title XVI past-due benefits for possible direct payment of:

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all or part of a representative's authorized fee for administrative proceedings, and, if applicable,
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all or part of an attorney’s authorized fee for court proceedings.

(See GN 03920.017D., Policy – Direct Payment to Representatives – Title XVI Cases, GN 03920.031., Representative’s Fee – Title XVI Past-Due Benefits, and GN 03920.060B.3., Attorney’s Fees for Representation in Proceedings Before a Court – Past-Due Benefits Withheld).

NOTE: If a Federal court awards a fee in addition to the fee, if any, SSA authorizes for proceedings at the administrative level, SSA withholds a maximum of 25 percent of past-due benefits for payment of fees, whether authorized by SSA, a court, or both.

SSA also may withhold from the claimant’s spouse’s past-due benefits, in a supplemental security income (SSI) couple’s case, for possible direct payment of all or part of the claimant's representative's authorized fee for administrative proceedings and of an attorney’s fee for court proceedings, if the spouse’s benefits increase as a result of the claimant’s eligibility or if the spouse becomes eligible for benefits as a result of the claimant’s eligibility.

If the spouse is individually represented, see GN 03920.036B., Withholding From the Spouse.

After SSA pays a fee directly to the representative, SSA continues to withhold any remaining amount up to 25 percent of a claimant's past-due benefits under these circumstances:

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a party has filed a request for administrative review, or
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the Federal court issued a decision and the attorney has not waived their fee.

NOTE: Prior to February 28, 2005, there was no withholding provision for any representative from title XVI past-due benefits. The representative looked to the claimant to pay the authorized fee.

B. Policy – Withholding From The Spouse

1. Spouse Individually Represented

If a spouse has appointed a representative, SSA will:

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Withhold 25 percent of that spouse's title XVI past-due benefits for possible direct payment of their representative's fee if their representative is eligible for direct fee payment.
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Use the spouse's past-due benefits to determine the spouse's representative's fee under the fee agreement process.

If the spouse has appointed a representative, SSA will not withhold the spouse's past-due benefits for possible direct payment of the claimant's representative's fee or use the spouse's past-due benefits to determine the claimant's representative's fee under the fee agreement process.

2. Spouse’s Benefits Increase or Spouse Becomes Eligible Based on Claimant’s Eligibility and Spouse Was Not Individually Represented

In a title XVI couple’s case, each member of the couple must establish whether he or she is blind, aged or disabled. In addition the couple is considered jointly eligible and the income and resources for both members are considered in determining eligibility and payment for both. The couple’s SSI benefit is computed as one amount, but divided equally between the members of the couple for payment. In the absence of indication to the contrary (e.g., the spouse has appointed their own representative), SSA considers the representative of a claimant to be acting in the interest of the spouse as well. Except in the situations described in GN 03920.036B.2.a. and GN 03920.036B.2.b., when calculating past-due benefits, SSA will withhold 25 percent of the title XVI benefits of a claimant’s spouse, if:

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the eligibility of the claimant results in an increase in the benefits of their eligible spouse’s SSI benefits; or
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the eligibility of the claimant results in a finding that the spouse is also eligible for SSI benefits.

NOTE: Past-due benefits for the spouse are calculated based on the effectuation date of the claimant. See GN 03940.052D. for examples of calculating past-due benefits in fee agreement cases.

a. Fee Petition Process

Under the fee petition process, if SSA has not authorized the representative's fee, SSA will withhold 25 percent of title XVI past-due benefits from the spouse.

If SSA already has authorized the representative's fee and if the amount SSA withheld from the claimant is sufficient to pay the representative the authorized fee, SSA will not withhold past-due benefits from the spouse unless there is a request for administrative review or a court case is pending.

b. Fee Agreement Process

For a title XVI claim or concurrent title II and XVI claims, with no request for administrative review and no court case pending, the following spouse withholding policy applies.

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If the amount SSA withholds and pays to the representative from the claimant’s past-due benefits is the maximum payable fee, SSA does not withhold past-due benefits from the spouse.
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If the amount SSA withholds and pays to the representative from the claimant’s past-due benefits is not the maximum payable fee based on the approved fee agreement, SSA withholds from the spouse the difference between the maximum fee and the amount paid from the claimant’s past-due benefits.

EXAMPLE: An Administrative Law Judge issued a fully favorable decision on the claimant's SSI and disability insurance applications and approved the fee agreement between the claimant and his representative. Twenty-five percent of the claimant's past-due benefits exceeded $9,200 and SSA paid $9,200 directly to the representative. As a result of the claimant’s eligibility, the claimant’s eligible spouse’s SSI benefit increased. However, because the amount SSA paid from the claimant's past-due benefits was sufficient to pay the maximum allowable fee, SSA did not withhold from the past-due benefits due the spouse.

NOTE: If there is a request for administrative review or a court case is pending, SSA must withhold the full 25 percent from the spouse’s past-due benefits if the spouse is not individually represented. This is the case even when 25 percent of the claimant's past-due benefits equals or exceeds $9,200 in a fee agreement case or equals or exceeds the amount of the authorized fee in a fee petition case.

C. Policy - Spouse Objects to Withholding

If a representative's effort on behalf of the claimant establishes an otherwise unrepresented spouse’s eligibility to or an increase in SSI benefits, SSA will withhold from that spouse's past-due benefits to potentially pay the representative's fee (for rationale see SSR 68-61c). If the spouse, who has not appointed their own representative, objects to the withholding of their benefits for payment of the claimant's representative's fee and he or she alleges that the representative did not represent him or her, SSA will advise the spouse that the representative in the case provided services that helped establish or increase their benefits. Therefore, SSA must withhold from the spouse's past-due benefits amount.

If the spouse who has appointed their own representative objects to the withholding of their benefits for payment of the claimant's representative's fee, SSA will advise them that we will continue to withhold but that the withheld amount will be used only to calculate their representative's fee, if the fee agreement process is being used, and to directly pay their representative the authorized fee under either the fee agreement or fee petition process.

Social Security

Program Operations Manual System (POMS)

GN 03920.036 Title XVI Past-Due Benefits Subject to Withholding