Last Update: 5/6/20 (Transmittal I-1-95)
1. Title II
In claims arising under title II of the Social Security Act (Act), past-due benefits are the amount of cash benefits that have accumulated for all beneficiaries because of a favorable administrative determination or decision (decision), up to but not including the month the Social Security Administration (SSA) effectuates the primary beneficiary's decision. Therefore, for most fully favorable decisions, the end date of the past-due benefits period is the month before the month SSA effectuates the decision.
If SSA issues a decision that pertains to more than one title II claim (e.g., disability insurance benefits and disabled widow's insurance benefits), and those claims are not effectuated in the same month, the past-due benefits period will be different for each of those claims, because the past-due benefits period will end the month before the month SSA effectuates the decision on each claim.
When calculating past-due benefits based on a partially favorable decision, SSA uses the beginning and ending dates shown in the partially favorable decision. In later onset date cases, the past-due benefits period begins with the month of entitlement shown in the favorable decision, up to but not including the month SSA effectuates the decision.
If, on appeal, SSA issues a decision that changes the dates of entitlement, SSA will use the past-due benefits that flow from that subsequent decision to recalculate past-due benefits for the entire period of entitlement.
The terms “past-due benefits” and “past-due benefits payable” are not interchangeable. See Program Operations Manual System (POMS) GN 03920.032 for a discussion of past-due benefits payable.
2. Title XVI
In a title XVI only claim, past-due benefits are the total amount of federal and federally administered state payments accumulated because of a favorable decision through the month of effectuation, including any amounts sent to a state/subdivision under an interim assistance reimbursement agreement, minus any continuing benefits, interim benefits, presumptive disability or blindness payments, and emergency advance payments. See POMS GN 03920.031 for an expanded discussion of title XVI past-due benefits for calculating fees.
3. Concurrent Titles II and XVI
The past-due benefits amount in the title XVI portion of concurrent claims is the same as the amount in title XVI only claims, except for the purpose of calculating fees for representation. When calculating fees for representation for concurrent claims, SSA reduces the title XVI past-due benefits amount by the title II benefits received for the same period. This is regardless of whether the actual offset, as provided under section 1127 of the Act, reduces the title II or title XVI benefits. This means that the amount of past-due benefits is calculated after the benefit offset, as opposed to title II only claims, in which SSA determines past-due benefits before any applicable reduction under section 1127 of the Act.
B. Calculating a Fee for Services
1. Fee Agreement Cases
Because a fee agreement is limited to no more than 25 percent of past-due benefits (in addition to other statutory limitations), the fee amount under an approved fee agreement for services a representative provided in pursuing a claimant's benefit rights in proceedings before SSA depends on SSA's calculation of the past-due benefits.
2. Fee Petition Cases
The fee authorizer does not need past-due benefits information to authorize a fee amount in a fee petition case. The 25 percent of past-due benefits withheld by SSA for payment of representative fees concerns the direct payment of fees to representatives, not the amount of the authorized fee, which is determined using the criteria in Hearings, Appeals and Litigation Law (HALLEX) manual I-1-2-57 A.
C. Withholding Requirement
If a claimant has a representative who is eligible to receive direct fee payment (see HALLEX I-1-2-9 A.2.), SSA must withhold 25 percent of the title II and/or title XVI past-due benefits towards direct payment of:
all or part of an attorney's fee for administrative and court proceedings, if the attorney has not waived a fee or waived direct payment of the fee, and the attorney has not withdrawn or been discharged from representing the claimant.
all or part of a non-attorney representative's fee for administrative proceedings, if SSA has determined that the non-attorney is eligible to receive direct payment and the representative has not waived a fee or waived direct payment of the fee, and the representative has not withdrawn or been discharged from representing the claimant.