20 CFR 404.331(b); 404.725

SSR 63-1

A woman, age 58, performed the following services for her mentally retarded daughter, age 27 and entitled to child's insurance benefits: She exercised constant supervision over the daughter's meals, clothing, manners, and activities. Held, the woman had her daughter "in her care" as required for entitlement to wife's insurance benefits where a claimant is under age 62.

A worker, age 65, was entitled to old-age insurance benefits; his daughter, C, age 27 and mentally deficient since birth, became entitled to child's insurance benefits on the worker's earnings record. The worker's wife, W, age 58, filed application for wife's insurance benefits on his earnings record.

To be entitled to wife's insurance benefits under section 202(b) of the Act (besides other requirements, all of which W met), a woman must either have attained age 62 or have in her care (individually, or jointly with her husband) a child entitled to a child's insurance benefit on her husband's earnings record.

Since W was under age 62, she can be entitled to wife's benefits only if she has C in her care, individually or jointly with her husband. In this connection the following facts were established:

W, C, and the worker live together. Because of C's peculiar preferences in food, W must supervise her eating to assure that she gets adequate nourishment. Also she is unable to select clothing appropriate for the season or the occasion. She does not know the elementary rules to follow when she is ill. Her behavior and manners similarly need and receive supervision; for example, she sometimes has to be admonished about "making faces" in company or at church. C plays with small children, for she has the mentality of a child, but her strength is far greater than that of a child, and she must be watched to prevent her from harming her playmates. Also, C must be protected from cruel practical jokes and possible mistreatment.

Thus, C requires constant supervision and care because of her mental retardation. Although the worker gives such assistance as he can, the burden of such care and supervision is largely borne by W.

The question to be decided is whether, under the facts shown above, W can be considered to have C in her care.

To have "in her care" a child under the age of 18, or a mentally incompetent child age 18 or over, the claimant must exercise parental control and responsibility for the welfare and care of the child.

In the present case, the facts show that C is unable to supply her own needs and to cope with everyday needs and responsibilities, is mentally incompetent, and receives from W (jointly with her husband, the worker) constant care and supervision required, by the nature of her disability, for her own protection and welfare and for the protection of others. Thus, W is exercising parental control and responsibility sufficient for a finding that she has C in her care.

Accordingly, it is held that W has in her care a child entitled to child's insurance benefits on her husband's earnings record, as required for entitlement to wife's insurance benefits since W has not attained age 62. All other requirements being met, W is entitled to wife's insurance benefits.

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