I-1-2-7.Past-due Benefits

Last Update: 2/25/05 (Transmittal I-1-48)

A. Definition

1. Title II

Past-due benefits that result from a favorable determination or decision (hereafter “decision”) are the amount of benefits for all beneficiary(ies) under title II of the Act that have accumulated because of a favorable administrative decision, up to but not including the month the Social Security Administration (SSA) effectuates the 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 the claims are not effectuated in the same month, the past-due benefits period will be different for each claim 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 periods 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.

NOTE:

The terms “past-due benefits” and “past-due benefits payable” are not interchangeable. See POMS GN 03920.032 for a discussion of past-due benefits payable.

Refer to POMS GN 03920.030 and subsequent sections for a detailed discussion of past- due benefits policy. For the definition of past-due benefits in court cases see GN 03920.060B.

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, SSA reduces the title XVI past-due benefits amount by the title II benefits received for the same period, regardless of whether the actual offset, as provided under § 1127 of the Social Security Act, reduces the title II or title XVI benefits.

B. Fee Agreement Cases

NOTE:

Prior to February 28, 2005, there was no provision for withholding of past-due benefits toward direct payment of an authorized fee under title XVI or when the appointed representative was not an attorney.

1. Calculating a Fee for Services

Under the fee agreement process, SSA uses past-due benefits to calculate a fee for services a representative provided in pursuing the claimant's benefit rights in proceedings before SSA.

2. Certification of Direct Payment to Representatives

If the claimant has a representative who is eligible to receive direct fee payment (see I-1-2-9 A. 2.), SSA must withhold up to 25 percent of the title II and/or title XVI past-due benefits towards direct payment of an authorized fee unless the representative has waived the right to direct payment of a fee.

C. Fee Petition Cases

NOTE:

Prior to February 28, 2005, there was no provision for withholding of past-due benefits toward direct payment of an authorized fee under title XVI or when the appointed representative was not an attorney.

If the claimant has a representative who is eligible to receive direct fee payment (see 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 an authorized fee unless the representative has waived the right to direct payment of a fee.

NOTE:

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.

D. Court Cases

SSA uses past-due benefits which result from a claim(s) or post-entitlement action(s) to calculate the 25 percent amount of past-due benefits to withhold for direct payment of an attorney's fee in a court case.