20 CFR § 416.1056, 416.1165, and 416.1167(a)

SSR 82-11

When the claimant's father applied for supplemental security income (SSI) benefits and optional State supplementation on his son's behalf in November 1979, the claimant was 17 years old, unmarried, and attending a school for the emotionally disturbed. The Social Security Administration (SSA) determined that the claimant was a "child" who was living in the same household as his parents. Consequently, the income of his father was counted, as provided by statute, in determining his eligibility for benefits under the SSI program. With the inclusion of his father's income, the claimant was ineligible for both SSI benefits and optional State supplementation because he had excess countable income. When SSA denied the application, the claimant's father appealed. The record shows that, even though the claimant resides at the school, he is still subject to the control of his parents and that he comes home for holidays, school vacations, and occasional weekends. Held, under 20 CFR 416.1167(a)(2), the claimant, who meets the definition of a "child" in 20 CFR 416.1056, is living in the same household with his parents because his absences due to attendance at school are temporary. Further held, the claimant's income is deemed to include, as provided in section 1614(f)(2) of the Social Security Act (the Act), the income of his father; therefore, the claimant is ineligible for benefits under the SSI program because he has excess countable income.

The general issue to be determined is whether the claimant is eligible for SSI benefits under section 1611 of the Act. The specific issue is whether the claimant's income exceeded that specified by section 1611 of the Act. This depends on the claimant's income (including income deemed to him) and his living arrangements.

The claimant's application for SSI benefits, filed on November 26, 1979, was denied on the grounds that his income (including the income deemed to him from his father's earnings), less applicable exclusions, was in excess of the amount allowed for the receipt of SSI benefits and optional State supplementation.

At the hearing, the 17 year old claimant testified that he has attended a special school for the past three years. He is in ungraded classes, taking courses in mathematics, reading, social studies, and English. He resides at the school, ut comes home to the private house of his parents for all holidays. He also comes home for the midwinter recess in February and for occasional weekends. At his home, he has his own room where a bed, dresser, clothes, radio, and television are maintained for him by his parents.

The claimant's father testified that the claimant was attending the special school because of an emotional disturbance. The school district and the county in which the claimant's parents reside pay for the cost of the claimant's education, food, and shelter while he is at the school. The claimant's father pays for his medical needs, transportation, and entertainment. The father stated that the claimant's testimony concerning the time he spends at the school and the time he spends in the home of his parents was accurate, adding that the claimant comes home to his parents' house about one weekend a month. The father testified further that he earns $25,000 to $27,000 a year and that he and his wife have no children other than the claimant.

The documentary evidence establishes that the school the claimant attends is certified by the State Board of Social Welfare as a child care facility providing care and therapeutic treatment for students with mild to severe emotional disabilities. The school district placing the child pays the tuition for students attending the school and is reimbursed by the State Education Department. Maintenance costs for the students are paid by the county which places the student. The parents of the children at the school do not relinquish parental control or responsibility to the school.

Section 1611(a) of the Act, in part, provides certain income limitations that a person must meet to be eligible for SSI benefits.

Section 1612(a) of the Act, provides that "income" means both earned and unearned income. "Earned income" means wages and net earnings from self-employment. "Unearned income" means all other income.

Section 1612(b)(2)(A) of the Act provides that in determining the income of an individual there shall be excluded "the first $240 per year (or proportionately smaller amounts for shorter periods) of income (whether earned or unearned) other than income which is paid on the basis of the need of the eligible individual."

Section 1614(c) of the Act defines "child" to mean an individual who is neither married nor the head of a household and who is (a) under the age of 18 or, (b) under the age of 22 and a student regularly attending school, college, or university or a course of vocational or technical training designed to prepare him for gainful employment.

Section 1614(f)(2) of the Act provides that "for purposes of determining eligibility for and the amount of benefits for any individual who is a child under age 18, such individual's income and resources shall be deemed to include any income and resources of a parent of such individual (or the spouse of such a parent) who is living in the same household as such individual, whether or not available to such individual, except to the extent determined by the Secretary to be inequitable under the circumstances."

Section 416.1165 of Regulations No. 16 explains how income from an ineligible parent is deemed to a child as unearned income.

Section 416.1167(a) of Regulation No. 16, in part, provides that -- "If you and your ineligible . . . parent stop living in the same household, we stop applying deeming rules with the first full month that one of you is absent, unless the absence is temporary . . . . (2) If you are an eligible child who is away at school but comes home on some weekends or lengthy holidays and if you are subject to the control of your parents, we consider you temporarily absent from your parent's household . . . ."

Section 416.2025(b)(4) provides that --

"No State supplementary payment will be made where countable income is equal to or exceeds the sum of the Federal benefit rate and the State supplementary payment rate."

The testimony given at the hearing and the documentary evidence demonstrates that, for purposes of deeming income under section 1614(f)(2) of the Act, the claimant, while attending school, is considered only temporarily absent from the household of his parents. The testimony showed that the claimant comes home for all holidays, one weekend a month, and between semester recess. There is no evidence, such as a signed document, that the claimant's parents have relinquished parental control over the claimant. The school is considered only in loco parentis of the claimant's parents, as any school is to a student while the school is in session. That is, the school standards in the place and the stead of the claimant's parents in exercising authority over the claimant only because of the claimant's physical absence from his parents while attending school. Complete living facilities are provided for the claimant in the household of his parents on an annual basis. The payment of the claimant's tuition and maintenance charges at the school by the school district and county in which the claimant's parents reside corroborates that the claimant lives in his parent's household. Under these circumstances, the claimant is considered only temporarily absent from the household of his parents, that is, under § 416.1167(a)(2) of Regulations No. 16, he is considered to be residing in the household of his parents.

Because the 17 year old claimant is a "child" as defined in section 1614(c) of the Act, and resides in the household of his parents, his income is deemed to include the income of his father, as provided in section 1614(f)(2) of the Act. Under § 416.1165 of Regulations No. 16, the claimant's father's income, less the applicable allocations explained in that section, is deemed to the claimant as unearned income. With the inclusion of the deemed income, the claimant is ineligible for both SSI benefits and optional State supplementation because he has excess countable income.

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