SSR 73-31: SECTION 210(a)(3)(B) (42 U.S.C. 410(a)(3)(B)). -- WAGS -- DOMESTIC SERVICE IN PRIVATE HOME OF SON
20 CFR 404.1011
SSR 73-31
- Where worker performed services in bona fide employment relationship as tutor and babysitter in home of married son whose spouse suffered from chronic alcoholism and resultant mental condition, combination of which incapacitated her most of the time and rendered her incompetent to care for her two children under age 18, held remuneration received by worker for such domestic services may be considered wages when such services are performed in an employment relationship and meet the exception (provided by section 210(a)(3)(B) of Social Security Act) to general exclusion from coverage of domestic services performed by parent for son or daughter in latter's private home.
R, the worker, began to work for his son in July 1968. The work was performed at the son's home and consisted of taking the two minor children to school in the morning and picking them up in the evening. R also stayed with the children, fed them, and took care of them during the evening and at other times when necessary. For this service, R's son, a physician, paid him $100 a month through July 1969. The son and his wife separated in July 1969 and were divorced in January 1970. R continued to care for the children until February 1971 when the son moved to another State with the children.
The evidence indicated that for several months in 1967 the son's wife received care in a psychiatric hospital, receiving numerous shock treatments. Upon her return home, the wife was at times capable but for the most part incompetent to care for her children, one in particular who required special care for a heart condition. During the period July 1968 to July 1969 the son lived with his wife in their own home. During this period, the wife was suffering from chronic alcoholism and from a mental condition, the combination of which incapacitated her the majority of the time. The services that R performed were required to enable his son to work and to have the children cared for during their mother's incapacitation.
The issue to be decided is whether R is entitled to quarters of coverage needed for an insured status, in order to qualify for retirement insurance benefits, on the basis of services rendered. This depends on whether (1) a bona fide employment relationship otherwise existed, and (2) the services performed by R during the period July 1968 to July 1969 came within the exception (provided for in section 210(a)(3)(B) of the Social Security Act) to the rule which excludes from coverage domestic service by a parent for his son or daughter in the son's or daughter's private home.
Section 210(a) provides, in pertinent part, that the term "employment" means any service performed after 1950 by an employee for the person employing him . . . except that the term shall not include --
-
(3)(B) . . . domestic service in a private home of the employer,
performed by an individual in the employ of his son or daughter; except
that the provisions of this paragraph shall not be applicable to such
domestic service if --
- (i) The employer . . . has a spouse living in the home who has a mental or physical condition which results in such spouse's being incapable of caring for a son, daughter, stepson, or stepdaughter (referred to in clause
- (ii)) for at least four continuous weeks in the calendar quarter in which the service is rendered, and
- (ii) A son, daughter, stepson, or stepdaughter of such employer is living in the home, and
- (iii) The son, daughter, stepson, or stepdaughter (referred to in clause
- (ii)) has not attained age 18 or has a mental or physical condition which requires the personal care and supervision of an adult for at least four continuous weeks in the calendar quarter in which the service is rendered . . . (Emphasis added.)
The evidence clearly establishes that for the period from July 1968 until July 1969, R performed services in his son's (employer's) home, in which the son's spouse lived. The spouse had a mental condition which resulted in her being incapable of caring for the children, both of whom were under age 18. While a portion of R's work occurred outside the home in delivering the children to and from school, and caring for the children from time to time in his own home, nevertheless the children lived with their father and mother during this period in the home provided for them by their father. The facts are sufficient to establish that an employment relationship existed and satisfied the requirements of the exception to the general exclusion from coverage, under section 210(a)(3)(B) of the Act. Therefore, the services at issue constitute "employment" for which quarters of coverage can be granted.
Accordingly, it is held that all such service performed in an employment relationship in the home of R's son and meeting the statutory exception to the exclusion from coverage of domestic service performed by a parent for a son or daughter, are covered for social security purposes and the remuneration received constitutes "wages;" therefore, on the basis of his application, R is entitled to retirement insurance benefits.