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  1. #1
    Join Date
    Jul 2019
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    1

    Default Back Pay when SSA is at Fault

    My husband died 9 years ago (he was only 39 yrs old) and I called within 1 week to report his death to SSA and arranged survivor benefits for my daughter. At that time I asked if I was entitled to any spousal benefits and the rep asked if I had been married at least 10 years and I said no. She said "well, then you aren't eligible". Well fast forward to now....I have found out that I was indeed eligible for spousal survivor benefits because I was taking care of his child, no matter what my age or length of our marriage. Am I entitled to back pay for the past 9 years of benefits because the social security rep dropped the ball and did not sign me up for the benefits at that time? The rep's negligence has caused me to miss out on a large amount of money and that could of helped me tremendously in raising my children on my own as a single mom. Would it be worth my time and effort to hire an attorney in this matter? Thank you very much!

  2. #2
    Join Date
    Mar 2013
    Posts
    17,272

    Default Re: Back Pay when SSA is at Fault

    I was taking care of his child
    HIS child?

    Not OUR child?

  3. #3
    Join Date
    Jan 2006
    Posts
    38,767

    Default Re: Back Pay when SSA is at Fault

    You’re reading too much into that. Op states in the first sentence it is her child. Her point is that because it was his child (too) she should be entitled to benefits even if they weren’t married.

  4. #4
    Join Date
    Oct 2014
    Posts
    7,454

    Default Re: Back Pay when SSA is at Fault

    Quote Quoting heartrn
    View Post
    I have found out that I was indeed eligible for spousal survivor benefits because I was taking care of his child, no matter what my age or length of our marriage. Am I entitled to back pay for the past 9 years of benefits because the social security rep dropped the ball and did not sign me up for the benefits at that time? The rep's negligence has caused me to miss out on a large amount of money and that could of helped me tremendously in raising my children on my own as a single mom.
    The way it works is that you are entitled to get the benefits starting the month you apply and up to six months before you applied for each of those six months that you qualified for the benefits. See Social Security Handbook Subchapter 1513. If you still qualify for SSA Survivor's benefits (either because you are a surviving spouse taking care of his child or on your own) then certainly you should do so. You'd get benefits starting the from six months before you applied. However, though you qualified for the benefits going back nine years ago, the rules only allow six months of benefits prior to when you applied.

    The wrong advice of the SSA rep you spoke with is unfortunate, especially since it appears that is not something for which you may sue the federal government. I'll give some explanation of the way the law works on this to provide context for the rule. The general rule is that you cannot sue the federal government for money damages unless there is a statute that waives the government's sovereign immunity and consents to the government being sued for that type of claim. The wrong advice of the rep would be a negligence claim, specifically misrepresentation, which is a type of tort claim. There is a statute that waives the government's immunity for tort claims called the Federal Tort Claims Act, 28 U.S.C. 2671-2680(FTCA). The problem is that the FTCA excludes certain kinds of claims from that waiver. Specifically, claims of misrepresentation are excluded in 28 U.S.C. 2680(h). Simply put, wrong advice by a federal government employee is not itself something for which you may sue the government for money damages.

    Even if you could sue for that, there is another problem. Under the FTCA you must first file a timely administrative claim with the agency (in this case SSA) within two years of the negligent act. If you do not timely file the claim then the claim is barred. Standard Form 95 may be used to file the administrative claim, but is not required. For more information on that, see the Department of Justice (DOJ) regarding FTCA forms.

    You may consult an attorney or two who handle SSA claims cases or are familiar with suing the federal government under the FTCA for specific advice on your situation. Most attorneys will give a free initial consultation on this, so it would only cost you a bit of your time. Just be prepared that they will likely say you can't sue for this for the reasons I gave above.


    Quote Quoting jk
    View Post
    You’re reading too much into that. Op states in the first sentence it is her child. Her point is that because it was his child (too) she should be entitled to benefits even if they weren’t married.
    I agree in part. Her point was that she would be entitled to the benefits because she (1) was the surviving spouse and (2) was caring for his child who presumably was under age 16 at the time. So even if the kid was her stepchild she would still get the benefits. But it is not correct that she'd get them if she and the deceased father had not been married. A girlfriend caring for her deceased boyfriend's child does not qualify for SSA survivor's benefits. See the like to the SSA survivor's benefits page that that I linked in my reply to the OP.

  5. #5
    Join Date
    Jan 2006
    Posts
    38,767

    Default Re: Back Pay when SSA is at Fault

    Quote Quoting Taxing Matters
    View Post
    The way it works is that you are entitled to get the benefits starting the month you apply and up to six months before you applied for each of those six months that you qualified for the benefits. See Social Security Handbook Subchapter 1513. If you still qualify for SSA Survivor's benefits (either because you are a surviving spouse taking care of his child or on your own) then certainly you should do so. You'd get benefits starting the from six months before you applied. However, though you qualified for the benefits going back nine years ago, the rules only allow six months of benefits prior to when you applied.

    The wrong advice of the SSA rep you spoke with is unfortunate, especially since it appears that is not something for which you may sue the federal government. I'll give some explanation of the way the law works on this to provide context for the rule. The general rule is that you cannot sue the federal government for money damages unless there is a statute that waives the government's sovereign immunity and consents to the government being sued for that type of claim. The wrong advice of the rep would be a negligence claim, specifically misrepresentation, which is a type of tort claim. There is a statute that waives the government's immunity for tort claims called the Federal Tort Claims Act, 28 U.S.C. 2671-2680(FTCA). The problem is that the FTCA excludes certain kinds of claims from that waiver. Specifically, claims of misrepresentation are excluded in 28 U.S.C. 2680(h). Simply put, wrong advice by a federal government employee is not itself something for which you may sue the government for money damages.

    Even if you could sue for that, there is another problem. Under the FTCA you must first file a timely administrative claim with the agency (in this case SSA) within two years of the negligent act. If you do not timely file the claim then the claim is barred. Standard Form 95 may be used to file the administrative claim, but is not required. For more information on that, see the Department of Justice (DOJ) regarding FTCA forms.

    You may consult an attorney or two who handle SSA claims cases or are familiar with suing the federal government under the FTCA for specific advice on your situation. Most attorneys will give a free initial consultation on this, so it would only cost you a bit of your time. Just be prepared that they will likely say you can't sue for this for the reasons I gave above.




    I agree in part. Her point was that she would be entitled to the benefits because she (1) was the surviving spouse and (2) was caring for his child who presumably was under age 16 at the time. So even if the kid was her stepchild she would still get the benefits. But it is not correct that she'd get them if she and the deceased father had not been married. A girlfriend caring for her deceased boyfriend's child does not qualify for SSA survivor's benefits. See the like to the SSA survivor's benefits page that that I linked in my reply to the OP.
    All I was doing was pointing out the op had stated it was her child. She also said it was his child as well, which was the point that may qualify her for benefits. Didn’t make any sort of determination as to her claim. How you can disagree with something I said is beyond me since I made no statement regarding eligibility other than repeating what the op said regarding why she believed she was eligible.

  6. #6
    Join Date
    Oct 2014
    Posts
    7,454

    Default Re: Back Pay when SSA is at Fault

    Quote Quoting jk
    View Post
    How you can disagree with something I said is beyond me since I made no statement regarding eligibility other than repeating what the op said regarding why she believed she was eligible.
    You said: "Her point is that because it was his child (too) she should be entitled to benefits even if they weren’t married."

    Two points about this. First, she never expressly said that she believed she'd be entitled to benefits even if she were not married to the OP. Second, I don't think one can logically infer that from what she did say. She stated she was married to the father and that she believed she was entitled to benefits because she was caring for his child (presumably under age 16 at the time). And it's true, she would have been entitled to those benefits. Since she was married at the time, logically one cannot infer from her statement that she believed she was entitled to benefits to mean that she thought someone unmarried to the father would get benefits. She was married to the father, and was talking about what rights the surviving spouse is entitled to get. One cannot read more into it than that.

    So to the extent you are saying you simply stated what she said, I disagree with you for the reasons I've just given. She did not say that. To the extent you were saying that it was your own understanding that an unmarried person taking care of the child of a deceased person would qualify for survivor benefits, I disagree with you because that is not the law. So either way, I see your statement that "...she should be entitled to benefits even if they weren’t married" as incorrect.

  7. #7
    Join Date
    Jan 2006
    Posts
    38,767

    Default Re: Back Pay when SSA is at Fault

    Quote Quoting Taxing Matters
    View Post
    You said: "Her point is that because it was his child (too) she should be entitled to benefits even if they weren’t married."

    Two points about this. First, she never expressly said that she believed she'd be entitled to benefits even if she were not married to the OP. Second, I don't think one can logically infer that from what she did say. She stated she was married to the father and that she believed she was entitled to benefits because she was caring for his child (presumably under age 16 at the time). And it's true, she would have been entitled to those benefits. Since she was married at the time, logically one cannot infer from her statement that she believed she was entitled to benefits to mean that she thought someone unmarried to the father would get benefits. She was married to the father, and was talking about what rights the surviving spouse is entitled to get. One cannot read more into it than that.

    So to the extent you are saying you simply stated what she said, I disagree with you for the reasons I've just given. She did not say that. To the extent you were saying that it was your own understanding that an unmarried person taking care of the child of a deceased person would qualify for survivor benefits, I disagree with you because that is not the law. So either way, I see your statement that "...she should be entitled to benefits even if they weren’t married" as incorrect.
    Yes, her point, not mine. I reiterated her point to explain the hers and his statements, nothing more.

    She is under the belief she is entitled to benefits based on the facts stated. I made no suggestion let alone a conclusion as to the validity of her statements.

  8. #8
    Join Date
    Jun 2014
    Posts
    3,090

    Default Re: Back Pay when SSA is at Fault

    She may be eligible for caregivers benefits. Caregiver benefits are different than Survivors Benefits. The requirement of being married for at least 10 years. Only applies to Divorced Spouses. Caregiver benefits end when the child turns 16. Unless the child is disabled.

    https://www.ssa.gov/planners/survivors/ifyou.html#h2

  9. #9
    Join Date
    Jan 2009
    Location
    California
    Posts
    1,040

    Default Re: Back Pay when SSA is at Fault

    If you did not file a claim 9 years ago, then your application date is not protected. Verbal denials are not appealable, even if you got wrong information, which would be next to impossible to prove. It is almost always better to get a formal denial notice with appeal rights than a verbal denial. So getting an attorney is probably a waste of time, if you could even find one willing to take this on.

    How much money do you make at your own job? If you are earning over the exempt amount ($17,640 in 2019), your earnings would have reduced your child-in-care spousal benefits, possibly reduced to zero. For every $2 over the exempt amount, your survivor benefits would be reduced by $1.

    https://www.ssa.gov/policy/docs/quic...hts/index.html

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