TN 35 (04-14)

Citations:

Social Security Act Sec. 207, Sec. 1631(d)(1)

United States Code 12 USC 3401, 42 USC 407, 42 USC 1383(d)(1)

A. Protection from assignment of benefits

Sections 207 and 1631(d)(1) of the Social Security Act (the Act) prohibit “transfer” or “assignment” of a beneficiary or recipient’s right to future payment under title II and title XVI respectively. These sections of the Act prohibit the transfer of control over money to someone other than the beneficiary, recipient, or the representative payee. These sections also protect the beneficiary or recipient's right to receive payments directly, and to choose how to use the payments.

Our responsibility for protecting payments against legal process and assignment ends when we pay the beneficiary or recipient. However, once paid, Sections 207 and 1631(d)(1) of the Act continue to protect payments as long as we can identify them as:

• Retirement, Survivors and Disability Insurance (RSDI) benefits; or

• Supplemental Security Income (SSI) payments.

For example, this would include a situation in which RSDI or SSI payments are the only direct deposit payments in the account.

A beneficiary or recipient can use Sec. 207 or 1631(d)(1) of the Act as a personal defense if ordered to pay his or her payments to someone else, or if his or her payments are ordered to be taken by legal process.

B. Exceptions to protection from assignment of benefits

Laws may create exceptions to the protections provided under Sec. 207 and 1631 of the Act, but only if they explicitly identify the applicable section, either Sec. 207 or 1631 (also found in the United States Code as 42 USC 407 or 42 USC 1383), and provide that the law applies despite that section. So far, Congress has authorized the following exceptions to Sec. 207 and 1631 of the Act.

1. Garnishment of benefit payments for child support or alimony

Garnishment is the legal process of withholding an amount from money owed to a person in order to pay off the person’s debt to another. Under Sec.459 of the Act (42 USC 659), garnishment of benefit payments for the purpose of collecting amounts owed for child support or alimony is permitted. For policy on garnishment of title II benefits, see GN 02410.200 through GN 02410.225.

2. Garnishment of benefit payments for victim restitution

Garnishment of benefit payments to recover court-ordered victim restitution is permitted under 18 USC 3613(a), 3663, 3663A, and 3664. For policy on garnishment for court-ordered victim restitution, see GN 02410.223.

3. Levy for unpaid federal taxes

Levy is the legal seizure of property, such as Social Security benefit payments, to recover a debt. The IRS places to place a levy on benefit payments to recover unpaid federal taxes under 26 USC 6331 and 6334. For policy on IRS levy, see GN 02410.100.

C. Fees and automatic withdrawals

State or Federal government guidelines do not regulate financial institution (FI) fees. These fees are a matter of contract between banks and their customers. Customary fees outlined in account contracts with FIs, and the automatic withdrawal of these fees, do not constitute an assignment of benefits. For a definition of an acceptable FI, see GN 02402.030.

1. Financial institution

The following banking options meet Treasury’s definition of an acceptable FI:

• Banks,

• Savings and loan associations,

• Credit unions, or

• Thrift institutions.

For policy on acceptable financial institutions, see GN 02402.030.

NOTE: A master sub-account is an account at an FI established to receive deposits on behalf of a group of individuals. Sub-accounts are then set up at the same FI, another FI, or on the individual ledgers maintained by the master account holder. An acceptable master sub-account relationship is not an assignment of benefits. For policy on acceptable master sub-account relationships, see GN 02402.050.

2. Account fees

We do not prohibit automatic withholding of account fees from accounts holding SSA payments when those fees are customary to accounts with the FI.

A fee is “customary” if it is consistent with fees associated with similar accounts at the FI and the same fees apply to both federal and non-federal deposits.

NOTE: We should question fees that apply only to federal payments. If the FI applies different fees to federal and similar non-federal deposits, send the issue in question to the Regional Office (RO).

3. Pre-authorized withdrawals

A beneficiary recipient, or his or her representative payee, may pre-authorize an FI, or other entity, to withdraw funds from his or her account for a wide variety of purposes (e.g., utility bills, mortgage payments, loan repayments, investments, nursing home fees, etc.). Once the beneficiary recipient, or his or her representative payee, establishes control by receipt and deposit of the payment, these arrangements are allowed, provided they can be terminated at any time. Terminating the arrangement does not mean terminating or canceling the debt. It means that the beneficiary recipient, or his or her representative payee, may terminate the pre-authorized withdrawal arrangement as a method for paying the debt. The right to receive and to choose how to use those payments exists if the beneficiary recipient, or his or her representative payee, can freely terminate this arrangement. If a beneficiary recipient, or his or her representative payee, cannot freely revoke the pre-authorized withdrawal, send the issue in question to the RO.

D. Prohibited arrangements versus acceptable relationships

The beneficiary recipient’s, or his or her representative payee’s, control of the receipt and use of payments will determine if a payment arrangement is prohibited or acceptable.

1. Prohibited arrangements

a. Payment to the wrong person

Do not make payment to any person or entity other than the beneficiary recipient, or his or her representative payee, except as outlined in GN 02410.001B and GN 02410.001C in this section. This prohibition applies regardless of the person or entity who makes the request.

For example, the prohibition applies when:

• a beneficiary or recipient requests that we pay his or her payments to someone other than the beneficiary or the beneficiary’s representative payee.

• a court orders SSA to make payment to a party other than the beneficiary or recipient, unless one of the specific exceptions in GN 02410.001B in this section exists. For policy on when SSA should not comply with a bankruptcy court’s order to pay benefits to a bankruptcy trustee, see GN 02410.005.

When you are unable to determine whether there is a prohibited arrangement, send the issue in question to the RO.

b. Other prohibited arrangements

Even if the payment goes directly to the beneficiary or recipient (or the representative payee), the arrangement may is prohibited if the beneficiary or recipient surrenders control of the payments. Avoid any arrangement where the beneficiary or recipient surrenders or shares control of payments with a person or entity that has an interest in charging or collecting money from the beneficiary or recipient.

Avoid the following situations:

• Do not approve sending a payment, either by check or electronically, to a loan company where the beneficiary or recipient has a loan, or to a party holding the beneficiary or recipient's power of attorney. For information on power of attorney, see GN 02410.010.

• Do not approve a bank account when the attorney or non-attorney representative has the power to withdraw funds so that representative’s fees can be collected directly from that beneficiary or recipient’s account. See the note in GN 03920.025A. For policy on unacceptable requests for direct deposit, see GN 02402.085.

In both scenarios given, the arrangement is prohibited because the beneficiary or recipient surrenders control over the payment.

When you are unsure of a prohibited arrangement, send the issue in question to the RO.

2. Acceptable relationships

a. Third-party repayment

Third parties may employ representatives to ensure that beneficiaries or recipients repay debts owed to the third parties immediately after the beneficiary or recipient starts to receive payment. This arrangement is acceptable if:

• The third-party representative has no financial interest in the beneficiary or recipient’s direct deposit account (i.e., he is not named on the account and has no authority to direct the money in the account);

• The third party representative is not charging the beneficiary or recipient a fee;

• The beneficiary or recipient pre-authorizes, (according to the financial institution’s policy), a withdrawal of funds from his account to repay a debt to a third party;

• The third-party representative did not obtain the pre-authorization from the beneficiary or recipient through deceit, coercion, or intimidation; and

• The third-party representative gets oral or written confirmation from the beneficiary or recipient of the pre-authorization to withdraw the money from the account after we deposit funds into the beneficiary or recipient’s account and before a transfer of funds to pay the third party debt.

  NOTE: Confirmation is necessary because a beneficiary or recipient may have signed the pre-authorization before learning whether he or she will receive benefits and the amount of past-due benefits he or she will receive. In this situation, confirmation prevents the third party from taking funds before the beneficiary or recipient exercises control over the funds.

b. Financial institution-electronic funds distributor (FI-EFD) accounts

Some FI have established Electronic Funds Distributor (EFD) relationships with various check cashing establishments to receive and distribute monthly direct deposit payments to assist SSA beneficiaries or recipients who do not have traditional bank accounts.

The FI receives the monthly payment by direct deposit titled under the beneficiary or recipient’s name. Then, the FI electronically transfers payment to the contracted EFD. The EFD, acting as an agent of the FI, will then release the monthly payment to the account holder in the form of a cashier’s check.

These FI-EFD accounts are acceptable and not prohibited if they meet the following requirements:

• The FI must be acceptable under United States Treasury guidelines. (For policy on acceptable types of financial institutions, see GN 02402.030A.)

• The EFD must have a contract with and act as an agent of the FI.

• The FI account must be acceptable as outlined in GN 02402.030 B.1.

• A secondary contract relationship that attaches the FI-EFD transaction account as collateral for loan fees associated with the EFD cannot exist as a requirement for participation between the EFD and the beneficiary or recipient.

• No person or entity can have control over the receipt, or use of, SSA benefit payments other than the beneficiary or his or her representative payee. (For Assignment of Benefits, see GN 02410.001 and Sec.1631 (d)(1).)

• The beneficiary, recipient, or representative payee may cancel his or her FI-EFD direct deposit arrangement at any time.

• Fees associated with the account must be customary to fees for similar accounts at the FI and those fees are outlined in the FI-customer contract.

When you are unable to clearly determine whether an FI-EFD account is acceptable, send the issue in question to the RO.

E. Examples of acceptable and prohibited relationships

1. Acceptable relationship

a. Third-party repayment

A company pays long-term disability (LTD) benefits to a customer and requires them to file for Social Security title II benefits. When the Social Security claim is allowed, the amount of Social Security benefits received offsets the LTD benefit amount. As an incentive to induce the LTD insurer to refer claimants, the claimant’s LTD representative offers to assist the insurer with recovering the overpayment the insurer made to the claimant. The LTD representative does not charge the claimant a fee for this service. The LTD representative also makes it clear to the claimant that he or she may pay the LTD directly and does not have to pay the LTD through the representative.

At the LTD representative’s request, the claimant gives the representative pre-authorization to withdraw funds from the claimant’s bank account if SSA approves the claim and issues the claimant past-due benefits.

After we approve the claim and deposit the past-due benefits into the claimant’s account, the LTD representative gets oral authorization (in addition to the pre-authorization) to transfer those funds to the LTD insurer to satisfy the LTD overpayment. The LTD representative also documents the oral authorization. We will accept this arrangement. The beneficiary is exercising control over the past-due benefits deposited into his or her account before the pre-authorized transfer of funds, and the beneficiary understands that he or she could have elected to pay the LTD directly. The LTD provider does not receive a fee from the beneficiary and obtains a pre-authorization to transfer funds from the beneficiary’s account in order to repay the third party (i.e., the overpayment of payments from the insurer). The LTD representative also gets authorization after deposit of the SSA benefit payment into the beneficiary’s account. For policy on acceptable third-party repayment arrangements, see GN 02410.001D.2.a., in this section.

b. Master sub-account

Comfort Nursing Home maintains a master sub-account titled “Comfort Nursing Home Patients' Accounts” at New State Bank for the convenience of its residents. The nursing home sets up a separate sub-account for each resident. Residents sign agreements for the nursing home to withdraw monthly amounts for care costs. Residents can withdraw any amount, up to the balance in their accounts for personal expenses and they have the right to terminate the account at any time. The nursing home keeps track of all deposits and withdrawals. This is an acceptable master sub-account. For policy on acceptable master sub-accounts with FI, see GN 02402.050.

c. FI-EFD

Big Bucks Bank Inc. (BBB) is an accepted FI. BBB offers the “We-Pay-U” program for customers without traditional bank accounts. We-Pay-U program customers sign a contract and establish a non-interest bearing account with BBB for the sole purpose of electronic transfer of federal or non-federal monthly payments to that account. Beneficiaries or recipients can then receive their SSA payments in the form of a cashier's check from Brown Bear Check Cashing. Brown Bear Check Cashing acts as an agent of BBB and must adhere to the rules and regulations of BBB in relation to the We-Pay-U account. The We-Pay-U customer agrees to a monthly processing fee associated with the We-Pay-U account, which BBB withdraws from their payment automatically. This is an acceptable relationship. The beneficiary or recipient has established control of their payment and the fees associated with the We-Pay-U program. Because the account fees in the contract apply to both federal and non-federal monthly payments, we consider them customary to the BBB account. For policy on acceptable FI-EFD arrangements, see GN 02410.001D.2.b. in this section.

2. Prohibited arrangement

A beneficiary or recipient has appointed an attorney representative to help him in proceedings before SSA. SSA is not paying an attorney fee directly to the representative. The beneficiary or recipient establishes a checking account in his or her own name that requires the signature of both the beneficiary or recipient and the attorney on checks written to withdraw funds from the account. The beneficiary or recipient requests direct deposit of his or her payments to that account. This is a prohibited arrangement because the beneficiary or recipient has given control of access to payments to the attorney representative. See the following references for additional information:

• For policy on Who is a Representative, see GN 03910.020.

• For policy on representative’s fees in trust or escrow accounts, see GN 03920.025.

• For policy on acceptable types of financial institutions and accounts, see GN 02402.030.

• For policy on payment to the wrong person, see GN 02410.001D.1., in this section.

F. References

• GN 02402.030 Acceptable Types of Financial Institutions and Accounts

• GN 02402.050 Account Titles

• GN 02402.085 Unacceptable Requests for Direct Deposit

• GN 03910.020 Who Is a Representative

• GN 03920.017 Payment of Representative's Fee

• GN 03920.025 Representative's Fee - Trust or Escrow Accounts