Do I Have Any Rights To Pursue The Benefits That My Child Should Have Been Paid?

Jun 7 2020 - 10:23am

Hi Sir! I was "awarded" disability in 2006; my attorney and SSA never informed me of auxiliary benefits. I had a twelve year old at that time. I went from making nearly $2000.00 per week in 2002 to a failure in health and eventually receiving disability benefits in 2006. Although there were notations in both my medical records and my attorneys records of my child; I was never informed of auxiliary benefits I calculate the losses at almost $40,000.
Our credit was adversely affected during this time because we could not meet our obligations. This would not have happened if I had received auxiliary benefits for my child.

Do I have any rights to pursue these deserved benefits?

Thank you in advance.

Hi,

Auxiliary benefits aren't always payable on the record of a person who is drawing Social Security disability (SSDI) benefits. A different formula is used to calculate the family maximum benefit (FMB) that can be paid when the worker receives SSDI benefits, and that formula can cause any auxiliary benefits that would otherwise be payable to be reduced to zero.

That said, I don't know whether or not the FMB would have permitted child benefits to be paid in your specific case. It's hard to imagine that your attorney would have failed to pursue filing a claim on behalf of your child if benefits were potentially payable, but mistakes happen. An application is required to claim child's benefits, and claims for child benefits on SSDI records have a retroactivity limit of 12 months. So, if your child is now well over age 19 and not disabled it would normally be too late for them to claim child benefits. However, if your child was listed on your application for SSDI benefits then that would establish a protective filing date for child benefit eligibility (https://secure.ssa.gov/apps10/poms.nsf/lnx/0200204010#c). That may permit your child to apply for benefits now and claim any past child benefits for which they were eligible.

Therefore, assuming that the FMB in your case was high enough to allow for the payment of auxiliary benefits, your child may want to contact Social Security to apply for child's benefits. You couldn't pursue filing on your child's behalf assuming that he or she is now a competent adult. Your child would need to ask Social Security to use the protective filing date that you hopefully established by listing your child on your SSDI application. Social Security should then be able to access their archived records to determine whether or not your child's name was listed on your application.

Best, Jerry