How Can This Be Legal?

Dec 24 2018 - 9:52am

I worked for many years in UK and when I filled in the form for my Social Security I was told my UK pension would be deducted from my US Social Security under the Windfall Rules even though I paid in over 24 years in USA. How can this be legal? I paid in fully to both systems and now am told I'm not entitled to both. Can I appeal? I have an appointment on Jan. 7th with my local Social Security office.
I'd be very grateful for your advice. Thanks You. Sandra

Hi Sandra,

The Windfall Elimination Provision (WEP) is legal because Congress voted to add the provision to the Social Security Law in 1983. However, if you were told that your UK pension would be deducted from your US Social Security benefit, that's not an accurate description of how the WEP provision works.

First off, you don't mention whether or not you're already receiving your UK pension, but WEP wouldn't apply unless and until you're actually receiving a pension that's based on your work and earnings that were not subject to U.S. Social taxes. And, rather than deducting the full amount of the non-covered pension, Social Security uses a less generous calculation method to determine a person's retirement benefit rate when WEP applies. But, there's also a WEP guarantee provision that limits the amount of reduction to no more than half of the amount of the non-covered pension.

Therefore, the amount of the reduction to your U.S. Social Security benefit resulting from WEP couldn't be more than 50% of the amount of your UK pension, so if you were told that your full UK pension amount would be deducted from your U.S. Social Security rate you were misinformed. Furthermore, if you had more than 20 years of 'substantial earnings' in the U.S. as defined in the WEP regulations, that could also mitigate the amount that your U.S. Social Security benefit will be reduced.

You can appeal a Social Security decision, but not until after you've filed a claim and received a formal determination. Nothing that you mentioned in your question would indicate that you would be exempt from WEP, though, so I don't know if an appeal would be successful in your case. For more information about WEP and to see if you might meet any of the WEP exceptions, refer to the following Social Security publication: https://www.ssa.gov/pubs/EN-05-10045.pdf.

Our software is fully programmed to handle WEP calculations, so you may want to strongly consider using it to determine your best strategy for claiming your benefits.

Best, Jerry