In late 2004, advocates from the Empire Justice Center contacted the Social Security Administration (SSA) on behalf of survivors of domestic violence who were facing complicated bureaucratic hurdles when they had to flee from their homes to escape abuse.
In some cases, claimants who left the marital residence and sought safe housing in a domestic violence shelter have been denied or faced denial because they were determined “over-resource” based on ownership of the home in which they were not residing because of safety concerns. In one case, in order to be approved for benefits, the claimant had to secure a statement from her husband-batterer that it would be an undue hardship on him to have to move out of the jointly owned home. Advocates were greatly concerned that such a resolution, which involved the cooperation of the batterer, would put survivors at increased risk of danger and further economic abuse. Additionally, survivors who need, and would otherwise be eligible for SSI benefits, might abandon viable claims for fear of approaching their batterer for such a statement. Our review of the existing policy guidelines appeared to offer no clear directives to Social Security claims representatives on how to handle these difficult situations.
In response to advocacy by the Empire Justice Center, in early 2005, SSA agreed to seek a regulatory change so that a home jointly owned with an abuser will not be counted as a resource to a survivor of domestic violence who is forced to leave the home because of the abuse. Although SSA indicated at that time that its current policies served to prevent any undue hardship or danger to survivors of domestic abuse, it agreed to issue a reminder item to its field offices in the meantime that SSA personnel are required to assist individuals in obtaining evidence and should take into consideration the individual’s circumstances in determining resource availability. (See the March 2005 edition of Disability Law News, available at www.empirejustice.org., which fully discusses the issue and the SSA response.)
SSA has recently done just that. In late December 2005, it issued an Administrative Message (AM) reminding claims representatives to “use particular care and sensitivity when requesting evidence from individuals” who are fleeing from a domestic abuse situation. AM-0521 is available on the Online Resource Center.
The AM reminds claims representatives of how to interpret existing SSA policy directives (POMS) in a manner that will be most helpful and beneficial to a spouse fleeing because of domestic violence. The AM addresses issues including the requirement to assist beneficiaries, termination of deeming, intent to return, undue hardship/permission to sell, and conditional benefits.
Assistance to Beneficiaries: The AM emphasizes SSA’s obligation to assist the beneficiary in obtaining evidence and specifically recognizes that the survivor of abuse should not be required to obtain evidence from her batterer. Further the AM suggests that if the claims representative provides assistance with evidence collection, the application and redetermination process will be expedited for survivors of domestic violence placed in dire financial straits.
Termination of Deeming: The AM similarly reminds claims representatives that deeming of the other spouse’s (in domestic violence cases, the abuser) income and resources should be terminated as of the first moment of the month following separation or divorce. This means that the other spouse’s resources can no longer be considered “available” for the purposes of eligibility. Additionally when a survivor on SSI (or an applicant) contacts SSA to report she has divorced or separated, the caseworker should try to process the application or the redetermination as soon as possible as the change may result in increased benefits or eligibility.
Intent to Return: The departure of the survivor from the home may result in a change in the home’s status as an excluded residence. SSA will continue to exclude the home as a resource if the survivor intends to return to the home at some later point because the situation is resolved or is she returns after the abuser leaves the residence. If the survivor of domestic violence decides that she no longer intends to return to the home, it will become a countable resource, if no other exclusions apply. According to the AM, “There is no time restriction placed on the intent to return home policy.”
Undue Hardship/Permission to Sell: Existing provisions regarding Undue Hardship and Conditional Benefits are also available to help survivors of domestic violence who flee. If the survivor no longer intends to return and a sale of the property to the abusive spouse who is continuing to reside in the home would result in housing loss, the home will remain an excluded resource. However, contact with the abuser or other co-owner residing in the home is necessary to verify that sale would cause a housing loss. SSA employees are directed to assist survivors to obtain this evidence and further recognize that the abuser may not be willing to cooperate with requests to obtain necessary information. In those cases, conditional benefits should be considered. See below. Additionally, claims representatives should investigate or assist the survivor with investigating how the home is held in title, whether the survivor has the legal right to sell the home without permission of the co-owner, and proof that the co-owner does not wish to sell.
Conditional Benefits: If non-home real property cannot be excluded through the above policies, then conditional benefits should be offered to the SSI beneficiary who has fled because of domestic violence. Conditional benefits can be paid for up to nine months pending the sale of the home. However, in the AM, SSA explicitly recognizes that battered spouses often will not be able to meet the reasonable efforts necessary to sell the home. Therefore, in domestic violence cases only, SSA will accept evidence such as a police report, order of protection, or statement from the director of a domestic violence shelter as evidence that the survivor is making reasonable efforts to sell the property if the survivor is unable to meet the selling efforts requirements in those nine months. After nine months, the property can continue being excluded provided the survivor continues to make reasonable efforts to sell. SSA employees are directed to assist survivors obtain this evidence.
SSA continues to promise that a regulatory change clearly providing for the “exclusion of a jointly-owned home for an individual who is fleeing a domestic violence environment will be issued in the near future.” In the meantime, revisions to the existing POMS and development of a formal regulation are in progress.
This is an example of a situation where at least the upper echelons of SSA are striving to do the right thing. Please keep us informed of how this is working – or not working – for survivors of domestic violence. DAP State Support Coordinators Kate Callery and Louise Tarantino can be reached at firstname.lastname@example.org and email@example.com; Amy Schwartz of the Domestic Violence Program can be reached at firstname.lastname@example.org.