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PARKER v. SCHWEIKER

November 24, 1982

James R. PARKER for C. Elaine PARKER
v.
Richard S. SCHWEIKER, Secretary of Health and Human Services



The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 This case concerns the entitlement of benefits under the Social Security Act. The issue is whether the claimant, a minor child 13 years of age, who is away at school and comes home on weekends and lengthy holidays, is subject to parental control so as to deem parental income and resources to the child for the purpose of determining her eligibility for supplemental security income under the Social Security Act, 42 U.S.C. ยง 1381 et seq. (Act). This Court holds that such a child is not subject to parental control, that the parents' income and resources are not deemed to the child, and that the child is eligible for benefits under the Act.

 On July 1, 1976, plaintiff, James Parker, filed an application for supplemental security income on behalf of his daughter who is the claimant, Elaine Parker. Benefits were awarded and were continually received for several years on the basis of her disability, specifically mental retardation. In May 1981, benefits ceased to be awarded following a redetermination interview on the basis of the claimant fitting the definition of "student" since she came home on weekends and holidays. This resulted in her parents' income and resources being deemed to her, therefore, making her ineligible for supplemental security income. The plaintiff received notice of this ineligibility in addition to a letter indicating that the claimant had been overpaid. The plaintiff then requested a hearing.

 On February 23, 1982, the Administrative Law Judge (ALJ) decided that the claimant was eligible for supplemental security income and that her parents' income and resources were not deemable to her. The ALJ based this decision on the determination that the claimant was not a "student" as defined in Section 416.1061(a) (recently revised to Section 416.1861(a)) of the Social Security Administration Regulation No. 16 (Regulations), was not subject to parental control, and resided at school.

 On April 23, 1982, the Appeals Council reversed the decision of the ALJ and decided that the parents' income and resources was deemable to the claimant and that she was ineligible for benefits. This decision was based on the determination that claimant was a "child" as defined in Section 416.1856 of the Regulations, was subject to parental control, and was "temporarily absent" from her parents' household to attend school. This reversal by the Appeals Council was the final decision of the defendant Secretary.

 
(a) (1) he is under age 18; or
 
(2) he is under age 22 and he is a student . . .;
 
(b) he is not married; and
 
(c) he is not the head of a household.

 In the case sub judice, the claimant being 13 years of age meets the requirements.

 However, this Court reverses the Appeals Council on its finding that the claimant is "temporarily absent" from her parents' household and their income is deemed to her. Section 416.1167(2) of the Regulations provides the following:

 
(2) If you are an eligible child who is away at school but comes home on some weekends or lengthy holidays and if you are subject to the control of your parents, we consider you temporarily absent from your parents' household. However, if you are not subject to parental control, we do not consider your absence temporary and we do not deem parental income to you. Being ...

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