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For purposes of § 404.342, personal services means services performed for a child other than any routine household services which ordinarily are performed for any adult member of a household. For example, nursing care, or feeding or dressing a child who is unable because of his disability to perform these functions satisfactorily for himself, would constitute personal services, as would the direction or supervision of the activities of a child who is unable to manage his own funds, or who is able to do so only with considerable help and guidance. Also, if the mother's presence and attention is required because of the nature of the child's impairment, she would be considered to be performing personal services for the child. Such services may be performed by the mother alone, or jointly with her husband or another person.

[29 F.R. 12294, Aug. 27, 1964]

§ 404.345 In her care; mother and child living together.

Where the mother and child regularly live together, the mother is considered to have a child in her care if she either is exercising parental control and responsibility by supervising the child's activities and participating in the important decisions about the child's physical and mental needs, or performing personal services, as the case may be. However, if the mother and child are living together only temporarily, she is not considered to have the child in her care during the period they are together, even if she exercises parental control and responsibility, or performs personal services, as the case may be, during such period, unless:

(a) The child is in her care while they are apart; or

(b) They live together for a period of at least 30 consecutive days, and the child is not on furlough while in the armed forces.

[29 F.R. 12294, Aug. 27, 1964]

§ 404.346 In her care; mother and child not living together; general.

Where the mother and child are not living together, the mother is not considered to have a child in her care except under the conditions described in § 404.347 and § 404.348.

[29 F.R. 12294, Aug. 27, 1964]

§ 404.347 In her care; mother and child not living together; separation not in excess of 6 months.

Except as provided in § 404.349, where the separation is expected to end within 6 months from the date it began, a mother is considered to have a child in her care only if the child customarily lives with her and is in her care when they so live together (see § 404.345). If the separation continues beyond the 6month period, the provisions of § 404.348 are applicable in determining whether the mother has the child in her care. [29 F.R. 12294, Aug. 27, 1964]

§ 404.348 In her care; mother and child not living together; separation expected to be indefinite or to exceed 6 months.

(a) General. Where the mother and child are not living together and the separation will be for an indefinite period, or is not expected to end within 6 months, the mother is exercising parental control and responsibility for the care and welfare of the child only under the conditions described in paragraphs (b), (c), (d), and (e) of this section. If the child resumes living with the mother before the end of 6 months, the provisions of § 404.347 are applicable in determining whether the mother has the child in her care.

(b) Child away at school. Where the mother and a mentally competent child are separated because the child is away at school, the mother is exercising parental care and responsibility during such separation if:

(1) The child is under 18 years of age and spends an annual vacation of at least 30 consecutive days with her, unless it is not feasible for the child to return to her, or to remain with her for that length of time, during vacations; and

(2) The mother supervises the child's activities and participates in the important decisions about the child's physical and mental needs; and

(3) Where the child's mother and father are separated, the school author

ities look to the mother when they have a question concerning the child's welfare and care, and the child normally returns to her during vacations.

(c) Mother and child not living together because of the mother's employment. Where the mother and a mentally competent child under 18 years of age are separated because of the mother's employment, the mother is exercising parental control and responsibility if she supervises the child's activities, participates in the important decisions about the child's physical and mental needs, and makes regular and substantial contributions towards the child's support.

(d) Mother and child not living together because of physical illness or disability. Where the mother and a mentally competent child under 18 years of age are separated because of the physical illness or disability of either, the mother is exercising parental control and responsibility if she supervises the child's activities and participates in the important decisions about the child's physical and mental needs.

(e) Mother and child not living together; child mentally incompetent. Where mother and child are not living together (regardless of reason), and the child is mentally incompetent, the mother is exercising parental control and responsibility if she supervises the activities of the child, participates in the important decisions about the child's physical and mental needs, and measurably controls the child's upbringing and development.

[29 F.R. 12294, Aug. 27, 1964]

§ 404.349 In her care; when a mother does not have a child in her care. Notwithstanding the provisions in §§ 404.342-404.348, a mother does not have a child in her care, for purposes of this subpart or Subpart E, if:

or

(a) The child is in the armed forces;

(b) The mother and child are not living together and either:

(1) The child is living with the father; or

(2) The mother is mentally incompetent; or

(3) The child was removed from the mother's custody and control by a court order; or

(4) The mother has relinquished her right to custody and control of the child to some other person or agency; or

(5) The separation is for a period of more than 6 months, and the child is age 18 or older and is mentally competent.

[29 F.R. 12295, Aug. 27, 1964]

§ 404.350

"One-half support" defined.

(a) Applicability. One of the requirements for entitlement to a husband's, widower's, or parent's insurance benefit under sections 202(c) (1) (C), 202(f) (1) (D), and 202(h) (1) (B) (i) of the Act. respectively, is that the person claiming such benefit was receiving at least onehalf support from the insured individual at a specified time. (For exceptions to this requirement in the case of husband's or widower's insurance benefits see §§ 404.316(b) and 404.331(b).) Under the Social Security Amendments of 1965 (Public Law 89-97), a requirement for entitlement to a wife's insurance benefit as a divorced wife, a widow's insurance benefit as a surviving divorced wife, or a mother's insurance benefit as a surviving divorced mother under sections 202 (b) (1) (D), 202(e) (1) (D), and 202(g) (1) (F) (i) of the Act, respectively, is that, at a specified time, she was receiving at least one-half support from the insured individual, or she was receiving substantial contributions from such individual (pursuant to a written agreement), or there was in effect a court order for substantial contributions to her support from such individual. Under section 202 (g) (1) (F) of the Act, prior to the 1965 amendments, one of the requirements for entitlement to a mother's insurance benefit as a former wife divorced (now designated as a "surviving divorced mother") was that, at a specified time, she was receiving from her deceased former husband (pursuant to agreement or court order) at least one-half of her support. One-half support may be required in some cases to establish dependency of a child on its stepfather, stepmother, adopting father, or adopting mother and (under the law in effect prior to the Social Security Amendments of 1967 (Public Law 90-248)) to establish dependency of a child on its natural or adopting mother.

(b) What constitutes "at least onehalf support." (1) Except as provided in subparagraph (2) of this paragraph, a person is receiving at least one-half of his support from the insured individual at a specified time if such individual, for a reasonable period (as defined in paragraph (e) of this section) before the

specified time, made regular contributions, in cash or kind, to such person's support and the amount of such contributions equaled or exceeded one-half of such person's support during such period.

(2) A legally adopted child, for the purposes of section 202(d) (9) (B) (i) of the Act, shall be considered to be receiving at least one-half of his support from the insured individual for the year before the applicable time specified in section 202(d) (9) (B) (i) if such individual made a contribution, in cash or kind, to such child's support in each of the 12 months preceding the applicable time and the total of such contributions over the entire 12-month period equaled or exceeded one-half of such child's support for the year.

(c) "Support" defined. The term "support" includes food, shelter, clothing, ordinary medical expenses, and other ordinary and customary items for maintenance of the person supported.

(d) "Contributions" defined. “Contributions," as used in this section, means contributions actually provided by the contributor from his own property, or the use thereof, or by the use of his own credit. When a person receives, and uses for his support, income from his services or property and such income, under applicable State law, is community property of himself and his spouse, no part of such income is a "contribution" by the spouse to such person's support regardless of any legal interest the spouse may have therein. However, when a person receives, and uses for his support, income from the services or property of his spouse and, under applicable State law, such income is community property, all of such income is considered to be a contribution by such spouse to such person's support.

(e) "Reasonable period" defined. (1) Ordinarily, a period of 12 months (except where there is a change in the support situation in such period) ending with the specified time is a reasonable period for purposes of determining whether the one-half support requirement is met at the specified time.

(2) Where there is a change in the support situation during the 12-month period, the reasonable period (except where the provisions of subparagraph (3) of this paragraph apply) begins with the change, or if there is more than one change, with the last change, and ends with the specified time. A change in

the support situation for purposes of this paragraph is one in which there is an increase or decrease of support from a source or sources, and the increase or decrease is expected to be continuing and permanent. However, temporary or periodic increases or decreases, or periodic shifts of support do not constitute a change in the support situation for purposes of this paragraph (e.g., the contributor is seasonally employed and contributes only when employed, or a parent stays a certain number of months with each of several children during a calendar year).

(3) Where untoward circumstances (such as illness or unemployment) forced the insured individual to stop contributing, or to reduce his contributions, the reasonable period is determined by excluding the period effected by such untoward circumstances provided:

(i) The insured individual contributed at least one-half such person's support for at least 3 months (either consecutive or intermittent) of the 12-month period ending with the specified time; and

(ii) No one else (including such person) assumed the burden of providing at least one-half of such person's support on a continuing and permanent basis after the insured stopped or reduced his contributions (the initial receipt, or increase, of public assistance or other relief is not considered such an assumption of support).

[29 F.R. 12295, Aug. 27, 1964, as amended at 33 F.R. 20037, Dec. 31, 1968]

§ 404.351 Agreement, court order, and substantial contributions defined.

(a) Agreement for substantial contributions after August 1965. For purposes of sections 202(b) (1) (D), 202(e) (1) (D), and 202(g) (1) (F) (i) (II) of the Act, the term "written agreement" means an agreement signed by the former husband providing for substantial contributions by him for the claimant's support. It must be in effect at the applicable time but it need not be legally enforceable. "Substantial contributions pursuant to a written agreement" means contributions (as defined in § 404.350 (d)) that are regular and sufficient to constitute a material factor in the cost of the claimant's support. Generally, the claimant must actually be receiving the contributions at the applicable time. However, if the former husband had been making such contributions toward the claimant's support, but, prior to the applicable time,

was either forced to stop making such contributions, or to decrease the amount of his contributions because of circumstances beyond his control (such as illness or unemployment), it may be determined that he was making substantial contributions at the applicable time if the former husband would have continued the contributions if he could and his failure to do so did not last for more than 9 months (either consecutive or intermittent) of the 12-month period ending with the applicable time.

(b) Agreement for support prior to September 1965. For purposes of section 202(g) (1) (F) in effect prior to September 1965, the term "agreement" means a legally enforceable contract between the divorced wife and her former husband, made either before or after the divorce, by the terms of which he agreed to contribute to her support.

(c) Court order for substantial contributions after August 1965. For purposes of sections 202(b) (1) (D), 202(e) (1) (D), and 202(g) (1) (F) (i) (III) of the Act, the term "court order for substantial contributions" means any court order, judgment, or decree of a court of competent jurisdiction which requires regular contributions that are a material factor in the cost of the claimant's support and which is in effect at the applicable time. If such contributions are required by a court order, this condition is met whether or not the contributions were actually made.

(d) Court order for support prior to September 1965. For purposes of section 202(g) (1) (F) in effect prior to September 1965, the term "court order" means any order, judgment, or decree of a court of competent jurisdiction compelling the former husband of a divorced wife to contribute to the latter's support and which is in effect at the applicable time.

[33 F.R. 20038, Dec. 31, 1968; 34 F.R. 322, Jan. 9, 1969]

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(b) $44 for months after December 1965 and before February 1968;

(c) $40 for months after July 1961 and before January 1965.

[34 F.R. 12575, Aug. 1, 1969]

§ 404.353 Simultaneous entitlement to more than one type of benefit.

(a) Old-age insurance benefit and other benefit. An individual may for a month be simultaneously entitled to an old-age insurance benefit based on his earnings and to another monthly benefit based on the earnings of another individual if such other benefit, prior to any reduction under § 404.403 or section 202(q) of the Act, is greater than the primary insurance amount which is the basis of such individual's old-age insurance benefit. The amount of the benefit, other than the old-age insurance benefit, however, shall be reduced in accordance with § 404.407.

(b) Disability insurance benefit and other benefit-(1) General. Except as provided in subparagraph (2) of this paragraph, an individual may for a month be simultaneously entitled to a disability insurance benefit based on his earnings and to another monthly benefit based on another individual's earnings record if such other benefit, prior to any reduction under § 404.403 or section 202(q) of the Act, is greater than the disability insurance benefit. Such other benefit, however, shall be reduced as provided in § 404.407.

(2) Benefits for months before September 1965-(i) General. If, for any month prior to the month in which the individual attained age 65, such individual was entitled to a widow's, widower's, or parent's insurance benefit or to a wife's or husband's insurance benefit reduced under section 202 (q) of the Act, such individual could not, for any month after the first month for which such individual was so entitled, become entitled to disability insurance benefits. This provision does not apply with respect to benefits for months after August 1965, on the basis of applications filed after June 1965. (See § 404.306(b).) However, if an individual is entitled to such widow's, widower's, or other benefit and becomes entitled for the same month to a disability insurance benefit, such widow's, widower's, or other benefit, after any reduction under section 202 (q) or 203(a) of the Act, shall be reduced, but not below zero, by an amount equal

to the disability insurance benefit (after reduction under sec. 202(q) of the Act). (ii) Rule applicable to period July 1962 through November 1964. Entitlement to a widow's, widower's, or parent's insurance benefit or to an old-age, wife's, or husband's insurance benefit which is reduced under section 202(q) of the Act, for any month in the period July 1962 through November 1964 (but without the application of sec. 202(j) (1) of the Act), does not preclude entitlement to disability insurance benefits if the individual:

(a) Was under a disability (as defined in sec. 223 (c) of the Act, as in effect prior to the Social Security Amendments of 1965 (Pub. Law 89-97)) which began prior to the sixth month before the first month for which such benefit was payable and which continued through November 1964, and

(b) Filed an application for disability insurance benefits. If an individual was entitled to an old-age insurance benefit for any month during the period July 1962 through November 1964 (but without the application of sec. 202(j) (1) of the Act), and the conditions in (a) and (b) of this subdivision are met, entitlement to disability insurance benefits will not be terminated by entitlement to such old-age insurance benefit unless and until the individual again becomes entitled to an old-age insurance benefit. If the individual is entitled to both a disability insurance benefit and an oldage insurance benefit under the provisions of this subdivision, he will be entitled only to the disability insurance benefit. Where an individual becomes entitled to a disability insurance benefit under the provisions of this subdivision, and then again becomes entitled to an old-age insurance benefit for months before age 65, only those months beginning with the first month of entitlement to the subsequent old-age insurance benefit and ending with the month prior to the month of attainment of age 65 will be used in computing the reduction under section 202 (q) of the Act.

(c) Disability insurance benefit and old-age insurance benefit. (1) Under the law in effect prior to the Social Security Amendments of 1965 (Pub. Law 89-97), disability insurance benefits ended with the month preceding the first month for which the individual was entitled to an old-age insurance benefit. This provision does not apply with respect to applications for disability insur

ance benefits filed after June 1965 or other applications described in § 404.312a. (See § 404.307 (b).) For rule applicable to benefits for July 1962 through November 1964, see subparagraph (b) (2) (ii) of this section.

(2) Under the law in effect prior to the Social Security Amendments of 1965 (Pub. Law 89-97), if for any month prior to the month in which an individual attained age 65, such individual was entitled to an old-age insurance benefit which was reduced under section 202(q) of the Act, such individual could not, for any month after the first month for which such individual was so entitled, become entitled to disability insurance benefits. This provision does not apply with respect to monthly benefits for months beginning September 1965, on the basis of applications filed after June 1965. (See § 404.306(b).) For special rule applicable to benefits for July 1962 through November 1964, see paragraph (b) (2) (ii) of this section.

(3) If an individual becomes entitled to both an old-age insurance benefit and a disability insurance benefit for a month as described in subparagraphs (1) and (2) of this paragraph, he shall be entitled only to the larger of such benefits, except that, if such individual so elects, he shall instead be entitled to only the smaller of such benefits for such month. The effect of this provision is that the individual may be technically entitled to both benefits but only the higher is payable unless he elects to receive the lower, in which case only the lower is payable.

(d) Child's insurance benefits. A child may, for any month, be entitled to a child's insurance benefit on more than one individual's earnings if all the conditions for entitlement described in § 404.320 are met with respect to each claim. If two or more children could upon application be entitled to child's insurance benefits based on the earnings of more than one individual, all of such children entitled to benefits based on the earnings of one individual will (without the necessity of filing application) be deemed entitled to child's insurance benefits (if otherwise eligible) based on all earnings records with respect to which at least one of such children has filed application. In any case in which a child's entitlement to more than one child's insurance benefit is established for a month, such child shall be entitled only to the child's insurance benefit for such

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