Section 202(d) (1) and (7) (42 U.S.C. 402(d) (1) and (7) )— CHILD'S INSURANCE BENEFITS-FULL-TIME STUDENT-ENROLLMENT IN CORRESPONDENCE COURSE-ESTOPPEL

20 CFR 404.320(a) (4) (ii) and (c) (2)

SSR 79-13c

MASON v. CALIFANO, USDC, S.D. FL., Civ. No. 77-196 (4/28/78)

The claimant, in order to complete her high school education, enrolled in a correspondence course. The course lasted more than 13 weeks and the claimant spent about 20 hours per week studying and completing the courses. She contended she should not have been terminated at age 18 because she was eligible for child's benefits as a full-time student, according to her understanding of information supplied in an official publication. The publication in question stated that a claimant, age 18 through 22, may receive child's insurance benefits if she attends a "private school or college approved by a State or accredited by a Staterecognized or nationally recognized accrediting agency." Correspondence schools were not mentioned; the claimant argues that she was therefore entitled to assume such schools were qualified institutions. Held, the claimant is ineligible for benefits in accordance with section 404.302(c) (2) of Social Security Regulations No. 4, which specifically excludes enrollment in correspondence courses. Further held, the estoppel doctrine may not be applied if it would result in a granting of a benefit in direct contravention of the provisions of law.

ATKINS, District Judge:

This is a review of a final decision of the Secretary of Health, Education and Welfare of the United States of America who has denied the application of Plaintiff, Angela Brummer Mason, for Social Security benefits as a child of the entitled retired worker, Philip H. Brummer, under the provisions of Section 202(d) (1) of the Social Security Act.

Plaintiff Brummer (Mason) seeks child's insurance benefits under section 202(d) (1) of the Social Security Act as a child of an individual entitled to old-age insurance benefits who at the time of application is unmarried, is a "full time student" who has not attained the age of 22, and is dependent upon the insured individual.

Plaintiff received Social Security benefits as a child of the entitled retired worker, Philip H. Brummer, from October 1974, until she reached age 18 in February, 1975. Her benefits were terminated in February 1975, based on a determination that she did not meet the qualifications for entitlement of a full-time student. On November 12, 1975, she requested reconsideration contending that her correspondence courses from the American School in Chicago, Illinois, qualified her for benefits as a student. She was notified on February 9, 1976, that it was determined upon reconsideration that she was not eligible to receive monthly child insurance benefits because she was not a minor child, a disabled adult child, or a full-time student as recognized in the Social Security Act and Regulations. On March 13, 1976, she requested a hearing. The hearing was held on June 22, 1976, at Miami, Florida. A request

for review of the decision resulted in the affirmance of the decision by the Appeals Council on December 1, 1976. Plantiff then sought judicial review pursuant to 42 U.S.C. Section 405(g) by filing the Complaint in this case.

The function of this Court is not to determine the claim of Plaintiff Brummer (Mason) de novo, but rather to determine whether the findings of the Secretary as to any fact are supported by substantial evidence. 42 U.S.C. Section 405(g); Malveaux v. Mathews, 542 F.2d 647 (5th Cir. 1976); Gautney v. Weinberger, 505 F. 2d 943 (5th Cir. 1974).

The Administrative Law Judge stated in his decision, after holding an evidentiary hearing, that the sole issue to be determined is whether the claimant is entitled to child's insurance benefits on the account of the retired wage earner, Philip H. Brummer, as a full-time student beneficiary and that this is dependent upon whether or not correspondence schools are covered by the Social Security Act. The Administrative Law Judge found that section 404.320(c) (2) of Social Security Regulation No. 4 (20 C.F.R. 404.320(c) (2) 1975) is dispositive of this issue. Section 404.320(c) (2) provides in pertinent part: "Ordinarily, a student is in 'fulltime attendance' at an educational institution if he is enrolled in a noncorrespondence course and is carrying a subject load which is considered full-time for day students under the institution's standards and practices". Based on this express exclusion of correspondence schools the Administrative Law Judge found that the Plaintiff was not a "fulltime student" within the meaning of the Act and therefore was not entitled to child's insurance benefits after February 1975.

Prior to rendering his decision, the Administrative Law Judge held an evidentiary hearing at which time the Plaintiff (represented by her mother, Sylvia Brummer) offered testimony. The Plaintiff testified that she attended high school through the 10th grade, but did not pass the 10th grade, and therefore had the equivalent of a 9th grade education. She decided to take the American School correspondence course the summer after the 10th grade to avoid having to repeat the 10th grade. She stated that she started the correspondence school about the school year of 1974 and was still living at home with her family at that time and was not working. She also stated that she spent about 20 hours a week on the correspondence course.

Mrs. Brummer testified that, according to a publication of the United States Government, which she claims she and Plaintiff relied on, a person is entitled to social security benefits as a full-time student if he or she attends a high school, trade, or vocational school and is considered in full-time attendance by the school, is enrolled in a course of study lasting at least 13 weeks and is enrolled for at least 20 hours a week. The publication states that "a private school or college approved by a State or accredited by a State-recognized or nationally recognized accrediting agency" is a school that qualifies, but does not mention correspondence schools at all.

The Administrative Law Judge did not address in his decision the question raised by Mrs. Brummer that Plaintiff should have been able to rely on the government's publication and that therefore the government

should allow Plaintiff benefits even though the regulations provide otherwise. The Administrative Law Judge made the following statement during the hearing, however:

Well, as far as your statement that this is an official publication of the Government (sic) States Government, and that, therefore, the government's bound by that. I'm going to have to state that is (sic) has long been decided by the Supreme Court that the government is not bound by statements of its employees or agencies. What the government is bound by is what the law itself provides. And I will carefully study the law. and ascertain if, in fact, such correspondence courses are covered by the law. I am not bound by publication. I have to proceed on what the law states, not that.

The Administrative Law Judge apparently decided as a matter of law that Plaintiff's estoppel argument had no merit. Although there are exceptions to the general rule that estoppel may not be asserted against an agency of the United State government the exceptions do not apply in a case such as this where the alleged representation which Plaintiff relied on is contrary to the law. See Brown v. Richardson, 395 F. Supp. (W.D. Pa. 1975); U.S. v. State of Florida, 482 F.2d 205 (5th Cir. 1973). U.S. v. Sexton Cove Estates, Inc., 389 F.Supp. 602 (S.D. Fla. 1975).

In Brown v. Richardson, supra, the factual situation was very similar to the instant case. Plaintiff contended that the government should be estopped to deny payment of medicare benefits because of a statement in a handbook put out by the Social Security Administration that notices of benefits remaining would be sent, whereas no notices were sent. The Secretary of Health, Education and Welfare initially denied benefits without considering the estoppel question and the District Court remanded the case for factual determinations as to whether the factual prerequisites for an estoppel claim were present. On reconsideration the District Court decided that as a matter of law that the Secretary could not be estopped because the application of the estoppel doctrine would have worked a result inconsistent with the provisions of the Social Security Act.

In the instant case there was no express finding by the Secretary on the estoppel issues either. Although the Administrative Law Judge considered the estoppel issue, he did not ascertain the factual basis for a showing of estoppel: whether there was a false representation of fact which the other party reasonably relied on and prejudice as a result of the reliance. See Brown v. Richardson, supra.

Plaintiff's position is that she should be given a benefit which the lawfully promulgated regulations expressly do not allow. Even assuming, arguendo, the Plaintiff could prove the factual basis for estoppel against the government, she would not recover because the case law clearly precludes the application of the estoppel doctrine if it would result in a granting of a benefit in direct contravention of the provisions

of the law. See U.S. v. State of Florida, supra; U.S. v. Sexton Cove Estates, Inc., supra. Therefore, it would be fruitless to remand the case to the agency for additional factual determinations.

SECTION 202(d) (7) (42 U.S.C. 402(d) (7)) CHILD'S INSURANCE BENEFITS-STUDENT-PERIOD OF NONATTENDANCE

20 CFR 404.320

SSR 76-19

Where due to a strike by the personnel of an educational institution, a student beneficiary is unable to resume or continue full-time attendance at the institution for a period of time exceeding four consecutive calendar months, the period of time during which the beneficiary is unable to attend classes because of the strike need not be considered a "period of nonattendance" as that term is used in subparagraph (B) of section 202(d) (7) of the Social Security Act. For purposes of continuing entitlement in such situations, the inquiry is whether, pursuant to subparagraph (A) of section 202(d) (7) the beneficiary would be considered by the institution to be a "full-time student" during the strike or whether, but for the strike, the beneficiary would have been "in full-time attendance" at the institution, and whether, upon settlement of the strike and the resumption of classes, the beneficiary either intends to, or in fact does, continue to attend the institution as a full-time student.

A strike of personnel of an educational institution prevented the holding of regularly scheduled classes, and a student beneficiary, because of this strike, was unable to attend classes for a period of time which exceeded four months. With respect to those students who were entitled to student benefits prior to the strike, it is held that the period of time during which the student beneficiary is unable to attend classes because of a strike need not be considered a "period of nonattendance" as that term is used in subparagraph (B) of section 202(d) (7) of the Social Security Act. In such situations the applicable provision of the statute is subparagraph (A), rather than subparagraph (B), of section 202(d) (7).

Subparagraph (B) reads as follows:

(B) Except to the extent provided in such regulations, an individual shall be deemed to be a full-time student during any period of nonattendance at an educational institution at which he has been in full-time attendance if (i) such period is 4 calendar months or less, and (ii) he shows to the satisfaction of the Secretary that he intends to continue to be in full-time attendance at an educational institution immediately following such period. An individual who does not meet the requirements of clause (ii) with respect to such period of nonattendance shall be deemed to have met such requirement (as of the beginning of such period) if he is in full-time attendance at an educational institution immediately following such period."

This provision applies where a student beneficiary has a "period of nonattendance" which is four consecutive months or less and following which he or she resumes full-time attendance. Subparagraph (B) provides that in such situations, the student beneficiary may be deemed to have been a full-time student during the period in which he or she was not attending the institution. The legislative history of this provision indicates that its intent was to provide for the continuation of benefit payments during normal school vacation periods as well as during the school year and to provide for benefits for any period of four calendar months or less in which a person does not attend school.' A "period of nonattendance" could properly be considered to be the period of time during which the student beneficiary (who was enrolled as and who had, by the standards of the institution, the status of a full-time student) personally decided or was compelled not to be active as a fulltime student due to personal circumstances or because of personal conduct. Such personal circumstances could include events such as employment or illness, or could arise because the institution is not then offering courses which are of interest to the beneficiary.

Section 404.320(c) (3) of Regulations No. 4 has defined the status of "deemed full-time student during a period of nonattendance," to exclude an individual whose nonattendance is due to expulsion or suspension, notwithstanding the fact that the individual intends to or does in fact resume full-time attendance within four calendar months after the beginning of such period of nonattendance. Under both subparagraph (B), quoted above, and section 404.320(c) (3), a "period of nonattendance" may not exceed 4 consecutive calendar months. However, where a student beneficiary is prevented because of a strike of school personnel from resuming or continuing full-time attendance, the applicable provision of the statute is subparagraph (A) of section 202(d) (7). Subparagraph (A) reads as follows:

"(7) For purposes of this subsection

"(A) A 'full-time student' is an individual who is in full-time attendance as a student at an educational institution, as determined by the Secretary (in accordance with regulations prescribed by him) in the light of the standards and practices of the institutions involved, except that no individual shall be considered a 'full-time student' if he is paid by his employer while attending an educational institution at the request, or pursuant to a requirement of his employer."

This provision defines a full-time student as a student who is "in fulltime attendance." Full-time attendance is to be determined in light of the standards and practices of the institutions involved and in accordance with regulations prescribed by the Secretary. The applicable regulation, section 404.320(c) (2) of Regulations No. 4, defines full-time attendance to provide, generally, that if an individual is enrolled at an educational institution and is carrying a subject load which is consid

'See, H.R. Rep. No. 213, 89th Cong., 1st Sess. 86 (1965) and S. Rep. No. 404, 89th Cong., Sess. 97 (1965).