Can you receive Social Security while in jail / prison?

Jonathan Ginsberg of the Social Security Disability Blog writes about what happens to your Social Security benefits if you are in jail/prison.

I recently received an email question from a blog reader about the eligibility of a convicted felon for Social Security disability benefits.  There is a simple answer here – you may not collect disability benefits during the time you are incarceratedSocial Security ruling 83-28 addresses this situation directly.

Via May an Incarcerated Felon Receive Social Security Disability Benefits?.

SSR 83-28 notes that Congress intended to deny prisoners Social Security disability benefits during incarceration because, “prisoners … do not need a continuing source of income because their basic needs are already furnished at public expense.”

This seems pretty cut and dried.  However, the more I look at this issue, the more I wonder if benefits can be paid to an incarcerated individual while incarcerated, but before a conviction, or while incarcerated for a misdemeanor.

The Social Security regulation on this topic 20 CFR 404.468 states:

(a) General. No monthly benefits will be paid to any individual for any month any part of which the individual is confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony. This rule applies to disability benefits (§404.315) and child’s benefits based on disability (§404.350) effective with benefits payable for months beginning on or after October 1, 1980. For all other monthly benefits, this rule is effective with benefits payable for months beginning on or after May 1, 1983. However, it applies only to the prisoner; benefit payments to any other person who is entitled on the basis of the prisoner’s wages and self-employment income are payable as though the prisoner were receiving benefits.

(b) Felonious offenses. An offense will be considered a felony if-
(1) It is a felony under applicable law: or
(2) In a jurisdiction which does not classify any crime as a felony, it is an offense punishable by death or imprisonment for a term exceeding one year.

(c) Confinement. In general, a jail, prison, or other penal institution or correctional facility is a facility which is under the control and jurisdiction of the agency in charge of the penal system or in which convicted criminals can be incarcerated. Confinement in such a facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. An individual is considered confined even though he or she is temporarily or intermittently outside of that facility (e.g., on work release, attending school, or hospitalized).

(d) Vocational rehabilitation exception. The nonpayment provision of paragraph (a) of this section does not apply if a prisoner who is entitled to benefits on the basis of disability is actively and satisfactorily participating in a rehabilitation program which has been specifically approved for the individual by court of law. In addition, the Commissioner must determine that the program is expected to result in the individual being able to do substantial gainful activity upon release and within a reasonable time. No benefits will be paid to the prisoner for any month prior to the approval of the program.

In summary, this regulation says:

  1. A disabled individual’s Disability Insurance benefits are stopped while incarcerated for a felony conviction.
  2. Benefits remain stopped during intermittent release such as work release, school or hospitalization.
  3. Auxiliary benefits (benefits to spouse or children) continue during the incarceration.
  4. Benefits can continue during parole.

But what about benefits during incarceration, but prior to conviction for a felony?

What if the conviction is for a misdemeanor?

20 CFR 404.468 only stops SSDI benefits for a felony conviction.  This suggests that benefits could possibly continue before the conviction (despite incarceration) or if the conviction is only for a misdemeanor.

So, does SSR 83-28 trump 20 CFR 404.468 and stop benefits in these instances?

Here is another interesting wrinkle: 20 CFR 416.1339 deals with suspension of Supplemental Security Income (SSI) benefits (note: not SSDI benefits) for fugitive felons:

(a) Basis for suspension. An individual is ineligible for SSI benefits for any month during which he or she is—

1) Fleeing to avoid prosecution for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or

2) Fleeing to avoid custody or confinement after conviction for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or

2) Violating a condition of probation or parole imposed under Federal or State law.

Basically, your SSI benefits are stopped while avoiding arrest for a felony warrant (before conviction) or for a felony conviction, or while violating probation or parole.

Do your benefits stop and return between arrest and conviction?

How about this fact pattern: let’s say you pick up a felony charge on January 1. You are arrested on February 1. And you are convicted on March 1.

Does this mean your benefits stop between January 1 – January 31 for fleeing to avoid prosecution for a felony crime? It looks that way.

Once you are in custody, do your benefits resume between February 1 – February 28 because 1) you are no longer fleeing, and 2) even though you are in custody, you have not been convicted of a felony?

Finally, are benefits stopped at all, regardless of conviction or incarceration, if the charge/conviction is for a misdemeanor?

Updated 09/10/10: The general rule of thumb is that an individual is not eligible to receive Social Security disability benefits (SSDI or SSI) during incarceration. It does not matter if the conviction is for a misdemeanor or a felony.

However, when benefits stop differs depending on whether you are receiving SSDI or SSI. As a result, individuals may receive Social Security benefits for a short time after incarceration. Click here for more information.

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Disclaimer: This is NOT legal advice. This site provides general information about Social Security disability cases in Colorado. To discuss your particular circumstances, please contact a lawyer in your area. Please review the full disclaimer .

About Tomasz Stasiuk

Tomasz Stasiuk is a Colorado Springs Social Security disability lawyer and the founding attorney of the Stasiuk Firm - a law firm specializing in Social Security disability cases in Colorado. Follow Tomasz Stasiuk on Google and Twitter

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  • nikki

    I was just wondering, my boyfriend had said something about talking to someone about recieving Social Security checks for the past 27 months when he was incarcerated, i'm not sure exactly what was said, or how it all came about, but I dont want him to get his hopes up, i only talked for a few minutes about the subject, so if you could help me out, that would be wonderful.

    thanks so much!
    nikki.

  • Pingback: Do Spouse's and Children's Benefits Continue During Incarceration? | Colorado Social Security Law()

  • Victor Cron

    IF a person is sitting in jail awaiting trial on a felony. Can he still collect SSI disability until convicted of a felony and sent to prison? I not sure and need this information. i.e. brother on SSI and was in county jail until he took a plea. Please assist

  • Charles

    If a person is convicted of a felony, but placed on community control or probation, will he still receive social security or social security disability benefits.

  • http://www.SocialSecurityInsider.com/ TomaszStasiuk

    Hey Charles, it seems that this might deal with the issue of confinement. According to the regulation (cited in the post above):

    “Confinement in such a facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. An individual is considered confined even though he or she is temporarily or intermittently outside of that facility (e.g., on work release, attending school, or hospitalized).”

    Is your probation closer to a parole (which would allow benefits) or are you “temporarily or intermittently outside of the facility?”

    Call SSA, either your local office or the toll free number 1-800-772-1213.

    Comment back with their answer!

  • http://www.SocialSecurityInsider.com/ TomaszStasiuk

    Generally, Social Security benefits can continue during probation or parole. However, they will be stopped if you violate the terms of the probation or parole.

    I am not sure what you mean by “community control” though. My earlier comment talks about my concerns with that.

  • MJ

    I am the representative payee for my son who is in jail for conviction of a misdemeanor. SSDI benefits were suspended as of 8/09. Has there been any success in restoring benefits before I file for reconsideration. Release from jail is expected in November and I have a bill for Medicare (3 months) and am paying for storage of his furniture, two months rent ($725/mo.+utilities for August and September)

  • bluesue2

    My father is in the Denver County jail on charges he has not been convicted of yet. Will he still be able to get his SSI payments until he is convicted? We plan to continue paying his rent an other bills in case he is released. So his money will continue to be used for paying his bills until we know if he will be convicted. Please let me know ASAP, thanks.

  • bluesue2

    My father is in the Denver County jail on charges he has not been convicted of yet. Will he still be able to get his SSI payments until he is convicted? We plan to continue paying his rent an other bills in case he is released. So his money will continue to be used for paying his bills until we know if he will be convicted. Please let me know ASAP, thanks.

  • Upset

    My husband is in jail from a single accident dui. I was told by Social Security that his SSDI benefits will cease until he's released. Also my son who is on SSI will not increase at all. He's 14, disabled and only receives $2.60. So when did this rule of theirs changed??? I don't know how we're going to live on less than $600 of auxiliary payments.

  • Upset

    In case somebody replies that I should get a job. I have disabilities myself. And don't have enough credits to apply for ssdi. “Maybe” now I'm eligible to apply for ssi disability. I couldn't apply before because of our income was over the limit. Anyway, If somebody could answer my questions above.

  • http://www.ColoradoSocialSecurityLaw.com TomaszStasiuk

    Auxiliary benefits continue to family during incarceration, but the incarcerated individual's benefits stop: http://www.socialsecurityinsider.com/2009/04/do

    Like you say, you may be financially eligible for SSI yourself with the drop in household income.

  • Booboo

    SSA claims to have overpaid 2 months of my disability payments while I have been on EHD/EHM for a dui conviction in Wa. state–a misdemeanor. Is this grounds for me to file a request for reconsideration formal conference? Where is it cited that they can do this? The letter states that 'we cannot pay you because you are imprisoned for the conviction of a crime.' Not a felon here and on probation without any violations. Help!!

  • NancyKK

    Can someone resume getting Social Sec once they’ve been released from Federal or do they lose it forever? God please tell me they won’t lose it forever! WTF is someone supposed to live on once they are released and have a felony on their record & they’re already at retirement age? Anyone know please e-mail me — likface@yahoo.com

  • http://www.StasiukFirm.com TomaszStasiuk

    Social Security may resume benefits in SSDI (disability insurance) cases after an individual is released from incarceration. In SSI cases, if an individual was incarcerated for 12 months or more, a new application has to be filed.

  • gk

    I was told that if a person is convicted of a felony they could no longer receive Social Security, even after they are released from prison. Is that true?

  • http://www.StasiukFirm.com TomaszStasiuk
  • Oldschool_lion

    Question: once the individual is released from jail, will his payments automatically start again, or must he reapply. And, will he be paid back pay for the time hid benefits were stopped?

  • http://www.Planet10Tech.com TomaszStasiuk
  • angela

    if a person gets disability and went to jail for and got out half way through the month do they collect the other half for that month when they get out

  • http://www.Planet10Tech.com TomaszStasiuk

    Good question! But… I don’t have an answer for you.

  • John Petrone

    I am an 82-year-old felon on home confinement for the balance of my sentence. (10 months.) I think that i am eligible for social security payments based on Title 42, section 402 which states in part: “…an individual shall not be considered confined in an institution comprising a jail, prison, or other penal institution or correctional facility during any month throughout which such individual is residing outside such institution at no expense (other than the cost of monitoring) to such institutiion or the penal system or to any agency to which the penal system has transferred jurisdictiion over the individual.”

  • http://www.Planet10Tech.com TomaszStasiuk

    Even more simply if SSA views it as home monitoring: http://www.socialsecurityinsider.com/2010/10/social-security-disability-benefits-and-home-monitoring/

    However, I am not making any opinion on whether that would work or not.

  • confused

    i know a case where a man who was 100% disabled and went to Irak …is a veteran …was reciving him social security benefits while he was in jail. about 8 months. then he was extradited—he is inocent in his country.. what about his benefits now?

  • Linda Tooze

    I was released from prison on 4/03/2011. When do I get my SSI payments back?

  • http://www.Planet10Tech.com TomaszStasiuk
  • confused

    what about he or she is convicted of a crime in another country?

  • Definemoment

    So what happens to Social Security benefits if someone is locked up for the rest of their life. My ex-husband was sentenced to 40 years in prison and we have a son together. Can my son collect his social security benefits?

  • http://www.Planet10Tech.com TomaszStasiuk
  • http://www.Planet10Tech.com TomaszStasiuk

    That’s surprising.

  • Chow The Merciless

    my boy just got out of prison after doing 7 years and got a check for all the SSD he had missed while locked up, it was something like 35,000 US dollars… funny thing is though, he got locked up a week later…

  • Chow The Merciless

    my boy just got out of prison after doing 7 years and got a check for all the SSD he had missed while locked up, it was something like 35,000 US dollars… funny thing is though, he got locked up a week later…

  • Silldee1350

    i just do not understand the system, my husband has worked his whole life and did 2 tours in vietnam, he was hurt in an acciden not his fault, back in 2004 he applied for ss benefits and was told he needed 3 more months. my nephew, edward dalton, has not worked has been incarceted more time than i can count, he has been ripping older people off for so long and the last time he was released he had a check for $12,000. waiting on him, food stamps and an apartment, and a medical card is the right….our system is failing honest hard working people…..

  • http://www.Planet10Tech.com TomaszStasiuk

    A 12k for what? SSA doesn’t pay “back benefits” for time spent incarcerated.

  • who let the dog out??

    but you are not disability son, you are able to look for a job instead of waiting for SSI. just go ahead and apply for a job man. forget that SSI shit

  • Megelsh

    I asked about outright social security, not disability, what A holes.

  • Tammymoore14

    my brother-in-laws girlfriend is in jail and has been since Dec.2011, and she is still getting ssi money on her card. she was jailed for probation vil. and she owes $40,000. in back child support. she cashed her back time payment after the courts ruled that the backtime check was to go to her children. i just don’t get how she is still getting paid by the government when the government is taking care of her while she is in jail. her boyfriend is spending all her ssi money. how is this? i get ssi and my husband works, we have raised 3 kids and the government keeps cutting my  check, but someone that is in jail and owes that much child support gets $674.00 a month….. it just seems very wrong to me…..

  • http://www.stasiukfirm.com/ TomaszStasiuk

    My understanding is that SSI benefits stop 30 days after the start of incarceration: http://www.socialsecurityinsider.com/2010/10/when-do-social-security-benefits-stop-after-incarceration/

    If benefits are paid after that, perhaps SSA is unaware of the incarceration. 

  • Cris_lander&jess

    because they cut my benefits i became a leper and lost body parts in the galveston county jail, and raped and robbed by lamarque and texas city pd and fire dept. i need a real lawyer i am dieing

  • Socalfem08

    Are children of a incarcerated parent able to collect social security or funding for college ?

  • http://www.stasiukfirm.com/ TomaszStasiuk

    Well, Social Security does not provide “funding for college.” If you are asking how federal or private loans, scholarships, grants, etc view an incarcerated parent, I have no idea. 

    If you are asking if auxiliary benefits (benefits paid to the spouse, or child, of a disabled individual) continue during the disabled person’s incarceration, that’s discussed here: http://www.socialsecurityinsider.com/2009/04/do-spouses-and-childrens-benefits-continue-during-incarceration/ 

  • Abowler79 Kelly Ray Bounds

     Mr. Stasiuk
     I was incarcerated while on disability for misdemeanors and my benefits have been stripped from me ever since. I have 4 steel ray cages in my low back , a plate in my R, ankle and I have emphysema. My attorney at Friday and Cox has been unable to restore my benefits. I am enrolled at Prestigous (Kaplan University Legal Studies) I am studying Environmental Policy and Management. I am doing my projects in each class (on-law) on Social Security Reform with a mind to the injured who have done time. I correlated both classes this term on this subject. I still have no benefits and even cash assistance has been denied by the heads of the Mafia. The Judge who put me in there, Erie county Judge Connelly and his family) I am requesting aid from you and commenting on your sight. 
     I am forced to live on my stipend and I need help. I had a hunch you were wishing for a righteous fight and I can offer a grand one, taking on the Godfather (Connelly). How bout it??????
       Kelly Ray Bounds – Abowler79@verizon.net and Zansafar314@hotmail.com   Phone # 1/814/664/4931 

  • Peter Guerue

    Hi My ssi was taken away because of DUI charge and I don’t know how about getting it back or what I have to do I have 2 illness that are starting to prevent me from working my immune system is very week, this happend about 2 years ago, since then I’ve been tring to find work sometimes I do but I”m either to sick to work or they found out about my DUI and turn me away, I don’t know what else to do I need medical care including medication to keep me alive but the bills are racking up and low income care can only do so much please guided in some direction

    Thank you

    jonesguerue@yahoo.com

  • http://www.stasiukfirm.com/ TomaszStasiuk

    The best advice I can offer you is to get in touch with a lawyer in your area. SSA cases are complicated and a lawyer can help you figure out what you need to do. Good luck, Peter!

  • jewels

    my husband was incarcerated in new jersey ,i was married wel over twenty years and his pension and social security are both taken from me.what can i do

  • mama

    question: after a person has been convicted of a crime is the family allowed to receive there benifits ? also if the spouse of the person being convicted is already receiving benifits can he or she be allowed to reapply to increase the amount based on the fact that the amount they were receiving was calculated by there spouses amount being received

  • Mark

    I am a payee for my sons ssi since his mother passed away. I was convicted of a felony but am not in jail or will not be going to jail. Will they take away my payee status for him?

  • Anonymous

    If a teenager is disabled and collects social security, he abuses his whole family (family abuse), will he (his mother) lose the disability payments if he is either in jail or in a mental hospital or jail?

  • http://www.stasiukfirm.com/ TomaszStasiuk

    For specific information about your situation, I encourage you to contact Social Security.

    I’m going to make some educated guesses here. Minor children received children’s SSI benefits. So, if a parent receives a Social Security check it is as a payee for the disabled child and not auxiliary benefits to the parent. As a a payee, the parent has responsibilities to use the benefits for the benefit of the disabled child. See http://www.ssa.gov/pubs/EN-05-10076.pdf. Note: this pamphlet also discusses when benefits are stopped.

    When the disabled individual is incarcerated or institutionalized (at a nursing home or hospital) over 30 days, the benefits often stop are are dropped to $30 (in case of being institutionalized).