I-2-1-80.The Right to Representation

Last Update: 12/10/24 (Transmittal I-2-264)

Claimants have the right to be represented in any of their dealings with the Social Security Administration (SSA). SSA neither encourages nor discourages representation. An unrepresented claimant receives notice of the right to representation several times prior to the scheduled hearing before an administrative law judge (ALJ).

The claimant receives the following written notices advising them of the right to representation:

Forms SSA-L443 or SSA-L444 “Notice of Disapproved Claim”;
Form SSA-HA-501 “Request for Hearing by Administrative Law Judge”;
Form SSA-HA-L1 “Important Notice About Representation”;
Form SSA-HA-L2 “Request for Hearing Acknowledgment Letter” (including the “Your Right to Representation” pamphlet, SSA Publication No. 05-10075); and
Form SSA-HA-83 “Notice of Hearing” (including the “Your Right to Representation” pamphlet, SSA Publication No. 05-10075).

Additionally, an unrepresented claimant receives oral notification of the right to representation during any prehearing conference (PHC), prehearing development contact (PHDC), or claimant enhanced outreach (CEO).

A. Prior to Hearing

1. Prehearing Conference

If a PHC is conducted pursuant to Hearings, Appeals and Litigation Law (HALLEX) manual I-2-1-75, an ALJ or authorized designee must advise the claimant of the right to representation during that PHC.

An ALJ or authorized designee is not required to recite specific questions regarding the right to representation or the claimant's capacity to make an informed choice about representation. However, below are examples of questions the ALJ or authorized designee could ask an unrepresented claimant on the record:

Did you receive the hearing request acknowledgement letter and its enclosure(s)?
Do you understand the information contained in that letter, specifically concerning representation?

2. Prehearing Development Contact and Claimant Enhanced Outreach

Hearing office (HO) staff may contact an unrepresented claimant prior to a hearing through a PHDC or CEO. During a PHDC or CEO, HO staff must verify that the claimant is unrepresented and inform the claimant of the right to representation.

a. Confirming the Right to Representation

HO staff must communicate the following information during, or subsequent to the PHDC or CEO, in order for an ALJ to deny a request to postpone a hearing for the claimant to obtain representation (see B.3. below):

There is no requirement that the claimant obtain a representative.
If the claimant does not appoint a representative, SSA will make every reasonable effort to obtain all relevant medical and non-medical records.
The benefits of appointing a representative include having the representative obtain evidence, prepare for proceedings before SSA, develop the claimant's claim(s), and present the claim(s) in an administrative hearing. Regardless of whether the claimant is represented, an ALJ may question the claimant directly at the hearing.
If the claimant wishes to obtain a representative, the claimant should begin the process of finding a representative as soon as possible.
Some representatives may charge a fee, but there are also legal service organizations that may represent the claimant free of charge.
If the claimant seeks to reschedule the hearing to obtain a representative, an ALJ may deny the claimant's request unless there is good cause.
The claimant must affirm their understanding of the information explained regarding the right to representation.

b. Documenting Advisement of the Right to Representation

HO staff will document on a Form SSA-5002 “Report of Contact (ROC)” that the claimant was advised of the right to representation and that the claimant affirmed understanding of this information, pursuant to A.2.a. above. The ROC will become part of the claim(s) file. HO staff will also enter a remark in the Case Processing and Management System (CPMS) or Hearings and Appeals Case Processing System (HACPS) noting the date that they contacted the claimant and confirming there is an associated ROC in the claim(s) file.

B. Administrative Law Judge Hearing

1. Advisement of the Right to Representation

If a claimant is unrepresented at a hearing, an ALJ will confirm during the opening statement (see HALLEX I-2-6-52) that the claimant was properly advised of the right to representation, pursuant to this section, and that the claimant is capable of making an informed choice about representation.

If the record shows that the claimant had a PHC, and the ALJ adjudicating the case at the hearing does not intend to grant the request for postponement to obtain representation, the ALJ must identify or state on the record when the claimant was advised of the right to representation.

If the record shows that the claimant had a PHDC or CEO, and the ALJ does not intend to grant the request for postponement to obtain representation, the ALJ must state on the record that the claimant was advised of the right to representation during the PHDC or CEO. If the record does not show the claimant was previously advised of the right to representation, using the information in A above, the ALJ conducting the hearing:

Must inform the claimant of the right to obtain representation; and
Cannot deny a request for postponement to obtain a representative if it is the claimant's first request (see B.3. below).

At a hearing, if the claimant did not have a PHC, PHDC, or CEO, the ALJ is not required to ask the claimant any specific questions regarding the right to representation and may communicate to the claimant the information provided in A.2. above, or ask the claimant other questions.

Below are examples of other questions that an ALJ may ask the claimant:

Did you receive the hearing request acknowledgement letter and its enclosure(s)?
Do you understand the information contained in that letter, specifically concerning representation?

An ALJ must ensure that the claimant is aware of the options for representation. Specifically, an ALJ will explain the availability of both free legal services and contingency representation and discuss access to organizations that assist individuals in obtaining representation. An ALJ will answer any questions the claimant may have, including explaining the claimant's options regarding representation, as outlined in the hearing request acknowledgement letter. However, the ALJ will answer any questions in a manner that neither encourages nor discourages representation.

If the claimant decides to waive the right to representation, the ALJ must determine whether the claimant is capable of making an informed decision to waive the right to representation. If the ALJ is satisfied that the claimant can make an informed decision, the ALJ must secure from the claimant a verbal waiver on-the-record or a written waiver, which will be marked as an exhibit. If the claimant requests to postpone the hearing to obtain a representative, the ALJ must consider the totality of circumstances and decide on-the-record whether to grant the claimant's request for postponement.

2. Claimant Appears for Hearing and Requests to Appoint an Unregistered Individual as Representative

If a claimant appears with an individual they want to represent them at the hearing and that individual 1. is not currently appointed on the claim, 2. does not submit a valid written appointment that was signed by the claimant prior to September 30, 2024, and 3. is not registered with the agency (hearing office staff may assist by verifying representative registration in the Registration, Appointment and Services for Representatives (RASR) application), ALJs must take the following steps on the record:
1. Explain to the claimant that SSA requires that an individual must be first registered with the agency in order to be appointed as a representative. Inform the claimant that they do not need to appoint individuals, such as relatives or friends, who attend a hearing for general purposes unrelated to representation, such as providing general help or casual advice. Inform the claimant that such individuals may attend the hearing, but they cannot question witnesses, make an opening statement, or receive notices or correspondence regarding the cases(s). Additionally inform the claimant that the individual will not have an obligation to follow or abide by the Rules of Conduct and Standards of Responsibility for Representatives as defined in 20 CFR 404.1740 and 416.1540.
2. Advise the claimant of their right to representation on the record. See B.1 above.
3. Inform the claimant that they may continue with the hearing unrepresented OR request a postponement to give the individual they want to appoint as a representative time to register with the agency.
4. If the claimant requests a postponement, in addition to providing the information noted in B.3, ALJs will inform the claimant that if the person they wish to appoint as a representative does not complete their registration prior to the next scheduled hearing and they have not found a new registered representative, they must be prepared to proceed without a representative at the next scheduled hearing, and that no additional postponements will be granted, absent extraordinary circumstances.
  
  NOTE:
  
  Agency delay in completing registration for a representative who timely and properly submitted Form SSA-1699 would constitute an extraordinary circumstance that would justify an additional postponement.
5. Inform the unregistered individual that the claimant wants to appoint as representative that they must first register using Form SSA-1699 before we will recognize their appointment. Also, inform the individual that they must be prepared to provide competent representation, which includes having a reasonable and adequate familiarity with the claim and evidence and having a working knowledge of the Social Security Act, the regulations, and other applicable provisions of law per 20 CFR 404.1740 and 416.1540.
If the ALJ grants a postponement, HO staff must follow the directions in Standard Hearing Operation Procedure (SHOP) section 4.5.3 and contact the individual who wants to serve as representative after the postponed hearing and provide them with the SSA-1699 and information about registration.

NOTE 1:

If an individual who is not registered with the agency as a representative submits a Form SSA-1696 and requests to be appointed to a case prior to the scheduled hearing, OHO staff will not recognize the appointment and will follow the guidance in HALLEX I-1-1-11 B.1 NOTE 1, Processing the Appointment of a Representative, and SHOP section 1.3.5.6 and provide the individual with information about the registration process.

3. Postponement of Hearing to Obtain Representation

If the record shows that the claimant, during a PHC, PHDC, or CEO, was previously informed of the right to representation, as described in A above, the ALJ will ordinarily deny any request for postponement to obtain a representative, absent good cause.

If the record does not show that the claimant was previously informed of the right to representation at a PHC, PHDC, or CEO, as described in A above, and the claimant requests postponement of the hearing to obtain a representative, and it is the first request, an ALJ will typically grant the requested postponement.

Notwithstanding prior notification of the right to representation, an ALJ will typically grant a claimant's postponement request when the claimant appears at a hearing with an unregistered individual that they wish to appoint as their representative, as described in B.2 above, to give the individual the opportunity to register and to submit a valid Form SSA-1696. ALJs will generally only provide the claimant one postponement opportunity in such a situation, absent extraordinary circumstances.

When considering whether to grant a postponement request, the ALJ must consider the totality of the circumstances including any mental limitations that may impair the claimant's understanding regarding the right to representation or any other factors that may indicate good cause (see, e.g., Social Security Ruling 91-5p, Titles II and XVI: Mental Incapacity and Good Cause for Missing the Deadline to Request Review and HALLEX I-2-0-60 for factors to consider when determining if there is “good cause”). For example, an ALJ may be more likely to grant a postponement when a claimant has an intellectual disability that may have prevented the claimant from understanding the right to representation. An ALJ may also consider that the claimant made a good faith effort to obtain a representative but was unable to find a representative willing to accept an appointment. However, in all cases, the ALJ will consider the totality of the circumstances in deciding whether to grant a postponement. If the ALJ denies the request for a postponement, the ALJ will explain to the claimant on-the-record at the hearing the reasons for denying the request.

If an ALJ grants the claimant a postponement to obtain a representative, the ALJ will:

Confirm that the claimant has been advised of the right to representation (following the procedures in A.2.a, B.1, or B.2 above);
Explain that the Office of Hearings Operations (OHO) can provide information about organizations that provide free legal services (this information is generally included with the SSA-HA-L2 “Request for Hearing Acknowledgment Letter”), unless the claimant has indicated they already have a representative in mind and the representative has agreed to take the case;
Advise the claimant to notify the HO as soon as possible if representation is obtained;
Advise the claimant that OHO will send notification of the new hearing date and time;
Advise the claimant that normally only one postponement is permitted to obtain representation when there is not documentation in the record that the claimant was previously advised of their right to representation as part of a PHC, PHDC or CEO, unless there is good cause; and
Advise the claimant that if the claimant appears at the rescheduled hearing without a representative, the hearing will proceed without the representative, unless there is good cause for an additional postponement.