You asked our office to review the draft program message clarifying SSA's policy regarding
a Supplemental Security Income (SSI) overpayment where a parent (and representative
payee for a child) and the child, who is now an adult, are found jointly liable for
a prior SSI overpayment.
It is our opinion that the draft programs message is correct in its analysis.
This issue was raised with the NYRO by an attorney in Syracuse, New York who presented
an overpayment case involving a child, currently an adult and in current pay status,
who had been overpaid benefits when he was a child and his mother was his payee. The
Field Office followed the procedure outlined in SSA Program Operations Manual (POMS)
SSI 02210.020, and determined that the funds had been spent on the child and therefore
the child was jointly liable with his mother to repay the overpayment. The attorney
filed a waiver request, acknowledging that the child was liable, but asserted that
the child was without fault since he was a child at the time of the overpayment. The
waiver request was denied in this particular case, but the attorney represented to
the NYRO that in other similar cases the Field Office had waived the overpayment on
the basis claimed for by her client. Waiving an overpayment simply because the liable
individual who is now an adult was a child at the time the overpayment occurred may
appear to conflict with SSA's policy. Current SSA policy states that if the child
is liable, i.e., the money was spent on him and he was still in current pay, benefits
should be collected from the child's (now an adult), current benefits.
SSA first assigns liability for overpayment through a series of rebuttable presumptions.
See POMS SSI 02201.021 SSI Responsibility - Representative Payment.
In assigning liability, it is irrelevant whether the former child or parent/representative
payee is in pay status. That distinction only becomes determinative when SSA attempts
to collect the overpayment. The draft program message addresses this issue when the
parent or representative payee is determined to be liable and is receiving benefits.
The POMS section addressing liability does not address the issue of waiver, and thus,
the confusion in the field on this issue. POMS SI 02201.021 SSI Responsibility - Representative Payment provides guidance on who is responsible
for repayment, whether it be the recipient, representative payee or joint recipient/representative
payee. The recipient is responsible for repayment to the extent that incorrect payments
were expended on him/her, and is solely responsible for repayment if the representative
payee is without fault. POMS SI 02201.021 A(1)(a). The representative payee is personally responsible for repayment if incorrect
payments were not used for the support and maintenance of the recipient. POMS SI 02201.021A(1)(b). The recipient and representative payee are both liable when the incorrect
payments have been expended on the recipient and the representative payee is at fault.
POMS SI 02201.021A(1)(c).
POMS SI 02201.020 SSI - Who is Responsible for Repayments provides further guidance for recovery of
overpayment when a representative payment is involved.
SI 02201.020(B)(3)(b) directs that when there is representative payment, recovery should be attempted from:
the individual only when the overpaid funds were used for his/her support and maintenance
and the payee was not aware of the facts causing the overpayment;
the rep payee only when the overpaid funds were not used for the individual's support
both the individual and the payee when the overpaid funds were used for the individual's
support and maintenance and the payee was aware of the facts causing the overpayment.
These POMS sections address assignment of liability, but not the procedure for determining
whether and under what circumstances waiver of the overpayment would be appropriate.
It is unclear what facts determined the denial of the waiver request in the situation
presented by the Syracuse attorney. Of concern is that in virtually every case where
a child is found liable, a request for waiver was granted on the basis that the child
was without fault simply because he or she was a child at the time the overpayment
occurred. It is incorrect, however, to think that this result would necessarily be
contrary to SSA policy. Indeed it seems to be compelled by the regulations. Here,
20 C.F.R. § 416.552 "Waiver of adjustment or recovery--without fault" requires the
Agency to consider several relevant factors that are present in instances involving
a child recipient who has been found liable for the overpayment. It is worth reading
the relevant portion in full:
The Social Security Administration considers the individual's understanding of the
reporting requirements, the agreement to report events affecting payments, knowledge
of the occurrence of events that should have been reported, efforts to comply with
the reporting requirements, opportunities to comply with the reporting requirements,
understanding of the obligation to return checks which were not due, and ability to
comply with the reporting requirements (e.g., age, comprehension, memory, physical
and mental condition). . . .
Virtually every factor in this regulation tilts in favor of granting waiver for a
child who is liable for the overpayment. We do not require children to understand
reporting requirements, for example. The procedures in the POMS SI 02260.001 et seq. track these requirements.
Based on the foregoing, the draft programs message you propose to issue should adequately
clarify any confusion that has existed with respect to granting a waiver request in
situations similar to the one presented here.
Very truly yours,
Stephen P. C~
Regional Chief Counsel