There are instances where we can presume an individual is not at fault. Before evaluating fault, determine whether any of the not at fault presumptions apply. For a list of not at fault presumptions, refer to GN 02250.016. For additional information about not at fault presumptions where a Title II overpayment resulted from an incorrect computation of benefit rates or insured status, refer to GN 02250.023. For additional information about not at fault presumptions where a Title II overpayment is due to earnings and income, refer to GN 02250.025.

When evaluating fault, we must consider all of the circumstances surrounding the overpayment, refer to GN 02250.005B.2.

We can find an individual at fault only after we first find that there is evidence that the overpayment occurred because the individual:

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  made an incorrect statement they knew or should have known was correct,

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  failed to furnish information that they knew or should have known was material, or

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  accepted payments that they knew or should have known was incorrect.

Unless we have evidence that one of these has occurred, the individual is not at fault.

Before deciding an individual is at fault, we must always consider the factors discussed in GN 02250.005B.2.

When evaluating fault, we must always consider all the circumstances surrounding the overpayment. We must always consider these factors to decide what an individual knew or should have known and to decide what ability they had to make a report to us. We must consider the individual’s:

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  understanding of the reporting requirements,

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  agreement to report events affecting payments,

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  knowledge of the occurrence of events that should have been reported,

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  efforts to comply with the reporting requirements,

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  opportunities to comply with the reporting requirements,

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  understanding of the obligation to return checks which were not due, and

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  ability to comply with the reporting requirements.

We must consider the individual’s specific circumstances, such as the individual’s capabilities as demonstrated by their age, comprehension, education, memory, physical and mental condition (which may include medical institutionalization during part or all of the overpayment period) linguistic limitations (including any lack of facility with the English language), etc.

Attempt to locate this information in the SSA-632-BK and the overpaid individual’s record. While reviewing an individual’s record, ask yourself:

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  Did the individual provide incorrect information? Did the individual know and understand that the information was incorrect at the time they provided the information?

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  Is it documented on their record that a technician discussed their reporting responsibilities with them and that they understood those instructions? Have their circumstances changed where they may no longer understand them?

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  Does their record show they received clear instructions to return checks that were not due?

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  Are they receiving benefits due to an intellectual disability or mental impairment that may have prevented their ability to make a required report or return payments not due?

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  Does the individual have any physical conditions that prevent their ability to report a change or from returning a payment (e.g., hearing impaired, visually impaired, mobility challenges, illnesses, temporary institutionalization, etc.)? Refer to example 2 in GN 02250.005D.

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  Were there any challenges that prevented the individual from making a required report or returning payments not due (e.g., emergency declarations, pandemic, etc.)? Refer to examples 1 and 2 in GN 02250.005D.

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  Did the individual not report the change because they believed it was not significant enough to affect their payment or benefit amount?

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  Does their record show they contacted us or attempted to contact us to make a required report or return payments not due? Are they alleging they attempted to contact us?

For commonly occurring overpayment situations and examples of fault and not at fault determinations, refer to GN 02250.021.

The determination that the individual has been overpaid is not a finding that the individual is at fault in causing the overpayment.

1. a. 

   Fault decided on an individual basis

   We must make separate findings of fault for each individual who requests a waiver. There is an exception where we may presume other individuals on the same record not at fault if they are overpaid for the same reason, refer to GN 02250.016.

   If the waiver request is for an overpaid person who has a representative payee, we must consider only the fault of the overpaid person. If the overpaid person is not at fault, we must find them not at fault even if the representative payee was at fault, refer to GN 02250.021B.12.

   If a representative payee received notice that they are liable for an overpayment and the representative payee requests waiver on their own behalf, we will evaluate only the representative payee’s fault.

2. b. 

   Estates

   When a legal representative of an estate seeks a waiver, we must determine the fault of the deceased. If the distributee seeks a waiver after closing the estate, we must determine the fault of the distributee. For more information regarding estates, refer to GN 02205.001, GN 02215.050, GN 02215.055, and GN 02215.070.

3. c. 

   Not at fault for part of overpayment period

   There may be instances where we find an individual at fault for part of the overpaid period but not at fault for another part of the overpayment.

   For example, an individual may not have timely reported a change, but then later reported the change and we continued making payments even after the change. Depending on the circumstances, we may find the individual at fault for the first part of the overpayment, but we will presume they are not at fault for payments received after they made the report.