SSI Overpayments

March 2012, Pub #5421.01

This fact sheet provides information about Supplemental Security Income (SSI) overpayments: what they are, what can cause them, who is responsible for them, and what your options are if you have an SSI overpayment.  This fact sheet does not address overpayments of other kinds of Social Security benefits, such as Social Security Disability Insurance (SSDI). 

1.      What Is An SSI Overpayment?

An SSI overpayment is an SSI payment made to you by the Social Security Administration (“SSA”) that was more than the amount SSA says is actually due to you.   The amount of the overpayment is the difference between what you received and the amount SSA says you should have received.

2.      What Can I Do if SSA Says I Have an Overpayment and I Think They Are Wrong?

If SSA says you have an overpayment, you have a right to appeal.  See questions 10, 12, and 18 below.  Alternatively, you also have the right to request waiver of the overpayment.  See questions 13-18 below.

3.      What Can Cause an Overpayment?

There are several ways that overpayments can happen.  Sometimes overpayments happen because someone failed to report information that they were required to report to SSA.  Sometimes people do the report that they are required to do, but SSA fails to make an adjustment in the SSI payment.  See questions 4 and 5 for more information about reporting.

4.      What Reporting Should I Do to Reduce the Possibility of an Overpayment?

You are required to report certain events that can affect the amount of your SSI check, or your eligibility for SSI, within 10 days after the month the change occurs.   It takes SSA one month from the date of your report to take whatever information you provided into account and adjust your check.  For example, a change in January, which you report by February 10th, is supposed to be reflected in your March check.  If SSA does not get the information in time, it cannot adjust your check, and you may end up with an overpayment.

You are required to report the following information:

 

Failure to report events means that your SSI benefit amount will be based on missing or wrong information.  If you told SSA about changes and SSA still says you were overpaid, see questions 13-18 below about requesting a Waiver.

5.      Why is SSA Charging Me with an Overpayment Even Though I Did Report a Change in a Timely Manner?

Unfortunately, sometimes, people report changes to SSA as explained in question 4, but SSA fails to take the change into account.  For example, some people continue to receive a full SSI check after they return to work, even though they are due a reduced amount, or they are ineligible for SSI.  Often they don’t realize that they are being overpaid until they receive a notice from SSA months or even years later.  In this situation, the person was actually overpaid, but through no fault of his or her own.  A waiver may be the best option in this situation.  See questions 13-18 below.

6.      Who Can Be Responsible to Pay back an Overpayment?

The following people can be responsible to pay back an overpayment:

7.      When Can My Rep. Payee Be Personally Liable for an Overpayment?
If the overpaid amount was misused by your Rep. Payee, she/he will be personally liable.   If the funds were not used for your support or maintenance, then the Rep. Payee will be solely responsible for the overpayment, regardless of whether he/she knew of the overpayment;

If the SSI payments were used for your support and maintenance and your payee knew or should have known of the overpayment, then you and your Rep. Payee will both be responsible for the overpayment.   However, if the SSI payments were used for your support and maintenance, and your payee did not know about the facts surrounding the overpayment, you are responsible for the overpayment.

8.      What Does the Notice of Overpayment Have To Contain?

You have a right to receive a written notice if SSA thinks you have an overpayment.  The notice must include the following information:

If a letter or a person from SSA tells you that you have an overpayment, but you did not receive the actual overpayment notice, ask SSA to send you one.

9.      What Will Happen to My SSI If I Have an Overpayment?

SSA will ask you to pay the full amount of the overpayment within 30 days. If you don’t do this, and you are still eligible for SSI, then SSA will take the lesser of 10% of your total monthly countable income or your entire monthly income.   SSA will start taking money out 60 days after you receive notice of the overpayment.  You can always negotiate a different rate of pay at any time.  For example, you can ask SSA if you can pay back $20 per month if that’s all you can afford.  However, where Social Security thinks there has been fraud, they will not agree to a reduced payment.

10.    Can I Appeal an Overpayment and Stop Reductions from Happening?

Yes, you can.  To keep getting your SSI without any changes, you must send in your appeal within 10 days of receipt of the notice of overpayment.  SSA figures you will “receive” the notice no later than five days after the date on the notice. For example, if your notice is dated January 1st, SSA will assume you received it by January 5th. Your appeal must be filed by January 15th.  If you appeal within 10 days, SSA will not reduce your benefit amount until a decision is made.  If you do not appeal within 10 days, you can still request an appeal within 60 days of receipt of the notice of overpayment.   But the amount of your SSI will be reduced during the appeal.  See questions 12 and 18 for information on filing an Appeal.  For information on the steps in an appeal, see SSA’s Publication on appeals, found at: http://www.socialsecurity.gov/pubs/10041.html .

11.    What Can I Do To Avoid Having To Re-pay SSA for an Overpayment?

There are five different ways to try to avoid having to repay SSA: Request for reconsideration (Appeal), Waiver of overpayment recovery (Waiver), Appeal and Waiver (together), Compromised Payment, and Bankruptcy.  Each of these options is explained below.

12.    When Does it Make Sense for Me to APPEAL?

File an appeal if:

We recommend that you ask for reconsideration by “informal conference” so that you will be able to meet with someone from SSA to go over your case with you.  If you do not understand why SSA says you were overpaid, the SSA person will be able to explain it to you.

If you miss the 60-day deadline to appeal, you may still appeal if you have “good cause.”

13.    What is a WAIVER, and When Does it Make Sense for Me to File a WAIVER?

A waiver is a recognition that you really have an overpayment, and you request not to have to pay it back.  You will not have to pay back the overpayment if SSA grants your waiver request.   If SSA denies your waiver request, you can appeal that denial.

Request a waiver of the overpayment ONLY if you agree that you have an overpayment or you have lost an appeal challenging the existence of the overpayment.  Filing a waiver may mean you are admitting that the overpayment exists.

When requesting a waiver, you must show that the overpayment was not your fault and one of the following applies:

You can ask for a waiver for any part of an overpayment.  For instance, you did not report a change within the first 10 days of the following month but did so before the end of the month.  You could ask for a waiver of all of the overpayment except the overpayment for month one.

You can get a Request for Waiver Form by going to the SSA office, calling SSA and asking them to mail you one, or from the SSA website at: http://www.ssa.gov/online/ssa-632.pdf.
14.    What is the Time Limit for Requesting a Waiver?

There is no time limit for requesting a waiver.  You can ask for a waiver at any time.  You can even request a waiver after you paid off the overpayment.  After you file a request for waiver, SSA will review your request and either make a favorable decision or hold a personal conference with you if it cannot make a favorable decision.  You can also appeal a denial of a waiver.

15.    If I File a Waiver, How Will SSA Decide Whether I Am Without Fault?

SSA will consider whether you are “without fault” by looking at whether you:

NOTE: If SSA cannot substantiate and document the cause of the overpayment, or cannot give you a full explanation of the facts about the overpayment, you must be found to be without fault.

16.    Under What Circumstances May SSA Deny a Request for Waiver Because It Decides I Am At Fault?

You may be found “at fault” in connection with an overpayment when an incorrect payment resulted from one of the following:

Fault or knowledge of another cannot be charged to the person asking for the waiver.  For example, in the case of a child receiving SSI, the failure of her parent to report an event that can affect the child’s SSI benefit amount or eligibility cannot be imposed on the child.  The child will be without fault.  This does not mean that the parent, as representative payee, is without fault and not responsible for repayment.

17.    If I File a Waiver, How Will SSA Decide Whether It Would be a Hardship for Me to Pay Back the Overpayment?

If you are getting SSI, then SSA automatically considers it a hardship for you to have to repay an overpayment.  If you no longer get SSI, you will need to show that you cannot afford to repay the overpayment, based on your income and expenses.  We recommend that you attach to the Request for Waiver form, all documents you think will support your position (example, bills, bank statements, letters from SSA).  You do not need to attach these or complete certain questions about your income and expenses if you are still receiving SSI, because hardship is presumed.

If you are denied a waiver because SSA says it would not be a hardship to pay back the overpayment and you have a change in circumstances (your financial situation gets bad) you may be able to show that it would be a hardship to repay the overpayment.

18.    Under What Circumstances Does it Make Sense for Me to File An APPEAL AND WAIVER (BOTH)?

If you are not sure what to do, appeal within 60 days and ask for a waiver.  SSA must process the appeal first.

19.    What is a COMPROMISED PAYMENT?

You can offer to pay SSA a lesser amount than the total owed as payment in full.  Factors SSA will consider include:

20.    Can I File for BANKRUPTCY to Discharge an SSI Overpayment?

Yes.  You can petition the bankruptcy court to include the SSI overpayment as an unsecured debt which can be discharged.  If you want to go this route, you should consult with someone who specializes in bankruptcy law.

21.    How Can I Avoid an Overpayment In The Future?

http://www.disabilityrightsca.org/pubs/538201.pdf

NOTE: If you are receiving both Social Security Disability Income (SSDI) and SSI, you must report any changes to both the SSI case worker and the SSDI case worker.

22.    Where Can I Get More Information on Avoiding an Overpayment?

Visit SSA’s website at www.ssa.gov.  Go to “Get a Publication,” then “SSI” on the drop-down menu, then select, “SSI Spotlights.”  You can choose which SSI Spotlights publication you would like to read.  SSI Spotlights publications include, “Rights and Responsibilities,” “Reporting Your Earnings,” “Living Arrangements,” and many others.

 

 

20 C.F.R. § 416.525(a); 20 C.F.R. § 416.537(a)

20 C.F.R § 416.538(a)

20 C.F.R. § 416.708; 20 C.F R. § 416.714

20 C.F.R. § 416.708

20 C.F.R. §416.570; POMS SI 02201.020 B.1

42 U.S.C. § 1382j(e); POMS SI 02201.005.F

42 U.S.C. § 1383(b); POMS SI 02201.005.F

20 C.F.R. § 416.537(a); POMS SI 02201.005.F

POMS SI 02201.005.G.2.c, d

POMS SI 02201.005.G.2.b

POMS SI 02201.005.G.2.

POMS SI 02201.005.G.2.a

20 C.F.R. § 416.558; POMS SI 02201.025

20 C.F.R. § 416.570; 20 C.F.R § 416.571

20 C.F.R. § 416.571

20 C.F.R. § 416.1336(b)

20 C.F.R. § 416.1409

20 C.F.R. § 416.1408

POMS SI 02201.005

20 C.F.R. § 416.1413

20 C.F.R. § 416.1411

20 C.F.R. § 416.551

20 C.F.R. § 416.557

20 C.F.R. § 416.550

42 U.S.C. § 1383(b); 20 C.F.R. § 416.553

Id.

42 U.S.C. § 1383(b); 20 C.F.R. § 416.554

20 C.F.R. § 416.556; POMS SI 02260.025.C.2; SI 02260.035

20 C.F.R. § 416.555; POMS SI 02260.030

20 C.F.R. § 416.551

POMS SI 02260.001.A.3

20 C.F.R § 416.557

20 C.F.R. § 416.552

POMS SI 02260.015.B.1.b

Id.

SI 02260.010.B.3

20 C.F.R. § 416.553

SSA Emergency Message EM-10092, effective date 12/22/2010

20 C.F.R. § 416.571

POMS SI 02220.040