SSR 76-20c: SECTIONS 202(d) and 204(b) (42 U.S.C. 402(d) and 404(b)) -- CHILD'S INSURANCE BENEFITS -- OVERPAYMENTS -- CHILD OVER AGE 18 NO LONGER STUDENT

20 CFR 404.506 and 404.507

SSR 76-20c

MUNCE v. MATHEWS, 1A Unempl. Ins. Rep. #14,611 (S.D. Ohio 1976)

DUNCAN, District Judge:

This is an action under the Social Security Act, 42 U.S.C. Section

405(g), for review of a final decision of the Secretary of Health,

Education and Welfare refusing to waive repayment of an overpayment of

social security benefits. This matter is before the Court on plaintiff's

motion for summary judgment.

Since 1959, plaintiff and her children have been receiving survivor

benefits under the Social Security Act. A child is entitled to benefits

until he reaches the age of 18. If a child continues in regular school

attendance, he is entitled to benefits from age 18 to age 22. Plaintiff's

daughter, Alice M. Estep, was born January 1, 1953. In June, 1972, she

graduated from high school. She did not thereafter attend school; thus,

she became ineligible for further benefits in June, 1972. Neither

plaintiff nor her daughter notified the Social Security Administration of

the daughter's ineligibility. An overpayment of $1,255.70 resulted.

The administrative law judge made the following findings of fact which

are fully supported by the record before the Secretary:

Under the provisions of 20 C.F.R. § 404.506 the Secretary will waive

recovery of an overpayment if the recipient was "without fault" and the

recovery would either "(1) Defeat the purpose of Title II of the Act of

eligibility. An overpayment of $1,255.70 resulted.

The administrative law judge made the following findings of fact which

are fully supported by the record before the Secretary:

Under the provisions of 20 C.F.R. § 404.506 the Secretary will waive

recovery of an overpayment if the recipient was "without fault" and the

recovery would either "(1) Defeat the purpose of Title II of the Act of

(2) Be against equity in good conscience." Fault is defined in 20 C.F.R.

§404.507:

The administrative law judge's determination that plaintiff was not

without fault is supported by substantial evidence. Plaintiff's theory is

that she thought the Social Security Administration would make the

adjustments to the social security payments when the child reached age 18

or finished school. She further states that she was so informed by a local

social security administration office. Assuming these facts to be true,

plaintiff knew that her daughter's benefits should have been terminated in

June, 1972 when she quit school. She was merely under the belief that the

Social Security Administration would automatically terminate the payments.

When the administration did not, plaintiff then, of necessity, knew that

she had received an overpayment of social security benefits. Plaintiff,

therefore, accepted, the payment on behalf of her daughter knowing it to

have been incorrect.

WHEREUPON, the Court HOLDS that plaintiff's motion for summary judgment

is without merit, and therefore it is DENIED. The decision of the

Secretary of Health, Education and Welfare is AFFIRMED.