SSR 84-6a: SECTIONS 1611(a), 1614(c), 1614(f)(2), AND 1631(b) (42 U.S.C. 1382(a), 1382c(c), 1382c(f)(2), AND 1383(b)) SUPPLEMENTAL SECURITY INCOME -- OVERPAYMENTS -- LIABILITY OF A REPRESENTATIVE PAYEE -- WAIVER OF ADJUSTMENT OR RECOVERY

20 CFR 416.550, 416.551, 416.552, 416.553, 416.554, 416.555, 416.1160,

416.1165, 416.1167(a), and 416.1856

SSR 84-6a

The issue before the AC was whether recovery of the overpayment of SSI

benefits incurred by R can be waived.

The representative payee was receiving SSI benefits on behalf of R, her

13-year-old son. Although R was residing at a school for the mentally

retarded in Pennsylvania beginning September 8, 1980, he was subject to

parental control and came home every third weekend and for several 2-week

vacations during the year. Accordingly, under § 416.1167(a)(2) of

Regulations No. 16, R, while attending school, was considered only

temporarily absent from his parents' household. Therefore, under §

416.1165 of Regulations No. 16, R's ineligible parents' income, less the

applicable allocations explained in that section, was deemed to R as

unearned income.

R's deemed income was $2,913.48 a month. He was, therefore, not eligible

for SSI benefits effective October 1980. He was erroneously paid SSI

benefits through August 1981 and thus was overpaid $2,671.40 for the

period October 1980 through August 1981.

The AC concurred with the decision of an administrative law judge (ALJ)

that R and the payee were "without fault" in causing the overpayment and

that the payee was not liable for its recovery. R was eligible for SSI

benefits while he was at the New Jersey school, and the ALJ had found that

neither he nor his parents could have been expected to know that a

transfer to the Pennsylvania school would have caused him to become

ineligible. Because the payee was "without fault" and the record showed

that she had used the amounts received for the benefit of R, the ALJ had

concluded, under SSR

64-7 (C.B. 1964), that the payee was not liable for refund of the

overpayment. SSR 64-7 provides, however, that a representative payee and a beneficiary may,

under certain circumstances, be jointly and individually liable for an

overpayment

e the payee was "without fault" and the record showed

that she had used the amounts received for the benefit of R, the ALJ had

concluded, under SSR

64-7 (C.B. 1964), that the payee was not liable for refund of the

overpayment. SSR 64-7 provides, however, that a representative payee and a beneficiary may,

under certain circumstances, be jointly and individually liable for an

overpayment. R had received the use and benefit of the amount overpaid,

and the question remained as to whether the overpayment should be

recovered from him.

Section 1611(a) of the Act, in part, provides certain income limitations

that a person must meet to be eligible for SSI benefits.

Section 1614(c) of the Act defines "child" to mean an individual who is

neither married nor the head of a household, and who is (a) under the age

of 18 or (b) under the age of 22 and a student regularly attending school,

college, or university, or a course of vocational or technical training

designed to prepare him for gainful employment.

Section 1614(f)(2) of the Act provides that "For purposes of determining

eligibility for and the amount of benefits for any individual who is a

child under age 18, such individual's income and resources shall be deemed

to include any income and resources of a parent of such individual (or the

spouse of such a parent) who is living in the same household as such

individual, whether or not available to such individual, except to the

extent determined by the Secretary to be inequitable under the

circumstances."

individual who is a

child under age 18, such individual's income and resources shall be deemed

to include any income and resources of a parent of such individual (or the

spouse of such a parent) who is living in the same household as such

individual, whether or not available to such individual, except to the

extent determined by the Secretary to be inequitable under the

circumstances."

Section 416.1160(a) of Regulations No. 16 provides, in pertinent part,

that, "if you are a child living in the same household as your ineligible

parent, we look at that person's income to determine whether we must

consider (deem) some of it to be your income . . . . We use the term

'deeming' to identify the process of considering another person's income

to be your own income . . . . We deem income because we expect your . . .

ineligible parent with whom you live to use part of his or her income to

take care of some of your needs. . . ."

Section 416.1165 of Regulations No. 16 explains how income from an

ineligible parent is deemed to a child as unearned income.

Section 416.1167(a) of Regulations No. 16, in part, provides that "if you

and your ineligible . . . parent stop living in the same household, we

stop applying deeming rules with the first full month that one of you is

absent, unless the absence is temporary. . . . (2) If you are an eligible

child who is away at school but comes home on some weekends or lengthy

holidays and if you are subject to the control of your parents, we

consider you temporarily absent from your parent's household. . . ."

Section 416.550 of Regulations No. 16 provides that "Waiver of adjustment

or recovery of an overpayment of supplemental security income benefits is

applicable (see section 1631(b) of the Act) when:

away at school but comes home on some weekends or lengthy

holidays and if you are subject to the control of your parents, we

consider you temporarily absent from your parent's household. . . ."

Section 416.550 of Regulations No. 16 provides that "Waiver of adjustment

or recovery of an overpayment of supplemental security income benefits is

applicable (see section 1631(b) of the Act) when:

Section 416.551 of Regulations No. 16 provides, in pertinent part, that

"Waiver of adjustment or recovery of an overpayment from anyone other than

the overpaid person himself . . . does not preclude adjustment or recovery

against the overpaid person . . . ."

Section 416.552 of Regulations No. 16 provides, in pertinent part, that

"Whether an individual is 'without fault' depends on all the pertinent

circumstances surrounding the overpayment in the particular case. 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). Although the finding depends on all of the

circumstances in the particular case, an individual will be found to have

been at fault in connection with an overpayment when an incorrect payment

resulted from one of the following:

Section 416.553(a) of Regulations No. 16 provides that "We consider

adjustment or recovery of an overpayment to defeat the purpose of the

supplemental security income (SSI) program if the individual's income and

resources are needed for ordinary and necessary living expenses under the

criteria set out in § 404.508(a) of this chapter."

ncorrect payment

resulted from one of the following:

Section 416.553(a) of Regulations No. 16 provides that "We consider

adjustment or recovery of an overpayment to defeat the purpose of the

supplemental security income (SSI) program if the individual's income and

resources are needed for ordinary and necessary living expenses under the

criteria set out in § 404.508(a) of this chapter."

Section 416.554 of Regulations No. 16 provides, in pertinent part, that

"Adjustment or recovery is considered to be inequitable and contrary to

good conscience when such person, in reliance on such payments or on

notice that such payment would be made relinquished a valuable right or

changed his position for the worse . . . ."

Section 416.555 of Regulations No. 16 provides, in pertinent part, that

whether recovery or adjustment of an overpayment would impede efficient or

effective administration "is measured by the current average

administrative cost of handling such overpayment case through such

adjustment or recovery process."

Under § 416.551, the ALJ's decision that the payee was not liable for

refund of the overpayment did not preclude recovery from R, even though R

was "without fault." R's deemed monthly income of $2,913.48 greatly

exceeded his ordinary and necessary living expenses as the New Jersey

Division of Mental Retardation paid the cost of his attending the

Pennsylvania school. Therefore, recovery of the overpayment from R would

not defeat the purpose of title XVI. Furthermore, there was no indication

that recovery would be against equity or good conscience, nor was the

overpayment so small that its recovery would impede efficient or effective

administration. Accordingly, the AC concluded that recovery of the

overpayment from R cannot be waived.