TN 5 (10-09)

A. Policy for liability of repayment

1. Determination of liability

The determination of liability for repayment of an overpayment is an inherent part of the determination of overpayment, as are the fact and amount of overpayment. Therefore, appeal rights attach to this determination.

2. Notification of liability for repayment

The notification of liability for repayment is given in the notice of overpayment. If there is a representative payee we notify him or her of their liability in a separate notice.

3. Recipient liability

The recipient is liable to the extent that the incorrect payments were expended on him or her. Funds conserved by a representative payee to which the recipient does not have direct access have not been expended on the recipient. However, absent a fraud or misuse determination, the representative payee may use conserved funds to repay the overpayment.

If the incorrect payments were expended on the recipient and the representative payee is without fault in connection with the overpayment, the recipient is solely liable for repayment.

4. Representative payee liability

The representative payee is personally liable for repayment if the representative payee used the incorrect payments for purposes other than the support and maintenance of the recipient.

A representative payee (or his or her estate) is solely liable for repayment(s) he or she received on behalf of a deceased recipient for month(s) after the month of the recipient’s death. This policy was effective December 4, 2008.

If a misuse determination has been made, the representative payee is personally liable for repayment of any misused funds. The representative payee is solely liable for the repayment of any misapplied funds in a dedicated account.

If a government entity or an institution is a representative payee it can be liable for repayment.

5. Joint recipient and representative payee liability

The recipient and representative payee are both liable when the incorrect payment(s) have been expended on the recipient’s support and maintenance and the representative payee is at fault.

If we determine that a representative payee misused the recipient’s funds, the representative payee is personally liable for repayment the misused funds.

SSI overpayment waiver policy does not apply to a determination that a representative payee misused the SSI individual's funds.

6. Liability does not exist for one party

If we determine that liability for repayment of the overpayment does not exist for one party (i.e., the recipient or representative payee) but liability for repayment of the overpayment does exist for the other party, we pursue recovery of the overpayment from the liable party.

B. Procedures for determining liability for repayment of an overpayment

The determination and notification of liability require more extensive development if there is a representative payee, a sponsor, or a spouse who was a member of the couple during the period of overpayment.

Once liability for repayment has been determined, follow the recovery procedures in SI 02220.000.

1. Formal liability determinations

1. Make a formal determination of liability for repayment if:

   • There is an indication that the overpaid funds were not used for the support and maintenance of the recipient; or

   • Either the representative payee or the recipient questions his or her liability.

2. Consider the issue of liability for repayment of the overpayment as a request for reconsideration.

3. Record your liability determination on an SSA-553 (Special Determination) or similar form (see GN 01010.360 Special Determinations – General Adjudications).

4. Retain a copy of your determination in MSSICS or NDReD (for non-MSSICS cases).

5. Notify the recipient and/or the representative payee of your liability determination on a notice of reconsideration determination (the SSA-L8455-U2).

2. Liability does not exist for one

If you determine that liability does not exist for one (i.e., the recipient or representative payee) but liability for repayment of the overpayment still exists for the other, continue to resolve the overpayment with the liable party.

3. Individual liability

Generally, unless the eligible individual has a representative payee, he or she is liable for repayment of any overpayment he or she incurs.

For information on liability for eligible couples see SI 02201.022.

For information on liability in sponsor/alien deeming cases, see SI 02205.001.

4. Representative payment

1. Development requires two questions to be answered:

   • Did the representative payee use the overpaid funds for the overpaid individual's support and maintenance? If the funds have been spent (are not conserved), and the answer is no, the representative payee is liable for repayment — the individual is not.

   • If the funds were properly used, did the payee know or should he or she reasonably have known the facts which caused the overpayment?

2. When both questions are answered yes, both the representative payee and the individual are liable for repayment of the overpayment.

3. If a misuse determination has been made, the representative payee is personally liable for repayment of any misused funds. For information on misuse of benefits, see GN 00604.000.

   The representative payee is solely liable for the repayment of any misapplied funds in a dedicated account. For information on recovery of misapplied dedicated account funds, see SI 02220.060.

   A representative payee (or his or her estate) is solely liable for repayment of payments he or she received on behalf of a deceased recipient for month(s) after the month of the recipient’s death. This policy was effective December 4, 2008.

   NOTE: Your determination that an individual is liable for repayment of an overpayment does not preclude you from determining that the individual is without fault in causing the overpayment.

   For information on determining fault, see SI 02260.010 and SI 02260.015.

C. References

• GN 00604.000 - Misuse of Benefits Investigation, Determination and Restitution

• GN 00502.132 - Selecting a Qualified Representative Payee (RP)

• NL 00804.000 - Manual Paragraphs for Use in SSI Initial Claims, Posteligibility and Overpayment Notices

• SI 02201.005D - Overpayment fraud development

• SI 02201.020 - Supplemental Security Income (SSI) Overpayment: Who Is Liable For Repayment? Living Overpaid Individual

• SI 02220.000 - Recovery Procedures for Supplemental Security Income (SSI) Overpayments

• SI 02220.005 - Documenting the Supplemental Security Income (SSI) Overpayment

• SI 02220.060 - Misapplication of Funds in a Dedicated Account

• SI 02220.065 - Recovery from Alien’s Sponsor of payments made to the Alien

• SI 02260.000 - Waiver Provisions For Supplemental Security (SSI) Overpayments