A University of Alabama Law School Clinical Program funded in part by West Alabama Regional Commission

6. Overpayments

Our office is seeing an increasing number of “overpayment” cases. These are cases in which a beneficiary has been paid too much, Social Security discovers the error and sends a notice to the beneficiary explaining why the overpayment occurred, and stating that the overpayment will be collected by deducting some percentage of monthly benefits until the total is reimbursed.

Social Security computations are often complex, and it is not surprising that errors occur from time to time, especially considering the vast numbers of beneficiaries involved.

For an individual beneficiary who is depending on that check for all or a substantial part of his or her income, though, such a letter is a terrible blow, and a frightening one.

You can appeal an overpayment but you must act immediately. The overpayment letter will specify a time within which you must act. Do it. If you feel you cannot handle this yourself, call the legal provider for your Area Agency on Aging or your private attorney, but do not delay.

In order for Social Security to decide not to collect the overpayment,

it must not have been your fault, and
you must be unable to repay the money without crippling your ability to pay your living expenses.

Most overpayments do result from a Social Security error, but there are situations in which the beneficiary is at fault, most often cases in which a beneficiary failed to report that (s)he was working and that benefits should be reduced. Sometimes Social Security will take the position that a beneficiary should have caught an overpayment and reported it, rather than accepting it.

Most of the time, though, Social Security made the error, and the only issue is whether the beneficiary can afford to repay the money paid by mistake. It is very important to get every bit of information together, and to be accurate. In our experience most clients greatly under-estimate their monthly expenses, and completely forget items that are paid quarterly, annually or occasionally, but are legitimate expenses. Home and auto insurance are often overlooked.

Your attorney can probably provide a comprehensive list of possible expenses as a guideline to help you make a realistic summary. You will need to gather utility and other bills, bank statements and other evidences of expenses paid for the three past months (and others that are paid intermittently) before you go for your conference. Occasionally the overpayment is so large, and it is so evident that the beneficiary was not at fault and cannot possibly pay it back from the correct monthly benefits, that no waiver conference will be required. Do not assume that will be the case, however.

After receiving and processing your request for reconsideration, a SS worker will make an appointment with you at the office to go over your bills and expenses to determine whether you can afford to repay the excess benefits you received. It is not necessary but may be helpful to have someone accompany you to this conference. Whatever you do, do not simply fail to show up. If you cannot attend on the date set, call and let SS know. Get the name of the person you speak with and follow up with something in writing, stating that person’s name and the time and date you called.

If SS concludes that you can afford to pay, and you believe you cannot, you have the right to appeal and have a hearing before an Administrative Law Judge. At this point you would probably be wise to seek help from a knowledgeable attorney.

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