Asking for the Recovery to Be Waived
A waiver request does not argue that the money was correctly paid. It accepts the overpayment and asks that it not be recovered, on the basis that the person was not at fault and that taking it back would cause hardship or be plainly unfair.
The rule in short
A waiver request has two limbs. The first is fault: whether the person caused or accepted the overpayment knowing, or having reason to know, that it was wrong. The second is whether recovery would defeat the purpose of the benefit by causing hardship, or would be against equity and good conscience. Both limbs generally have to be satisfied, the first is where most requests are decided, and the evidence for each is different in kind.
Most people who receive an overpayment notice did nothing wrong, spent the money on ordinary living costs, and cannot repay it. That is not an unfortunate coincidence; it is the exact situation the waiver route was designed to address.
The two limbs of the request
Fault comes first. Whether the person caused the overpayment or accepted it knowing, or having reason to know, that the payments were wrong.
Then hardship or unfairness. Whether recovery would defeat the purpose of the benefit by leaving the person unable to meet ordinary living costs, or would otherwise be unjust.
Both generally have to be met. A person at fault will not succeed on hardship alone, and a person without fault who can comfortably repay generally will not succeed either.
They are evidenced differently. Fault is argued from correspondence and conduct; hardship is proved with a budget and supporting documents.
And the request is separate from a challenge. Which disputes the overpayment itself, as set out in when an overpayment notice arrives.
Arguing that there was no fault
Show what was reported. Copies of reports, letters, notes of telephone calls with dates and names, which together establish that the obligation to inform was met.
Show what was told. Where incorrect information was given by an official and relied on, which is among the strongest arguments available on this limb.
Address the obvious question. Whether the person should have noticed a payment was too large, answered honestly in terms of what they actually understood.
Consider age and circumstances. Fault is assessed against this person's actual capacity to notice, not against an idealized claimant reading every notice carefully.
And explain any delay. Where a report was late, saying why, since an explained delay reads very differently from an unexplained one.
| Situation | Fault limb | Second limb |
|---|---|---|
| Reported change, nobody acted | Strong | Depends on the budget |
| Given wrong information officially | Strong | Fairness may also apply |
| Never reported a change | Weak | Rarely reached |
| Error ran undetected for years | Often strong | Fairness may apply |
| Comfortable income and assets | May be strong | Hardship likely fails |
Proving hardship properly
List income completely. Every source, monthly, including any other benefit, pension or contribution from family, since an incomplete list undermines the whole statement.
List expenses honestly. Housing, utilities, food, medical costs, insurance, transport and any debt repayments, at realistic rather than minimal figures.
Support the significant items. With bills and statements, since a figure with a document behind it carries far more weight than the same figure asserted.
Show the effect of recovery. Explicitly: what the monthly position becomes once the proposed withholding is applied, which is the actual question being asked.
And include foreseeable costs. Medical treatment, a necessary repair or care costs that are already in prospect rather than hypothetical.
The second limb is assessed arithmetically: monthly income against monthly expenses, before and after the proposed recovery. A request that says repayment would be very difficult, without setting out the figures, gives the decision-maker nothing to work with. The most common improvement available to a weak waiver request is not a better argument but a complete and documented budget, which frequently makes the answer obvious on the face of it.
The fairness argument, and when it applies
Detrimental reliance. Where the person changed their position because of the payments — giving up other income, committing to a cost, making an irreversible decision.
Long delay by the agency. Where an error ran for years before anybody noticed, which is common with the reductions in pensions that reduce a benefit and affects both limbs at once.
Incorrect advice relied on. Which supports both limbs, and is worth documenting with dates and names wherever any record exists.
It is narrower than sympathy. Being elderly and unwell is relevant to hardship rather than to this limb, which asks about position changed in reliance.
And it is an alternative. So it can be argued alongside hardship rather than only where hardship fails.
Putting the request together
Use the right form. Since the waiver and the challenge are different requests and an answer on the wrong form does not get read as the right one.
File promptly. Because early filing can suspend recovery while the matter is considered, which is often the most urgent practical issue.
Write a short covering statement. Setting out the sequence of events plainly, with dates, which orients the reader before they reach the figures.
Attach everything relevant. Correspondence, reports, bills and statements, indexed, so that each assertion has a document behind it.
And keep a complete copy. Since the matter may go further, on the routes described in the four stages of an appeal.
The waiver route exists because the system recognizes that its own errors should not be recovered from people who did nothing wrong and cannot afford to repay. That is a reasonable principle, and it is applied more often than people expect.
The reason requests fail is rarely the merits. It is incompleteness: a budget without documents, a fault argument without the correspondence that proves what was reported, or a form filed after the periods have run.
Fault is where most of these cases are actually decided, and it is worth spending the effort there. The question is not whether an expert would have spotted the error but whether this person, in their circumstances, had reason to know something was wrong.
The hardship limb rewards arithmetic and punishes description. A one-page statement of income and outgoings with bills attached does more than three pages of explanation, and it takes less time to prepare.
For an older person facing this alone, the practical burden of assembling a budget and finding old correspondence is real, and it is exactly the kind of task a family member can take on. The arguments belong to the claimant; the filing cabinet work does not have to.
And where the sum is substantial or the history complicated, advice is worth taking. These requests are decided on documents and on which limb is pressed, and both are things that somebody who has prepared them before does noticeably better.
It is worth adding what a waiver does not require. It does not require the money to still exist, it does not require the person to have been unable to notice anything, and it does not require any particular level of poverty. The test is fault and then hardship or unfairness, and each is assessed on its own terms rather than against an impression of deservingness.
Where a waiver is refused, the decision is reviewable in the ordinary way through the stages set out in the four stages of an appeal, and the hearing stage in particular gives a claimant the chance to explain in person what a form could not convey. A refusal on the papers is a long way from the end of the matter, provided the next period is not missed.
The one thing that cannot be recovered is a lost deadline, which is why the request should go in early even if the budget and the correspondence follow behind it.
Points to carry away
- A waiver accepts the overpayment and asks that recovery be excused.
- Fault is the first limb and where most requests are decided.
- Hardship is shown with figures rather than described.
- Unfairness covers situations that are not strictly hardship.
- Records of what was reported and when are the strongest evidence.
Questions readers ask
What counts as being without fault?
Broadly, that the person did not cause the overpayment and had no reason to know the payments were wrong. Somebody who reported a change promptly and accurately, and continued to receive the same payment because nobody acted on the report, is a clear example. So is somebody who was given incorrect information by an official and relied on it. Fault is assessed against what this person, with their circumstances, understanding and age, could reasonably have been expected to notice — not against what a well-informed specialist would have spotted.
How is hardship demonstrated?
With figures. A waiver request generally asks for a statement of monthly income and monthly expenses, and the argument is that recovery would leave the person unable to meet ordinary living costs. That means listing rent or mortgage, utilities, food, medical costs, insurance and transport honestly and completely, and supporting the significant items with documents. Descriptions of difficulty without numbers are the commonest weakness in these requests, because the test is quantitative and the decision-maker needs the arithmetic to make it.
What does the fairness limb add?
It covers situations where recovery would not strictly cause hardship but would nonetheless be unjust — most often where somebody relied on the payments to their detriment, giving up other income, entering a commitment or making a decision they would not otherwise have made. It is narrower than it sounds and it is not a general appeal to sympathy. Where it applies, though, it is worth arguing alongside hardship rather than instead of it, since the two limbs are alternatives rather than a sequence.
Sources
- 42 U.S.C. § 404 — Overpayments and underpaymentslaw.cornell.edu
- 42 U.S.C. § 405 — Evidence, procedure, and certificationlaw.cornell.edu
- Social Security Administration — Overpaymentsssa.gov
- Legal Information Institute — Waiverlaw.cornell.edu
- Legal Information Institute — Equitylaw.cornell.edu
- Legal Information Institute — Social Securitylaw.cornell.edu
Silverline Legal Notes is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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An overpayment notice states that benefits were paid that should not have been, and asks for repayment. Two distinct responses are available: a challenge to whether the overpayment occurred or its amount, and a request that recovery be waived even where it did. They are different requests with different tests and different forms, and one does not substitute for the other. Both are subject to periods, and requesting promptly can stop recovery while the matter is considered.