09.32.07.06

.06 Determination of Fault.

A. "Fault", as used in the phrase "without fault", applies only to the fault of the overpaid claimant. Fault on the part of the Department in making the overpayment does not relieve the overpaid claimant of liability for repayment if the claimant's fault contributed to the overpayment.

B. In determining whether an individual is at fault, the Secretary may consider the nature and cause of the overpayment and the capacity of the particular claimant to have recognized the error causing the overpayment. The elements which constitute fault on the part of the overpaid claimant depend upon whether the facts show:

(1) An incorrect statement made by the claimant which the claimant knew or should have known to be incorrect;

(2) Failure to furnish information which the claimant knew or should have known to be material, including failure to correct a monetary determination; or

(3) Acceptance of a payment which the claimant knew or should have known was incorrect.

C. The determination of what an overpaid claimant "should have known" is an issue of fact to be found by the administrative agency.