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The Ontario Disability Support Program says I have an overpayment. What can I do?

Question
The Ontario Disability Support Program says I have an overpayment. What can I do?

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Reviewed: 
March, 2017
Answer

The Ontario Disability Support Program (ODSP) will say you have an overpayment if they think that you got more social assistance than you should have.

This could be money from ODSP or from Ontario Works (OW).

This means that when you’re getting income support from ODSP, they can collect an overpayment that happened because:

Paying the money back

ODSP will want the money back.

If you’re getting income support from ODSP, they’ll try to get the money back by reducing the amount they give you each month.

If you’re no longer getting assistance, ODSP will send you a letter and ask you to pay back the money. The letter might come from your local ODSP office or from a government office in Toronto called the Overpayment Recovery Unit.

If you don’t pay back the money, there are things ODSP can do to try to collect the overpayment. See Step 2.

Getting help

Overpayments happen for many reasons. See Step 1. What you can do depends on your situation.

For example, you may be able to appeal a decision about an overpayment to the Social Benefits Tribunal.

But it’s important to get legal advice to help you decide what to do.

1. Ask ODSP for details

When the Ontario Disability Support Program (ODSP) says you have an overpayment, make sure to ask them for details in writing. ODSP should give you a letter saying:

  • why they think you have an overpayment
  • what you can do if you don’t agree with their decision

ODSP should not collect an overpayment from you unless they can prove:

  • why there’s an overpayment
  • the amount of the overpayment

The overpayment could be money you got from ODSP or from Ontario Works (OW).

Why overpayments happen

Overpayments can happen for many reasons. For example:

  • You had income or assets that you didn’t report.
  • Something changed in your life and you didn’t report it. For example, you started to pay less for your housing or someone moved in with you.
  • You got interim assistance and did not win your appeal to the Social Benefits Tribunal.
  • You didn’t follow the agreement you made to pay back social assistance that you got while waiting for other benefits, like Employment Insurance.

ODSP or OW made a mistake and gave you more money than they were supposed to.

Reviewed: 
April, 2017
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2. Learn what ODSP can do if you have an overpayment

The Ontario Disability Support Program (ODSP) will want to collect the overpayment.

If you’re getting income support

ODSP can reduce the amount of income support you get each month.

Usually, when someone has an overpayment ODSP reduces their assistance by 5% each month, until they’ve paid back what they owe. This means that if you usually get $1,200 each month, ODSP would give you $60 less or $1,140.

For ODSP to reduce your assistance by more than 10%, you have to agree. For example, if you usually get $1,200 each month, taking off 15% would mean you get $180 less or $1,020.

Some people agree to have their assistance reduced by more than 10% because they want to pay back the money as fast as they can.

If you’re no longer getting income support

ODSP will ask you to pay back the money if the overpayment is because of income support they gave you.

ODSP will send you a letter and ask you to pay back the money. The letter might come from your local ODSP office or from a government office in Toronto called the Overpayment Recovery Unit.

They may ask you to agree to pay it back over time, for example, a certain amount each month. Or they might agree that you don’t have to pay back all of the money.

If you don’t pay back the money or make an agreement about it, ODSP can use Canada Revenue Agency (CRA) to collect the overpayment. The CRA does this by taking it out of money that they owe you, for example, your income tax refund.

ODSP can decide not to do anything

ODSP can decide that they’re not going to try to collect the overpayment. But this hardly ever happens.

Sometimes ODSP decides to wait and collect the overpayment later on.

Waiting to collect an overpayment

Here are some reasons why ODSP might wait to collect an overpayment:

  • You owe child or spousal support. And over 10% of your income support is already being taken off and sent to the Family Responsibility Office to pay the support that you owe.
  • You didn’t agree with ODSP’s decision about the overpayment and are waiting for the ODSP office to do an internal review or for the Social Benefits Tribunal to decide about your appeal.
  • The police charged you with fraud because of the overpayment and you’re waiting for the court to make a decision.
  • Making you pay back the money would be unfair or cause you hardship. For examples, see the section in Step 3 called Why you might not have to pay back an overpayment.

Getting more information and help

To find out what ODSP might do to try to collect an overpayment from you, you may want to get more information and advice.

Reviewed: 
April, 2017
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3. Consider your options

If the Ontario Disability Support Program (ODSP) says they want to collect an overpayment from you, it’s important to get legal advice to help you decide what to do.

The overpayment could be money you got from ODSP or from Ontario Works (OW).

Internal reviews and appeals to the Social Benefits Tribunal

If you don’t agree with what ODSP says about an overpayment, you can ask ODSP to do an internal review.

If you don’t agree with the internal review decision, you may be able to appeal to the Social Benefits Tribunal (SBT). But you must ask for the internal review before you can appeal to the SBT.

What you can ask for

When you ask ODSP for an internal review or make an appeal to the SBT, you can ask them to decide that:

  • there’s no overpayment because you had a right to the assistance that you got
  • the amount of the overpayment is less than what ODSP says
  • ODSP should take a smaller amount from your income support each month while they collect the overpayment
  • you should not have to pay back the full amount of the overpayment
  • you should not have to pay back the money at all
  • you should not have to pay back the money right now

Why you might not have to pay back an overpayment

Most of the time, people have to pay back money that they got because of an overpayment.

But sometimes it’s not fair for ODSP to make someone pay all or any of it back. And sometimes it would cause the person too much hardship.

Each person’s case is different. So what happens depends on your situation and the reasons for the overpayment.

Here are some examples of things that could affect a decision about whether you have to pay back any or all of an overpayment:

  • Did ODSP or OW pay you too much by mistake and it wasn’t your fault?
  • Did you know there was an overpayment and try to report it?
  • Did you understand what information you had to report?  Did you always give true and complete information about your situation?
  • Did someone from OW or ODSP give you wrong information or not answer your questions about what information they needed from you?
  • Does your disability make it difficult for you to understand the rules about what information you have to give when you’re on assistance?
  • Did the overpayment happen while you were living with a spouse? Did you know about it?

If you have to pay back the money, will you have so little money left that it will be harmful to your health and well‑being?

Reviewed: 
April, 2017
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4. Get legal help

If the Ontario Disability Support Program (ODSP) says you owe them money, it’s important to get legal help as soon as possible.

You can contact a community legal clinic.

Appealing ODSP’s decision

You may be able to appeal the decision about an overpayment to the Social Benefits Tribunal.

But first you must ask ODSP for an internal review of their decision. And you must do this within 30 days from the date you got the decision.

If you miss the deadline, you can still ask for an internal review. Do this as soon as you can.

Explain why your request is late and ask for more time. If you can show that you have a good reason, you might still get an internal review.

Getting advice about your options

It’s important to get legal advice about:

Getting help from a criminal lawyer

If ODSP thinks you’re guilty of fraud and asks the police to look into this, talk to a criminal lawyer right away.

Reviewed: 
April, 2017
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