Reimbursement of Wrongly Received Orphan's Pension - Assessment of Undue Hardship

Facts

The present case concerns the reimbursement of an orphan's pension that was wrongly received. The appellant, the mother of the orphan child, claimed that the reimbursement would cause her undue hardship. The Federal Supreme Court had to assess whether the requirements for an exception to the reimbursement obligation under Art. 47 para. 1 AHVG were met.

Considerations

The Federal Supreme Court stated that undue hardship within the meaning of Art. 47 para. 1 AHVG exists when two-thirds of the attributable income (and any assets to be added) do not reach the income limit applicable under Art. 42 para. 1 AHVG, increased by 50%. This practice was developed in previous decisions (BGE 104 V 174, BGE 107 V 79) and confirmed in the present judgment.

The Federal Supreme Court clarified that in assessing undue hardship, not only the income and assets of the appellant, but also those of her spouse, must be taken into account. This also applies if the reimbursement concerns an orphan's…