# 2016-037 Pay and Benefits, Recovery of Overpayment/Debt Write-Off, Separation Expense

Case Summary

F&R Date: 2016–06–22

In 2014, the grievor's service spouse was transferred to another place of duty while the grievor remained at the same place of duty. The couple decided that the spouse would assume responsibility for the children and the family's household goods and effects (HG and E), which were relocated with her. The grievor was granted an imposed restriction status. He was also paid separation expense (SE) benefits by the claims section, under the terms of what was referred to in the past as reversed SE benefits. After being posted and reunited with his family, the grievor was informed that he was not entitled to SE benefits, which had to be recovered. The grievor believed he had been wronged, given that he had received SE benefits and that he is now told that he had to reimburse.

The initial authority (IA) acknowledged that the grievor was wrongly informed, but noted that the policies, which had been previously amended, are clear regarding the eligibility criteria for SE benefits. As the grievor's circumstances did not meet these criteria, the IA concluded that the grievor had been treated fairly.

The Committee agreed with the IA that the grievor was not entitled to SE benefits, in accordance with the policies in place at the time, as he was not relocated to a new place of duty. The Committee also concluded that the CAF could invoke the rule of promissory estoppel to forfeit recovery of the benefits paid in error. The Committee held a different understanding of the regulatory provisions often quoted by the CAF to argue against promissory estoppel. In the Committee's view, these provisions do not impose the mandatory recovery of benefits paid in error, but rather provide an obligation to report any amount paid in excess of the entitlement. Based on case law, the Committee explained that doing so would not prevent the application of an express legislative provision. The Committee considers that the grievor cannot be held responsible to report such an excess as he was told by claims experts that he was entitled to SE benefits. The Committee therefore concluded that the CAF are estopped from recovering the SE benefits received in error by the grievor.

Alternatively, if the final authority is adamant about not invoking the rule of promissory estoppel, the Committee concluded that the circumstances qualify as negligent misrepresentation and recommended that the CAF redirect the case, with their support, to the Director Claims and Civil Litigation for consideration.

FA decision summary

The grievance was withdrawn at the Final Authority.