dissenting. I respectfully dissent from the decision to affirm the Board of
Review’s decision upholding recovery of $1,155 in unemployment benefits overpaid to this appellant through no fault of his own in the face of clear, undisputed, and compelling proof that recovery would be against equity and good conscience. Appellant was overpaid $1,155 in unemployment benefits covering the period from 1 May through 19 June 1999 through no fault of his own. He is totally unemployed and disabled. His wife earns $30 weekly. Their household expenses for necessities exceed $1000 each month. They own their home and have savings of approximately $14,000.
Arkansas Code Annotated Section ll-10-532(b)(l)(A) (Supp. 1999) provides that if the director of the Arkansas Employment Security Department finds that a person has received benefits to which he was not entitled by reasons other than fraud, willful misrepresentation, or willful nondisclosure of facts, the person shall be liable to repay the amount. Sub-section (B) states that on and after July 1, 1999, the director, in lieu of requiring repayment, may recover the amount by deduction of any future benefits payable to the person “unless the director finds that the overpayment was received without fault on the part of the recipient and that its recovery would he against equity and good conscience.” (Emphasis added) Any person held liable for repayment is subject to having any state income tax refund to which he may be entitled intercepted. See Ark. Code. Ann. § ll-10-532(c) (Supp. 1999).
Appellant needs every penny of his savings for subsistence. If he somehow is entitled to a state income tax refund, he needs every penny to help his household survive. He should not be forced to mortgage his house, sell his car, or take what amounts to more than a month of his living expenses out of his savings when the government plainly has the power to excuse repayment due to his desperate situation.
I would take a very different view if the facts were not so clear and compelling. We are not dealing with someone who is working or likely to return to work so as to be able to repay the overpayment or obtain additional earnings from which the overpayment may be recovered. The fact that appellant was not entitled to the overpayment is beside the point. The statute contemplates this very scenario whereby a person overpaid unemployment benefits without fault on his part may be excused by the director on a finding that recovery of the overpayment would be against equity and good conscience.
I see nothing equitable or conscionable about extracting overpaid benefits from a disabled unemployed worker whose household expenses exceed $1,000 each month and who is trying to survive on $30 weekly that his wife earns. Therefore, I would reverse the Board of Review.
Chief Judge ROBBINS has authorized me to state that he joins this opinion.