Howard v. ADES

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE JACKIE HOWARD, ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, an Agency, ) ) ) Appellee. ) __________________________________) DIVISION ONE FILED: 05-04-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-UB 09-0024 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Appeals Board of the Department of Economic Security of the State of Arizona A.D.E.S. Appeals Board Nos. P-1076043 and P-1076114 Administrative Law Judge S.M. Donohue AFFIRMED Jackie Howard, Appellant In Propria Persona Avondale Terry Goddard, Attorney General Phoenix by Lauren J. Lowe, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security P O R T L E Y, Judge ¶1 Department Jackie Howard ( Appellant ) appeals from the Arizona of Economic Security ( the Department ) Appeals Board s ( the Board ) determination that she was overpaid in cash assistance restitution. and food stamp benefits and was liable for For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Appellant applied for cash assistance and food stamp benefits from the Department on October 22, 2007. Steve Loussaert authorized him ( Loussaert ) to act on application for benefits. person household, children. notified which as her her She listed representative, behalf with respect which to her Appellant was a member of a four included her, Loussaert, and two During the eligibility interview, the Department was of Appellant s employment. A Department employee incorrectly budgeted Appellant as working an eight-hour week, when she was working eight hours a day, forty hours a week. ¶3 Based on this miscalculation, Appellant was overpaid in the amount of $2224 in food stamp benefits, and $1512 in cash assistance benefits between November 2007, and May 2008. The Department was alerted to possible overpayments in April 2008, and after confirmation by a subsequent investigation, it sent notices regarding the overpayments to Appellant. The notices informed Appellant of the overpayment amounts, that it was the result of budgeting errors by the agency, and that all adult members who received payments during overpayment months would be liable for restitution. 2 ¶4 Loussaert Appellant s officer filed a request representative. affirmed the After for the determination a fair hearing hearing, that the Appellant s as hearing household had been overpaid in cash assistance and food stamp benefits, and that appealed the the household hearing was liable officer s for repayment. decision affirmed the hearing officer s decision. of Appellant, which the requested Board jurisdiction that affirmed. pursuant to the Arizona the Board, which Loussaert, on behalf Board Appellant to Appellant review its appealed, Revised decision, and Statutes we have ( A.R.S. ) section 41-1993(B) (Supp. 2009). DISCUSSION ¶5 the Appellant does not dispute the figures calculated by Department, or that an overpayment occurred. Appellant argues that, because the overpayment was the result of an agency error, and not misconduct responsible for repayment. 1 on her part, she should not be She also notes that repayment would cause hardship and extreme financial strain on the household. ¶6 We discretion. review administrative orders for an abuse of See Thompson v. Ariz. Dep t of Econ. Sec., 127 1 Appellant also requested to be present when the case is reviewed. While Appellant did not file a request for oral argument, we interpret this statement to be a motion for oral argument. We deny the motion because oral argument is not necessary for disposition of this case. 3 Ariz. 293, 294, 619 P.2d 1070, 1071 (App. 1980). If substantial evidence exists to support the decision, we will affirm. Rice v. Ariz. Dep t of Econ. Sec., 183 Ariz. 199, 201, 901 P.2d 1242, 1244 (App. 1995). See id. We provides the meaning. We interpret statutory law, however, de novo. first best consider and most the statutory reliable index language, of a which statute s Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). ¶7 With respect to the overpayment of cash assistance, A.R.S. § 46-213(B) (2005) provides that [i]f a recipient is overpaid for whatever reason, the recipient is liable for the amount of the administrative overpayment. 2 regulations Moreover, instruct collection of all overpayments. 3 Because the cause of the the the corresponding Department to pursue Ariz. Admin. Code R6-12-1101. overpayment is immaterial, and the Department is instructed to pursue collection, the Board was correct in finding Appellant liable for the overpayment of cash assistance. 2 We note the statute permits the Department to waive repayment [i]f there are insufficient assets or resources to justify collection . . . or if the overpayment was due to an error on the part of the department of economic security. A.R.S. § 46213(B). Waiver, however, is within the Department s discretion, and Appellant did not request a waiver. 3 An exception is listed in subsection (E), but the subsection is inapplicable here because it applies to overpayments that are under thirty-five dollars. See A.A.C. R6-12-1101(E). 4 ¶8 The food stamp program is a state-administered federal benefit program, and federal law mandates that [e]ach adult member of a household shall be jointly and severally liable for the value 2022(a)(4) of any (2006) restriction. overissuance (emphasis of coupons. added). Any 7 U.S.C. means § without See Webster s Ninth New Collegiate Dictionary 93 (1988) ( used to indicate one selected without restriction ). Accordingly, the fact that the overissuance was a result of agency error does not exempt Appellant from liability. ¶9 Moreover, actions on all [s]tate claims [for agencies must overpaid begin benefits] collection unless conditions under paragraph (g)(2) of this section apply. C.F.R. § 273.18(a)(1), (e)(1) (2010). 4 the 7 Provision (g)(2) requires states to allow recipients to pay claims using their electronic benefits (g)(2) card. does not 7 C.F.R. exempt § 273.18(g)(2) Appellant from (2010). repayment. Subsection See id. Finally, because our supreme court has stated that justice does not require that a welfare recipient keep a windfall otherwise obtained through a governmental error, Castregon v. Huerta, 119 Ariz. 343, 345, 580 P.2d 1197, 1199 (1978), we find the Board did not abuse its discretion. 4 We cite the current version of 7 C.F.R. §§ 273.18 and 273.1 because the regulations have not been amended in any way that substantially changes the relevant provisions. 5 ¶10 Appellant also argues that Loussaert should not be liable for the overpayment because he did not apply for the benefits. The assistance unit Department overpayments which was are regulations collected overpaid. A.A.C. provide from that [t]he cash assistance R6-12-1102(A)(1). The regulations define an [a]ssistance unit as a group of persons whose needs, income, resources, and other circumstances are considered as a whole for the purpose of determining eligibility and benefit amount. A.A.C. R6-12-101(8). Moreover, under the food stamp program, [e]ach adult member of a household shall be jointly and severally liable. 7 U.S.C. § 2022(a)(4). A household is [a] group of individuals who live together and customarily purchase food and prepare meals together for home consumption. ¶11 7 C.F.R. § 273.1(a)(3) (2010). Here, Appellant listed herself and Loussaert at the same physical address on her application for benefits. the hearing, Loussaert referred to our discussed their expenses as a family. house During payment and Loussaert also stated, [T]he money that she was making went, she gave me her check when she gets it. I pay these bills, I pay those bills. done all the shopping. I ve Appellant, moreover, does not claim that Loussaert was not a member of her household or assistance unit. Because there was substantial evidence that Loussaert and 6 Appellant were a family unit, whose needs and income were considered as a whole, the Board did not abuse its discretion in finding Loussaert jointly liable for the overpayments. CONCLUSION ¶12 Based on the foregoing, we affirm the Board s determination. /s/_____________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ______________________________ LAWRENCE F. WINTHROP, Judge /s/ ______________________________ MARGARET H. DOWNIE, Judge 7

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