Burlington County Board of Social Services v. G.W., A-5974-09T2; Appellate Division; opinion by Hoffman, J.S.C., temporarily assigned; decided and approved for publication March 27, 2012. Before Judges Parrillo, Skillman and Hoffman. On appeal from the Department of Human Services, Division of Family Development, No. GA299603. DDS No. 45-2-5702 [8 pp.]

Appellant G.W. appeals from the final decision of the director of the Division of Family Development terminating his General Assistance (GA) and Emergency Assistance (EA) benefits. Appellant contends his benefits were improperly terminated based on his eligibility for federal Social Security Disability (SSD) benefits, even though he had yet to receive any SSD benefits.

In September 2007, appellant, a 54-year-old unemployable single adult without dependent children, began receiving GA and EA benefits administered by respondent, Burlington County Board of Social Services. On Jan. 16, 2010, appellant received notice that he had been approved by the Social Security Administration (SSA) for Supplemental Security Income for the period June 1, 2009 through Jan. 31, 2010, in a lump sum of $4,688. This amount was forwarded to the board as partial repayment for GA and EA benefits appellant received. The same notice advised appellant he was entitled to monthly SSD payments of $1,047, effective Feb. 1, 2010.

Appellant received notice from the board that his GA and EA assistance would be terminated effective April 1, 2010. Although the letter did not reference a specific regulation providing a basis for termination, it is evident that the termination was due to the fact that appellant’s eligibility for SSD placed his “countable income” above the maximum limit for a person to be eligible for GA assistance.

Appellant was granted a hearing to contest the termination. Appellant testified that despite the notification of eligibility, he had not received any SSD payments. The ALJ found the SSD benefits for which appellant had been approved were properly included in his countable income, even though he had not received any payments. The ALJ found the addition of these benefits placed appellant’s countable income above the maximum limit for eligibility for GA assistance.

The ALJ further made credibility findings adverse to appellant regarding his alleged efforts to obtain his SSD benefits, describing his testimony as “inconsistent and conflicting.” The ALJ affirmed the board’s decision to terminate appellant’s benefits. The director of the Division of Family Development issued a final decision adopting the ALJ’s decision in full.

Held: A county board of social services may terminate a recipient’s General Assistance (GA) and Emergency Assistance (EA), which is provided pursuant to the Work First New Jersey Program, based on the recipient’s eligibility for, rather than actual receipt of, Social Security Disability benefits (SSD).

Appellant contends his GA and EA benefits should not have been terminated based on regulations promulgated under the Work First New Jersey General Public Assistance Act. This act provides state-funded general public assistance to needy single adults and couples without dependent children. Local municipal or county welfare agencies are charged with administering the program and disbursing benefit payments.

In accordance with its statutory responsibilities, the Department of Human Services (DHS) is charged with promulgating regulations to facilitate the administration of the program. DHS promulgated N.J.A.C. 10:90-3.1, which provides that eligibility for GA benefits “shall be determined according to standards of countable income (earned and unearned) and countable resources.” In promulgating the regulation, DHS intended to include all countable income and countable resources “that are available to an assistance unit,” and not only income and resources actually received by the applicant. To determine the income of an applicant for GA benefits, the county agency shall consider all earned and unearned income by using a “prospective budgeting methodology.” Specifically, “benefits calculations shall be based on an estimate of the assistance unit’s income.” This income estimate “is based on the assistance unit’s and the agency’s reasonable expectations and knowledge of current, past and future circumstances.”

The ALJ rejected appellant’s argument that the regulations required the “actual receipt” of SSD benefits. Applying N.J.A.C. 10:90-3.11(a), the ALJ concluded the SSD benefits must be included in appellant’s countable income because the “normal expectation is that these benefits have or will be paid” to appellant. This conclusion accords with the regulatory mandate that the board employ a “prospective budgeting methodology” in computing appellant’s countable income.

There is no indication that the board acted outside of its authority, or contrary to regulations, in estimating appellant’s countable income based on the “reasonable expectations and knowledge” that appellant would be entitled to and would receive SSD benefits effective Feb. 1, 2010. Appellant failed to produce any credible evidence that his receipt of his SSA benefits was anything but imminent, and not beyond his ability to control. As to the latter point, the panel defers to the ALJ’S adverse credibility determination as to appellant’s testimony. Appellant’s argument that his GA and EA benefits were prematurely terminated finds no support in the record. The board’s decision to include appellant’s SSD benefits in estimating his countable income was not arbitrary, capricious or unreasonable.

— By Debra McLoughlin

For appellant — David D. Gladfelter (South Jersey Legal Services Inc.; Gladfelter and Kenneth M. Goldman on the brief). For respondent — Molly Moynihan, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General; Melissa H. Raksa, Assistant Attorney General, of counsel).