On appeal from a Final Decision of the Board of Review, Department of Labor.
Judges Pressler, Deighan and A. M. Stein. The opinion of the court was delivered by Pressler, P.J.A.D.
This is an unemployment compensation case. Claimant Darlene F. Hopkins appeals from a decision of the Appeal Tribunal, affirmed by the Board of Review, rejecting her challenge to the demand of the Division of Unemployment and Disability Insurance (Division) that she repay $2355 in benefits which she received between September 1989 and January 1990. This decision was based on the Appeal Tribunal's conclusion that because claimant had failed to file her appeal from the demand notice within the requisite 10-day period, she was bound thereby despite its own finding that the demand had been premised on a substantive error by the local Deputy and that claimant had actually been entitled to receive the benefits which the Division was attempting to recoup from her. We reverse. We hold that notwithstanding claimant's non-compliance with the 10-day rule, the Division is precluded from recovering benefits to which the agency itself has found the claimant to be entitled.
The facts are undisputed. Claimant is a 28 year old single parent of four young children ranging in age from seven to twelve. She lost her cashier's job in July 1989 and applied for unemployment compensation benefits, which she began to receive in due course. Realizing that her lack of a high school diploma was impeding her ability to find work, she enrolled in an evening course at a local public high school in order to obtain a G.E.D. (general education diploma) certificate. As part of her enrollment benefits, she was accorded additional two-hour tutoring sessions two mornings a week. During the course of her reporting interviews at the local unemployment office, she advised the staff of her educational program. As she testified before the Appeal Tribunal, she also then assured the interviewer that her day-time tutoring did not interfere with
her availability for work. As the appeals examiner found, "the tutoring hours could have been changed to evenings and the evening hours could have been adjusted by the claimant as well. There was nothing in the Division's records to indicate that the Deputy had questioned the claimant as to whether her hours of tutoring or class could be changed."
The Deputy nevertheless unilaterally undertook to redetermine claimant's eligibility based on her school attendance and tutoring, and decided that she was disqualified thereby for benefits. On January 8, 1990, claimant received the following notice of determination from the Division:
You are hereby notified that based upon the facts obtained and in accordance with the New Jersey Unemployment Compensation Law, the Deputy (named below) has determined that:
You are ineligible for benefits from 09/03/89 and will continue to be ineligible until there is a change in the facts upon which this determination is based.
You have been in training from 09/03/89.
You are attending a job training program during the hours that you normally work. The training program has not been approved by the division as a means of enhancing your employment opportunities. You are ineligible for benefits.
The notice was accompanied by the text of N.J.S.A. 43:21-4(c)(1), which prescribes availability for work as a condition of eligibility, and N.J.S.A. 43:21-4(c)(4), which provides that a claimant will not be deemed unavailable by reason of attending "a training program approved for the individual by the division to enhance the individual's employment opportunities . . ."
Based on the redetermination, the Division, on the same day, sent claimant a repayment demand covering all benefits she received during her night school attendance, namely $157 a week for fifteen weeks, a total of $2355. The demand explained again that claimant's ineligibility was based on her "participating in a [sic] unapproved training course."
Both the redetermination notice and the repayment demand included the advice that an appeal was required to be taken within 10 days. Claimant did not do so, testifying that she did not notice the appeal provision, having been shocked and ...