On appeal from a decision of the Department of Human Services, Division of Family Development.
Before Judges Petrella, Conley and Villanueva.
The opinion of the court was delivered by
Prior to and, critical to this appeal, from August 1990 through July 1991, appellant was permitted to rent her basement apartment for $150 a month in exchange for performing janitorial
services for her landlord. Full rent would have been $400. She did not report the $250 difference as income on her food stamp application with the Passaic County Board of Social Services. Ultimately, the Board recalculated her entitlement to food stamps imputing the $250 rental allowance as income, resulting in an assessment of $732 in food stamp overpayment. Additionally, the Board considered her failure to report the rent allowance as income as an intentional program violation pursuant to N.J.A.C. 10:87-11.1 to -11.33 and assessed a penalty of $180.
Following an administrative law hearing, the ALJ agreed concluding:
The rental allowance is not a nonmonetary gain or benefit so as to be excluded from household income. N.J.A.C. 10:87-5.9(a)1. Rather, it is a monetary gain and is to respondent's benefit. Respondent paid $250 less a month in her rent because she took care of garbage disposal. It should be noted that examples of nonmonetary or in-kind benefits are meals, clothing, public housing, or produce from a garden. N.J.A.C. 10:87-5.9(a)1i. While I recognize that this is not an all-inclusive list, it should be noted that these in-kind benefits are tangible in nature. Not so a rental allowance.
Critical to this Conclusion, is the ALJ's characterization of the rent allowance as "earned income, as referred to in two "VIMS Resource Reports" and also in the letter of Mr. Goodman, landlord's accountant, dated October 18, 1991. It is included in employee compensation, that is, all wages and salaries received as compensation for services performed as an employee. N.J.A.C. 10:87-5.4(a)1."
We observe, however, that while the VIMS reports referred to by the ALJ appear to reflect that appellant received $750 in wages, those forms are nothing more than Department of Human Services forms filled out by a "preparer," and without explanation as to the source of the information. Moreover, the only direct information from the landlord as to the arrangement between him and appellant is a November 6, 1992 letter from the landlord's accountant that appellant receives $250 per month rent allowance, but that "she is not paid any cash salary" by her landlord, and an earlier October 18, 1991 letter from the same accountant that she receives a monthly rent allowance of $250 for taking care of
garbage disposal. Regardless of whether this allowance was reported by the landlord as wages for accounting purposes, the record shows in fact only that appellant received a reduced rent in exchange for the janitorial services. In effect, ...