Fair Hearing of the Month
Fair Hearing #5218145Q (05-21-2009)

June 3, 2010

Congratulations to Regan Serlin and Paula Velazques, Nassau/Suffolk Law Services

Appellant is a recipient of PA and FS for a household of five, consisting of herself and her four children. Appellant resides in a home owned by A.A., who is the children's father. A.A. has been paying the monthly expenses, including the mortgage and utilities; the mortgage payment was in arrears. A.A. has not been ordered to pay formal child support but provides Appellant $150/month.

A tenant residing at the same address pays monthly rent to A.A. and has stated that A.A. does not reside in the residence. A.A. has operated his construction business out of the home located at Appellant's address and owns two motor vehicles registered to him at that address. A.A. lived with the Appellant until August 2008, when he moved in with his mother, several blocks away. Appellant works in a factory from 3:30PM-5:00AM, six days a week and, while at work, A.A. sleeps at the residence in order to care for his children.

The Appellant met with the Agency on January 7, 2009, pursuant to a special investigator's visit. On January 23rd, the investigator met with A.A.'s mother, at which time she indicated that A.A. did not live with her. The investigator did not find evidence of men's belongings at Appellant's residence and concluded that they might have been hidden in preparation for a scheduled visit. The investigator did not take statements form neighbors or tenants regarding A.A.'s presence at Appellant's residence.

On Feburary 6, 2009, the Agency discontinued Appellant's PA and FS because the absent parent was residing in the household and did not apply as required by the filing unit regulation.

At the fair hearing, Appellant's representative argued that the Agency aciton must be based on substantial evidence and that, per 76-INF-13, the criteria to affirm an Agency determination by fair hearing decision is often more stringent than the criteria upon which case action should be initiated. Appellant's representative also argued that, per this INF, the Agency is expected to bolster a home visit with at least two collateral sources, such as interviews with friends and neighbors and a United States postal service check.

It was further noted that, while the absent parent pays bills related to the residence, owns the home, has his cars and business registered at that address, and sleeps there while watching his children, he had not lived there since he and the Appellant encountered domestic problems in August 2008. A.A.'s mother testified that, when asked whether A.A. resided with her, she either misunderstood the question or that she was asked - or thought she was asked - about another family member's residence.

Appellant's attorney further argued that the investigator did not look for A.A.'s belongings at his mother's house and did not find them at Appellant's house. The ALJ held that with no direct evidence, circumstantial evidence was rebutted by Appellant's testimony. The Agency was directed to continue Appellant's PA and FS, unchanged, and to restore any lost benefits, retroactive to the date of discontinuance.

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