Petition for Review of a Decision of the District of Columbia Housing Authority
Before Steadman, Schwelb and Ruiz, Associate Judges
The opinion of the court was delivered by: Ruiz, Associate Judge
Dollean Powell appeals the decision of the District of Columbia Housing Authority (DCHA) to terminate her eligibility for housing subsidies under the Tenant Assistance Program (TAP) for "fraudulently" under-reporting her income in order to obtain more assistance. See 14 DCMR § 1936.1 (c) (1991). Powell contends that DCHA ended her assistance despite having failed to establish all of the elements of fraud, and that its factual findings were not supported by substantial evidence. We concur with Powell that DCHA's findings of fact were insufficient, and reverse and remand this matter for further proceedings.
Powell began to participate in the TAP program in 1987. In 1992 she was re-evaluated for continued eligibility in the program. The re-application form includes three questions pertinent to this appeal: (1) "Does any member of your family now receive or expect to receive child support?" (2) "Is any member of your household entitled to child support that he/she is not now receiving?" and (3) "What is your monthly income, separated by the type of income that your household receives?"
In the responses she submitted in January of 1992, Powell stated on the form that she did not expect to receive any child support payments. She had not, in fact, received any such payments in 1991, despite a court order directing her ex-husband to pay child support for the daughter, Tia Monique Powell. *fn1 And she answered "yes" to the inquiry whether a member of her household was entitled to child support payments that were not, however, being received.
At the time of the second annual review of her TAP benefits in September of 1993, Powell had received child support payments for two months - the first in two years - and would continue to do so for the remainder of 1993, receiving a total of $1,850 that year. In the form, she removed her daughter's name from the list of household members, *fn2 and again stated that members of her household were entitled to child support, but that none was received or expected. She did not include the child support payments she had received that year as part of her household income. Powell mistakenly listed as income more assistance then she was in fact receiving from DHS, which resulted in a reduction of her rent subsidy under TAP from $812 to $588 per month.
Powell continued to receive child support payments throughout 1994 totaling $3,567. In November of that year, when she again completed a TAP form, she did not list any of those payments as household income - although she did state not only that there was an entitlement to child support in her household but also that she expected to receive such payments.
In early August of 1995, during a conversation with a caseworker with the Department of Human Services, Powell was informed that her AFDC *fn3 benefits would be reduced for failure to report her child support income. Later that month, Powell reported to the TAP offices for her annual reexamination and for the first time disclosed that she received $264 per month in child support. When Powell told the caseworker that she had received child support payments during prior years, she was asked to obtain a record of all child support payments. She complied and provided records showing that she had received about $14,000 in child support payments between 1988 and 1995, which had not been reported to the TAP program. The caseworker who interviewed Powell wrote at the time that Powell had informed, "that she had been receiving child support for one of her children for years and was now going to be penalized, because she was also receiving AFDC."
As a result of this under-reporting, DCHA terminated Powell's eligibility from the TAP program effective November 30, 1995. When told that her benefits would end, Powell requested an "official review" pursuant to 14 DCMR §§ 1936.3 and 1710 (1991). Although the review was initially scheduled to take place before termination of benefits took effect, Powell requested an extension to obtain counsel, and the review ultimately took place well after her housing subsidies had been terminated. At a hearing, both Powell and DCHA presented evidence through documents and direct testimony, and each cross-examined adverse witnesses. Powell testified that in 1992 she had understood from the TAP representative that child support payments need not be included as income because they were owed for the support of the child. She said that when she had raised with the caseworker in 1993 that she had begun to receive child support payments she had again been told that because the child support was owed to her daughter, she need not list it as household income.
According to the testimony of the caseworker, in 1995 Powell offered the information about child support and did not attempt to hide it.
The administrative reviewer, after summarizing the evidence presented by Powell and the agency's caseworker, affirmed DCHA's initial decision terminating Powell's TAP benefits:
Based upon the evidence presented, the law, and the oral presentation of the parties, the Reviewer will uphold the termination decision of the Tenant Assistance ...