Tay v. Flaherty , 90 N.C. App. 346 ( 1988 )

368 S.E.2d 403 (1988)

Mary TAY
v.
David T. FLAHERTY.

No. 8718SC951.

Court of Appeals of North Carolina.

May 31, 1988.

Central Carolina Legal Services, Inc. by Stanley B. Sprague, Greensboro, for plaintiff-appellant.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Joe L. Webster, Raleigh, for defendant-appellee (Secretary of North Carolina Dept. of Human Resources).

ORR, Judge.

I.

When an appellate court is reviewing the decision of another court—as opposed to the decision of an administrative agency—the scope of review to be applied by the appellate court under G.S. § 150A-52 is the same as it is for other civil cases. That is, we must determine whether the trial court committed any errors of law. See N.C.Gen.Stat. § 7A-27(b) (1981) and Rule 10(a) of the North Carolina Rules of Appellate Procedure.

American Nat'l. Ins. Co. v. Ingram, 63 N.C.App. 38, 41, 303 S.E.2d 649, cert. denied, 309 N.C. 819, 310 S.E.2d 348 (1983).

The trial court, when reviewing the Department of Human Resources' decision, was governed by the standard of review set out in N.C.G.S. § 150B-51(b):

[T]he court reviewing a final decision may affirm the decision of the agency or remand the case for further proceedings. It may also reverse or modify the agency's decision if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or

(6) Arbitrary or capricious.

On appeal, plaintiff contends the procedures used by the Guilford County Department of Social Services violated N.C.G.S. § 150B-51(b)(3) by allowing the county to improperly require verification of Dawn Tay's student status and income. We agree.

Federal regulations govern verification of information concerning a food stamp recipient by a state agency.

In the present case, since plaintiff is not an initial food stamp applicant, the applicable regulation is 7 C.F.R. § 273.2(f)(8). This regulation allows verification of information after initial certification in two situations.

First, 7 C.F.R. § 273.2(f)(8)(i) authorizes the verification of certain mandatory factors and all questionable information, when a recipient's food stamp benefits are recertified.

Second, 7 C.F.R. § 273.2(f)(8)(ii) permits verification of any changes in a food stamp household reported during a certification period. These are the only two instances when the federal regulations provide for the verification of information supplied by an established food stamp recipient.

Based on 7 C.F.R. § 273.2(f)(8)(i) and (ii) and the facts in this case, we find no basis for verification of any factor affecting the food stamp benefits of plaintiff's household at the time this incident took place.

Plaintiff's statement that her daughter Dawn might attend college in the fall of 1986 merely notified Guilford County of a potential change in the household at a future date. Furthermore, this statement, when made to social worker Hardie in May 1986 during recertification, was insufficient to prevent plaintiff's household from being recertified as eligible for food stamps. Thus, the checking of Dawn Tay's student status and income in August 1986 was not authorized under 7 C.F.R. § 273.2(f)(8)(i), as verification of questionable information for the purpose of recertification.

As the record further discloses, Dawn Tay did not leave the plaintiff's household until 14 August 1986, three days after the expiration of Guilford County's 11 August deadline for verification. Consequently, at the expiration of the deadline no change in plaintiff's household had occurred to be verified. Nor had plaintiff's duty to report the change arisen prior to 11 August 1986.

7 C.F.R. §§ 273.12(a)(1)(ii) and (2) govern the reporting of changes in a household during a certification period. These subsections require the household to report a change within ten days after the change becomes known.

Although Dawn Tay planned to attend college, her actual departure from the household could not be "known" until it, in fact, had taken place. Thus, plaintiff's duty to report the change, pursuant to 7 C.F.R. § 273.12, did not arise until 14 August 1986.

Accordingly, we conclude Guilford County's demand for verification by 11 August 1986 was not authorized by 7 C.F.R. § 273.2(f)(8)(ii), as verification of a change reported during a certification period.

Consequently, the verification procedure as used in this particular case by Guilford County is unsupported by the federal regulations, and, therefore, is in violation of N.C.G.S. § 150B-51(b)(3).

This Court acknowledges the importance of agency monitoring of the food stamp program. However, it is difficult to comprehend its application in this case. Here a food stamp recipient has a daughter planning to attend college—a commendable endeavor. Moreover, the food stamp recipient voluntarily and in advance of any actual change informed Social Services that her daughter might be leaving home to attend college. An honest effort to inform Social Services of potential changes should be encouraged. Instead, plaintiff's willingness to inform Social Services in advance and her subsequent failure to confirm the information to Social Services quickly enough, resulted in her entire family being terminated from the program under a flawed procedural requirement. Such a result is clearly unacceptable.

For the reasons discussed above, we reverse the judgment of the superior court with directions for that court to reverse the judgment of the Department of Human Resources Division of Social Services.

In light of our present decision, we decline to address plaintiff's remaining assignments of error.

Reversed.

HEDRICK, C.J., and JOHNSON, J., concur.