                                                                                 Digitally signed by
                             Illinois Official Reports                           Reporter of Decisions
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                                     Appellate Court                             Date: 2016.02.17
                                                                                 13:19:38 -06'00'




                  Lipscomb v. Housing Authority, 2015 IL App (1st) 142793



Appellate Court         BRENDA LIPSCOMB, Petitioner-Appellee, v. THE HOUSING
Caption                 AUTHORITY OF THE COUNTY OF COOK, Respondent-
                        Appellant.



District & No.          First District, Fourth Division
                        Docket No. 1-14-2793



Filed                   December 10, 2015



Decision Under          Appeal from the Circuit Court of Cook County, No. 13-CH-23072; the
Review                  Hon. Jean Prendergast Rooney, Judge, presiding.



Judgment                Circuit court affirmed in part and reversed in part; hearing officer’s
                        decision reversed in part; cause remanded with directions.


Counsel on              Judge, James & Kujawa, LLC, of Park Ridge (Michael E. Kujawa,
Appeal                  Shirley-Zaneta Blazejczyk, and Deborah A. Ostvig, of counsel), for
                        appellant.

                        Elizabeth Hess, Leslie Garthwaite, and Peter Bartoszek, all of
                        Kirkland & Ellis LLP, and Patricia Nelson, of Chicago Volunteer
                        Legal Services, both of Chicago, for appellee.
     Panel                   JUSTICE HOWSE delivered the judgment of the court, with opinion.
                             Justices Ellis and Cobbs concurred in the judgment and opinion.


                                              OPINION

¶1         Respondent Housing Authority of the County of Cook (HACC) sent a notice of
       termination of housing choice voucher (HCV) benefits to petitioner Brenda Lipscomb based
       on Brenda’s alleged failure to timely report changes in family composition and income to the
       HACC. Brenda requested an informal hearing on her termination of benefits, and the hearing
       officer affirmed the termination of her benefits. Brenda filed a petition for certiorari
       requesting that the circuit court of Cook County review the hearing officer’s approval of the
       termination of her HCV benefits, and the circuit court judge determined that the hearing
       officer’s decision was clearly erroneous and reversed its decision. The HACC now appeals
       this ruling arguing that termination of Brenda’s HCV benefits was appropriate.

¶2                                           BACKGROUND
¶3         On March 4, 2013, respondent HACC sent a notice of termination of HCV benefits to
       petitioner Brenda Lipscomb. The letter indicated that Brenda’s HCV benefits were being
       terminated because she had violated the following tenant obligations: “The family must
       report in writing within 30 days when there is an increase in household income or new
       income for any family member; Any information that the family supplies must be complete
       and accurate; The family must supply any information requested by the HACC and [Housing
       and Urban Development (HUD)] for use in a regularly scheduled reexamination or interim
       reexamination of family income and composition.” The next paragraph in the letter then
       states: “You failed to report Brelena Edmonson’s employment at: American Multi Cinema,
       Inc., which began 3/25/2012. By all supporting documentation, Brelena was still living in
       your unit. This unreported income totals $6,518.66.”
¶4         On May 28, 2013, the HACC wrote to Brenda formally recognizing Brenda’s request for
       an informal hearing. In the letter, the HACC initially stated: “The notice of termination was
       sent on March 4, 2013 because you failed to report your true household members and/or you
       failed to report true and complete income in the period March 2012 through November
       2012.” The HACC then offered to resolve the matter with Brenda, and avoid an informal
       hearing, if Brenda could pay back the amount of money that the HACC had allegedly
       overpaid her, $1,859, by paying $185.90 on June 14, 2013 and $69.71 each month for 24
       months thereafter. On June 5, 2013, Brenda responded in writing to the HACC that she could
       not make those payments due to her income.
¶5         On August 15, 2013, Brenda appeared before the hearing officer for her informal hearing.
       There is no transcript of this hearing in the record, and the hearing officer’s “Order and
       Decision” indicates that he heard testimony from Brenda Lipscomb and Anne Richmond.
       The documents that were presented as evidence on behalf of the HACC and Brenda are
       within the record, along with the hearing officer’s “Order and Decision.” Of relevance to this
       appeal, the following documents were submitted at the informal hearing:



                                                  -2-
    -November 7, 2011 Certification of Zero Income filled out and signed by Brelena,
which claimed that Brelena was not employed, made no income, and was dependent
solely on her mother.
    -November 7, 2011 Tenant Obligations Under the HCV Program signed by
Brenda acknowledging that the family must report in writing within 30 days any
household members whom are no longer living in the unit, and that the family must
report in writing within 30 days when there is an increase in household income or
new income for any family member.
    -November 30, 2011 Renewal Recertification Application filled out by Brenda,
advising the HACC that Brelena was not employed and not earning money and that
there were six people living in the household, including Brelena and Darrell, her
daughter and son. This Renewal Recertification Application is signed by Brenda,
Brelena, and Darrell.
    -February 6, 2012 Notarized Housing Authority of the County of Cook form filled
out and signed by Brenda indicating that Darrell had moved out of the household as
of August 1, 2011. Attached to this form is a copy of Darrell’s signed lease dated
August 1, 2011.
    -November 13, 2012 Renewal Recertification Application filled out by Brenda.
This renewal form no longer listed Brelena as a member of the household and further
did not indicate that Brelena had been employed since March 2012.
    -November 13, 2012 Tenant Obligations Under the HCV Program signed by
Brenda acknowledging that the family must report in writing within 30 days any
household members whom are no longer living in the unit, and that the family must
report in writing within 30 days when there is an increase in household income or
new income for any family member.
    -January 22, 2013 Notarized Housing Authority of the County of Cook form filled
out and signed by Brenda indicating that Brelena had moved out of the household as
of February 26, 2012. Attached to this form is a copy of Brelena’s Illinois
identification card issued on December 20, 2012 indicating her new address in
Markham, Illinois.
    -February 13, 2013 Letter from Equifax verifying that Brelena became employed
by American Multi Cinema, Inc., on March 25, 2012, earning $6,518.66 in 2012 and
$1,718.07 in the first two months of 2013.
    -March 4, 2013 Termination of benefits letter indicating that Brenda’s HCV
benefits were being terminated because she had violated the following tenant
obligations: “The family must report in writing within 30 days when there is an
increase in household income or new income for any family member; Any
information that the family supplies must be complete and accurate; The family must
supply any information requested by the HACC and HUD for use in a regularly
scheduled reexamination or interim reexamination of family income and
composition.”
    -May 28, 2013 Letter from the Housing Authority of Cook County
acknowledging Brenda’s request for an informal hearing and giving Brenda the
option to avoid an informal hearing by paying off the amount that the HACC had


                                  -3-
             allegedly overpaid, $1,859, with a 10% down payment plus 24 monthly installments
             thereafter.
                 -June 5, 2013 Letter from Brenda to the HACC indicating that she is unable to
             pay the amount requested because of her income.
¶6       Based on the documents and evidence presented at the informal hearing, the hearing
     officer found that the HACC had proven its case by a preponderance of the evidence, finding
     in favor of the HACC and against Brenda and affirming the decision of the HACC to
     terminate Brenda’s benefits under the HCV program “due to her failure to notify the Housing
     Authority within 30 days of changes in her family composition and family income[ ]. Under
     these circumstances, the Housing Authority was within its authority to terminate Ms.
     Lipscomb from the Housing Choice Voucher program.” In coming to this conclusion, the
     hearing officer indicated that:
             “The documentary evidence reflects that at the time Brelena began working at
             American Multi-Cinema, she was no longer living with her mother Brenda Lipscomb
             at the subject subsidized apartment unit. However, the fact that Brelena had moved
             out of the subsidized unit as of February 26, 2012 was not reported to the Housing
             Authority until 9 months later, on November 20, 2012, when Ms. Lipscomb
             submitted her recertification application dated November 13, 2012, in which Brelena
             Edmondson [sic] name was not included in the list of household members. On
             January 28, 2013, Ms. Lipscomb submitted a sworn statement that Brelena Edmonson
             had moved from the subject property on February 26, 2012.”
     As a result, the hearing officer found that Brenda did not follow the HCV program rules by
     reporting a change in family circumstances within 30 days, which resulted in an overpayment
     by the HACC of $1,859. The hearing officer further found that:
             “Ms. Lipscomb stated falsely in her recertification application that was submitted on
             January 4, 2012 that her son Darrell Edmonson lived with her in the subsidized unit
             as of November 30, 2011. This statement was false at the time it was made, as Brenda
             Lipscomb reported on February 6, 2012 that Darrell Edmonson had moved out of the
             subsidized apartment unit on August 1, 2011.”
     The hearing officer noted that his “decision to affirm the HACC’s staff decision to terminate
     Ms. Lipscomb’s Housing Choice Voucher did not turn on credibility determinations
     involving Ms. Lipscomb. Ms. Lipscomb did not dispute that she had failed to timely report
     that Brelena Edmonson and Darrell Edmonson had moved from the subsidized apartment
     unit and she did not dispute that Brelena Edmonson had received income that was not
     reported to the Housing Authority.” The hearing officer also including the following
     statement in his “Order and Decision”: “No information was submitted in mitigation that Ms.
     Lipscomb or any of her family were disabled, had any medical conditions, or were military
     veterans or victims of domestic violence.”
¶7       On October 10, 2013, Brenda filed a petition for certiorari requesting that the circuit
     court of Cook County review the hearing officer’s “Order and Decision.” On August 18,
     2014, the circuit court judge determined that the hearing officer’s decision was clearly
     erroneous and reversed its decision to terminate Brenda’s HCV benefits. The circuit court
     found that the “HACC’s Order and Decision fails to make any meaningful reference to the
     HACC’s Admin Plan or the HUD Housing Choice Voucher Handbook” and further “fails to


                                               -4-
     consider mitigating circumstances listed in HACC’s Admin Plan.” The circuit court went on
     to state that:
              “[T]here is no indication that the hearing officer ever considered Ms. Lipscomb’s
              intent–whether failure to disclose changes in the household was an unintentional error
              or omission or whether it was intentional fraud. A review of the record demonstrates
              that Ms. Lipscomb demonstrates that she did not intend to commit fraud and that she
              attempted to submit accurate information.”
     Last, the circuit court’s order indicates that: “It is this absolute failure to consider Ms.
     Lipscomb’s mitigating circumstances, in violation of HACC’s own rules, which requires
     reversal of the decision as opposed to a remand for further proceedings.”
¶8       The HACC timely filed a notice of appeal on September 11, 2014, challenging the circuit
     court’s August 18, 2014 order that reversed the HACC’s decision to terminate Brenda’s HCV
     benefits. On appeal, the HACC argues that the circuit court erred in reversing the hearing
     officer’s ruling upholding the termination of Brenda’s HCV benefits because, in reviewing
     the hearing officer’s decision, it incorrectly applied the clearly erroneous standard when it
     should have applied the manifest weight of the evidence standard. Regardless of the standard
     applied, the HACC argues that the hearing officer’s decision to uphold the termination of
     Brenda’s benefits was neither clearly erroneous nor against the manifest weight of the
     evidence where there was no dispute that Brenda failed to report within 30 days when
     Brelena and Darrell moved out of the household and failed to report Brelena’s income as of
     March 25, 2012. Further, the HACC argues that the hearing officer did consider mitigating
     factors prior to terminating Brenda’s HCV benefits and, even if this court were to find that he
     did not consider such mitigating factors, the proper remedy would be to remand the matter
     for further evaluation.
¶9       Brenda argues the circuit court was correct and the termination of her HCV benefits was
     improper where: (1) the hearing officer did not consider mitigating factors that he is required
     to consider when using discretion to terminate HCV benefits, specifically the fact that there
     were minor children living in the household at the time the termination was made; (2) the
     hearing officer failed to consider Brenda’s intent when she failed to make reports about
     changes in her family composition to the HACC within 30 days; (3) the hearing officer’s
     finding that petitioner failed to timely report the income of her daughter is clearly erroneous
     where the record shows her daughter was no longer living in the household when she began
     earning income; (4) Brenda’s failure to report information within 30 days may not have
     resulted in a benefit to her; and (5) termination of benefits was arbitrary and unreasonable
     given the HACC’s failure to consider the mitigating factors present in the case. For the
     reasons below, we: (1) reverse the hearing officer’s finding that Brenda failed to timely
     report an increase in household income where Brelena had already moved out of the
     household by the time she began receiving an income and affirm the circuit court’s order
     with respect to its finding relating to Brenda’s failure to report Brelena’s income as being
     clearly erroneous; and (2) remand this matter to the hearing officer for further consideration
     of whether termination of Brenda’s benefits based on the supportive findings that Brenda
     failed to timely report when her son and daughter moved out of the household is appropriate
     under the facts of this case.




                                                -5-
¶ 10                                          ANALYSIS
¶ 11       After a trial court ruling on a writ of certiorari seeking review of an administrative
       decision, we “treat th[e] appeal as we would any other appeal for administrative review.”
       Landers v. Chicago Housing Authority, 404 Ill. App. 3d 568, 571 (2010). In administrative
       review cases, this court reviews the decision of the administrative agency, not the decision of
       the circuit court. Ahmad v. Board of Education of the City of Chicago, 365 Ill. App. 3d 155,
       162 (2006). When a court reviews the decision of an administrative agency, the court must
       review only “ ‘the record of the administrative proceedings.’ ” Gaston v. CHAC, Inc., 375 Ill.
       App. 3d 16, 25 (2007) (quoting Biscan v. Village of Melrose Park Board of Fire & Police
       Commissioners, 277 Ill. App. 3d 844, 847 (1996)).

¶ 12                                        Standard of Review
¶ 13       In this case, the HACC argues that the appropriate standard by which the circuit court
       should have reviewed the hearing officer’s decision is the manifest weight of the evidence
       standard because there was “no question of fact whether Lipscomb violated the tenant
       obligations when she admittedly did not report her changes in household and did not report
       her daughter’s income–she did.”1 Brenda argues that the appropriate standard of review is de
       novo because the issue raised by Brenda was whether “the HACC had complied with its
       obligations in evaluating Ms. Lipscomb’s actions based on the undisputed facts.” Brenda
       further argues that the HACC’s argument that the manifest weight of the evidence standard
       applies is illogical where it admits there are no disputed issues of facts in the case.
¶ 14       “The applicable standard of review, which determines the degree of deference given to
       the agency’s decision, depends upon whether the question presented is one of fact, one of
       law, or a mixed question of law and fact.” AFM Messenger Service, Inc. v. Department of
       Employment Security, 198 Ill. 2d 380, 390 (2001). Purely factual findings are reviewed under
       a “manifest weight of the evidence” standard, under which the agency’s findings are
       considered “prima facie true and correct” unless “the opposite conclusion is clearly evident.”
       (Internal quotation marks omitted.) Gaston, 375 Ill. App. 3d at 22-23. On the other hand, if a
       purely legal question is at issue, then the standard of review is de novo; this standard is
       “independent and not deferential.” (Internal quotation marks omitted.) Goodman v. Ward,
       241 Ill. 2d 398, 406 (2011).
¶ 15       Where an agency’s decision involves a mixed question of law and fact, we will not
       reverse the agency’s decision unless it is “clearly erroneous,” which occurs only “when the
       reviewing court is left with the definite and firm conviction that a mistake has been
       committed.” (Internal quotation marks omitted.) Cinkus v. Village of Stickney Municipal
       Officers Electoral Board, 228 Ill. 2d 200, 211 (2008). Our supreme court has explained:
       “Mixed questions of fact and law are questions in which the historical facts are admitted or
       established, the rule of law is undisputed, and the issue is whether the facts satisfy the

           1
            Ironically, despite this assertion that circuit court should have reviewed the hearing officer’s
       decision under a manifest weight of the evidence standard, the HACC recognizes that “[t]he differences
       which once existed between the statutory and common law methods of reviewing administrative
       agencies ‘have all but been lost, and now the extent of the judicial review is virtually the same under
       both methods’ ” and, further states on page six of its brief that in reviewing the hearing officer’s
       decision, our review is de novo.

                                                      -6-
       statutory standard, or to put it another way, whether the rule of law as applied to the
       established facts is or is not violated.” (Internal quotation marks omitted.) Id. Thus, “an
       examination of the legal effect of a given state of facts involves a mixed question of fact and
       law” subject to the “clearly erroneous” standard of review. Id. (citing City of Belvidere v.
       Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998)).
¶ 16        Here, the issues presented before this court are: (1) whether the hearing officer was
       required to consider mitigating factors and Brenda’s intent prior to terminating her benefits;
       (2) if so, whether the hearing officer did in fact consider mitigating factors and Brenda’s
       intent prior to terminating her HCV benefits; and (3) whether the evidence supports the
       finding that Brenda failed to disclose an increase in household income. We find that the first
       issue is a purely legal question, requiring a de novo standard of review (Goodman, 241 Ill. 2d
       at 406), whereas the second and third issues involve examination of the legal effect of a
       given set of facts thus requiring the “clearly erroneous” standard of review (Cinkus, 228 Ill.
       2d at 211). As such, the manifest weight of the evidence standard was not appropriate here,
       and, consistent with our above findings, we apply the de novo and clearly erroneous
       standards of review below.

¶ 17                             The Hearing Officer’s Order and Decision
¶ 18       We first address the fact that in this case, the hearing officer upheld the termination of
       Brenda’s HCV benefits based in part on its finding that “[t]he Housing Authority has shown
       by a preponderance of the evidence that Ms. Lipscomb failed to report changes in family
       composition and family income within 30 days.” (Emphasis added.) However, based on the
       record, these two findings are logically inconsistent. The record indicates that Brenda’s
       daughter, Brelena, moved out of the household on February 26, 2012. The record also
       indicates that Brelena began her employment at American Multi Cinema, Inc., on March 25,
       2012, almost a month after she moved out. Therefore, because Brelena was no longer living
       in the household as of March 25, 2012 when she began receiving an income, Brenda was
       under no obligation to report Brelena’s income from American Multi Cinema, Inc. Rodriguez
       v. Chicago Housing Authority, 2015 IL App (1st) 142458, ¶ 18 (“an individual ceases to be a
       member of the household of a Voucher Program participant when that individual ceases to
       reside in the subsidized unit without expectation of return”). While the hearing officer
       acknowledged that Brelena had moved out of the household prior to earning income, which
       in effect relieved Brenda of her duty to report that information to the HACC, the hearing
       officer still found that the HACC had proven both violations by a preponderance of the
       evidence. Based on the record before us, the only possible alleged violation that the HACC
       could pursue as a basis for terminating Brenda’s HCV benefits was her failure to timely
       report when her son and daughter moved out of the household. An administrative agency’s
       finding is clearly erroneous where, after reviewing the entire record, we are left with a
       definite and firm conviction that a mistake has been made. See id. ¶ 23 (remanding to
       Chicago Housing Authority (CHA) where the CHA upheld a termination of HCV benefits
       based on the petitioner’s failure to report that her son had moved out of the household and
       failure to report that the son had been charged with murder, where the murder had occurred
       after the son had moved out of the household). In this case, we find the hearing officer’s
       finding that Brenda failed to report an increase in household income was clearly erroneous
       and we reverse this finding. In fact, we would reverse the hearing officer’s finding that


                                                  -7-
       Brenda failed to report an increase in household income even if we employed the manifest
       weight of the evidence standard as suggested by the HACC because that finding is contrary
       to the manifest weight of the evidence for the reasons set forth above. Accordingly, we
       reverse the hearing officer’s finding that Brenda failed to timely report her daughter’s income
       since the record reflects, and it is uncontested, that Brelena moved out of the household
       before she began receiving an income.
¶ 19       We note that this failure to report an increase in household income appeared to be the
       HACC’s primary reason for terminating Brenda’s HCV benefits in the first place. In its
       March 4, 2013 letter, the HACC indicated that Brenda’s HCV benefits were being terminated
       because she had violated the following tenant obligations: “The family must report in writing
       within 30 days when there is an increase in household income or new income for any family
       member; Any information that the family supplies must be complete and accurate; The
       family must supply any information requested by the HACC and HUD for use in a regularly
       scheduled reexamination or interim reexamination of family income and composition.” The
       next paragraph in the letter states: “You failed to report Brelena Edmonson’s employment at:
       American Multi Cinema, Inc., which began 3/25/2012. By all supporting documentation,
       Brelena was still living in your unit. This unreported income totals $6,518.66.” These facts
       were also repeated in the hearing officer’s decision as evidence that was submitted at the
       informal hearing, and the hearing officer ultimately upheld the termination of Brenda’s
       benefits based in part on her failure to “report changes in family composition and income
       within 30 days.” Thus, while failing to timely report that Brelena had moved out of the
       household could fall under the tenant obligations listed in the March 4, 2013 letter, it is
       apparent that the HACC’s primary reason for terminating Brenda’s HCV benefits was
       Brenda’s failure to report Brelena’s income.
¶ 20       Notwithstanding the above, the record shows that Brenda failed to timely report when her
       son and daughter moved out of the household. The record indicates that on February 6, 2012,
       Brenda submitted to the HACC a “Notarized Housing Authority of the County of Cook”
       form filled out and signed by Brenda indicating that Darrell had moved out of the household
       as of August 1, 2011. Attached to this form is a copy of Darrell’s signed lease dated August
       1, 2011. The record further indicates that on January 22, 2013 Brenda submitted to the
       HACC another “Notarized Housing Authority of the County of Cook” form filled out and
       signed by Brenda indicating that Brelena had moved out of the household as of February 26,
       2012. Attached to this form is a copy of Brelena’s Illinois identification card issued on
       December 20, 2012 indicating her new address in Markham, Illinois. These admissions
       obviate the fact that Brenda failed to timely report when her son and daughter had moved out
       of the household. Because these failures may form the basis for discretionary termination of
       HCV benefits (see 24 C.F.R. § 982.552(c) (2012)), we now address the parties’ arguments
       relating to mitigation and intent in the context of these failures below.
¶ 21       The Code of Federal Regulations (Code) requires that the HACC “adopt policies
       prescribing when and under what conditions the family must report a change in family
       income or composition.” 24 C.F.R. § 982.516(c) (2012). “The family must promptly notify
       the [Public Housing Agency (PHA)] if any family member no longer resides in the unit.” 24
       C.F.R. § 982.551(h)(3) (2012). “Any information supplied by the family must be true and
       complete.” 24 C.F.R. § 982.551(b)(4) (2012).



                                                  -8-
¶ 22       According to the HACC’s HCV program, created pursuant to section 982.516(c) of the
       Code, the family must report in writing within 30 days any household members who are no
       longer living in the subsidized unit and must report in writing when there is an increase in
       household income or new income for a family member. See HACC Tenant Obligations
       Under the HCV Program (1)(b) & (1)(c) (“b. The family must report in writing within 30
       days any household members whom are no longer living in the unit. c. The family must
       report in writing within 30 days when there is an increase in household income or new
       income for any family member.”); see also HACC, Housing Choice Voucher Program
       Administrative Plan 209 (2012) (“If a household member ceases to reside in the unit, the
       family must inform the HACC within 15 business days.”).
¶ 23       Section 982.552 of the Code governs termination from the voucher program. Section
       982.552(b) lists the reasons for which the agency is required and “must” terminate families
       from the program, while subsection (c) lists the reasons for which the agency has the
       authority to or “may” terminate families from the program. 24 C.F.R. § 982.552(b), (c)
       (2012). This distinction–that subsection (b) describes “mandatory” grounds for termination
       by the agency whereas subsection (c) lists “discretionary” grounds for termination–is
       apparent from the language of the Code and has previously been recognized by this court.
       See Gaston, 375 Ill. App. 3d 16. One of the discretionary grounds for termination listed in
       subsection (c) is: “If the family violates any family obligations under the program (see
       982.551).” 24 C.F.R. § 982.552(c)(1)(i) (2012).
¶ 24       Section 982.552(c) of the Code also lists “relevant circumstances” for the agency to
       consider before terminating voucher benefits in a discretionary case, and states:
                   “(2) Consideration of circumstances. In determining whether to deny or terminate
               assistance because of action or failure to act by members of the family:
                   (i) The PHA may consider all relevant circumstances such as the seriousness of
               the case, the extent of participation or culpability of individual family members,
               mitigating circumstances related to the disability of a family member, and the effects
               of denial or termination of assistance on other family members who were not
               involved in the action or failure.” 24 C.F.R. § 982.552(c)(2)(i) (2012).
¶ 25       We have held that a discretionary termination of benefits under subsection (c) requires
       the agency to consider these “relevant circumstances” before making its determination.
       (Internal quotation marks omitted.) Gaston, 375 Ill. App. 3d at 24. Gaston concerned
       discretionary terminations premised on two families’ alleged failure to report income to the
       CHA in violation of their “ ‘family obligations.’ ” Id. The hearing officer upheld the
       terminations “without consideration of any ‘circumstances’ relevant to their particular cases”
       and “did not offer any reasons for why she chose to exercise her discretion to terminate in
       these particular cases.” Id. Further, the Gaston court stated that “[t]he decisions [of the
       hearing officers] simply summarized the testimony presented at the hearing, without making
       credibility determinations or other factual findings. The decisions then stated that the plaintiff
       had presented ‘no credible evidence’ that she was ‘not in violation of her family
       obligations.’ ” Id. at 23-24. Accordingly, this court held in Gaston that “[w]hile [s]ubsection
       (c) does not limit the agency to consideration of the listed ‘circumstances,’ the agency must
       consider some circumstances particular to the individual case, otherwise section 982.552’s
       distinction between mandatory and discretionary terminations becomes meaningless.” Id. at
       24. A section must be construed “ ‘as a whole, so that no part is rendered meaningless or

                                                   -9-
       superfluous.’ ” Id. (quoting People v. Jones, 223 Ill. 2d 569, 581 (2006)). As such, the
       Gaston court found that the hearing officer had failed to consider any relevant circumstances
       in exercising its discretion and reversed the hearing officer’s decision to terminate assistance.
       Id.
¶ 26       Further, and in conjunction with and pursuant to the Code, the HACC’s policies are also
       relevant and in line with Gaston. The Code requires each PHA to “adopt a written
       administrative plan that establishes local policies for administration of the program in
       accordance with HUD requirements” and to “state[ ] PHA policy on matters for which the
       PHA has discretion to establish local policies.” 24 C.F.R. § 982.54(a) (2012). The
       administrative plan “must be in accordance with HUD regulations and requirements” and
       “[t]he PHA must administer the program in accordance with the PHA administrative plan.”
       24 C.F.R. § 982.54(b)-(c) (2012). Accordingly, pursuant to section 982.552(c)(2)(i) of the
       Code, the HACC 2012 HCV Administrative Plan states in chapter 12, titled
       “TERMINATION OF ASSISTANCE AND TENANCY,” under section 12-II.D titled
       “CRITERIA FOR DECIDING TO TERMINATE ASSISTANCE,” that:
                   “The HACC will consider the following factors when making its decision to
               terminate assistance:
                    The seriousness of the case, especially with respect to how it would affect other
               residents
                    The effects that termination of assistance may have on other members of the
               family who were not involved in the action or failure
                    The extent of participation or culpability of individual family members,
               including whether the culpable family member is a minor or a person with disabilities
               or (as discussed further in section 12-II.E) a victim of domestic violence, dating
               violence, or stalking
                    The length of time since the violation occurred, the family’s recent history and
               the likelihood of favorable conduct in the future
                                                   ***
                    In the case of program abuse, the dollar amount of the overpaid assistance and
               whether or not a false certification was signed by the family.” HACC, Housing
               Choice Voucher Program Administrative Plan 222 (2012).
¶ 27       While there is no question that Brenda failed to timely report when her son and daughter
       moved out of the household, based on the record before us, we cannot say whether the
       hearing officer considered mitigating factors or Brenda’s intent when it decided to terminate
       Brenda’s HCV benefits in accordance with the statutes, regulations and case law discussed
       above. Moreover, one of the reasons termination of benefits was recommended in the first
       place was because of the finding that Brenda failed to report an increase in household
       income, a finding that we just found to be unsupported by the record.
¶ 28       With respect to mitigating factors, just as we held in Gaston, “the agency must consider
       some circumstances particular to the individual case” in a termination under subsection (c)
       because “otherwise section 982.552’s distinction between mandatory and discretionary
       terminations becomes meaningless.” Gaston, 375 Ill. App. 3d at 24. Although the hearing
       officer including the following statement in his “Order and Decision,” “[n]o information was
       submitted in mitigation that Ms. Lipscomb or members of her family were disabled, had any

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       medical conditions, or were military veterans or victims of domestic violence[,]” this
       statement is problematic where the record clearly indicates the presence of at least one
       mitigating factor–that there were minor children in the household at the time benefits were
       terminated. There is absolutely nothing in the record indicating that this factor was
       considered by the hearing officer despite the fact that it appears within the documents that
       were submitted as evidence before the hearing officer. Reinhardt v. Board of Education of
       Alton Community Unit School District No. 11, 61 Ill. 2d 101, 103 (1975) (“an administrative
       agency [decision] must contain findings to make possible a judicial review of the agency’s
       decision”); Comprehensive Community Solutions, Inc. v. Rockford School District No. 205,
       351 Ill. App. 3d 1109, 1116 (2004), aff’d, 216 Ill. 2d 455 (2005) (where certain findings are
       lacking, the “cause must be remanded for further proceedings and allow the administrative
       body to enter its findings”). As such, we remand for consideration of mitigating factors
       relevant to this case with respect to Brenda’s failure to timely report when her son and
       daughter moved out of the household.
¶ 29       Although we have already found that remand is required based on mitigating factors, we
       nonetheless briefly address the issue of intent for consideration on remand. With respect to
       intent, the HACC concedes that the hearing officer did not make a finding of fact that Brenda
       intended to commit a fraud when she failed to report certain information to the HACC.
       Instead, the HACC argues that “Lipscomb’s intent to deceive was inferred by the Hearing
       Officer from evidence that Lipscomb knowingly made several statements to the HACC for
       the purpose of inducing the HACC to retain her voucher benefit at its current dollar amount.”
       The HACC then cites to Roe v. Jewish Children’s Bureau of Chicago, 339 Ill. App. 3d 119,
       135 (2003), for the proposition that “[t]he intent to deceive can be inferred from the fact that
       a person knowingly makes a false statement when made for the purpose of inducing the one
       to whom the statement is made to act.” However, whether Brenda made false statements to
       the HACC for the purpose of receiving higher benefits is not apparent from the record, and
       there is no indication as to whether the hearing officer heard such evidence. Instead, the
       record shows that Brenda failed to report within 30 days when her two children moved out of
       the household, but that she ultimately did report this information on her own. The record
       further shows that Brenda failed to report her daughter’s income, but that her daughter had
       already moved out of the household at the time she began receiving an income. Not only
       does the hearing officer not indicate that he inferred an intent to fraud from these facts (in
       fact, the word “intent” and “fraud” are absent from the hearing officer’s “Order and
       Decision”), but we are not in a position to make such a finding based upon those facts.
¶ 30       The HACC argues that a court may infer intent to defraud based on a failure to report
       certain information. However, the hearing officer made no such finding here. Rather, the
       hearing officer concluded:
                “The Housing Authority has shown by a preponderance of the evidence that Ms.
                Lipscomb failed to report changes in family composition and family income within
                30 days and that Ms. Lipscomb submitted information to the Housing Authority that
                was not accurate and complete, all in violation of Ms. Lipscomb’s obligations under
                the Housing Choice Voucher program. Under these circumstances, the Housing
                Authority was within its authority to terminate Ms. Lipscomb from the Housing
                Choice Voucher program.”



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       Further, chapter 14 of the HACC 2012 HCV Administrative Plan provides that there is a
       distinction between “an unintentional error or omission” and “[p]rogram abuse or fraud.”
       (Emphasis omitted.) HACC, Housing Choice Voucher Program Administrative Plan 247
       (2012). The latter is “a single act or pattern of actions that constitute a false statement,
       omission, or concealment of a substantial fact, made with the intent to deceive or mislead.”
       Id.
¶ 31        In sum, because the hearing officer made no findings of fact with respect to mitigating
       factors or intent where termination of HCV benefits in this case could only be based upon
       Brenda’s failure to timely report when her son and daughter moved out of the household, we
       remand the matter for further findings of facts. The above discussion of mitigating factors
       and intent is provided only to assist the hearing officer on remand when considering these
       factors in light of Brenda’s failure to timely report when her son and daughter had moved out
       of the household.
¶ 32        Last, in response to Brenda’s alternative argument that the hearing officer’s ruling was
       improper because it was an unreasonable sanction, the HACC argues in its reply brief that
       termination was its only option given that Brenda did not enter into a repayment agreement.
       First, this argument was not made in the HACC’s appellant brief and is therefore waived for
       that reason. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) (“Points not argued are waived and
       shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”). Second,
       there is nothing in the record to show this argument–that termination was the only option for
       the HACC in this case–was ever made in the lower court. Haudrich v. Howmedica, Inc., 169
       Ill. 2d 525, 536 (1996) (“It is well settled that issues not raised in the trial court are deemed
       waived and may not be raised for the first time on appeal.”). In fact, in the HACC’s
       “Response in Opposition to Petitioner’s Brief in Support of Her Petition for Certiorari,” the
       HACC concedes that “penalties for program abuse caused by a participant family are
       punishable”2 by requiring the family to repay the excess subsidy amounts, terminating the
       family’s assistance, or referring the family for state or federal prosecution.3 As such, this
       argument is not properly before this court.
¶ 33        For purposes of the remand, we note that the HACC’s May 28, 2013 letter, wherein it
       alleged that Brenda’s failures resulted in an overpayment in housing benefits of $1,859 to
       Brenda, it appears, but we cannot say with certainty, that this number was calculated based
       upon the alleged unreported income of Brelena, an alleged violation that is unsupported by
       the evidence and cannot stand. If the calculation was based on Brelena’s income, it would
       certainly be inaccurate. Additionally, if the HACC had terminated Brenda’s benefits solely
       based upon her failure to timely report when her son and daughter had moved out, it is
       possible that no overpayment, or a lesser overpayment, occurred and further possible that the

           2
             As discussed above, whether this was an “abuse” of the voucher program in part depends on
       Brenda’s intent in her failure to report certain information and whether she intended to deceive the
       HACC in order to receive higher HCV benefits. In HACC’s “Response in Opposition to Petitioner’s
       Brief in Support of Her Petition for Certiorari,” the HACC repeatedly states that Brenda “intentionally”
       misrepresented information before the HACC, yet on appeal the HACC concedes that any “intent” it
       alleges was inferred from the facts of the case.
           3
             The fact that this argument was not raised in the lower court or in appellant’s brief is obviated by
       the fact that the HACC had to attach the documents that support this argument to its reply brief.

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       hearing officer would have reversed the HACC’s termination of Brenda’s HCV benefits. As
       such, we must remand this matter to the HACC for consideration of termination, mitigating
       factors and intent based solely on Brenda’s alleged failure to timely report when her son and
       daughter moved out of the household. See Rodriguez, 2015 IL App (1st) 142458, ¶ 23. On
       remand, the hearing officer will also have to determine what, if any, overpayments were
       made to Brenda as a result of her failure to timely report when her son and daughter moved
       out of the household.

¶ 34                                         CONCLUSION
¶ 35       For the reasons above, we: (1) reverse the hearing officer’s finding that Brenda failed to
       timely report Brelena’s income since Brelena had already moved out of the household by the
       time she began receiving an income; (2) affirm the circuit court’s order with respect to its
       finding relating to Brenda’s failure to report Brelena’s income; and (3) remand this matter to
       the hearing officer for further consideration of the appropriate remedy for Brenda’s failure to
       timely report when her son and daughter moved out of the household.

¶ 36       Circuit court affirmed in part and reversed in part; hearing officer’s decision reversed in
       part; cause remanded with directions.




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