I had gone down [to the unemployment office] to report my first claim had ended and they told me that you can open up another claim on your anniversary date. I was never told that you had to, you know have worked four weeks or, you know whatever qualifying requirement [there] was so when I opened up the new claim in March 2003 I answered all the questions honestly. It asked if I had worked and I had said, "no." I also have an unemployment right and responsibility booklet and I didn't see anywhere in there about requalifying. That's my number one complaint.

My number two argument is that I got the determination letter, I was, you know the claim was valid and I was entitled to these benefits, and I know the employer also got that same information, and I understand they have a certain amount of time to appeal, you know if they appeal [in] a timely manner, and it was determined that I was not entitled to new benefits then, you know, to me this is fair, you know. But I collected with the thought that I was entitled to it and if I wasn't entitled to it I would have made different life choices . . . .

She further explained that she would have taken action such as moving in with a family member to reduce her expenses had she known she was inelligible.

On June 15, 2004, the Tribunal concluded that Costello was not entitled to benefits pursuant to N.J.S.A. 43:21-4(e)(4), because she had not worked in the benefit year as required by that statute. Relying on N.J.S.A. 43:21-16(d), the Tribunal affirmed the Director's decision to demand repayment.

Costello appealed that decision to the Board of Review. On October 14, 2004, the Board issued its decision affirming the Appeal Tribunal and concluding that there was no valid ground for a further hearing. This appeal followed.

We defer to and do not reverse an agency decision unless it is arbitrary, capricious or unreasonable or not supported by substantial credible evidence in the record. Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001). The agency's decision, however, must be sufficient to allow us to conclude that the agency has considered the facts and addressed the issues under controlling legal standards. Ibid. A reasoned explanation based on specific findings is required. Ibid.

There is no question that Costello was not entitled to the benefits she received following her second application. Costello does not argue otherwise, and we defer to the Board's decision on ineligibility.

Our difficulty with this record is that there is no indication that the Director, the Appeals Tribunal or the Board addressed the criteria governing the Director's discretion to waive repayment of unemployment benefits paid by mistake and without fault on the part of the recipient. N.J.S.A. 43:21-16(d)(1) establishes a general rule that requires a disqualified recipient of unemployment benefits to repay those benefits, but it also authorizes the agency to establish exceptions to that general rule by regulation. Specifically, N.J.S.A. 43:21-16(d)(1) provides:

When it is determined . . . that any person, whether (i) by reason of the nondisclosure or misrepresentation by him or by another of a material fact (whether or not such nondisclosure or misrepresentation was known or fraudulent), or (ii) for any other reason, has received any sum as benefits under this chapter . . . while any conditions for the receipt of benefits imposed by this chapter . . . were not fulfilled in his case, or while he was disqualified from receiving benefits . . . such person, unless the director . . . directs otherwise by regulation, shall be liable to repay those benefits in full...

N.J.S.A. 43:21-16(d)(1) (emphasis added).]

A regulation concerning waiver has been adopted. N.J.A.C. 12:17-14.2 provides:

(a) The claimant . . . may request full waiver of recovery of an overpayment of benefits. Such waiver may be granted by the Director, with the Controller's concurrence providing the claimant did not misrepresent or withhold any material fact in obtaining benefits and the recovery of the overpayment, as determined by the Director, would be patently contrary to principles of equity. A claimant who is overpaid benefits shall be liable to refund the amount overpaid unless a request is made that the Director waive the right to recover the overpayment, and:
1. The overpayment did not occur due to a claimant's willful misrepresentation or nondisclosure to the Division; or
2. The claimant is deceased or permanently disabled and no longer able to work.
(b) In determining fault, the Director shall consider the capacity of the particular claimant to recognize the error resulting in overpayment. The claimant will not be considered at fault if the benefits were retained because of the claimant's reasonable good faith reliance on the Division. A claimant who negligently reports or fails to report information, which results in an overpayment, is at fault and is liable for repayment.

[Emphasis added.]

Because the testimony and findings below suggest that this regulation may have application in this case, and because neither the Director, nor the Tribunal or the Board addressed the issue, we remand for further findings and conclusions.

It is well-settled that this court gives deference to an agency's expertise and interpretation of the statutes and regulations it administers, but we cannot do so when the agency's decision gives no indication that it has considered the standards established to govern its exercise of discretion under the law. See Mayflower Sec. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Matters before administrative agencies must be conducted so as to foster public confidence in the fairness of the process, and it is essential for an agency to consider and address the application of its own regulations that appear relevant to the controversy. See In re Bell Atlantic-New Jersey, Inc., 342 N.J. Super. 439, 444 (App. Div. 2001). We do not conclude that the agency must consider waiver in every case in which it is not raised. However, having adopted a regulation providing for waiver of repayment, the agency was required to consider it in this case given the circumstances developed before the Appeal Tribunal.

Reversed and remanded for additional findings and conclusions. We do not retain jurisdiction.