Anderson v. Blum

Decision Date11 December 1980
Citation77 A.D.2d 386,434 N.Y.S.2d 778
PartiesIn the Matter of Lillian ANDERSON, Individually and on Behalf of Her Minor Child, Petitioner, v. Barbara BLUM, as Commissioner of the New York State Department of Social Services et al., Respondents.
CourtNew York Supreme Court — Appellate Division

E. Marta Sachey, Albany, for petitioner, Legal Aid Society of Albany, inc.

Robert Abrams, Atty. Gen., Albany (Lew A. Millenbach and Shirley Adelson Siegel, Asst. Attys. Gen., Albany, of counsel), for Barbara Blum, respondent.

Philip R. Murray, Albany (Alan P. Joseph, Albany, of counsel), for John Fahey, respondent.




Petitioner, who resided with her mother, applied for Aid to Dependent Children (ADC) on behalf of her infant son. She was a full-time high school student, earned $23.85 per week from a part-time job and received $40 per month from Old Age and Survivors Disability Insurance (OASDI). Petitioner's mother was self-supporting; neither she nor the petitioner was in receipt of public assistance.

Respondent Fahey, Commissioner of the Albany County Department of Social Services, denied petitioner's application on the basis of financial ineligibility and found petitioner to have a monthly budget surplus of $5.65. Petitioner argues, inter alia, that all, or a portion of, her earned income should not be considered as income available to her child. She also asserts that respondent Fahey erred by including as available income the $40 received monthly by petitioner under the OASDI program, and that he improperly failed to deduct her work-related expenses from her available income. After a fair hearing, respondent Blum, Commissioner of the State Department of Social Services, affirmed the local agency's denial of petitioner's application.

Shortly thereafter, petitioner reapplied for ADC on behalf of her child. Her application was denied, again on the basis of a budget surplus, and a second fair hearing was held. On July 30, 1979, respondent Blum declined to review the determination of the local agency.

Respondents improperly included petitioner's OASDI benefits in computing the income available to her child. The issue of whether OASDI benefits may be included in calculating the income available to an ADC recipient has been determined by Federal and State courts. In Elam v. Hanson, D.C., 384 F.Supp. 549, a State welfare department considered OASDI payments as "available income" in computing the amount of family income to determine the need for welfare assistance. The District Court for the Northern District of Ohio noted that the legislative history of the Federal statute authorizing OASDI benefits (U.S. Code, tit. 42, § 402, subd. (d)) discloses that the purpose of such payments is to defray the education expenses of recipients so that they can remain full-time students (Elam v. Hanson, supra, p. 552; see also, Miller v. Richardson, D.C., 320 F.Supp. 313, 316). Observing that the Social Security Act is a statute which is to be "broadly construed and liberally applied", the Federal District Court concluded that OASDI payments:

* * * should be excluded from the income and resources of the family for the purposes of determining eligibility and level of support under AFDC provisions * * * and regulations promulgated thereunder (Elam v. Hanson, supra, p. 553).

This court was faced with a similar situation in Matter of Bosch v. Fahey, 74 A.D.2d 102, 426 N.Y.S.2d 867. The court unanimously annulled a determination by the State Commissioner of Social Services which included as available income a $20 per month OASDI payment to one of petitioner's sons in computing the amount of public assistance to petitioner and her children. The court based its decision on the holding in Elam and on an HEW communication to the various states declaring that the OASDI benefits of a full-time student were to be disregarded in determining ADC need (Matter of Bosch v. Fahey, supra, p. 104, 426 N.Y.S.2d 867). This court has also stated, in a situation involving the proration of ADC benefits based on the presence of a social security recipient in the household, that the Social Security Act "prohibits any consideration of the income and resources of the SSI recipient in determining the amount of the ADC grant" (Matter of Reeves v. Fahey, 65 A.D.2d 633, 634, 409 N.Y.S.2d 277, mot. for lv. to app. den. 47 N.Y.2d 706, 417 N.Y.S. 1026, 391 N.E.2d 305) (emphasis added). Accordingly, it was improper for the respondents to include...

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4 cases
  • Drysdale v. Spirito, 82-1218
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 14, 1982
    ... ... Its decision is consistent with the interpretations of the other courts which have considered this question. Percey v. Blum, 524 F.Supp. 324 (N.D.N.Y.1981); Anderson v. Blum, 77 A.D.2d 386, 434 N.Y.S.2d 778 (App.Div.1980); Cirrana v. D'Elia, 96 Misc.2d 994, 410 N.Y.S.2d ... ...
  • Percey v. Blum
    • United States
    • U.S. District Court — Northern District of New York
    • March 14, 1981
    ... ... Consistent with such an interpretation of the statutory scheme, two Departments of New York's Appellate Division have concluded that the State Commissioner must apply the $30 and 1/3 earned income disregard to caretaker relatives receiving AFDC in behalf of their dependent children. See Anderson v. Blum, 77 A.D.2d 386, 434 N.Y. S.2d 778 (3d Dep't, 1980); Cirrana v. D'Elia, supra ... But see Gibbs v. Kirby, 104 Misc.2d 86, 427 N.Y.S.2d 542 (Sup.Ct., Suffolk Co. 1980) ...         The legislative history supports the position that caretaker relatives need not be recipients in ... ...
  • Parrish v. Russo
    • United States
    • New York Supreme Court — Appellate Division
    • February 13, 1981
    ... ... Gabriel RUSSO, Director of the Monroe County Department of ... Social Services, and Barbara Blum, Commissioner of ... the Department of Social Services, State ... of New York, Appellants ... Supreme Court of New York, Appellate Division, ...         Judgment unanimously affirmed without costs. (See Matter of Anderson v. Blum, 77 A.D.2d 386, 434 N.Y.S.2d 778 Matter of Cirrana v. D'Elia, 96 Misc.2d 994, 410 N.Y.S.2d 235, aff'd 70 A.D.2d 591, 415 N.Y.S.2d 1014.) ... ...
  • Best v. Blum
    • United States
    • New York Supreme Court — Appellate Division
    • June 7, 1981
    ... ... Judgment affirmed, without costs (see Matter of Anderson v. Blum, 77 A.D.2d 386, 434 N.Y.S.2d 778 [1980]) ...         MAHONEY, P. J., and SWEENEY, MAIN, MIKOLL and ... ...

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