Clark v. New Hampshire Dept. of Health and Welfare, 6843

• Decision Date: 20 February 1974
• Docket Number: No. 6843,6843
• Citation: 315 A.2d 187,114 N.H. 99
• Parties: Vivian CLARK et al. v. NEW HAMPSHIRE DEPARTMENT OF HEALTH AND WELFARE et al. David Hammond BRADLEY, State Senator v. NEW HAMPSHIRE DEPARTMENT OF HEALTH AND WELFARE et al. New Hampshire Division of Welfare, and Thomas Hooker, Director.
• Court: New Hampshire Supreme Court

Page 187

315 A.2d 187

114 N.H. 99

Vivian CLARK et al. v. NEW HAMPSHIRE DEPARTMENT OF HEALTH AND WELFARE et al.

David Hammond BRADLEY, State Senator v. NEW HAMPSHIRE DEPARTMENT OF HEALTH AND WELFARE et al.

New Hampshire Division of Welfare, and Thomas Hooker, Director.

No. 6843.

Supreme Court of New Hampshire.

Feb. 20, 1974.

New Hampshire Legal Assistance, by George C. Bruno, Bruce E. Friedman, Robert D. Cross, Manchester, and Mrs. Bruce E. Viles, Concord (Mr. Friedman orally), for the plaintiffs, Vivian Clark and others.

David Hammond Bradley, State senator, by brief and orally, pro se.

Warren B. Rudman, Atty. Gen., and John T. Pappas, Asst. Atty. Gen. (Mr. Pappas orally), for defendants.

DUNCAN, Justice.

The plaintiff Vivian Clark and five other individual plaintiffs with her who currently receive aid to families with dependent children seek to determine by declaratory judgment pursuant to the Administrative Procedure Act (RSA 541-A:7 (Supp.)) the validity of regulations adopted by the defendant director (RSA 161:4 (supp.1973)) effective on or about February 15, 1974. They also seek injunctive relief against implementation of the regulations. The regulations (Sections 2700-2715 of the Public Assistance Manual of the Department) purport to establish a 'flat grant' system of assistance payments to recipients of 'Aid to Families with Dependent Children' (AFDC), as opposed to grants paid under prior regulations. These plaintiffs allege that the AFDC payments received by them will be reduced under the proposed flat grant system, and that the regulations establishing that system are in violation of RSA 167:7, and will result in payments which violate part II, article 56 of the New Hampshire constitution, prohibiting disbursements from the State treasury except 'agreeably to the acts and resolves of the general court.' N.H.Const. pt. II, art. 56.

The plaintiff Bradley, in his capacity as State senator, likewise alleges that the proposed regulations violate RSA 167:7, and that their implementation will violate part II, article 56 of the constitution, and further that they will violate part I, article 37, of the New Hampshire constitution by preventing him from 'exercising his constitutional and lawful right and duty' to participate in the legislative process.

In advance of further proceedings, the Superior Court (Keller, C.J.) reserved and transferred upon an agreed statement of facts, the question of whether the proposed 'flat grant' system is illegal by virtue of 'that part of RSA 167:7 which provides as follows: 'In any case due regard shall be given to the resources, necessary expenditures in each case, the conditions existing in each case, and the rules and regulations made by the division. . . .".

The new regulations have been adopted in an effort to comply with regulations of the federal government designed to require reduction of the level of overpayments of aid, as well as of payments to ineligible persons, under penalty of loss of federal aid to the States, 45 C.F.R. 205.40, 205.41 (1973). In the case of New Hampshire, this requires that the percentage rate of erroneous payments be reduced by July 1, 1975, to 5 percent in the area of overpayments and 3 percent in the area of payments to ineligible families, the reduction to be accomplished in three six-month periods, each period involving one-third of the total excess rate.

It appears from the agreed statement of facts, that under the prior regulations, payments to AFDC recipients were made to cover minimum basic needs, including food, clothing, shelter, laundry, fuel, telephone and other utilities, where not otherwise obtainable, at figures based upon averages derived from Bureau of Labor Statistics Standards for a law income level of living for the northeast region. In addition, the regulations provided for 'special circumstance allowances' arising out of recurring and nonrecurring expense items such as life and health insurance, housekeeping service, expense of personal and child care, transportation and moving expense, cost of property repairs, employment training, and utility installations and deposits. Provision was made for payments on account of greater than normal shelter expense, and for the denial of payments for shelter expense to the extent that such expense was not incurred by the recipient.

Under the new regulations establishing the flat grant system, a fixed dollar amount according to family size will be allowed, to include the basic needs covered under the former regulations but exclusive of cost of housekeeping, personal, and child care services, health insurance, expenses relating to employment and training, and debts incurred prior to receipt of assistance. Allowable amounts for basic needs continue to be based upon Bureau of Labor Statistic Standards for a low income level of living in the northeast region for the year 1969, but updated by the statistical average for recipients according to family size for the year ending February 28, 1973. In addition, provision will be made for child day care services upon a limited basis, and for employment and training program expenses of limited duration and amount. Expenses of replacement of furniture or household equipment will be allowed only where occasioned by catastrophe, and rental expense which exceeds the basic standard will not be allowed, except where the result of extreme emergency.

As was the case under the former regulations, allowances will be determined only after deduction of the recipient's income from other sources, and basic needs including fuel and utilities are to be determined by reference to average expenses (standardized allowances) rather than the expenditures of the individual recipients.

Thus a comparison of the two systems indicates that while they have certain similarities in fixing allowances for basic needs, the flat grant system will provide less flexibility in meeting individual needs of recipients which are not common to most, and in meeting such expenses as rental costs which vary from the norm by reason of localized conditions. Additionally it appears that of 6,427 AFDC cases as of ...