Leach v. Swoap

• Decision Date: 29 November 1973
• Citation: 110 Cal.Rptr. 62,35 Cal.App.3d 685
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph LEACH, Plaintiff and Respondent, v. David B. SWOAP, as Director, etc., Defendant and Appellant. Civ. 13918.

Page 62

110 Cal.Rptr. 62

35 Cal.App.3d 685

Joseph LEACH, Plaintiff and Respondent, v. David B. SWOAP, as Director, etc., Defendant and Appellant.

Civ. 13918.

Court of Appeal, Third District, California.

Nov. 29, 1973.

Ralph S. Abascal, Jay-Allen Eisen, Edmund S. Schaffer, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, by Jay-Allen Eisen, San Francisco, for plaintiff-respondent.

Evelle J. Younger, Atty. Gen., by N. Eugene Hill, Jeffrey L. Gunther, Deputy Attys. Gen., Sacramento, for defendant-appellant.

REGAN, Acting Presiding Justice.

On April 11, 1972, petitioner Joseph Leach filed in the Superior Court of Sacramento County a petition for writ of mandamus and declaratory relief to reverse a fair hearing decision of the Director of the State Department of Social Welfare ('Director') and to declare the regulations under which the director acted to be invalid. The trial court found in favor of the petitioner and granted a peremptory writ of mandate. The director appeals. ¹

Petitioner has been a recipient of ATD (aid to the totally disabled) since 1962. His eligibility for a basic subsistence grant is based upon the multiple afflictions he suffers. Because of the physical limitations which these conditions cause, petitioner has required and received an attendant care grant to pay for needed services. ² This attendant performs many duties for petitioner, including bathing him and attending to his toilet needs.

Until December of 1970, petitioner received the maximum attendant care allowance of $300 per month. After he married Mrs. Leach, ³ petitioner's attendant care grant was reduced by the County of San Francisco to $200 pursuant to former EAS section 44--239.264. ⁴ That regulation fixed a maximum $200 per month payment to attendant care recipients who share housing with other attendant care recipients. As a result, petitioner was forced to reduce the amount of time his attendant worked and consequently his condition deteriorated.

The petitioner timely requested a fair hearing. The fair hearing decision adopted by the director found the county had correctly applied the state regulation.

Petitioner then filed his petition for writ of mandate and declaratory relief seeking to have his current attendant care grant increased to the statutory limit of $300 (Welf. & Inst.Coce, § 13931), ⁵ and also asking for a retroactive award of benefits. The court ruled in favor of petitioner on all points and granted the writ.

The judgment, in effect, orders the director to pay the petitioner Retroactive payments for attendant services. On this appeal, the director contests that aspect of the lower court's judgment.

The director first contends that the trial court did not apply the fundamental distinction that exists between the basic 'money payment' aid grant and 'services.' (§§ 13700, 13931.) The basic 'money payment' aid grant is designed to enable a recipient 'to maintain himself in decency and health' (§ 13700), and there are no directives which tell the recipient what to buy with this grant of money. (§ 10501.) In contradistinction, the dollars provided for 'services' must go to the attendant in payment for services which the attendant has provided. (§ 13931; see EAS, § 44--239.)

Based upon this premise, the director argues that unlike basic 'money payment' aid, services (such as attendant care) if not rendered at the time they are needed are irretrievably lost (e.g., a bath not taken because of lack of assistance can never be made up for at a later time). In other words, the director is arguing that Services cannot be retroactively purchased.

Although the distinction drawn by the director is superficially accurate, we think it misses the point. Because a money grant is authorized under specified circumstances for attendant care services does not make those payments any less 'aid.' ⁶ Secondly, the director's argument could be made equally applicable to the basic grant (e.g., a hamburger not eaten can never be made up for at a later time by eating two, three or more). Furthmore, we think the director has tried to make an artificial distinction between the basic subsistence grant and what he terms 'services.' The code defines 'services' as 'those activities and functions performed by social work staff and related personnel of the department (of Social Welfare) and county departments with or in behalf of individual or families . . ..' (§ 10053.) Attendant care, of course, is not provided by these people. In effect, the attendant care grant (just as the basic substitence grant) is a cash payment provided for the purchase of specified needs. Because the attendant care grant is restricted as to purpose should not make it any less subject to the rule of retroactivity. ⁷ We therefore disagree with the director's basic premise that there is a fundamental distinction between basic subsistence aid and services.

Support is found in the decisional law. In Board of Social Welfare v. County of Los Angeles (1945) 27 Cal.2d 81, 162 P.2d 630, the board sought to compel the county to make retroactive welfare payments to various individuals who had been granted amounts less than those to which state legislation entitled them. The county argued that such payments would be constitutionally improper (i.e., a gift of public money) absent a finding of 'present need.' The court rejected this argument, stating (at pp. 85--86, 162 P.2d at p. 633):

'In the case now before us we are of the view that the provisions for appeal to the State Social Welfare Board and for 'the payments, if awarded, to commence from the date the applicant was first entitled thereto' likewise subserve a clear public purpose by securing to those entitled to aid the full payment thereof 'from the date . . . (they were) first entitled thereto' regardless of errors or delays by local authorities. It was the mandatory duty of the county to furnish aid according to the plan therefor which is laid down by the applicable provisions of the Welfare and Institutions Code. (Citations.) The obligation to pay became a debt due from the county to the applicant as of the date the latter was first entitled to receive the aid. (Citation.) The bare fact that an applicant has by one means or another managed to ward off starvation pending receipt of the payments to which he was previously entitled provides no sufficient excuse for a county to refuse to make such payments. To hold otherwise would, as suggested by petitioner herein, provide a moneysaving device for the counties at the expense of those of our citizenry least able to bear the burden thereof.' (See Mooney v. Pickett (1972) 26 Cal.App.3d 431, 435--436, 102 Cal.Rptr. 708, and federal cases cited therein; see also County of Alameda v Carleson (1971) 5 Cal.3d 730, 749--750, 97 Cal.Rptr. 385, 488 P.2d 953.)

In Mooney v. Pickett, supra, 26 Cal.App.3d at page 435, 102 Cal.Rptr. at page 711, the court, relying upon an earlier case of the same name, Mooney v. Pickett (1971) 4 Cal.3d 669, 94 Cal.Rptr. 279, 483 P.2d 1231, and Board of Social Welfare, supra, recognized and applied the dual concept of Debt and Public policy, and stated:

'In Mooney v. Pickett, supra, the Supreme Court stressed that section 17000 of the Welfare and Institutions Code, pursuant to which appellant sought General Assistance, 'imposes a mandatory duty upon the counties to support 'all incompetent, poor, indigent persons, and those incapacitated by age, disease, or accident. " (Id. at p. 676, 94 Cal.Rptr. at p. 283, 483 P.2d at p. 1235.) Consequently, the obligation to provide appellant with General Assistance became a debt due from the county as of the date he was first entitled thereto. By requiring such retroactive payments to be made by the county, the public policy of securing to those entitled to aid the full payment thereof, from the date they were first entitled thereto, regardless of errors and delays by local authorities, is promoted.'

It must be kept in mind that the director does not dispute his past failure to comply with the statutory directive. (§ 13931.) By appealing only that portion of the judgment relating to retroactivity, the director concedes that payments were withheld from petitioner contrary to controlling law. ⁸ As we have seen from the foregoing analysis, and the applicable decisional law, the director's argument based upon an alleged distinction between services and the basic subsistence grant lacks merit. In this respect, we note the language in Alexander v. Weaver (N.D.Ill.1972) 345 F.Supp. 666, 675:

'Once eligibility exists the State's commitment to provide that income vests in and accrues to that individual and where that commitment is not met due to an unconstitutional withholding of benefits it must be made up to cover that period during which it was wrongfully denied. The fact that one has survived that 'brutal need' without assistance does not wipe out the right to assistance that was vested at the time of need and does not permit the consideration of current circumstance.

'The situation is not unlike that of the State's wrongful withholding of salary over a period of time from some of its employees and when the determination is made that the withholding was unconstitutional there is no question that back pay is warranted since the salary accrued at the time of its wrongful denial and it is no defense to say that the employees current improved financial status warrants a denial of retroactive pay.

'The benefits having accrued to the eligible recipients in our case, a manner of a constructive trust was imposed on the state regarding these funds pending release on subsequent submission of proof of eligibility.'

The director next contends that the ordering of payments for retroactive attendant care services to the petitioner would have an adverse affect on the size of the ATD grant of petitioner and others currently in need. He relies upon section 13700 which, in general, provides for...