Straub v. Department of Public Welfare

• Decision Date: 29 October 1948
• Docket Number: 30649.
• Citation: 198 P.2d 817,31 Wn.2d 707
• Parties: STRAUB v. DEPARTMENT OF PUBLIC WELFARE.
• Court: Washington Supreme Court

198 P.2d 817

31 Wn.2d 707

STRAUB v. DEPARTMENT OF PUBLIC WELFARE.

No. 30649.

Supreme Court of Washington

October 29, 1948

Department 1

Proceeding by Howard Straub against the Department of Public Welfare of the State of Washington to obtain financial assistance as a needy blind person. From a judgment of the superior court reinstating with modifications a prior order of the department determining amount of assistance, the Department appeals.

Judgment modified, and cause remanded.

Appeal from Superior Court, Chelan County; Fred Kemp, Judge.

Smith Troy, Boris B. Kramer and Jane Dowdle, all of Olympia, for appellant.

Dow and Leahy, of Wenatchee, for respondent.

STEINERT Justice.

This case involves the amount of financial assistance to be allowed to a recipient of state aid under the legislative program making provision for the needy blind. The matter comes to this court on appeal by the department of public welfare from a judgment of the superior court for Chelan county, wherein the court reinstated, with certain modifications, a prior order of the department determining the amount of assistance to be granted to the recipient blind person. The effect of such order of reinstatement was to reverse an existing order of the department which reduced the amount of recipient's original grant from $186 to $131 per month.

The facts are undisputed. Howard Straub, the recipient and respondent herein, is totally blind and, according to the medical testimony in the case, is completely paralyzed and is also suffering from a 'pyelogenic infection of his kidneys.' For a number of years past he has been receiving public assistance from the state of Washington under provisions of the law relating to the needy blind. Prior to May 1, 1947, this financial assistance which the department of public welfare had granted and regularly paid to him, amounted to $186 a month. This amount covered allowances for food, clothing, personal incidentals fuel for heating and cooking, rent, electric light, household supplies, garbage removal, telephone, and housekeeping service. With this monthly amount of allowance, respondent rented a four-room house, maintaining it as a home, and employed a housekeeper who was required to devote her full time to taking care of him. For these services he paid his housekeeper $90 a month, besides providing her with board and room. So far as the record discloses, respondent is unmarried and has no near relative.

On March 28, 1947, following the legislative enactment of certain amendatory laws governing various branches of public assistance, the department, through its director, revised its rules for administering such assistance. This revision was communicated to the various county welfare departments of the state through what is designated as 'Memorandum No. 47-33,' a lengthy document setting forth, among other things, standards of assistance, standards of requirements, and estimates of the costs of suppling various items of assistance. A copy of this memorandum appears as an exhibit in the case. Further reference to certain portions of this document will be made as we proceed.

On May 1, 1947, the Chelan county welfare department, a subordinate agency of the appellant state department of public welfare, acting upon the authority of this memorandum, which had been communicated to the subordinate agency by the state department, reduced respondent's monthly allowance from $186 to $131. This reduction was made upon the assumption and theory that, under memorandum No. 47-33, the respondent from that time forth was entitled to receive as a total monthly allowance only the equivalent of what in the memorandum is referred to as the 'Group II Nursing Home Rate,' which rate was fixed by the department at the sum of $120, plus $11 for clothing and personal incidentals, or a sum total of $131. The county welfare department considered this total sum as the ceiling amount beyond which it could not go, regardless of respondent's actual requirements or need.

Taking that amount as the ceiling, the county welfare department made an allowance of $92.20 to respondent to cover all of the items of assistance above enumerated except the items of telephone and housekeeping service. The telephone item it eliminated entirely, and for housekeeping service it allowed only the difference between $131, the ceiling amount, and the $92.20 allocated to the other items, or $38.80.

Deeming himself aggrieved by this reduction, respondent Straub made application for what is termed in the statute a 'fair hearing' Before the director of the department, in accordance with the provisions of Laws of 1947, chapter 289, § 6, p. 1367. The application was granted, and a hearing was held, at which testimony was taken and transcribed for the record as subsequently brought to this court.

At the hearing respondent testified concerning his physical condition and needs as follows:

'Q. Would you explain, in a general sort of way, Mr. Straub, what your general condition is? A. Well, I am blind, and I can't walk around. I have to get around on this chair. Do you want me to go into detail?

'Q. Yes, in your answer give in a general way why you feel you have to remain in your own home and shouldn't be transferred to a nursing home--why that is necessary in your particular condition. A. Well, Mr. Leahy [respondent's attorney], I don't want to go into this in detail, but it would work a hardship on me if I had to go into a nursing home, especially if I had to share a bathroom with anyone else or a bedroom. I think it would. I don't want to go into that, Lawrence [Mr. Leahy]. * * *

'Q. How much do you pay each month for phone? A. $3.85.

'Q. Do you consider that a necessity for you, Howard? A. It is absolutely necessary, Mr. Leahy.

'Q. Why is it absolutely necessary for you? A. Well, the girl [respondent's housekeeper] goes out--has to go to the store or has to go town for me, and there are as good many times when I am there alone. * * *

'Q. And the phone is your only connection with the outside world? A. yes.

'Q. And if something happened to you you would have no other means of contact with the outside world? A. It is absolutely necessary. * * *

'Q. Now do you feel it is necessary--going back to the subject of the housekeeper--do you believe it is necessary on your part to have a full time housekeeper? A. Absolutely. I couldn't eat if I didn't have.

'Q. Or do actually anything else? A. I couldn't do anything, I guess. I can't wash my face or comb my hair or shave myself or tie my tie or shoes. Well, she's just practically a housekeeper and nurse combined.

'Q. In other words, it is a twenty-four hour job, seven days a week? A. Yes, it is. I need her every day. She doesn't have a day off.'

Respondent's attending physician, who at that time owned and managed the Cascade Sanatorium, testified concerning the basic facts of respondent's physical blindness, paralysis, and kidney condition, as hereinBefore described. He further testified that it would be necessary to have a housekeeper in the home at all times to care for Mr. Straub; that the place for this afflicted person was in his own home; that it would be difficult for him to be taken care of elsewhere unless he were in a hospital where graduate nurses or specialized help was provided; and that if he were transferred from his home, it would have a markedly bad effect on his physical and mental condition.

The housekeeper's testimony corroborated that of respondent and his physician. None of the testimony of these three witnesses was in any way contradicted.

Miss Hallie Estes, who as case work supervisor of the Chelan county welfare department was conversant with the situation affecting the respondent, testified on cross-examination as follows:

'Q. Now, in reference to Administrative Memorandum No. 47-33, Section 424.82, in which you set a ceiling on all other items such as clothing and personal incidentals, the ceiling being $120.00, do you have the authority to set that total ceiling under the law as passed by the legislature, or is it by administrative memo only? A. This is based on administrative memo. * * *

'Q. You know of no other authorization, other than administrative memo, by which this $120.00 is set, is that correct? A. Yes, that's right. * * *

'Q. In Exhibit No. 3 [State Form 'Authorization of Payment,' setting forth computations of items of assistance], introduced by the department, you do not then actually arrive at it by putting down the actual needs of the applicant, is that correct? In other words, when you reach the ceiling of $120.00 you have to stop, regardless of whether the actual needs of the applicant have been met or not, is that correct? A. Yes, that's right. In carrying out the administrative regulations it has been necessary to do that.

' Q. And that is why you arrive at the figure of $38.80 for the housekeeper, rather than the $90.00 actually paid, because that was the only amount left after giving all the other necessities? A. That's right.

' Q. In other words, the Department does not contend that $38.80 covers the applicant's need, is that correct? A. That's right.' (Italics ours.)

From all the testimony adduced at that hearing, the director of the department of public welfare made formal findings reciting:

'1. He [Howard Straub] is totally blind and crippled to such an extent that he is unable to care for any of his personal needs such as cooking, eating, bathing and dressing.

'2. Until May 1, 1947 when the appellant's [respondent's here] Aid to the Blind grant was reduced from $186 to $131.000, he had paid his housekeeper $90.00 per month. Since that time he has been in arrears on all payments to her.'

The findings then refer to and...