Summers v. D'Elia

• Decision Date: 25 July 1983
• Citation: 465 N.Y.S.2d 532,95 A.D.2d 184
• Parties: In the Matter of Lorraine SUMMERS, Petitioner, v. Joseph D'ELIA, as Commissioner of the Nassau County Department of Social Services, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 532

465 N.Y.S.2d 532

95 A.D.2d 184

In the Matter of Lorraine SUMMERS, Petitioner, v. Joseph D'ELIA, as Commissioner of the Nassau County

Department of Social Services, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

July 25, 1983.

Leonard S. Clark, Nassau/Suffolk Law Services Committee, Inc., Hempstead (Vicki Lens, Huntington, of counsel), for petitioner.

Robert Abrams, Atty. Gen., New York City (Maryellen Weinberg and Gerald Slotnik, Asst. Attys. Gen., New York City, of counsel), for respondent State Commissioner.

Before GIBBONS, J.P., and O'CONNOR, RUBIN and BOYERS, JJ.

GIBBONS, Justice Presiding.

This court held in Matter of Leone v. Blum, 73 A.D.2d 252, 425 N.Y.S.2d 836, that it was improper for the Department of Social Services (the Department) to assume that a nonlegally responsible nonrecipient of public assistance would contribute moneys he received from the Federal Old-Age, Survivors and Disability Insurance program (OASDI) to the support of others in his family who were in receipt of Aid to Dependent Children (ADC), so as to warrant a prorated public assistance grant. In this case, we consider a related problem: how should the Department treat income received by such an OASDI recipient which is spent, at least in part, in a manner which benefits those in his or her family who receive ADC?

I

Petitioner resides in the same household with her three minor children. She and her youngest child are recipients of public assistance in the form of ADC. The other two children, who are twins and are now 15 years of age, receive Social Security benefits under OASDI. On or about August 28, 1980, petitioner received a notice of intent to reduce the monthly ADC grant from $266.50 to $58.40. The notice stated that the reason for the reduction was that "Agency regulations now require that the Social Security money received by Harry and Larry [the twins] must be budgeted against your PA [public assistance] grant based on four persons".

Petitioner, thereafter, requested a fair hearing, which was conducted on September 25, 1980. At the hearing, a witness for the local agency stated that prior to the time the agency determined to reduce her public assistance, petitioner's monthly grant of $266.50 was determined by considering the budget for four people, which, by referring to the schedules of the Department, came to a monthly figure of $533, and then dividing that figure by two. The witness went on to testify that the basis for the local agency's decision to reduce the ADC grant was that the OASDI monthly payment of $474.60 received by petitioner on behalf of the twins was being "pooled" by petitioner with her ADC check to meet the needs of the entire family. The only evidence presented by the agency to support this contention was a public assistance recertification form which had a notation on it stating, "[m]other uses Soc.Sec. toward H.H.". The witness for the agency did not know who had made this notation, as the signature on the form was illegible, nor did she offer any evidence which would tend to confirm her interpretation of the statement's meaning or which would explain the statement's basis.

Petitioner testified that when she was recertified, the employee for the agency, who apparently concluded that "[m]other uses Soc.Sec. toward H.H." and made such an entry on the recertification form, did not discuss with her how she spent the Social Security money. Over repeated and strenuous objection by petitioner's representative the Administrative Law Judge conducted a lengthy interrogati of petitioner designed to elicit testimony that the Social Security funds were commingled with petitioner's public assistance money to pay for the needs of the entire family. Petitioner acknowledged that she used some of the Social Security money for rent, but she testified that the remainder was spent solely for the food and other needs of the twins. She stated that because the twins neither received Medicaid nor had health insurance, medical expenses were met through use of a portion of the OASDI grant. Further, because the twins were older than the other child, their everyday expenses were greater. Nonetheless, petitioner stated that, when able, she put unspent money in individual bank accounts for the twins.

A decision after a fair hearing was rendered on October 27, 1980. In that decision, now under review, the State commissioner found that "[t]he income from both sources [OASDI and ADC] are co-mingled [sic ] and indiscriminately expended". The State commissioner held, based on this finding, that the local agency had correctly considered the twins' OASDI payment as being available to meet the needs of the entire family and that the ADC budget was properly computed on the basis of four persons, with the twins' income "applied against the needs of the recipient [petitioner], and the minor children in the household". Reliance was placed on the Department's "Transmittal Letter 79 ADM 26 dated May 31, 1979", a portion of which is quoted in the decision, as follows:

"An inquiry must be made to determine any contribution made to the household by the self-maintaining individual [in this case the twins].

"When the individual is contributing his prorata share or more to the household, he/she is considered a member of the Public Assistance household for purposes of determining eligibility and degree of need for public assistance. His contribution is deemed income to the public assistance household."

II

At the outset, it should be noted that the notice of intent to reduce petitioner's grant of public assistance issued by the local agency did not conform with the requiremen of 45 CFR 205.10(a)(4)(i)(B) insofar as it failed to state "the specific regulations supporting [its] action" (see Matter of Regan v. D'Elia, 82 A.D.2d 890, 440 N.Y.S.2d 290; Matter of Foster v. D'Elia, 72 A.D.2d 813, 421 N.Y.S.2d 905). Moreover, both Federal and State regulations mandate that a recipient of ADC benefits be specifically informed of the reasons for an agency's action reducing his public assistance grant (45 CFR 205.10[a][4][i][B]; 18 NYCRR 358.8[a][2]; 358.11[e] ). The instant written notice failed to state the precise facts upon which the determination was premised since it contained no reference to the agency's contention that petitioner was pooling the OASDI funds with her ADC grant (see, generally, Matter of Hopkins v. Blum, 87 A.D.2d 613, 448 N.Y.S.2d 208, affd. 58 N.Y.2d 1011, 461 N.Y.S.2d 1013, 448 N.E.2d 798; Matter of White v. D'Elia, 80 A.D.2d 874, 875, 436 N.Y.S.2d 786; Matter of Herring v. Blum, 68 A.D.2d 64, 66, 416 N.Y.S.2d 624). The notice was therefore defective. Nonetheless, petitioner's contention that the insufficient notice of intent to reduce benefits requires an annulment of the State commissioner's determination is without merit, as any complaint about the notice's defects was waived by the failure of petitioner and her representative to question the same at the hearing (Matter of Hopkins v. Blum, 58 N.Y.2d 1011, 461 N.Y.S.2d 1013, 448 N.E.2d 798, supra ).

Because of petitioner's waiver and the obvious proficiency of her representative, we are not dismayed by the lack of an adequate notice. The same cannot be said with regard to the manner in which the hearing was conducted. The Supreme Court has declared that in public assistance administrative hearings "an impartial decision maker is essential" (Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287). In our view an Administrative Law Judge, such as the one in this case, who assumes the role of agency spokesman and adversarial interrogator during the course of a fair hearing, does not possess the degree of impartiality that the law requires. This is particularly apparent here, where the hearing officer's intervention was an obvious attempt on his part to fill gaps in the local agency's proof. It was incumbent on the agency to show at the hearing that it had conducted an inquiry as to how petitioner spent the OASDI grant (see Swift v. Toia, 461 F.Supp. 578, affd. sub nom Swift v. Blum, 598 F.2d 312, cert. den. 444 U.S. 1025, 100 S.Ct. 687, 62 L.Ed.2d 658, 18 NYCRR 358.9, 352.30[a] ). A fair hearing should not be viewed as a means of obviating a proper prior inquiry (Allen v. Blum, 85 A.D.2d 228, 236-237, 448 N.Y.S.2d 163, affd. 58 N.Y.2d 954, 460 N.Y.S.2d 520, 447 N.E.2d 68). The hearing officer's examination of petitioner, in the face of the agency's failure to adequately show that there had been an inquiry or to show the results of such inquiry, if held, was improper. We need not, however, decide whether the manner in which the hearing was conducted would require a new hearing, since the State commissioner's determination must be annulled on more substantive grounds.

This court has held that the State commissioner may not prorate household expenses between persons in a family receiving ADC and those members of the family not legally obligated to provide support, who are not in receipt of public assistance but have a separate income, such as OASDI (Matter of Leone v. Blum, 73 A.D.2d 252, 425 N.Y.S.2d 836, supra ; Matter of Vailes v. D'Elia, 77 A.D.2d 45, 432 N.Y.S.2d 204, revd. on other grounds 54 N.Y.2d 663, 442 N.Y.S.2d 772, 426 N.E.2d 179; see, also, Matter of Genin v. Toia, 47 N.Y.2d 959, 419 N.Y.S.2d 953, 393 N.E.2d 1026). A full appreciation of the case at bar requires an understanding of this holding. The standards of need established by the schedules found in the public assistance statutes (e.g., Social Services Law, § 131-a) and the Department's regulations "provide only incremental increases in assistance as the size of the eligible household increases" (Matter of Delmar v. Blum, 53 N.Y.2d 105, 109, 440 N.Y.S.2d 604, 423 N.E.2d 27). Thus, for example, an eligible family of four would receive, for its basic needs, an amount significantly less than twice what an eligible family of two would receive. This...