Pao Ching Chan v. Blum , 75 A.D.2d 732 ( 1980 )

Determination of Department of Social Services of the State of New York, dated March 6, 1978, affirming action of the Commissioner of the Department of Social Services of the City of New York ordering recoupment of public assistance annulled, insofar as appealed from, on the law, without costs, petition granted, and respondents are directed to return to petitioner any sums recouped or withheld pursuant to the decision and determination of respondent Blum. Petitioner and her minor children have received public assistance in the category of Aid to Families with Dependent Children from the New York City Department of Social Services (Agency) since May, 1975. In this CPLR article 78 proceeding she seeks to annul a determination of the State Commissioner of the Department of Social Services which affirmed action by the Agency to recoup alleged public assistance overpayments resulting from a failure to report the receipt of retroactive Social Security benefits of $1,610.40, representing $536.80 to petitioner and $1,073.60 for two of her children. At the fair hearing, it was agreed that petitioner received in August, 1977, retroactive Social Security benefits of $1,610.40 which petitioner transferred to her sister in September to repay her. for prewelfare loans without informing the Agency. The determination of the State commissioner affirming the right of the Agency to recoup the Social Security payments was based upon an alleged violation of 18 NYCRR 348.4. That section authorizes such recoupment in accordance with subdivision (d) of section 352.31 of the title (18 NYCRR 352.31 [d]) where there is evidence "in the judgment of the social services official * * * which clearly establishes that the applicant or recipient of public assistance and care willfully withheld from such local social services department * * * information about his income or resources, and as a result of withholding such information * * * the applicant or recipient has received * * * public assistance * * * to which he was not entitled in whole or part”. 18 NYCRR 352.31 (d) (2) in turn authorizes recoupment of prior overpayments from current assistance grants without regard to currently available income or resources where overpayments were occasioned by a willful withholding of information. Also pertinent is 18 NYCRR 352.31 (d) (3) which in substance permits recoupment to be made under the foregoing subsection only where the recipient was periodically notified of the obligation to report changes in income and resources and periodically acknowledged that the reporting obligations were called to her attention and were understood. (See Matter of Scott v Blum, 73 AD2d 512, 513.) The Court of Appeals has recently held that in the absence of a demonstration of lack of need, financial assistance to dependent children under the AFDC program may not be reduced on the basis of a parent’s conduct. (Matter of Gunn v Blum, 48 NY2d 58; see Matter of Mitchell v Toia, 63 AD2d 890.) There is no demonstration of lack of need in the record presented herein. Accordingly, it was error to order recoupment of the $1,073.60 allocated to the children. As to the remaining $536.80, there is no substantial evidence that petitioner’s failure to apprise the city department of social services of the retroactive Social Security payment was willful. Indeed, there is no evidence whatever in the record that petitioner, clearly shown by the record not to be literate in the English language, had been periodically notified of her obligation to report changes in resources or had periodically acknowledged her understanding of that obligation as the applicable regulations require before recoupment is authorized without regard to currently available income and resources. Under the circumstances described, we perceive- no basis for remanding for a new hearing to permit respondents to attempt to supplement this deficiency in the record. Concur—Sandler, J. P. and Carro, J; Silverman, J., concurs in a memorandum and Ross and Bloom, JJ., dissent in part in a memorandum by Bloom, J., as follows.