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SWIFT v. TOIA

November 30, 1978

Joanne SWIFT, Individually and on behalf of her minor daughter, Michelle Swift, and on behalf of all other persons similarly situated, Plaintiffs, Lylia Roe, Plaintiff-Intervenor,
v.
Philip L. TOIA, Individually and as Commissioner of the New York State Department of Social Services, Charles W. Bates, Individually and as Commissioner of the Westchester County Department of Social Services, John Battistoni, Individually and as Acting Commissioner of the Dutchess County Department of Social Services, and Gabriel T. Russo, Individually and as Commissioner of the Monroe County Department of Social Services, Defendants



The opinion of the court was delivered by: WERKER

Plaintiffs move for partial summary judgment in this class action *fn1" alleging violations of their constitutional rights through defendants' policy of prorating public assistance grants when an individual who has no legal obligation to support a family receiving Aid to Families With Dependent Children ("AFDC"), and who receives non-welfare income sufficient to meet his or her own needs, resides with an AFDC family composed of a parent or caretaker relative and at least one needy child. The basis of the motion is that this practice or policy of proration violates the Social Security Act ("SSA") and regulations promulgated thereunder.

FACTS

 Plaintiff Swift resides in Larchmont, New York with her minor children Michelle, age four, and William Rooney, age eleven. Mrs. Swift and Michelle are AFDC public assistance recipients; William receives $ 150 per month from his father, plaintiff's former husband, under a support order and is thus ineligible for public assistance.

 From May, 1975 until November, 1975, Mrs. Swift received an AFDC grant of $ 398 monthly for a household of three. This included $ 198 for plaintiff's actual rent *fn2" plus a $ 200 basic needs allowance for three people. After plaintiff informed the Westchester County Department of Social Services that she was in receipt of William's monthly support payments her grant was recomputed as $ 289.34. This figure represented a $ 234 rent allowance for her then actual rent for a household of three, plus a $ 200 basic needs allowance for a three person household, for a total of $ 434. $ 144.66 of William's $ 150 monthly support payment was then deducted, leaving Mrs. Swift with the $ 289.34 figure. The $ 144.66 deduction represented the actual amount of William's per capita monthly needs; *fn3" thus the final $ 289.34 grant represented two-thirds of the basic shelter and needs allowance for a three person household. Plaintiff contends that William should not be included in her household and that the proper amount of her AFDC grant should be $ 362, consisting of a $ 150 basic needs allowance for two people plus a $ 212 maximum rent allowance for two *fn4" rather than two-thirds of the grant for a three person household. *fn5"

 Plaintiff Roe resides in Rochester, New York with her minor daughters Carol, age 8, Cheryl, age 8 and Ann Marie Gauck, age 1. Plaintiff, Carol, and Cheryl are AFDC recipients; Ann Marie is supported by her father and does not receive public assistance. Prior to June 1, 1977 Ms. Roe and all three daughters were in receipt of a monthly AFDC public assistance grant of $ 450 from the Monroe County Department of Social Services. This sum represented a $ 192 rent allowance for four persons plus a $ 258 basic needs allowance for four persons. When in May of 1977 Thomas Gauck agreed to support his daughter Ann Marie, Ms. Roe notified the Monroe County Department of Social Services and requested that Ann Marie be removed from the grant. Ms. Roe was then advised that the family's public assistance grant would be reduced from $ 450 per month to $ 337.50 per month. The new figure was computed as three-quarters of a grant for four persons, I. e., three quarters of $ 450 = $ 337.50. Thus the Department of Social Services subtracted one fourth, $ 112.50, of the family's previous grant for four, and assigned that figure as Ann Marie's support that was provided by her father. This was done despite the fact that Thomas Gauck does not provide a fixed or regular amount of support to Ann Marie, but instead provides for her by purchasing clothing and other items that the child needs. Roe affid. at 4. Plaintiff argues that Ann Marie should not be included in her household and that the proper amount of her AFDC grant should be $ 381, consisting of a basic needs allowance of $ 200 for three persons plus a $ 181 rent allowance for three instead of three-quarters of the grant for a four person household.

 Plaintiffs Swift and Roe argue for themselves and the remaining class members that defendants' policy of prorating family grants without proof of any actual income contribution by the independently supported child to the AFDC unit violates the SSA and federal implementing regulations because it incorporates a blanket assumption that a non-legally responsible individual is contributing to the AFDC household, or that his or her presence creates a reduced need due to economies of scale without an inquiry into the facts of the particular case.

 DISCUSSION

 "Summary judgment is a harsh remedy to be granted only where there are no material issues of fact to be tried." FLLI Moretti Cereali v. Continental Grain Co., 563 F.2d 563, 565 (2d Cir. 1977). The function of the court is not to try issues of fact but to determine whether those issues exist to be tried. Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). In so doing the court must resolve all ambiguities in favor of the non-moving party. Id. at 1320.

 In the present case the material facts are not disputed; the court is asked to resolve, as a matter of law, the propriety of defendants' actions. Defendants do not deny that plaintiffs' grants were prorated as described above but contend that proration of a family grant on account of the presence of a self-maintaining child is proper under an economies of scale theory. They rely upon Bureau of Labor statistics *fn6" that reflect variations in per capita living costs according to changes of household size and contend that no attribution of income from the non-legally responsible individual to the AFDC household is involved. Rather, they state that "(a)ll that is assumed by the Department is that the economies of scale which are embodied in the standard of need will continue to operate regardless of the source of the child's sustenance." Cushing affid. at 7.

 An argument similar to that of the present defendants was posed in Houston Welfare Rights Organization, Inc. v. Vowell, 555 F.2d 1219 (5th Cir. 1977), Cert. granted, 434 U.S. 1061, 98 S. Ct. 1232, 55 L. Ed. 2d 761 (1978). There plaintiffs challenged the state of Texas' Department of Public Welfare's policy of prorating shelter and utility expenses when a non-AFDC recipient shared a recipient's residence. Plaintiffs argued that the proration violated federal regulations and in particular 45 C.F.R. § 233.90(a) which deals with the administration of AFDC programs. Section 233.90(a) provides that when the amount of the assistance payment is calculated, only actually available net income, received on a regular basis, is to be considered; and that income of the parent only will be deemed available for children in the household absent proof of actual contributions.

 The DPW, in answer to plaintiffs' claim, contended that its proration policy did not presume income to the AFDC recipient in contravention of section 233.90(a) but rather only a reduced need due to the nonrecipient's presumed contribution of funds to cover his own expenses, coupled with economies of scale achieved through group living. 555 F.2d at 1222-23. The court rejected this position and stated that the economies of scale argument implicitly presumed that the non-AFDC recipient's income was available to offset utility and shelter expenses. Id. at 1224. Thus, the court concluded, the "proration policy, in presuming that a recipient's need decreases when a nonrecipient resides in the household, violates federal regulations controlling state administration of AFDC programs because his need of assistance does not decrease unless the nonrecipient is paying his own way." Id.

 45 C.F.R. § 233.90(a), relied upon in Houston Welfare Rights Organization, Inc., supra, and 45 C.F.R. § 233.20 were amended in 1977 after the decision in Van Lare v. Hurley, 421 U.S. 338, 95 S. Ct. 1741, 44 L. Ed. 2d 208 (1975). In Van Lare the Supreme Court invalidated a New York State regulation requiring shelter allowances of AFDC families to be reduced pro-rata when a non-legally responsible individual resided with the AFDC family. The Court determined that the proration regulations were invalid "insofar as they are based on the assumption that the nonpaying lodger is contributing to the welfare household, Without inquiry into whether he in fact does so." 421 U.S. at 346, 95 S. Ct. at 1747 (emphasis supplied). To conform to the Court's holding in Van Lare the AFDC implementing regulations now provide in relevant part:

 
§ 233.20 Need and amount of assistance.
 
(a) Requirements for State Plans. A State Plan for OAA, AFDC, AB, APTD or AABD ...

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