Opinion
June 6, 1988
Appeal from the Supreme Court, Nassau County (Becker, J.).
Ordered that the amended judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The petitioner and her children receive public assistance benefits under the AFDC program. Early in the month of January 1986 they were evicted by the landlord, despite having paid rent for the entire month. The next day, the respondent Nassau County Department of Social Services (hereinafter the agency) issued the petitioner an additional shelter allowance for that month to secure new housing. Under the circumstances of this case, we find that it was not arbitrary or capricious for the agency to provide the additional rent as a recoupable advance allowance rather than as a nonrecoupable emergency assistance grant (Social Services Law § 350-j). The State agency is permitted to set eligibility criteria for emergency assistance which are not as broad as those provided under the Social Security Act ( 42 U.S.C. § 606 [e]; see, Quern v Mandley, 436 U.S. 725; cf., Blum v Bacon, 457 U.S. 132). The applicable State regulation provides that emergency assistance shall not be provided when an advance allowance is available to meet the child's need ( 18 NYCRR 372.2 [a] [2]).
Although the additional shelter allowance could be recovered from the petitioner's future public assistance grants, the agency's determination to recoup the allowance at a rate of 10% without a concomitant showing of the dependent children's decreased need is violative of public policy and was properly annulled (see, Matter of Porter v D'Elia, 135 A.D.2d 717; Social Services Law § 106-b). The agency is required to make a case-by-case determination of the recipient's hardship prior to establishing a recoupment rate (see, Matter of Hairston v D'Elia, 97 A.D.2d 410). It is apparent from the record that no such determination was made. The petitioner stated at the hearing that she was required to sign a form consenting to a 10% recoupment rate in order to receive the grant and the caseworker's notes do not reflect any discussion of the effect of such a reduction on the children's needs.
The court properly determined that the petitioner is entitled to an award of attorney's fees (see, Matter of Porter v D'Elia, supra; Matter of Torres v Perales, 121 A.D.2d 386). Furthermore, we find the amount awarded was not an abuse of discretion. Thompson, J.P., Weinstein, Eiber and Harwood, JJ., concur.