Hogue v. Commissioner of Economic Security

WILLIAMS, Judge. Appellant Alline Hogue received aid for her dependent children periodically from [438] 1952 until sometime in 1963, when her assistance award was discontinued because it was determined by the Division of Public Assistance, Department of Economic Security, that the father of the children was no longer incapacitated. Another request for aid was made in November 1963 and was rejected by the Department (the record does not indicate the date of the order rejecting the request). Appeal to the Referee was taken pursuant to KRS 205.230 (now KRS 205.231). On April 15, 1964, the Referee affirmed the decision of the Department and further appeal was taken to the Appeal Board. On June 8, 1964, the Appeal Board affirmed the Referee’s decision and held the appellant ineligible to receive aid for her dependent children. The order of the Appeal Board was then appealed to the Barren Circuit Court (KRS 205.234). On December 4, 1964, that court reversed the order and by a supplemental judgment directed that retroactive payments be made from June 1, 1964 to December 1, 1964. A motion for appeal was sustained by this Court. Appellant seeks a retroactive award of public assistance from December 1, 1963, the first day of the month following her renewed request for assistance, to June 1, 1964, the date assistance was reinstated by the Barren Circuit Court. The appellee Commissioner of Economic Security does not counterclaim for the retroactive payments directed to be made from June 1 to December 1, 1964. Accordingly, we are not again presented with the propriety of granting retroactive payments. We are limited to deciding whether such payments should have been made for the time elapsing between filing of the application and final decision by the Appeal Board. We note in passing that a somewhat analogous situation was presented in the case of Ferguson v. Noe, Ky., 364 S.W.2d 650 (1963). There we held that a court may enter a judgment having a retroactive effect on public assistance payments. The reasoning behind our conclusion was it would render every judicial review of a department order moot if all decisions had only a prospective effect. On the other hand, we pointed out that the amounts allowable are dependent on existing and changing future circumstances — not past conditions. In any event, we are not presented with the question of authority of the court to make retroactive payments in this case. We are asked to determine when they shall commence after a court orders such payments to be made. It was stated in Ferguson v. Noe, supra, that the applicant has no right to an allowance until the Department has determined the question of eligibility. Certainly then the date the applicant files a request for public assistance has no relevant significance. The date the Department accepts or rejects the request is the accrual date of any right the applicant has to receive assistance. The order of the Referee merely affirms or reverses the decision of the Department and the same is true of the order of the Appeal Board. The record does not reveal the date the Department made a decision on appellant’s request. Consequently, we would be unable to state under ordinary circumstances when her rights became vested. But there is another complicating factor in this proceeding. The only evidence of probative value accepted by the circuit court was a doctor’s statement presented at the hearing conducted by the Referee that appellant’s husband was totally incapacitated from work. In view of the fact public assistance is based upon present and future need, the circuit court could not have found appellant entitled to any assistance prior to the time the Referee’s decision was made, because, until that time, there was nothing in the record upon which the court might base such decision. Consequently, the beginning date should have been the date the Referee made his final decision. The judgment is reversed, with directions that the circuit court enter another judgment consistent with this opinion. [439] PALMORE, C. J., dissenting.