Santiago v. Blum

— Determination of respondent State Commissioner of Social Services, dated July 8,1981, after fair hearing, suspending petitioner’s qualification to receive public assistance for 30 days, is annulled, on the law, without costs. Petitioner has been disqualified from receiving public assistance for failure to accept manpower services, i.e., failure to report to the Public Works Project conference section for referral for work relief, if appropriate. But the notice of intent to discontinue her grant gave as the reason for the proposed discontinuance increased earnings of petitioner or her spouse. At the “fair hearing” the agency representative unilaterally announced that “we are amending” the notice of intent to state as the ground, failure to report. Nobody asked petitioner whether she consented to the amendment, whether she was prepared to go ahead on that amendment, or whether she needed some time to prepare. We do not think that what happened at the hearing can fairly be interpreted as a consent, much less an understanding consent by the petitioner to the amendment. It is true that petitioner had with her at the hearing a note from a doctor, which suggests that she had some inkling that the matter of her failure to report for interview was coming up. But at least in the case of a lay person who does not appear to be particularly sophisticated or well educated and who is not represented by counsel, we think it must more clearly be shown that petitioner had adequate notice of the ground of the proposed discontinuance of the grant before the hearing, or of her intelligent waiver of further notice. “Notice to a recipient which specifies the wrong charge as the basis of a welfare grant reduction does not comply with the regulatory standard or the constitutional standards of due process, because ‘even in [the administrative] forum no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged’ (Matter of Murray v. Murphy, 24 NY2d 150,157 [bracketed matter supplied]). The notice which petitioner received that her grant was to be reduced stated the reason therefor as ‘rent duplication’ (18 NYCRR 352.7 [g] [1]), but at the hearing this basis for the reduction was changed to ‘rent advancement’ (see 18 NYCRR 352.7 [g] [7]). Permitting such an amendment deprived petitioner of notice and consequently of constitutionally required due process (cf. Goldberg v. Kelly, 397 U. S. 254).” (Cruz v Lavine, 45 AD2d 720; accord Matter of Colon v Blum, 81 AD2d 637, 638.) Concur — Carro, Asch and Silverman, JJ.