Articles

Termination or Denial of Assistance: The Right to Welfare Benefits

Introduction

In an attempt to "make a truly historic change" and "break the cycle of poverty" state governments are transforming welfare programs in an attempt to encourage self-sufficiency, and "personal responsibility." Welfare has been replaced by workfare, and Aid to Families with Dependent Children (AFDC) is now Temporary Assistance for Needy Families (TANF). More than just the names of these programs have changed. In the process of this change, people across the country are finding that the monthly checks they have relied on, may be a thing of the past. However, a person in need of government assistance may still have a right to assistance in certain situations. Now, more than ever, individuals must be aware of their "rights" when facing a wrongful termination or denial of benefits. An attorney, experienced in dealing with government agencies, can help ensure you are aware of your rights and can assist you in getting the aid that you need.

History of Government Assistance

During the years of the Depression, the widespread poverty shed light on the state's inability to provide for people in need. In response, the federal government stepped in and created the Federal Emergency Relief Administration. The creation of this agency led to the passage of the Social Security Act of 1935. This Act created Aid to Dependent Children, which allowed the states to make determinations about aspects of its own program but provided for a supervisory role for the federal government. When these programs were established the debate began over whether these payments should be considered "charity" or whether the assistance was an entitlement, or property right, which is afforded protection under the United States Constitution.

In 1970, a landmark Supreme Court decision firmly established that AFDC benefits were in fact entitlements. The determination that the payment was an entitlement, however, did not mean that every person has a right to government assistance. The case stood for the idea that if a person is entitled to benefits, under statutory requirements, the government must provide due process of the law which is guaranteed under the 5th and 14th Amendment of the Constitution. In the welfare context, due process has been interpreted as: (1) timely and adequate notice detailing the reason for an adverse action; (2) the opportunity to have a hearing prior to a reduction or termination of benefits; (3) the opportunity to defend oneself at a hearing by questioning adverse witnesses and presenting evidence; (4) the option of designating a representative, including legal counsel, to be present at the hearing; and (5) a written decision based on the record and law that indicates the basis for the determination. The effect of this case was that welfare recipients were protected against erroneous and arbitrary government actions; a person's benefits could not be terminated for example, because of a "mere computer problems."

Current Legislation

The welfare system has dramatically changed in the last five years. As each state overhauls its welfare program, recipients are at risk of being kicked off the rolls as a result of massive errors, despite their eligibility for state aid. In Milwaukee, Wisconsin, for example, approximately a third of Milwaukee's welfare participants were penalized each month in 1997, losing their entire grant for that month. A number of those penalized were victims of computer failure. With no right to pre-termination hearings, those erroneously penalized had to do without any assistance pending "fact finding reviews."

In 1996, the Personal Responsibility Act (PRA) and Work Opportunity Reconciliation Act (WORA) were signed into law. The effect of these laws was to eliminate AFDC and replace the old system with block grants of money from the federal government under a new program, Temporary Assistance for Needy Families (TANF). The effect of PRA has been to take the control of the welfare system out of the hands of the federal government and give it back to the states. States are to use TANF to assist poor families and foster self- sufficiency; however, states are not required to provide benefits to any particular class of people. Furthermore, the Personal Responsibility Act specifically states that there is no entitlement to TANF benefits.

If benefits are no longer entitlements, the question now becomes whether benefits are mere charity, which does not place the state under an obligation to provide assistance. States are no longer required to grant TANF recipients' pre-termination hearings, as they have been required to do for the past twenty years. Instead, the Personal Responsibility Act requires that states provide the federal government with "an explanation of how the state will provide opportunities for recipients who have been adversely affected to be heard in a state administrative or appeal process." Unfortunately, the appeal process is not required to occur before the termination of benefits and the states have wide discretion to determine how the appeal process should be conducted.

Because benefits are no longer presumed to be a property right, the Personal Responsibility Act has revived a question that was debated in the mid-thirties. That is, "are welfare payments 'charity' or 'entitlements'"? The language of PRA states "[that] the act should not be interpreted to entitle any individual or family to assistance under any State program funded under this part." This would seem to imply that the benefit recipient is at the mercy of the state to determine whether an individual should receive their payment every month, however, this is not necessarily the case.

An individual may be entitled to a benefit if the individual can show a "legitimate claim of entitlement" to a particular benefit. A legitimate claim of entitlement can be proven in several ways. First, the states are allowed to create a legitimate claim of entitlement under applicable law or regulation. In order to determine whether a state has done this, an individual must be aware of current laws and regulations. Secondly, if a state or federal regulation mandates that every person fitting into a certain eligibility requirement is to be provided with assistance, it is likely that the court would hold that there is an entitlement even if a disclaimer is included in the statute.

Conclusion

What does a family do when their support is inexplicably terminated? Morethan likely, that family will be told that someone will look into the case and a determination will be made after completion of the fact-finding investigation. Although an individual in need of assistance is faced with maneuvering through a complex and seemingly endless maze of requirements and restrictions, an attorney who is experienced in government agencies and programs law will be able to assist you in working your way though this maze.

(C) FindLaw. All rights reserved.