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decided: July 27, 1979.


Appeal from the Order of the Department of Public Welfare in case of Appeal of Deborah Weaver, dated February 23, 1978.


Niles Schore, for appellant.

Edward P. Carey, Assistant Attorney General, for appellee.

Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer. Concurring Opinion by Judge Blatt. Dissenting Opinion by Judge Wilkinson.

Author: Mencer

[ 44 Pa. Commw. Page 501]

The sole issue of this appeal is whether the Department of Public Welfare (DPW) erred in disallowing a deduction from the earned income of a recipient of Aid to Families with Dependent Children (AFDC) for child-care expenses pursuant to Section 183.44(f)(1)(iv) of the DPW regulations which provides that child-care expenses are deductible "if care cannot be provided by other family members, and if no other sound plan can be made for their care." 55 Pa. Code § 183.44(f)(1)(iv). We reverse.

Deborah Weaver (petitioner) and her three children receive AFDC assistance and live in her parents' home. During the period in question, petitioner worked between 5 p.m. and 10 p.m. six evenings a week and paid her mother $15 a week for child care.

The County Board of Assistance disallowed a deduction for the $15 child-care expense. Petitioner requested and was given a hearing. The hearing examiner found as a fact that petitioner's mother "would not care for the children on a regular basis without remuneration" and concluded that the deduction should be allowed as an expense attributable to the earning of income. The Executive Director of DPW's Hearing and Appeals Unit reversed the hearing examiner's decision and denied a deduction under Section 183.44(f)(1)(iv) since child care had in fact been provided by a family member. This appeal followed.

Petitioner argues that the term "family members" in Section 183.44(f)(1)(iv) refers only to persons within the assistance unit as defined in DPW regulations, 55 Pa. Code § 171.22, i.e., petitioner and her children. "Family", however, is not defined by either regulation or the Public Welfare Code,*fn1 and therefore we must adopt the meaning derived from common usage.

[ 44 Pa. Commw. Page 502]

By its terms, § 402(a)(7) requires the consideration of 'any reasonable work expenses in determining eligibility for AFDC assistance. . . . [W]e read this language as a congressional directive that no limitation, apart from that of reasonableness, may be placed upon the recognition of expenses attributable to the earning of income.

416 U.S. at 260.

Congress thus sought to encourage AFDC recipients to secure and retain employment by requiring the States to take into account fully any expenses attributable to the earning of income in determining eligibility for assistance. Such expenses reduce the level of actually available income, and if not deducted from gross income will not produce a corresponding increase in AFDC assistance. Failing to allow the deduction of reasonable expenses might well discourage the applicant from seeking or retaining employment whereby such expenses are incurred.

416 U.S. at 264.

DPW acknowledges that child-care expenses are reasonable work-related expenses; however, Section 183.44(f)(1)(iv), as applied by DPW, precludes a deduction for child-care expenses when the service is provided by a family member without any inquiry into the reasonableness of the expense. This creates, in effect, an irrebuttable presumption that, whenever a family member is determined to be able to provide, or to be in fact providing, child care, any expense associated therewith is unreasonable.

[ 44 Pa. Commw. Page 504]

Petitioner's mother worked full time during the day five days a week. To provide care for petitioner's children, her mother's services would be required an additional five hours a night six nights a week. In light of her mother's schedule and the time required, both the refusal to provide care without compensation and petitioner's payment for the child care seem entirely reasonable. DPW's failure to allow a deduction for a reasonable expense under Section 183.44(f)(1)(iv) conflicts with 42 U.S.C. § 602(a)(7) and thus DPW erred in denying the deduction.*fn4

We do not hold that Section 183.44(f)(1)(iv) is necessarily inconsistent with 42 U.S.C. § 602(a)(7). The regulation is designed, in part, to prevent waste of public funds resulting from collusion between family members. For example, the regulation precludes a deduction when the family member is willing to provide free care. Moreover, the regulation appears to provide that expense deductions are limited to cases in which free care cannot be provided either by a family member or by some other sound plan. As such, the regulation addresses situations where an expense would be unreasonable. DPW simply erred in conclusively determining that any expense for child care is unreasonable when a family member provides the care, without considering other factors bearing upon the reasonableness of the expense, e.g., whether sufficient care would be provided without compensation.


And Now, this 27th day of July, 1979, the order of the Department of Public Welfare which refused Deborah K. Weaver a deduction for child-care expenses

[ 44 Pa. Commw. Page 505]

    is hereby reversed, and the case is remanded for the recomputation of benefits, allowing a deduction for child-care expenses, consistent with the above opinion.


Reversed and remanded.

Concurring Opinion by Judge Blatt:

I agree with the majority opinion here that the child-care expenses should be deemed deductible.

I must respectfully disagree however insofar as the majority concludes that the petitioner's mother is a "family member." While she is a relative,*fn1 it is clear that she was not responsible for the care or support of the petitioner's child. Furthermore, she was not a member of the "assistance unit" upon which benefits are determined. Under such circumstances, therefore, I do not believe that she is a "family member" in the sense contemplated by the Aid to Families with Dependent Children (AFDC) program and would find that the expenses were deductible under state law. Accordingly, I would not reach the issue of the alleged inconsistency between the state and federal statutes.

Dissenting Opinion by Judge Wilkinson:

I consider it entirely reasonable for the Department of Public Welfare (DPW) to have and enforce regulation 183.44(f)(1)(iv) which precludes deductions by a mother who is a recipient of Aid to Families with Dependent Children of the amount she pays a member of her family to baby-sit her children. By the same token I do not believe it can be in conflict with

[ 44 Pa. Commw. Page 506]

Section 402(a)(7) of the Social Security Act, 42 U.S.C. § 602(a)(7) which requires the Commonwealth to take into consideration any expense reasonably attributable to the earning of income. The regulation simply states that the Commonwealth does not consider such a payment for traditional family baby-sitting as reasonably attributable to earning income. True, this mother would not care for the grandchildren without pay. After this decision, what family member will if the pay is to come from the government?

I must dissent.

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