Lora, Crane and Michels. The opinion of the court was delivered by Crane, J.A.D.
This is an appeal from a determination of the Division of Public Welfare, Department of Institutions and Agencies, denying an application for emergency welfare assistance.
The facts are undisputed. Petitioners resided in New York City with their eight children until August 1976, when a fire destroyed their apartment, furniture and clothing.
Thereafter petitioners placed their children in the care of a relative while they took temporary refuge in the Woodbridge, New Jersey, factory building where Mr. Barrera was employed.
On September 1, 1976 the family resumed residence together in a rented house in Highland Park, New Jersey, at a cost of $350 a month, excluding utilities, and applied to the Middlesex County Welfare Board for assistance. A basic assistance grant of $223 a month was issued under New Jersey's Assistance to Families of the Working Poor program (AFWP), N.J.S.A. 44:13-1 et eq. Petitioners and their children had not been recipients of public assistance prior to this grant although the family's income had been limited to the $84 gross weekly earnings of Mr. Barrera.
Petitioners' request for emergency assistance for the payment of a security deposit for the rental of their new dwelling and for the purchase of clothing and furniture was denied. An appeal to the Division of Public Welfare followed and a fair hearing was held. At the hearing petitioners presented testimony showing that they had been rendered homeless by a fire at their former residence and that they were able to move into their current residence by agreeing to pay 1 1/2 month's rent by way of security. Although petitioners had paid $40 of the security, they faced eviction if the rest was not immediately forthcoming.
The Director of the Division of Public Welfare denied the application for emergency assistance on the ground that such assistance may, pursuant to N.J.A.C. 10:82-5.12(a), Assistance Standards Handbook (ASH) § 530.1, be granted only to families who were AFWP or AFDC (Aid to Families with Dependent Children) recipients at the time of the occurrence of an emergency situation defined in N.J.A.C. 10:82-5.12(c), ASH § 530.3.
Needy families residing in this State may be eligible to receive public assistance through the AFDC program, which is financed jointly by federal and state contributions and
provides cash grants to families in which a child's economic need results from the death, disability or absence from the home of a parent. 42 U.S.C.A. § 606(a); N.J.S.A. 44:10-1 et seq. See King v. Smith , 392 U.S. 309, 313-314, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968). Alternatively, they may be eligible to receive AFWP assistance. The AFWP program was created solely by the State Legislature to assist the "unique class" of families "in which both parents are present in the home and who otherwise meet the eligibility criteria set forth in this act by virtue of inadequate income for the support of the family." N.J.S.A. 44:13-1.
Because AFDC and AFWP assistance is sometimes inadequate to meet emergency needs when an unforeseen crisis occurs, see Adens v. Sailer , 312 F. Supp. 923, 927 (E.D. Pa. 1970), the New Jersey Division of Public Welfare adopted a regulation creating an emergency assistance program which utilizes matching funds made available for this purpose by Congress. 42 U.S.C.A. § 606(a)(5). N.J.A.C. 10:82-5.12(a), ASH 530.1, defines "emergency assistance" as "any extra or additional payments * * * issued to or for an eligible unit [ i.e. , family] otherwise receiving continuing assistance under AFDC or AFWP." Federal legislation authorizing matching federal funds to states having such programs defines "emergency assistance to needy families with children" as "payments, care or services * * * necessary to avoid destitution of such child or to provide living arrangements in a home for such child." 42 U.S.C.A. § 606(e)(1).
Petitioners argue that the emergency assistance regulation promulgated by the Division does not by its terms make eligibility dependent upon receipt of basic AFDC or AFWP grants at the time of the occurrence of the emergency and, alternatively, that if it does, it is invalid to that extent because it restricts eligibility beyond what was intended by Congress. A ...