The opinion of the court was delivered by: Lynch, District Judge.
The essential facts of the case are undisputed. The Illinois
Department of Public Aid (IDPA) authorizes emergency assistance
to restore the utility service of eligible public aid recipients
when their utility services have been discontinued and they have
no available resources to regain such services. The program is
established and federally funded pursuant to Section 406(e)(1) of
the Social Security Act, 42 U.S.C. § 606(e)(1), which provides
that emergency assistance is to be given to "avoid destitution."
Federal regulations which implement the program require that
emergency assistance be given "forthwith." 45 C.F.R. § 233,
The IDPA program only grants assistance after utility service
has actually been terminated. Even if an eligible aid recipient
notifies the county public aid department that the utility
company is preparing to discontinue her service and she has no
resources to prevent it, the Department of Public Aid will refuse
to act. Presently the regulations set forth in the IDPA
Categorical Assistance Manual authorize emergency assistance only
after actual termination of utility services.
The primary legal issue presented by this case is whether the
standards of the Social Security Act require Illinois to furnish
emergency utility assistance while the recipient is still
receiving utility service. (This Court determined on April 11,
1972, that the constitutional issues were not substantial, so the
Court now proceeds solely on the statutory issue.) Jurisdiction
is invoked pursuant to 28 U.S.C. § 1343(3) and (4).
The defendant contends that the IDPA's policy satisfies the
statutory standard, "to avoid destitution." Under the Illinois
plan, an emergency arises only after utility service is
terminated by the utility company for failure of the recipient to
pay his bill. At that time emergency assistance is available. It
is the plaintiff's position that in refusing to grant assistance
to prevent a termination of utility services when that
termination is imminent and absolutely unavoidable, the Illinois
Emergency Assistance Program does not effectively avoid
destitution or provide assistance rapidly enough to comply with
the statutory provision.
The Court believes that the failure to give timely assistance
occurs when the IDPA permits the utility service to be
discontinued, especially when it will authorize the necessary
funds immediately after termination. In refusing to authorize
assistance when the termination of service is imminent and
otherwise unavoidable, this Court holds that this failure
constitutes a violation of IDPA's duty pursuant to
45 C.F.R. § 233, 120(a)(5) to provide assistance "forthwith" when confronted
with an emergency situation.
In a case which was concerned with the application of rules and
regulations similar to those now before this Court, a
Pennsylvania court stated that:
"It is clearly the intent of these statutes and
regulations that in view of the crisis nature of the
circumstances in which emergency assistance is
provided for, such assistance must be furnished
immediately and without any undue delay." Adens v.
Sailer, 312 F. Supp. 923 at 927 (1970).
In this case, the State has determined that being without
utilities constitutes destitution — it gives emergency assistance
to provide utility service. For those recipients who have reached
the point where they cannot forestall discontinuance of utility
service, and that is the only situation with which we are
concerned in the present case, the only effective way to avoid
destitution is to provide ...