
    In the Matter of Dorothy Mitchell, as Guardian for Keith Randall, and Others, Petitioner, v Philip L. Toia, as New York State Commissioner of Social Services, et al., Respondents.
   Determination of respondent State Commissioner of Social Services rendered on decision after fair hearing, dated April 24, 1978 (superseding decision dated October 19, 1976), is unanimously modified, on the law, to the extent of directing that any recoupment from current benefits shall require a finding that funds are available in excess of the funds necessary to meet the needs of the dependent children during the period of recoupment, and such recoupment shall be limited to the amount of such excess, and the determination is otherwise confirmed, without costs and without disbursements. It is undisputed that appellant as payee for her three grandchildren received amounts as aid to dependent children in excess of the amount to which she was entitled; that this excess resulted from the willful withholding and concealment by appellant from the State Department of Social Services of the receipt of old age and survivors disability insurance for the children. The declaration of continued need for public assistance or care, which appellant periodically signed, specifically asked whether Social Security was being received and petitioner failed to reveal such payments and signed a certification that the information on the declaration was true and complete. This fact, the specific reference in the form to Social Security, and the additional notification on the checks of the requirement to report income resources or other circumstances and changes thereof, constituted substantial compliance with the requirements of the regulations by the local agency. The recoupment ordered by the department is apparently to be based on 10% of household needs. It is established, however, that with respect to payments to dependent children, recoupment is allowable only when sufficient resources are available to meet their needs during recoupment, and that the recoupment must be limited to available funds in excess of such needs. (Matter of Franqui v Toia, 62 AD2d 926; Matter of Wright v Toia, 56 AD2d 633.) Concur—Lupiano, J. P., Silverman, Evans, Lane and Sandler, JJ.  