concurring in part and dissenting in part.
I agree with the majority that the Ohio Department of Public Welfare (ODPW) may not “deem” Old Age Survivors and Disability Income (OASDI) benefits paid to a representative payee as being available to an Aid to Families with Dependent Children (AFDC) applicant for purposes of reducing or eliminating eligibility for AFDC benefits. Although I further agree that the judgment as to plaintiff Nicholas should be affirmed, I conclude that the judgment as to plaintiff Snider should be reversed.
The majority correctly relies upon Barnes v. Reagen, 501 F.Supp. 215 (N.D. Iowa 1980), for the proposition that ODPW’s “deeming” process is impermissible in cases involving representative payees. The majority does not, however, cite a footnote in Barnes to which the district court in the present case averted:
Defendant [here, ODPW] is not precluded by this ruling from treating as income OASDI benefits paid to a representative payee on behalf of an AFDC applicant or recipient to the extent these benefits are actually applied by the representative payee to the current maintenance needs of the AFDC applicant or recipient.
501 F.Supp. at 220 n. 18 (citation omitted). Under this language, ODPW may include OASDI benefits as income in calculating AFDC eligibility if the agency can prove by direct evidence that the representative payee did in fact use the benefits for the AFDC applicant’s current maintenance needs.
In the present case, plaintiff and AFDC applicant Melissa Snider stipulated that “all of the OASDI benefits received on Melissa’s behalf are spent on Melissa’s needs” (Stipulation # 13, app. at 40). In my view, this stipulation constitutes direct evidence that the representative payee applied the OAS-DI benefits to AFDC applicant Snider’s maintenance needs. Thus, the benefits are includable as income for purposes of calculating AFDC eligibility in her case. Although I am aware that the district court did not give this effect to Snider’s stipulation, I am' of the opinion that the plain language of the stipulation required the district court to do so. I would reverse the judgment as to plaintiff Snider.