(specially concurring).
All appeals to this court are based upon the record made at the fair hearing provided for in § 13-1-18, N.M.S.A.1953. Section 13-1-18.1 (B), N.M.S.A.1953 (Repl.Vol. 3, Supp.1971). For an indigent to recover Aid to the Disabled, this record must show an effective presentation of the indigent’s case at the hearing.
We have authority to set aside the decision or order of the director “. only if found to be: (1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence in the record as a whole; or (3) otherwise not in accordance with law or department regulation.” Section 13-1-18.1, supra.
What is a “fair hearing” by a hearing officer in the manner and form prescribed by the State Board of Public Welfare as provided in § 13-1-18, supra?
“. . . The primary purpose of the fair hearing is to provide for any dissatisfied applicant ... an opportunity to assert his claim and to secure, in an administrative proceeding, equity of treatment in relation to the state’s assistance laws and standards.” Regulation 275.2. [Emphasis added.]
“The right to a fair hearing includes the right to be advised of the nature and availability of such a hearing, to receive any needed help in preparing for or participating in it, to have a hearing zvhich ftdly safeguards his opporhmity to present his case. . . .” Regulation 275.31. [Emphasis added.]
“Responsibility for conduct of the hearing is delegated to a hearing officer. . . . ” Regulation 275.32.
“The claimant shall be given written notice of the date, time and place the hearing is to be held. He shall be given an explanation of the hearing process and of the procedures to be followed so that he will have sufficient time and a sufficiently clear understanding of what is needed, to prepare an effective presentation of his case and to secure witnesses or legal counsel, if he desires. The claimant must be advised that the agency has no provision for the payment of the costs of any legal counsel whom he may wish to secure. The County office, hozvever/zvill provide information and referral services to help the claimant avail himself of any legal services existing in the community that can provide legal representation at the hearing.” Regulation 275.46. [Emphasis added.]
(A) MRS. CHAVEZ DID NOT RECEIVE A FAIR HEARING.
We are bound by the record, made at the fair hearing, which comes to this court. Section 13-1-18.1 (B), supra.
(1) Mrs. Chavez did not Have the Assistance of Legal Cotmsel.
The recoi'd shows that Mrs. Chavez was represented at the hearing by a law clerk of the Legal Aid Society of Albuquerque; Inc. The hearing officer knew this. A law clerk is not authorized to practice law before an administrative agency. The Legal Aid Society ’of Albuquerque has furnished legal services to Bernalillo County’s indigents since 1947. It has a full-time director, eleven full-time staff attorneys and others, with three full-time law clerks. The reasons for free legal services are obvious. The machinery of justice operates through attorneys, and the poor cannot pay for their services. Krehbieh, Legal Aid; New Mexico’s Unfulfilled Responsibility, 1 N.M.Law Rev. 299 (1971); see, Robb, Poverty Lawyers’ Independence — Battle Cry for Justice, 1 N.M.Law Rev. 215 (1971).
The rules and regulations adopted by the State Board are manifold. The problems of procedure, the examination and cross-examination of witnesses, knowledge of law, are all solved by experienced attorneys. The assistance of counsel has been held a fundamental requisite of “fair hearing.” Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932); see, 35 C.J.S. at 598 (1960). The State Board had a duty to inform Mrs. Chavez that she should obtain legal representation at the hearing.
The hearing officer is a quasi-judicial officer. In this administrative hearing, the proceedings should be conducted as much in accordance with fundamental principles of justice and fairness as are judicial trials. Jones v. State Dept. of Public Health and Welfare, 354 S.W.2d 37 (Mo.Ct.App.1962).
A review of the record on appeal shows that Mrs. Chavez, without legal assistance, did not receive a fair hearing.
(2) Mrs. Chaves zttas not Informed of her Rights.
The record does not disclose that Mrs. Chavez was given an explanation of the hearing process or how to prepare an effective presentation of her case, nor any of the other rights to which she was entitled under the regulations, supra. Neither does the record show a proper investigation of Mrs. Chavez’ application. Section 13-1-13, N.M.S.A.1953 (Repl.Vol. 3).
The decision and order of the director was not in accordance with law or department regulations.
(B) MRS. CHAVEZ’ INCOME DID NOT EXCEED HER NEED.
The director denied Mrs. Chavez assistance because there was no deficit between need and income as required by Regulation 231.84 for eligibility.
Regulation 231.841 provides that total needs are determined by adding up the requirements for the budget group, i.e., shelter, $37.00; utilities, $19.00; one adult living alone, $60.00; for a total of $116.00 per month for a lone indigent. The director did not add on to this total need the medical needs of $30.00 per month which would make her needs greater than her income of $122.50. The department admits in its brief:
A State plan must provide that medical assistance will be available to certain “categorically needy” individuals. 45 C. F.R. 248.10(b)(1). The “categorically needy” are those individuals who are in need under the State’s standards of financial eligibility in the State’s approved plan for categorical assistance, i.e., cash assistance for the . . . disabled. ... 45 C.F.R. 248.10(a)(1).
Based on these rules, the department claims it can omit medical assistance because the state does not have a cash assistance program for Mrs. Chavez. She receives her income from social security benefits.
The department does not explain away Baca v. New Mexico Health & Social Services Dept., 83 N.M. 703, 496 P.2d 1099 (Ct.App.1972), directly in point. Until it is able to skirt around Baca, it has a duty to follow that decision. It must not arbitrarily or capriciously deny an indigent “reasonable subsistence compatible with decency and health.” Section 13-1-16, N.M. S.A.1953 (Repl.Vol. 3).
The judgment of the department was arbitrary and capricious.
This judgment should be reversed.