REYNOSO, J. I respectfully dissent.
The issue posed is whether the denial of retroactive benefits to plaintiff is contrary to the direction of Welfare and Institutions Code section 12304. I conclude that it is. My conclusion is buttressed by the dual concept of (1) debt and (2) public policy developed in Leach v. Swoap (1973) 35 Cal.App.3d 685 [110 Cal.Rptr. 62],
I
The Leach court accepts the concept of “debt” as articulated by our Supreme Court in Bd. of Soc. Welfare v. County of L. A. (1945) 27 Cal.2d 81, 86 [162 P.2d 630]: “The obligation to pay became a debt due from the county to the applicant as of the date the latter was first entitled to receive aid.” (Italics added.) Thus, we are not to look at how plaintiff weathered the conditions at the time he was being denied benefits. Rather, we must explore the issue of when he became entitled to the benefits.
In examining entitlement, we must first determine when section 12304, under which plaintiff makes his claim, became operative. Assembly Bill No. 853, which refers to section 12304, among others,1 provides: “This act shall apply retroactively to January 1, 1974, to the extent that it may legally do so.” Thus, January 1 is the earliest time a debt could exist under this new statute.
While the statute was to be effective on January 1, 1974, no debt can arise without the existence of an applicant entitled to receive aid. That is, a person to whom the debt is owing. Was plaintiff such an applicant on January 1, 1974? He was. Plaintiff was at all times known to the welfare authorities as a severely impaired person. Apparently, he had been institutionalized as a result of his severe impairment. Nothing in the record would lead to the conclusion that he was not as impaired on January 1, 1974, as in May 1974, when a formal determination was made of such impairment. Indeed, from the record it appears that plaintiff was receiving the maximum level of service before May although the reimbursement for his service provider was not at the maximum level allowed by the statute. Section 12304, subdivision (d) requires the county [629]welfare department to “inform in writing any individual who is potentially eligible for services under this section of his right to such services.” Plaintiff is clearly such a person yet no notification was sent. For purposes of section 12304 benefits, plaintiff must be treated as an applicant2 as of January 1, 1974.
Since by legislative fiat a benefit was extended as of January 1, 1974, and since plaintiff must be treated as an applicant the “debt” arose on that date.
II
The public policy concept developed in Leach was embraced by the Supreme Court in Tripp v. Swoap (1976) 17 Cal.3d 671, 683 [131 Cal.Rptr. 789, 552 P.2d 749], There the Supreme Court in discussing the earlier case of Bd. of Soc. Welfare v. County of L. A., supra, 27 Cal.2d 81, explained: “[W]e recognized the strong public policy in favor of retroactive payment of welfare benefits. (Id., at pp. 85-86.) This policy has been articulated as ‘securing to those entitled to aid the full payment thereof, from the date they were first entitled thereto, regardless of errors and delays by local authorities . . . .’ (Mooney v. Pickett, supra, 26 Cal.App.3d at p. 435.)” The quoted public policy concept has two ingredients: (1) The effort to make the recipient as whole as possible, and (2) the effort to discourage governmental delays. Both ingredients apply.
First, plaintiff will be made whole by retroactive payment. An employer, as plaintiff is now considered, will generally receive better service if the earnings of his employee, the service provider, are at an acceptable level and if the employee perceives that the employer is trying to do what is just.
Second, defendant’s explanations for the lack of retroactivity are confused and unpersuasive. Defendants urge the view that dfelay in implementing the statute was reasonable in light of the complex task of drafting regulations. The argument misses the mark. Defendant’s hearing officer ruled against plaintiff on the basis that the state regulations did not make the benefits retroactive. The real issue, of course, is [630]whether defendant’s regulation should have made the benefits retroactive. In view of the explicit terms of the statute, I find such a failure unexplainable. Such delays in implementing benefits cannot be countenanced under the public policy concept by which I am bound. The county welfare officials implemented the new benefits in what appears to be a customarily lethargic manner. It is the state official, defendant, who failed to issue regulations in conformity with the clear mandate of the statute.
The debt and public policy considerations compel the conclusion that plaintiff" is entitled to the difference between .what he received and the maximum rate for the months of January to May 1974. I would so hold. However, the statute does not contemplate a windfall. Plaintiff is obligated to hold the money in trust for the in-home service provider, the exclusive monetary beneficiary. Payment should be made in accordance with government requirements. Funds not paid to the provider within a reasonable time revert to the appropriate governmental agency.3
Appellant’s petition for a hearing by the Supreme Court was denied August 4, 1977.
Assembly Bill No. 853 was preceded by Assembly Bill No. 134 which was effective on December 5, 1973, and operative on January 1, 1974. The statutes were essentially the same except that Assembly Bill No. 853 clarifies the legislative intent that eligible persons were only to receive services and not services plus cash payments. Both statutes, however, set a maximum benefit level of $450 per month.
The usual application of the debt doctrine involves an existing benefit. The existence of that benefit does not create the debt. It is only when a person applies for the benefit and is wrongfully denied that the debt arises. This cause poses a situation wherein the benefit is new. Only in the restricted factual situation in which a person is already a recipient and the Legislature intends to give further or different assistance to the recipient can the debt doctrine apply when dealing with new legislation.
While the record is silent. I understand that current regulations would proscribe a windfall in that the “basic grant” would be reduced by any amount incorrectly withheld by plaintiff.