Ministry of Education and Child Care

APPEAL # PART C – Decision under Appeal The decision under appeal is the reconsideration decision of the Ministry of Social Development and Social Innovation (MSDSI or “the ministry”) dated 23 January 2015 that determined that the appellant received disability assistance, in the form of a top-up to her shelter allowance, for the period March 2013 to June 2014 for which she was not eligible and pursuant to section 18 of the Employment and Assistance for Persons with Disabilities Act must repay that amount. PART D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA), sections 1, 11 and 18. Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), sections 1, 24, 29, section 4 of Schedule A. Forms Regulation.

APPEAL # PART E – Summary of Facts The ministry did not appear at the hearing. After confirming that the ministry was notified of the hearing, the hearing proceeded in accordance with section 86(b) of the Employment and Assistance Regulation. The evidence before the ministry at reconsideration consisted of the following: 1. From the ministry’s files: • The appellant is a single recipient of disability assistance. Previously her monthly rate was $1246.42 = $375 shelter, $531.42 support, $165 monthly nutritional supplement, $195 “child in care temporary top-up” and -$20 repayment. • A “child in care temporary top-up” is provided by the ministry under ministry policy, which states that when a dependent child is temporarily in care under the Child, Family and Community Service Act (CFCSA), the shelter allowance may be maintained. A Ministry of Children and Family Development (MCFD) social worker must confirm that the child is being cared for under the CFCSA and that the parent is actively working on the return of the child. Confirmation is required every six months from the social worker that the parent is actively working on the return of the child. The temporary shelter allowance may continue until one of the following occurs: -the child will not return to the parent’s home -MCFD social worker determines that the parent is no longer actively working on the return of the child -the child returns to the parent’s home • The following information from the ministry section of the Request for Reconsideration: On 04 December, a ministry investigative officer (IO) contacted the MCFD team leader for the office managing the case of the appellant's daughter. The team leader advised the IO that, as of 2011, there was no intent to return the child to the appellant's custody or care. In 2011, the appellant wa s advised by the child's social worker that there was no plan to return the child to the appellant. An Order of Custody to the Minister of Children and Family Development was made in May 2013, with the appellant having been served with notice of the Application for the Order in February 2013. The appellant was advised, by court application served to her on 14 February 2013, of the intent of MCFD to not return the daughter to her care and custody. This is the earliest date that the IO can definitely confirm the claimant's knowledge of MCFD’s intent. • A ministry Overpayment Chart dated 10 December 2014 covering the period March 2013 to June 2014. For each month, the chart shows the “eligibility amount override” (“no plan to return child”), the actual assistance amount, the eligible amount and the overpayment amount. For instance for March 2013 the assistance amount is $1266.42, the eligible amount is $1071.42 and the overpayment amount is $195.00 The total overpayment amount for the period March 2013 to June 2014 is shown as $3120.00. 2. The appellant's Request for Reconsideration dated 16 January 2015. Under Reasons, the appellant writes: “I, [appellant's name], do not feel I was properly informed regarding it being my responsibility to stop the money coming re: overpayment.” Attached to the Request for Reconsideration is a submission in which the appellant writes: “I do not feel or believe I was properly informed that it was my responsibility to stop the:

APPEAL # ‘top-up’ payments from coming. Previous to this apprehension I voluntarily put my daughter in care (May 11, 2011). These documents are attached. On page 3 you will find a simple & clearly written section regarding the director’s intentions & the fact that it was my responsibility to contact the government re: child tax money. Given that, I expected the same in this situation. Nowhere, on any form, letter or document I have received to date can I find anything even similar in nature. Nor was anything stated to me verbally by anyone.” Also attached to the appellant's Request for Reconsideration is a Voluntary Care Special Needs Agreement dated 11 May 2011 between the appellant and the director designated under the CFCSA. On page 3, the Agreement states: “When the child enters the director’s care, the parent is no longer eligible to receive the Child Tax Benefit and the BC Family Bonus benefit beginning the first day of the month following the child coming into the director’s care. The parent is responsible for informing Canada Customs and Revenue Agency (CCRA) that the child is no longer in their care. When the child is returned to the care of a parent, the parent must apply for reinstatement of the child tax benefit.” The appellant’s Notice of Appeal is dated 03 February 2015. Under Reasons for Appeal, the appellant writes: “As previously stated, not properly informed but more importantly this was a wrongful removal [marginal note: abuse of people with disabilities and sue for damages??] and MCFD have ignored me from the start – please reference two (2) attached documents.” Attached to the Notice of Appeal is an MCFD Risk Reduction Service Plan for the appellant and her daughter dated 05 March 2012, reviewed by both the team leader and social worker on 07 March 2012. Also attached is an undated letter to the appe llant from the local health authority coordinator for mental health and substance use treatment services. The letter confirms that the appellant was engaged in services with the case manager for the health authority’s community support services from 26 April 2011 to 11 August 2011. During this time the case manager met with the appellant numerous times. The file was closed in August 2011. At the hearing, the appellant provided extensive background as to her relationships with her daughter and her daughter’s father and regarding her daughter’s custody situation. The panel will summarize only that part of her testimony that is relevant to the reconsideration decision and the top-up. The appellant stated that she was surprised that the reconsideration decision referred to the top-up as part of her disability assistance. She had been under the impression that the top-up was provided by MCFD, which was fully aware of the custody situation with her daughter. She said that she used the additional income for its intended purpose, that is by keeping a larger apartment than the one she lives in now in the hope or expectation that her daughter would return home. With her mental health condition, she is easily confused and it is difficult for her to keep track of which of MCFD and MSDSI she is dealing with. In answer to a question, she acknowledged that she received only one bank deposit per month, that from MSDSI. She stated that up until the day before the hearing she still wanted her daughter to return home, but has now given up on that outcome. She explained that since 2011 her daughter never did want to return.

APPEAL # She stated that she cannot remember receiving a notice of the application for the Order of Custody in February 2013 and if she did, she cannot find the paperwork. She referred to a letter she received from the MCFD social worker in March 2013 advising her that her daughter's father intended to dispute the application for the Order and that a case conference at the courthouse was scheduled for 17 May 2013. She stated that she did not attend this case conference. The balance of the appellant's presentation went to argument (see Part F, Reasons for Panel Decision, below) The panel finds that the information provided by the appellant with her Notice of Appeal, namely the Risk Reduction Service Plan of March 2012 and the undated letter from the health authority mental health program coordinator, is in support of the information before the ministry at reconsideration, as these documents tend to corroborate the ministry’s finding in the reconsideration decision (see Part F, Reasons for Panel Decision, below) that the appellant was actively working towards the return of the child into her care at that time. The panel also finds the information provided by the appellant at the hearing, as summarized above, is in support of the records and information before the ministry at reconsideration, as it is consistent with the findings of the ministry’s IO as set out in the records before the ministry at reconsideration. Therefore the panel admits this information as evidence under section 22(4) of the Employment and Assistance Act.

APPEAL # PART F – Reasons for Panel Decision The issue in this appeal is whether the ministry decision, which determined that the appellant received disability assistance in the form of a top-up to her shelter allowance for the period March 2013 to June 2014 for which she was not eligible and that pursuant to section 18 of the Employment and Assistance for Persons with Disabilities Act must repay the amount, is reasonably supported by the evidence or is a reasonable application legislation in the circumstances of the appellant. The relevant legislation is from the EAPWDA: Interpretation 1 (1) In this regulation: "dependant", in relation to a person, means anyone who resides with the person and who (a) is the spouse of the person, (b) is a dependent child of the person, or (c) indicates a parental role for the person's dependent child; "dependent child", with respect to a parent, means a child, other than a child who is 18 years of age and is a person with disabilities, who resides in the parent's place of residence for more than 50% of each month and relies on that parent for the necessities of life, and includes a child in circumstances prescribed under subsection (2); Reporting obligations 11 (1) For a family unit to be eligible for disability assistance, a recipient, in the manner and within the time specified by regulation, must (a) submit to the minister a report that (i) is in the form prescribed by the minister, and (ii) contains the prescribed information, and (b) notify the minister of any change in circumstances or information that (i) may affect the eligibility of the family unit, and (ii) was previously provided to the minister. (2) A report under subsection (1) (a) is deemed not to have been submitted unless the accuracy of the information provided in it is affirmed by the signature of each recipient. Overpayments 18 (1) If disability assistance, hardship assistance or a supplement is provided to or for a family unit that is not eligible for it, recipients who are members of the family unit during the period for which the overpayment is provided are liable to repay to the government the amount or value of the overpayment provided for that period. (2) The minister's decision about the amount a person is liable to repay under subsection (1) is not appealable under section 16 (3) [reconsideration and appeal rights]. And from the EAPWDR: Amount of disability assistance 24 Disability assistance may be provided to or for a family unit, for a calendar month, in an amount that is not

APPEAL # more than (a) the amount determined under Schedule A, minus (b) the family unit's net income determined under Schedule B. Reporting requirement 29 For the purposes of section 11 (1) (a) [reporting obligations] of the Act, (a) the report must be submitted by the 5th day of the calendar month following the calendar month in which one or more of the following occur: (i) a change that is listed in paragraph (b) (i) to (v); (ii) a family unit receives earned income as set out in paragraph (b) (vi); (iii) a family unit receives unearned income that is compensation paid under section 29 or 30 of the Workers Compensation Act as set out in paragraph (b) (vii), and (b) the information required is all of the following, as requested in the monthly report form prescribed under the Forms Regulation, B.C. Reg. 95/2012: [a list of types of changes in the family unit’s circumstances, including:] (iv) change in family unit membership or the marital status of a recipient; And from Schedule A of the EAPWDR: Monthly shelter allowance 4 (1) For the purposes of this section: "family unit" includes a child who is not a dependent child and who resides in the parent's place of residence for not less than 40% of each month, under the terms of an order or an agreement referred to in section 1 (2) of this regulation; "warrant" has the meaning of warrant in section 14.2 [consequences in relation to outstanding arrest warrants] of the Act. (2) The monthly shelter allowance for a family unit to which section 14.2 of the Act does not apply is the smaller of (a) the family unit's actual shelter costs, and (b) the maximum set out in the following table for the applicable family size: Column 1 Column 2 Item Family Unit Size Maximum Monthly Shelter 1 1 person $375 2 2 persons $570 The panel notes that the difference between the monthly shelter allowance for a two person family unit and that for a 1 person family unit is $570 - $375 = $195, the monthly amount of the “child in care temporary top-up” in this appeal. The Forms Regulation displays the Monthly Report that a recipient of disability assistance is required to submit. The Report asks whether, since the last declaration, there have been any changes in a number of circumstances, including “Any changes in the number of dependants or other persons living in the home?” and provides a space for an explanation.

APPEAL # The positions of the parties In the reconsideration decision, the ministry notes that on the date that the appellant's child was removed from her care [in May 2011], the child no longer met the ministry’s legislative definition as the appellant's dependant and was removed from the appellant's file. Her MCFD social worker confirmed that the appellant was actively working towards the return of the child into her care. Therefore under ministry policy, the appellant was eligible to receive the temporary child in care shelter top-up. However, the appellant received an application for an Order from MCFD in which she was advised that there is no intention of the daughter returning to her care in February 2013. The position of the ministry is that under section 11 of the EAPWDA the appellant was required to inform the ministry of her change in circumstances. As she failed to do so, she continued to receive the temporary child in care top-up as part of her disability assistance. As a result she received disability assistance for which she was not eligible to receive between March 2013 and June 2014 – she received $195 per month for 15 months for a total of $3120.00. Under section 18 of the EAPWDA she is required to repay this amount to the government. The position of the appellant is that the ministry’s decision is unreasonable for the following reasons: • In comparison with the clear instructions set out in the 11 May 2011 Voluntary Care Special Needs Agreement regarding her responsibility to advise the relevant authorities concerning the Child Tax Credit and the BC Family Bonus of changes in the custody situation, she was never advised, either verbally or in writing, that she had to advise the ministry if there was no intention or prospect of the child returning to her care. • The amount owing is calculated based on alleged overpayments beginning in March 2013. The custody situation was not finalized until May 2013. It is unreasonable for the ministry to demand repayment of the top-up for a period during which the custody issue was before the court. • The appellant is designated as a person with disabilities, as a result of a severe mental impairment. The ministry did not take into account her mental health condition in arriving at its decision. Panel decision From the time the appellant entered into the Voluntary Care Special Needs Agreement with MCFD in May 2011, the ministry (MSDSI) provided the appellant with a temporary child in care shelter top-up. This top-up maintained her monthly shelter allowance at the rate for a 2 person family unit, instead of the 1 person family unit for which she would otherwise be eligible. The panel notes that this top-up is not described in the legislation, but implemented through ministry policy. The panel considers this policy as reflecting a reasonable approach to administering the shelter allowance legislation in circumstances when a client's child is placed in the temporary care of MCFD. The evidence submitted by the ministry is that on 13 February 2013 the appellant was served with notice of an Application for an Order of Custody to MCFD, and advised of the intent of MCFD to not return her daughter to her care and custody. While the Order of Custody was not finalized until May 2013, the panel finds that the ministry was reasonable in determining that, based on its investigation, in February 2013 the appellant had been made aware that there was no intent on the part of MCFD to return the child to the appellant's custody and that therefore beginning in March 2013 the appellant

APPEAL # was no longer eligible for the top-up. The panel notes that a recipient of disability assistance is not required to submit a Monthly Report every month, but only when there are changed circumstances. Even if it was not clear to the appellant that the custody situation had changed in February 2013, when it was finalized May 2013 the appellant had the obligation under section 11 of the EAPWDA and section 29 of the EAPWDR to advise the ministry of the changed circumstances, and the opportunity of doing so by submitting the Monthly Report mailed to her every month by indicating that there was a change in the number of dependants. The evidence is that she failed to submit this information to the ministry. As a consequence, the appellant was provided an amount of disability assistance for which she was not eligible. Section 18(1) of the EAPWDA is clear that if disability assistance is provided to or for a family unit that is not eligible for it, recipients who are members of the family unit during the period for which an ineligible amount is provided are liable to repay to the government that amount. The panel therefore finds the ministry reasonably determined that the appellant must repay the amount that she was ineligible to receive. Section 18(2) of the EAPWDA states that the minister's decision about the amount a person is liable to repay under subsection (1) is not appealable to the Tribunal. Accordingly, the panel will not make a determination as to the actual amount to be repaid. The panel finds that the ministry’s decision, which determined that for the period March 2013 to October 2014 the appellant received disability assistance in the form of a top-up to her shelter allowance for which she was not eligible and is liable to repay that amount, is reasonably supported by the evidence. The panel therefore confirms the ministry's decision.