I APPEAL# PART C Decision under Appeal The decisio11 under appeal is the December 24, 2012 reconsideration decision of the Ministry of Social Development and Social Innovation (the "minist1y"), in which the ministry determined that the appellant was not eligible for a supplement for moving costs as provided in s. 55 of the Employment and Assistance for Persons with Disabilities Regulation (the "EI\PWDR"). In particular, the ministry found that: • The appellant had not arranged confirmed employment that would significantly promote the independence of the family unit, as required by EAPWDR s. 55(2)(a); • The moving costs were not required to move to another province or country to improve the living circums1ances of the family unit, as required by EAPWDR s. 55(2)(b); • There was no evidence that the family unit's rented residential accommodation was being sold or demolished or that a notice to vacate had been given, as required by EAPWDR s. 55(2)(c); " The moving costs wEire not required to move within or adjacent to a municipality or unincorporated arec1, as required by EAPWDR s. 55(2)(d); and • The moving costs were not required to avoid an imminent threat to the physical safety of any person in the farnily unit. as required by Ef\PWDR s. 55(2)(e). PART D Relevant Legislation EAPWDR section 55; EAPWDR Schedule B, sscctioris 2 and 3 ~-------·-···------·-·-·· -------··--·--·----------------------__, EAA T003( 10/06101)
I APPEAL ti PART E Summary of Fact:c:.s _______________________ , The appellant and his wife an; designated as persons with disabilities, and both are recipients of disability assistance. The appel:ant applied for t11e supplement for moving costs on November 23, 2012. On November 26, 2012 the appellant was advised by the ministiy that he was ineligible for the supplement, and he requested reconsideration of that decision. The information before the ministry at the time of reconsideration included the following: • A Record of Employment (ROE) showing that the appellant was employed by a hotel in Community C from ;'.\ugust "17 to October 12, 2012; • Records from an employer showing that on October 31, 2012 the appellant was offered a · position as a customer care professional, working from home by telephone and computer. His employment was to start with several training sessions commencing on December 10, 2012. • Two quotations for moving 11-1e appellant's household from his residence in Community A to Community C. The first quotation, dated September 29, 2012 was for $2,885.00 and the second, dated November 20, 2012 was for $2,798.88. • A letter from the appellant's physician dated November 29, 2012 confirming that the appellant has severe psoriatic arthritis affecting a number of big joints (particularly the knees), and recommending that he move to the vicinity of Community C because the beneficial climate· would be "less problematic for his arthritis." • A letter frorn the appellant's wife's psychiatrist, dated December 10, 2012, expressing the opinion that the move to Comi'nunity C: would have a positive impact on her mental health. • A 2 page typewritten submission from the appellant, dated December 10, 2012. The appellant's evidence at reconsideration was that: • In the summer of 20-12 he and his wife were living in Community A. He was largely confined to a wheelchair by his arthritis, and his vvife was suffering from clinical depression. The appellant obtained employment with a hotel in Community C in August, 2012, and moved in temporarily with his brother-in-law whose residence was in Community B, about a 45 minute drive from the hotel in Community C • The employrnent with the hotel ended October 1:7., 2012. On October 3·1, 2012 the appellant was offered employment as an on-line customer care professional. When the appellant enquired of his new emplcyer whether he could work from his home i11 Community A, he was told that he had to be based in the region where Communities B and C are located. • As an on-line customer care professional thr, appeJl;nt's training wage would gross approximately $1,680 per rnontll. After an 8 week 1ra,ning period his wage would increase to a monthly gross of approximately $1,812. The proposed income would more than double the income of the family unit. -·--------------------------------------------~ EAA T003( 10/06/01 !
IA PPEAL# I ~------------------------------------------------------, • Rent in Community C would be less than half the rent in Community A. • Being able to wc1.lk again, and to work to help to provide financially for his family, has encouraged the appeilant to "take part in the financial responsibility of providing for his family" and to look forNard to "achieving financial independence while wor!{ing and living in [Community C]." Al the appeal hearing the appe!!ant submitted the following documents: • A Release of Information forrn dated August 28, 2013 authorizing an advocate to represent the appellant; • A 4 page type-written submission; e A copy of a previous decision of a tribunal panel dealing with the app,c,llant's request for a moving supplement; and • A letter from the appellant's physician, dated January 11, 20-13, reconfirming the information that had been included in his previous letter of November 29, 2012. The letter went on to state that in the wetter envirnnment of Community A, the appellant's arthritis was worse which required the appellant to use a wheelchair for rnobi!ity. Prolonged periods in the wheelchair put the appellant at risk of falling when he had to get up to use the bathroom etc. Because of his weight of 385 pounds his risk of fractures from falling "is markedly increased." The physician stated that "It is imperative from a medical perspective that [the appellant] live in a drier climate whicl1 vviil enhance his ability to be more mobile, reduce tl1e pain and stiffness of his joints and improve the chance to reduce his wei9ilt whicl1 will also reduce stress through these joints." The panel accepted the Release of Information as a procedural matter. The type-written submission and the previous tribunal decision 1v,~re accepted by the panel as legal mgument. The ministry advised the panel that it had no objection to admission of the physician's letter of January 11, 2013. The panel determined that the physician's letter provided rnore detail with respect to the effects of climate on the appe!lani's pl,ysical health that had been identified in the physician's previous letter of November 29, 2012. Accordingly, the p9.nE,I accepted the more recent letter as written testimony in support, in accurdanDe with o;()<~cion 22(4) of the Empioyment and Assistance Act. The appellant's oral evidence on appeal included the following information: • The appellant said that he had advised the ministry in July that he would be moving to Community 3 (empor3r:ly to s,se how employment at the hotel would work out for him. He stated that the ministry had unilarerally moved his fie to the ministry office in Community C in October 2012, prior to the appellant ,T,oving his household there. • The appellant stated that he did not rncve to Cornrrn,nity C before he had confirmed ernpioymem. He was 1n Community C alone his wi'i'e and hc,us&hold goods were still in Community A. He'd been advised by the ministry that he'd have an answer from the ministry b December 24tc withrespect to his request for the movin su• plement. He'd accordin I EAAT 003( 10/06/0 I)
arrall!]ed for the ;;:;o,ietolake place on~°f)ecember 28 been in the ministi-y',3 office in Communily ,t>,. that no decision llad been m;Jde yet Tt1,3 appellant stated that lie wasn't advised of the ministry's reconsideration decision denying the moving supplement until December 2?'h, 2012. • He stated that Bfter ccrning to the new cornrnunity his arthritis improved to the point where he was spending much less time in his wheelchair. since moving there, with the second one be:ng sufficiently serious that he is effectively confined to his wheelchai1· again at present. The panel assessed the appellant's oral t~vidence as providing aclditional detail with respect to information that had previous:y been oefore the rninistry. testimony in support of the informaton and recorc/_, that were before thd ministry at the time of reconsideration, in accordance with section 22(4) of the Employment and Assistance Act. The ministry rnlied on it;:; rec,.,nsideralion decision c1nd prmided no new information. ---~---------------EAAT003(10/06101) [APPEAL# 1 h, 2012. The appellant 8dvised that he'd th at 4:00 pm on December 24 and had been told He said that Ile has, however, had 2 falls Accordingly, the panel accepted it as oral
PART F Reasons for Panel Decision The issue on appeal is the reasonableness of the ministry's December 24, 2012 reconsideration decision in which the ministry determined that the appellant was not eligible for a supplement for moving costs as provided ins. 55 of i:he E/-1f.:>WOR. The relevant legislation is as follows: EAPWDR Confirmed job supplement 54.1 The minister may provide a supplement of up to a maximum of $1 000 to or for a family unit that Is eligible for disability assistance or hardship assistance if (c1) a recipient in the family unit obtains confirmed employment that, in the opinion of the minister, wiil enable the family unit to become independent of disability assistance or hardship assistance, Supplements for moving, transportaticm and living costs 55 ( 1) In this section: "moving cos;t" means the co.st of moving a family unit and its personal effects from one place to another; (2) Subject to subsections (:3) and (4), the minister may provide a supplement to or for a family unit that is eligible for disability assistance or hardship assistance to assist with one or more of the followin9: (a) moving costs required to move anywhere in Canada, if a recipient in the Family unit i.s not working but has arranged confirmed employment that would significantly promote the financial independence of the family unit and the recioient is required to move to begin that employment; (b) n°oving costs required to move to another province or country, if the family unit is required to move to improve its living circumstances; (c) moving costs required to move within a municipality or unincorporated area or to an adjacent municipality or unincorporated area because the family unit's rented residential accomn~odation is being sold or demolished and a notice to ·,;acate has been given, or has been condemned; (d) moving costs required to rnove v;ithin a municipality or unincorporated area or to an ,1dj2cent municipaiity o,· unincorporated area if the family unit's shelter cosLs wou;d be significantly redwced as a result of the n1ove; (e) moving rnsts required to move to another area in British Columbia to avoid an icnminent threat to (he physical safety of any person in tl1e family unit; _____( ~3~)_A_f_a_m_ilt'_1Jnit is 'c'!ig_ible for a su_12olernent under this 5,,,ction cnl if !=AATon1t1 O/Ofi/01 i
I APPEAL# (a) there are no resources available to the family unit to cover the costs for which the supplement may be provided, <:ind (b) a 1·f,cipient in the family unit r·eceives the minister's approval before incurring thost~ costs. ( 4) A supplement may be prnvidet1 under this section only to assist with (a) the cDst of the least expensive appropriate rnode of moving or transportation, and (b) in the case of a supplement under subsection (2) (f) or (g), the least expensive appropriate living costs. EAPWDR Schedule B Deductions from earned income 2 The only deductions permitted from earned income ar·e the following: (a) any c;mount de,:1ucted at source for (i) income tax, (ii) employment insurar.ce, (iii) medical insurance, (iv) Canada Pension Plan, (v) superannuation, (vi) company pension plan, and (vii) union dues; Calendar month exemption earned incc,me 3 (1) Subject to subsections (2) ancl (2.1), the am•)unt of earned income calculated under subsection (3) is exempt for· o family unit.. (3) The exempt amount for a family ur:it that qualifies under this section is to be calculated as follows: ... (b) in the c2se of a family unit that includes two recipients who are designated ilS p2rso~s vvith disabilities, the exempt amount is ca!culated as the lesser of (i) $1 600, and (ii) the family unit's total earned income in the calendar month of cafcuiation. * * The appellant's position: The appellant argued that the minist1-y's reconsideration decision was unreasonable, as he had met the statutory criteria for EAPVVDR sections 55(2)(a) and 55(2)(e). He advanced no argument regarding sections 55(2)(b), (c) or (d) ~-------------·-. -----------------·-· EAA T003( 10/06/01)
[ />.PPEA.L I! With respect to section 55(2)(a), the appellant said that at the time he applied for the moving supplement he had confirmed employment in Commun ty C. The appellant argued that in accordance with. the principles of statutory interpretation, the words "promote" and "financial independence" in the les1islation indicate that !he appel!ant's projected income from the confirmed employment had to be sufficient to support or further the appellant's financial independence broadly, not to immediately reduce or eiiminate l,is reliance on disability assistance as had been found by the ministry in its reconsideration decir;ion. Alternatively the appellant argued that even if the legislation is to be interpreted a;; na:TOw/y as thD ministry has done, the criterion is satisfied because the projected income from his empioyrnent wouid significantly increase the income of the family unit, likely leading to less financial reliance on the ministry for supplements in the future. He also argued that the ministry foiled to consider that the app,:;;ilant's income would likely increase from its initial level, thereby reducing his reliance on disability assistance. Finally, tl1e appellant argued that based on the definition of "moving cost" in section 5'.i(1), he did not move until December 28, 2012, after he had already provided ~he evidence to the rnirnstry to demonstrate his eligibility for the moving supplement. He said that h8 ·Nas required to move for the confirmed employment and that he had no other resources to pay for the mo-.;e. With respect to section 55(2)(e), the appellant argued that the physician's letter of January 11, 2013 shows that the move to Community C was required to avoid an imminent threat to the appellant's physical health in the fo;m of pain, reduced mobility, and falls/fractures. He said there was evidence at reconsideration indicating th.;1t the move ·v1Jouid be beneficial for the health of both the appellant and his wife. Accordingly, he said, the ministry's decision on this provision was not reasonably supported by the evidence. The ministry's position: The ministry's position is that the s:ppe!lant does not satisfy the legislative criteria for any of the EAPWDR sections 55(2)(a) tr•i-cugh (,~). Regarding section 55(2)(a), the ministry said that progression toward financial independence can be gauged by the reduction of reiiance upor; disability assistance, bd acknowledged that it had no written policy with respect to (he intupretation of the term "significantly promote the financial independence of the family unit." The rnii1ist1y said U 1 at after the deductions from eamed income identified in section 2 of Schedule B of the EAP\f\/DR, the appellant's pmposed monthly net income would be !ess than the $'1 ,600 ean1,3d income exemption provided by section 3 of Schedule B. Accordingly, the ministry argued, the move would rot si~1nificantly promote the financial · independence of the appellant's family unit The ministry a!so stated that the appellant had moved to Community C prior to obtaining Hie ,cn1ployment, so that Hie appellemt was not required to move in order to begin his ernp,oyment Regarding section 55C:21(h), tr,• m:nisrry said :llat the 2,ppellant had not demonstrated that he required a moving supplement to r:1riv8 to anr:ther prnvir·ce or country to i'11prove his living circumstances. Regarding section 55(2)(c), the rninisiry said th2,t the appn:iant had not demonstrated that he was movin witl1in a rnL1i:;_i:;j£a_~ty_:JfJciiiir1_cc;ff)_orat§d area or y:i clrl adjacent 111ursicj12alit or unincor orated !=AATnn~t1 n/OR/;11)
I . A PF )C ~r ' , I . . . , : t , -~---------·-·~--------·--------------·------------·----·--·---------------c---:------, area because his rental accommodation was being sold, dernolishf,cl or condemned and notice to vacate had been gi\/en. · Regarding section 55(2)(cl), ti1e ministry said that the appeiiant has not demonstrated that he was moving within a municipality or unincorporated area or to an adjacent municipality or unincorporated area because his shelter costs would be significantly reduced as a result of the move. Finally, regarding section 55(2)(e), 1he ministry said that there was 110 evidence of an imminent threat to the physical safety of the appellan\'s spouse, and that since the appellant's arthritis is a chronic health condition it is not an "imminent physical sr1foty i"isk." The ministry did not dispute that the appellant could not afford to pay the moving costs, and acknowledged that the appellant had indicated he had not incurr&d the moving costs for which he requested the movinG s,1pplernent at the time of the reconsideration decision. The panel's decision: Section 55/2){!:I).-There are four elements to t!1is provision. The first is that the proposed move must be to "anywhere in Canada." There is no dispute that Community C is within Canada, so the panel finds that the first element is satisfied. The second element is /.hat "a recipient in the family unit is not working but has arranged confirmed employment". At the time the appellant requested the moving supplement and received the original denial, he had confirmed employment as an on!ine customer care professional, evidenced by the offer of employment dated October 31, 2012. The evidence shows the appeliant was not working at the time as his empioyment with the hotel had ended on October 12, 2012, and his new employment would not commence urtil December 10, 20i2 According!y, the panel finds the second element is satisfied. The third eiement is that the confirmed employment "would significantly promote the financial independence of the rc1mi!y unit." In the r,snel's view, section 55('2)(a) must be read harmoniously with section 54.1, having regard to U1e object of the legis/a'ive scheme as a whole. Both sections deal with the situation where an app!isant has confinned empioyment. When section 55(2)(a) speaks of "financial independence", it is referl"ing back to the "independence from disability assistance or hardship assistance" identified in section 54.1. The test in section 54.1 is higher than the test in section 55(2)(a), in that t requires the confirmed employment to enabl•~ complete independence from disability assistance as oppc.sed to jL<st significant!/ promoting financial independence as specified in section 55(2)(a). Tile evidence inclicates that the appellant's net income as an on line customer care professional would be less th,m the e.3rned income exemption, and so would not diminish the family unit's reliance on c:is,,bi/ity a,;s:sta1ce. Even if, as argued oy the appeilEint, one assumes that the appellant's income wcu!d inc;-ease ato•-1e hls in't'a! ral-ci, thf.re is no evider:ce before the panel to indicate that the increase wc:Jid be Df an amount tr,at could reasom1biy be said to "significantly" promote the family unit's financ'al in,;apendence. !n the panel's ,iew, the speculation thatthe a ellant's earned income rr,ai,:reduce t:·1e family unit's reliancs on other S'Jf)_21ements is not sufficient EAA T003( 1Of06l01)
~--~-----------···-------·-~·------~·-· --to "significantly promote" finnncial independence. Accordingly, the panel finds that the third element of section 55(2)(a) V✓8.s not safsfied. Finally, the fourth e!ement is ih,,t "/he recipient is roquirecl to move to begin" the confirmed employment. The ministry hnd com,:uded that the appellant had already moved to Community C before commencin:J hi:, empk,y,nent as 311 online customer ca1-e orofessional, taking this to mean that the appellant was not required to mov(~ in order to commence the employment. The evidence, in context with the definition of "moving cost" in section EAPVVDR section 55(1 ), indicates that the appellant did not move his household lo Community C •-as requirnd b\t the employer until after he had commenced ernplo1r.-:1ent in Dec•cm1ber, 2012. The panel finds that the fourih element of section 55(2)(a) was satisfied. Based on the foregoing 2nalyc;is, pa:"ricularly with r,3spect to the third r:,lement of section 55(2)(a), the panel finds the ministry was r0asonable in concluding that +he legislative criteria of EAPWDR section 55(2)(a) we1·e not satis/ie,t Sections 55(2)(b), /c) and (d) •·T:·,e panel finds th;it the ministry reasonably concluded that the appellant did not c/ernons!'rata that he satisfied the criteria of section 55(2)(b), as he was requesting a supplement to move within BC rather th,m to "another province or courtry''. VVith respect to sections 55(2)(c) and (d), the panel finds !!,at the ministr; reasonably determined that the appellant did not demonstrate that he satisfied the criteria for those provisions, since Community C -· being approximately a 4 hour drive from Community i\ -is not "within" or "adjacent to" Community A. Section 55Cfl~.l in the prnY 0 l's view, the word 'imminent" implies a degree of immediacy to the threat of physical safoty ti1at is not supported by t~,e evidence in this case. Tilt• panel notes that the physician's letter of Nove,nber 29, 2012 refRrred to the c!im2te in Community C as merely being "less problematic" for the ap~e:l,rnt's rn":hritis. The risk of fails a1 1 d fr<1ctures was not raised until after the appellant had rece'ved th=> reccnsid",ration decision. In the panel's view, if the risk of falls, fractures, and serious injuries had been of primary concHn, the physician would more likely than not have expressly said so in the November 29, 2012 letter. Instead, the November 29, 2012 letter gives the impression that the physician's main concerns were increased arthritic pain and reduced mobility if the appellant stayed m Comrnunity ,£,,. The letter of Janua1y 11, :,'Qi 3 also suggests a move to Community C's climate woulc "improve the chance to reduce [th,:: appellant's] weight. In the panel's view arthritic pain, reouced mobii:ty, ,:;ncJ ova-weight aren't :3uffic:ent to coPstitute an "imminent threat to the physical sc.1fety'' m: cont,,rr.pla'.::xJ by the legi,:iativ0 !angu.::.ge. Accordingly, the panel finds that reading the !vJo . 1 e,tcrs /qJether, f:l:e\' do no; sui:port ihe aP,:ei!ont's pos1t!cn th,1t his physical safety wou Id more I ,i · . , s :E: I I / -. r , :-1 c:n nn · t' :. ·}a . E l'it'",E< ' > 3 ' L e ' : y t·nor ' 1 ;·1gf:1reo ' i · r' 1 1s c. 1 1 · c I nor " n1cve-~o C ~ .:-Jmrnuni · 1 y C . Also, section :i5(2J(ej requires thst the rnove be to "svoici" an imminent threat. In the panel's view, the word "avoid" doer,n't mean that there must be 100% certairit\1 that the threat to physical safety will be circumvented it is cr,ourh if-Jie risk is si:-Jnific,,nt!y reduced. Despite the physician's statement in his January 11, 20·: 3 iette,· :r,at the r,sk of 'ractures and serious injuries would be markedly increased ir, Cornmur :ty A. there 's no cvidc,11c0 before ihe paned that the appellant had suffered fractures or serious ir,juries ie C0rnnvmity /,, whi:e <iccor·dirg to the appellant's oral evidence on a eal he_il_a;;__h,1d 3t !e?,;t "'Ir) _fa'_I~ ir, Cort fl1'.1'71!y_ c;,u10J,te'.3t_()f_l!!hit:}!_'(•(',$_ ~L~ff__iC:~iJt!\I__ serious_t_o_~ EAAT 003( 10/06/01 I
,--,-.--~----~---··-----·----____ ___.c __ --------·-· --------·-~--------------have effectively confined him fo his wheelchair. Tl;is evidence, in context with ti1e panel's conclusion about the contents of th,3 two letters from the physician, indirectly supportt; the ministry's conclusion that the appellant i1ad not demonstrntec! that an imiTinent threat to pl1ysical safety would be avoided by the move to CotTrnunity C. There is no evidence before the panei to suggc:st that li•iing in Community i\ posed an imminent threat to the physical ,;afety of the:, appe!iant's spotE,e. Based on the evidence, the panel finds that the ministry re2sonably concluded that the criteria of section 55(2)(e) v.rere not sati,,hed. Conclusion For the reasons detailed above, the panel finds that the ministry decision was a reasonable application of the legii;lation in the drcumstances of the appe!!ant. Accordingly, the ministry decision is confirmed. ~-----------···---·-···---·------------·--------EMT 003( 10/06/01)
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.