r APPEAL# PART C Decision under Appeal The issue under appeal is the Ministry of Social Development and Social Innovation's (the ministry's) reconsideration decision dated September 18, 2013, which found that: The appellant was not eligible to claim her 3 children as "dependants" on her disability assistance file for the period of December, 2011 to October, 2012, as her children did not meet the definition of "dependent child" as per section 1 of EAPWDA, which defines "dependent child" as one who resides in the parent's place of residence for more than 50% of the time. As a result, the appellant received income assistance for which she was not eligible (an overpayment) which she must repay to the ministry, as per EAPWDA sections 14.1, 18 and 19. The appellant was not eligible for shared parenting assistance under section 4(1) of Schedule A ofEAPWDR. The appellant received a sanction of $25.00 for 3 consecutive months (which would be deducted from her disability assistance) due to her failure to provide accurate information when she applied for dependent benefits, as per section 28.1 of EAPWDR. PART D Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA) Section 1 Interpretation of "dependant", "dependent child" and "family unit" Sections 3, 10, 14.1, 18 and 19 Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) Sections 1( 2) and 28.1, Schedule A Sections 1, 2 and 4 EAAT 003(10/06/01)
I APPEAL# I PART E Summary of Facts The appellant has been a recipient of disability assistance since Dec. 16, 2008. In May, 2013 an Investigative Officer (10) from the ministry began an eligibility audit on the appellant's file. The 10 requested, then eventually received and reviewed documentation submitted by the appellant, including custody orders. The IO's mandate was to review the dependent status of the appellant's 3 children, when they were included on her file from Dec., 2011 to Oct., 2012. The evidence before the ministry at the time of the reconsideration decision included: 2000-OCT Custody Order stating that appellant's 3 children will be with her for more than 50% of the days in a month. 2003-JUL Y New Custody Order which states that appellant's 3 children are with appellant alternate weekends and holidays only, less than 50% of the days in a month. 2011-DEC. 7 -Appellant submitted to ministry the custody order from 2000 (not the most recent one from 2003) which added her 3 children to her disability assistance file as dependants. 2013-MAY 15, MAY 30 and JUNE 18-10 sent letters to appellant requesting, but not receiving, the following information for the purpose of auditing her eligibility for assistance: 1.) ID (S.I.N.) 2.) Current rental agreement, rent receipt and utility bills 3.) Bank Account statements 4.) Employment statements/pay stubs 5.) Records of Employment 6.) Court/Custody Documents (most recent) 7.) Written statement(s) of childcare agreement, dated and signed by both appellant and the children's father 2013-JUNE 18 As the requested documents were not received by the ministry deadline, appellant's check production ceases. 2013-JULY 19 All available requested documents were submitted by appellant, including the updated custody order from July, 2003. Appellant's check production resumes. 2013-JUL Y 26 Appellant met with 10 in-person, and was informed of the results of the audit. The review of the most recent custody order, dated July, 2003, shows that since July 22, 2003, appellant has had specified access to the children every second weekend from 5:15 p.m. Fridays to 7:30 p.m. Sundays. If the Friday of the access weekend is a holiday, such access will commence at 5:15 p.m. on Thursday and if the Monday is a holiday, such access will end at 7:30 p.m. on Monday. The EAPWDA states that a "dependent child" is one who resides in the parent's place of residence for more than 50% of each month. The 10 found that the appellant cannot claim her children as "dependent children" because, accordinc:i to the 2003 custody order, the total number of specified EAA T003( 10/06/01)
I APPEAL# access days the appellant has with her 3 children do not add up to the required 50% of the days in a month. Thus, the appellant did not have the children for enough days per month to claim them as "dependants". As a result of these findings, the 10 assessed that because of the appellant's inaccurate reporting, she received an overpayment of $5862.26 for the period of Dec., 2011 -Oct., 2012 (Dec., 2011 was when the 3 children were added to her file), which she must repay to the ministry. In addition, under Sect. 28.1 of the EAPWDR, a sanction was applied to the appellant's file in the form of a monthly reduction of $25.00 each month, imposed for 3 successive months, beginning on her Sept., 2013 assistance check. 2013-SEPT. 5 Appellant requests reconsideration. 2013-SEPT.18 Reconsideration decision rendered. In her Notice of Appeal, the appellant stated, "The ministry is only going on a court order that is 10 years old and it does not follow what has actually happened in the last 10 years." She maintains that despite the 2003 court order, she has had her 3 children at least 50% each month. Not only has she kept records to prove this claim, she submitted 3 supporting letters written by friends/neighbours, all of which were submitted to the ministry on Sept. 5, 2013, as supporting evidence for reconsideration. The submitted written records detailing how many days and nights per month the appellant had her children with her between Dec., 2011 and April, 2013 was provided as a notation to the school calendar and was not signed/verified by the children's father. According to a note written in her file, which was orally confirmed by her at the appeal, the appellant was not able to get him to sign the records, as he is uncooperative and hostile toward her. It is for this reason she has been reluctant to reapply for a custody order that reflected their actual custodial arrangements. She also stated that he could stand to lose financial benefits himself if he admits to the accuracy of her claims. The appellant described an incident (taken from reconsideration decision) that exemplifies the difficulties she has communicating with the children's father. In Nov., 2012 the appellant was at her daughter's school with the father for a meeting regarding an issue with the daughter. After the meeting, the appellant discussed shared custody with the father. He got mad and as a result, took holiday time with the children away from the appellant. In its reconsideration, the ministry concurred with the !O's findings that the appellant received $5862.26 of assistance for the period of Dec., 2011 to Oct., 2012 for which she was not eligible (an overpayment), based on its determination that the eligibility requirements for her children's status as dependants had not been met. The ministry cited the conditions of the July, 2003 custody order as a , basis for determining that the appellant's children did not reside with her for more than 50% of the I time every month. The ministry acknowledges the records submitted by the appellant listing the amount of days each month her children stayed with her in 2011 and 2012, as well as the letters from 3 friends/neighbours corroborating her custody claims, but does not comment further on them. The ministry also found that the appellant failed to meet the eligibility requirements for shared parenting assistance under Schedule A, section 4(1 ), because the children do not reside with the appellant for a minimum 40% of the time, as oer her Julv, 2003 custody order. EAA T003(10106101)
I APPEAL# In its reconsideration, the ministry also relied on the following statement recorded by the 10 in her report, "On September 29, 2012, you (appellant) advised the ministry that you were not the custodial parent and should not have had the children on your file, but you needed the money". When questioned by a panel member at the appeal, the appellant denied making this statement to the ministry. In the ministry's decision, it is written that the appellant failed to provide information from the children's father to confirm that she had custody of the children from Dec., 2011 through to Oct., 2012 that differed from the 2003 custody order. The 10 noted on the document dated May 30, 2013 that the appellant could not get the children's father to sign the records on the school calendar which she kept for listing the actual amount of days each month their children stayed with her in 2011 and 2012. In addition, the ministry determined that, because the appellant failed to provide accurate information when she submitted the 2000 custody order instead of the updated July, 2003 custody order when she requested disability assistance as a single recipient with 3 dependent children, the appellant was correctly assessed a sanction of a $25.00 reduction to her disability assistance for 3 successive calendar months. At the appeal, the ministry representative provided a 3 page document entitled "Ministry of Social Development and Social Innovation" to the appellant and to the panel members. The document was a summary of the information the ministry relied upon within the reconsideration decision, as well as a copy of pg. 2 of the overpayment chart which was missing from the appeal package. Otherwise, no new information was submitted. This information provides more detail with respect to issues that were before the ministry at the time of reconsideration. Accordingly, the panel admitted it into evidence as being information in support as per section 22(4) of the Employment and Assistance Act. Procedural Issue: At the hearing the panel consisted of 3 members. Before the panel's final decision was rendered, 1 panel member resigned. The panel's decision was ultimately made by the 2 remaining panel members. EMT 003( 1 0/06/01)
IA PPEAL# PART F Reasons for Panel Decision The issue under appeal is the Ministry of Social Development and Social Innovation's (the ministry's) reconsideration decision dated September 18, 2D13, which found that: The appellant was not eligible to claim her 3 children as "dependants" on her disability assistance file for the period of December, 2D11 to October, 2012, as her children did not meet the definition of "dependent child" as per section 1 of EAPWDA, which defines "dependent child" as one who resides in the parent's place of residence for more than 50% of the time. As a result, the appellant received income assistance for which she was not eligible (an overpayment) which she must repay to the ministry, as per EAPWDA sections 14.1, 18 and 19. The appellant was not eligible for shared parenting assistance under section 4(1) of Schedule A ofEAPWDR. The appellant received a sanction of $25.00 for 3 consecutive months (which would be deducted from her disability assistance) due to her failure to provide accurate information when she applied for dependent benefits, as per section 28.1 of EAPWDR. The relevant legislation is as follows: Employment and Assistance for Persons With Disabilities Act (EAPWDA) Interpretation 1. ( 1) In this Act: "dependent", 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 responsibility for the person's dependent child; (B.C. Reg. 193/2006) "dependent child", with respect to a parent, means a child, other than a child who is I 8 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); "family unit" means an applicant or a recipient and his or her dependents; Eligibility of Family Unit 3. For the purposes of this Act, a family unit is eligible, in relation to disability assistance, hardship assistance or a supplement, if (a) each person in the family unit on whose account the disability assistance, hardship assistance or supplement is provided satisfies the initial and continuing conditions of eligibility established under this Act and the regulations, and (b) the family unit has not been declared ineligible for the disability assistance, hardship assistance or supplement under this Act or the regulations. Information and Verification 10. (]) For the purposes of (a) determining whether a person wanting to apply for disability assistance or hardship assistance is eligible to apply for it, EAA T003(10106101)
I APPEAL# (b) determining or auditing eligibility for disability assistance, hardship assistance or a supplement, (c ) assessing employability and skills for the purposes of an employment plan, or (d) assessing compliance with the conditions ofan employment plan, the minister may do one or more of the following: (e) direct a person referred to in paragraph (a), an applicant or a recipient to supply the minister with information within the time and in the manner specified by the minister; (f) seek verification of any information supplied to the minister by a person referred to in paragraph (a), an applicant or a recipient; (g) direct a person referred to in paragraph (a), an applicant or a recipient to supply verification of any information he or she supplied to the minister. (2) The minister may direct an applicant or a recipient to supply verification of information received by the minister if that information relates to the eligibility of the family unit for disability assistance, hardship assistance or a supplement. (3) Subsection (I) (e) to (g) applies with respect to a dependent youth for a purpose referred to in subsection (I) (c) or (d). (4) If an applicant or a recipient fails to comply with a direction under this section, the minister may declare the family unit ineligible for disability assistance, hardship assistance or a supplement for the prescribed period. (5) If a dependent youth fails to comply with a direction under this section, the minister may reduce the amount of disability assistance or hardship assistance provided to or for the family unit by the prescribed amount for the prescribed period. Consequences for providing inaccurate or incomplete information 14.1 (I) The minister may take action under subsection (2) if the minister determines that (a) disability assistance, hardship assistance or a supplement was provided to or for a family unit that was not eligible for it, (b) the disability assistance, hardship assistance or supplement was provided to or for the family unit either (i) on the basis of inaccurate or incomplete information provided by the applicant or recipient (A) under section 10 (1) (e) [information and verification}, or (B) in a report under section 11 (I) [reporting obligations], or (ii) because the recipient failed to report as required under section 11 (I), and (c) in the minister's opinion, the applicant or recipient failed to take the necessary steps to ensure the accuracy or completeness of the information before providing it to the minister. (2) In the circumstances described in subsection (1), the minister may reduce the disability assistance or hardship assistance provided to or for the family unit by the prescribed amount for the prescribed period. (3) The periods prescribed for the purposes of subsection (2), may vary with the number of determinations made under subsection (I) in relation to a family unit. (4) If a family unit that is subject to a reduction under section 15.1 of the Employment and Assistance Act qualifies for disability assistance or hardship assistance under this Act before the period prescribed for the purposes of section 15.1 (2) of that Act expires, the reduction is deemed to have been imposed under subsection (2) of this section. (B.C. Reg. 193/2006) 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 (I) is not appealable EAAT 003( 10/06/01)
I APPEAL# under section 16 (3) [reconsideration and appeal rights]. Liability for and recovery of debts under Act 19. (1) An amount that a person is liable to repay under this Act or the regulations is a debt due to the government that may be (a) recovered in a court that has jurisdiction, or (b) deducted, in accordance with the regulations from any subsequent disability assistance, hardship assistance or supplement for which the person's family unit is eligible or from an amount payable to the person by the government under a prescribed enactment. (2) Subject to the regulations, the minister may enter into an agreement, or accept any right assigned, for the repayment of an amount referred to in subsection (I). (3) An agreement under subsection (2) may be entered into before or after the disability assistance, hardship assistance or supplement to which it relates is provided. (4 ) A person is jointly and separately liable for a debt referred to under subsection (1) that accrued in respect of a family unit while the person was a recipient in the family unit. Employment and Assistance for Persons With Disabilities Regulation (EAPWDR) Definitions 1. (2) For the purposes of the Act and this regulation, if a child resides with each parent for 50% of each month under (a) an order of a court in British Columbia, (b) an order that is recognized by and deemed to be an order of a court in British Columbia, or (c) an agreement filed in a court in British Columbia, the child is a dependent child of the parent who is designated in writing by both parents. Consequences for providing inaccurate or incomplete information 28.1 If the minister determines under section 14.1 (1) of the Act that the minister may take action under section 14.1 (2) of the Act in relation to a family unit, the disability assistance or hardship assistance provided to or for the family unit may be reduced by $25 for (a) a first determination, for the next 3 calendar months for which disability assistance or hardship assistance is provided to or for the family unit, starting with the first calendar month (i) following the calendar month in which the minister made the determination, and (ii) for which disability assistance or hardship assistance is provided to or for the family unit, (b) a second determination, for the next 6 calendar months for which disability assistance or hardship assistance is provided to or for the family unit, starting with the first calendar month (i) following the calendar month in which the minister made the determination, and (ii) for which disability assistance or hardship assistance is provided to or for the family unit, and (c) a third or subsequent determination, for the next 12 calendar months for which disability assistance or hardship assistance is provided to or for the family unit, starting with the first calendar month (i) following the calendar month in which the minister made the determination, and (ii) for which disability assistance or hardship assistance is provided to or for the family unit. (BC Reg. 193/2006) SCHEDULE A -Disabilit Assistance Rates Section 24 a EAAT 003(10/06/01)
I APPEAL# Maximum amount of disability assistance before deduction of net income 1. (1) Subject to this section and sections 3 and 6 to 9 of this Schedule, the amount of disability assistance referred to in section 24 (a) [amount of disability assistance] of this regulation is the sum of (B.C. Reg. 197/2012) (a) the monthly support allowance under section 2 of this Schedule for a family unit matching the family unit of the applicant or recipient, plus (b) the shelter allowance calculated under sections 4 and 5 of this Schedule. (2) Despite subsection (1 ), disability assistance may not be provided in respect of a dependent child if support for that child is provided under section 8 (2) or 93 (1) (g) (ii) of the Child, Family and Community Service Act. (B.C. Reg. 197/2012) Monthly support allowance 2. (1) For the purposes of this section: "deemed dependent children", in relation to a family unit, means the persons in the family unit who are deemed to be dependent children under subsection (5); " maximum adjustment", in relation to a family unit, means the amount the family unit would receive for a calendar month as the national child benefit supplement if (a) the family unit were entitled to receive the national child benefit supplement for the calendar month, (b) the income of the family unit, for the purposes of calculating the national child benefit supplement, were zero, and (c) all dependent children and all deemed dependent children in the family unit were qualified dependents within the meaning of the Income Tax Act (Canada); "warrant" has the meaning of warrant in section 14.2 [consequences in relation to outstanding arrest warrants] of the Act. (B.C. Reg. 73/2010) (B.C. Reg. 197/2012) (1) A monthly support allowance for the purpose of section 1 (a) is the sum of (a) the amount set out in Column 3 of the following table for a family unit described in Column 1 of an applicant or a recipient described in Column 2, plus (b) the amount calculated in accordance with subsections (2) to (4) for each dependent child in the family unit. (B.C. Reg. 197/2012) TABLE Item Column 1 Column 2 Column 3 Family Unit Composition Age or Status of Applicant/Recipient Amount of Support 1 Sole applicanVrecipient and no ApplicanVrecipient is a person with $53142 dependent children disabilities 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. (B.C. Reg. 73/2010) (2) The monthly shelter allowance for a family unit to which section 14.2 of the Act does not apply is the smaller of EAA T003(10106101)
I APPEAL# (a) the family unit's actual shelter costs, and (b) the maximum set out in the following table for the applicable family size: (B.C. Reg. 73/2010) TABLE Item Column 1 Column Family Unit Size Maximum Monthly Shelter 1 1 person $375 The position of the ministry, as set out in the reconsideration decision, is that the appellant inaccurately claimed her 3 children as dependants on her Dec., 2011 through to Oct., 2012 disability assistance, thus receiving $5862.26 (overpayment) for which she was not eligible. The ministry determined that on Dec. 7, 2011 the appellant submitted her Oct., 2000 custody order instead of the more recent July, 2003 CO to the ministry. Under the terms of the July, 2003 CO, the appellant received custody of the 3 children for less than the 50% of the days in a month that is required to qualify them as "dependants", as per EAPWDA Sect. 1. The appellant is also not eligible for shared parenting assistance under section 4(1) of Schedule A of EAPWDR. As a result of these findings, the appellant must repay the $5826.26 to the ministry, as per EAPWDA, Sect. 18. As this was the appellant's first determination for failing to provide accurate information to the ministry, she received a sanction of a $25.00 reduction to her disability assistance for 3 calendar months beginning Sept., 2013, as per EAPWDR, Sect. 28.1. The appellant's position is that the ministry is relying solely on the custody order from July, 2003, which does not give her custody of her 3 children for the 50% of the days in a month required to deem them "dependants". She maintains that despite what the court order states, the reality is she did have the 3 children in her care for at least 50% of the days per month in the time period Dec., 2011 through to Oct., 2012. She submitted records indicating specifically which days she had the children from Sept. 2011 to June 2012, as well as 3 corroborating letters written by friends/neighbours, to the ministry for reconsideration. The appellant was not able to get the children's father to sign her records of when she had the children for the time period in question. She stated that not only is he uncooperative and abusive, he could possibly stand to lose financial benefits himself if he admits to the accuracy of her claims. The appellant does not dispute the !O's findings that she submitted an outdated 2000 custody order instead of the more recent 2003 CO to the ministry, and, therefore, accepts the sanction of a $25.00 reduction to her disability assistance for 3 successive months. EAAT 003(10/06/01)
I APPEAL# ('con't Part F Reasons for Panel Decision) Panel Decision: The evidence indicates that the July, 2003 custody order is the only existing legal document that specifies the exact days per month in which the appellant has custody of her 3 children. In this document, the number of specified days per month she has custody of the children does not add up to the 50% required to define them as "dependants", nor the 40% required to be eligible for shared parenting assistance. The ministry appears to have relied on this 2003 document alone to make the determination that the appellant was unable to claim her 3 children as dependants for the period of Dec., 2011 through to Oct., 2012, as per EAPWDR, Sect. 1. The ministry has also determined that, based on this document, the appellant is not eligible for shared parenting assistance under section 4(1) of Schedule A of the EAPWDR. The panel accepts the statements by the appellant that any attempts by her to update custody records with the children's father to more accurately reflect how many days the 3 children were/are actually with her every month, were met with lack of cooperation and hostility. The panel, however, notes that the appellant failed to deliver the specific documentation requested by the ministry that indicated custody arrangements that differed from the most recent custody order (2003). The onus was on the appellant to provide accurate documentation to support her application to add her children as dependants, or to be eligible for shared parenting assistance, and she did not adequately comply, as per EAPWDA, section 10. The panel notes that the ministry acknowledged that the appellant submitted a list of the amount of days the children were with her in 2011 and 2012 in the form of school calendars, as well as the 3 corroborating letters written by friends/neighbours. These records suggest that the appellant's 3 children were in her care for at least 50% of the days per month, for some of the months in the period Dec., 2011 -Oct., 2012. The panel notes that this documentation was not provided to the 10, when supporting documentation was requested, as per section 10 of EAPWDA. In the circumstances where the appellant provided the ministry with an outdated court order and then failed to provide the ministry with the supporting documentation it requested, the panel has given little weight to the appellant's records and letters of support. The panel finds that the ministry was reasonable in its reconsideration decision that the appellant was not eligible to claim her 3 children as "dependants" on her disability assistance file for the period of December, 2011 to October, 2012, as her children did not meet the definition of "dependent child" as per section 1 of EAPWDA. The panel also finds that the ministry was reasonable in finding the appellant ineligible for shared parenting assistance, under section 4(1) of Schedule A of EAPWDR. Because the appellant received income assistance for which she was not eligible (an overpayment of $5862.26), the panel finds the ministry reasonable in requiring the appellant to repay the $5862.26 to the ministry, as per EAPWD sections 14.1, 18 and 19. EAA T003( 10/06/01)
I APPEAL# ('con't Part F Reasons for Panel Decision) With regard to the final issue, the panel finds the ministry's reconsideration decision that the appellant failed to provide accurate information to the Ministry of Social Development on Dec.?, 2011 by submitting a Custody Order from 2000, instead of the more recent 2003 Custody Order, on her Disability Assistance file, resulting in a sanction of a $25.00 reduction to her Disability Assistance for 3 calendar months as per EAPWDR, Sect. 28, was reasonably supported by the evidence and is a reasonable application of the legislation in the circumstances of the appellant. For these reasons, the panel confirms the ministry's reconsideration decision. EAA T003(10/06/01 I
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