APPEAL I PART C -Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the "Ministry") reconsideration decision dated December 9, 2013 which held that the Appellant was not eligible for disability assistance for the month of December and until such time as she returns to British Columbia ("BC") and completes her reapplication as she was absent from BC for more than 30 days pursuant to section 15 of the Employment and Assistance for Persons with Disabilities Regulation (the "EAPWDR"). The Ministry held that they were not able to give the Appellant prior authorization for the continuance of disability assistance or hardship assistance while she was absent from BC fo r more than 30 days as there was insufficient evidence to support the trip was intended for the purpose of obtaining . medical therapy that was prescribed by a medical practitioner and there were no circumstances that would support that the failure to provide prior authorization for the continuance of disability assistance was for the purpose of avoiding undue hardship as provided f o r in section 15(b)(c) of the EAPWDR. PART D -Relevant Legislation Section 15(b )( c) of the EAPWDR EAAT 003(10/06/01)
APPEAL I PART E -Summary of Facts The evidence before the Ministry at reconsideration was as follows: 1. The Ministry Request for Reconsideration form dated October 30, 2013 completed and signed by the Appellant (the "Reconsideration Form") In the Reason for Request for Reconsideration, Section 3, the Appellant's Advocate forwarded to the Ministry a comprehensive list of documents attached as Appendix "A" which detailed the Appellant's written submission and supporting documents attached as Exhibits "A" through "I." Appendix "A" was a summary of the attached exhibits and comprised of letters, faxes and an email that were written on behalf of the Appellant by her Advocate. The supporting documents also included a letter written by the family of the Appellant, as well as a Tribunal Decision that had been appealed in 2009. The Appellant acknowledged that she was leaving the country in October 2013 and recruited the assistance of a legal advocate as she was informed by the Ministry that she would not be eligible for disability assistance while she was out of the country. The Appellant advised the following: i) That she will face undue hardship if her disability assistance is denied and stated that it will inevitably result in the Appellant being evicted from her home as a result of her inability to pay her rent and disallow her from meeting her basic needs upon her return; ii) that she would also be obtaining medical treatment while out of the country, including seeing a dentist for a root canal referred by her Canadian dentist; an endocrinologist for complications to her illness; as well as a dermatologist to review the state of her rosacea; iii) that she would also be accessing yoga and massage therapy; iv) that her illness was exacerbated by living away from her parents and she was going to obtain medical treatments she would not otherwise be able to afford in BC; v) that this was a "once-in-a-lifetime trip" and that she sought prior approval well in advance and took the initiative to understand her legal rights and responsibilities; vi) that being denied disability benefits was causing her a significant amount of stress and worry while she is away. The stress was also affecting her illness direct (aggravated pain and fatigue); vii) that she has no other source of income; and viii)that any question arising from the meaning "hardship" should be resolved in the Appellant's favor pursuant to the Interpretation Act. For the hearinq, the aooellant provided the followinq additional written submission and documentary EAA T 003( 10106101)
I APPEAL# evidence: Written Submission dated January 16, 2014 by the Appellanrto the Ministry: The Appellant laid out the issue under appeal and provided the following additional information: i) The Appellant emphasized the stress the denial of her benefits caused while she was away and that she had been on anti-depressants for months and that this is undue hardship; ii) that the Appellant was threatened with eviction; iii) that the Appellant was able to avoid eviction, but that she was late in making her rent payment and now a notice of such will remain on file; and iv) that the Appellant is now in debt. The Panel would like to acknowledge that three (3) documents were faxed by the Appellant to the Employment and Assistance Appeal Tribunal that were illegible. The Panel finds that the additional evidence provided by the Appellant clarified her current situation and was admissible under section 22(4) of the Employment and Assistance Act as it was in support of the records before the Ministry at reconsideration. EAAT 003( 10/06/01)
PART F -Reasons for Panel Decision The issue is whe t h e r the Ministry's dec ision to deny whi l e she was absent from BC for more than 30 days is a reasonable application of circum stances o f the A ppellant. Section 15 of the EAPWDR states the e f fect of a recipient days in a ca lendar ye ar while section 15(a)(b )(c) outli a b l e to gi v e prior authorizati o n for the continuance of disability the followin g: 15 The family u ni t of a recipient wh o is outside of British Columbia ceases to be eligible for di s a b ili t y assis tan ce or hardship assistance unless auth o r ization for the con tinuanc e of disability assistance (a) permitt ing the recipien t to p articipate in a formal education program, (b) permittin g t he reci pient to o b t ain me dical thera (c) avoid ing undue h a rdsh ip . In de termi ning th e Ap pe llan t did not q ua lify f o r con tin c ountry, the M i n i s try concl u ded th e f o llowin g: Y ou a r e n o t eligib le for dis ab il it y assi stance fo r D e c e mber mo re than 30 d a y s, did not receiv e pr ior a pprov al, an d p la n to a ccess was p re scri b e d by a medica l p ractitioner ass istance fo r D ecember to acc omm odate an e xte nd e av oi d undue h a rdsh ip a nd not relie d on pro v in cial a s sistan c o unt ry for such a n extende d period. The min istry is not h ardship and tha t con tin u e d assis tan ce was required to me The Mi n i stry was not sa ti s fied t h e me dical therapy the Ap prescribed by a medical practitioner in BC as stipulated Min istry stated the Appellant cou ld hav e plann ed for the expense and was not satisfied the purpose of the trip was to avoid u n due hards hip pu rsuant to section 15(c) of the EAP The Appellant argued that she met the requirements in section 15 (b)(c) of the EAPWDR and submitted that she would be seeking medical therapy while away from BC and had been referred by a dentist for a root canal. The A p pellant also submitted that she intended on seeing an endocrinologis t, dermat ologis t and planned on a tte ndi The Appellant ad dit io nall y subm i tted fail u re to give authorization to leave BC for longer than 30 days · would lead to undue hard ship as she is scheduled to be away for unable to pay her rent during this time. The Appellant stated that her inability to pay her rent will inevitably l e ad t o h er ev i c tion from h er h om e and/ o r force h living expenses in BC are covered i n he r absence. Section 15 of the EAPWDR provides that a recipient "who is outside of British Columbia for more than a total of 30 davs in a vear ceases to be eliaible for disabilitv assistance ... " EAAT 003( 10/06/01) I AP PE A L the Appellant continuanc e of disabi l i ty assistance the law in the bei n g abse n t from BC for more than 30 n e s the li mite d circums t an ces the Ministry is assistance . Se c t ion 15(a)(b)( c) sta les f or more than a total of 30 days in a year t h e min ister h as g i v e n prior or hardship as sistance fo r the p u rpos e of p y p r e scrib e d by a medical practi tioner, or ued disabi l i t y ben efits wh ile s he wa s o ut o f the . A s o f D ecember 1 ' 1 you h a d been out of t he country the min istry is not s a tisfied that the med ica l thera p y you i n BC. T h e m in istr y is n o t prep ar e d to pr o v i de dis a bilit y d v acation as you should ha ve planned for the expe n s e to ce to ma i ntain y our s u p po r t and she lte r w hil e ou t of th e satisf ied that the trip was required to av oi d u n du e et th at nee d . pel lant w as g oing was to ob t a i n was in section 15(b) of the EAPWDR. The WDR. n g yoga clas se s and massage sessions. three months and she will be er to bor row money to ensure her monthly If a recipient leaves BC
for longer t han 30 days they are in direct c ontravention of the legislation and are no longer e on ce 3 0 days has l aps ed. The Appellant relied o n s e cti on 15 (b)(c) wh ich gives the M give prior authorization to rec ipients who are required t days in a calendar yea r i f the purpose of h er abse nce purpose of avoiding undue hardship. Purpose of Ob taining M e dical Therapy The EAPWDR clearly a llows a recipient of d isability 30 days if the M in istry gives prior a uthori z ation for the con purpose of obtaini ng medical therap y if pre scribed b The Ministry concluded t h at the Ap pellant did not pro was pre s c ri bed by a medica l pr actitio n er pursuant to secti r eli e d on a s a b a sis for le avin g the provinc e for long The Appell ant argue d that her dentist recom mended hav i n g a root c a na l in BC. T h e App ell a nt also indic a en d oc rinolog ist , dermatologist , as well as a tt e nd y o ga The Appel lant, however, di d not pr o vide e videnc e, by appoi ntm en t s were pre scri b e d by a m e d ica l pr act itioner was r ecommen ded b y a d entist , it appears t ha t t h e p financial r eason rather tha n medical one. W hile the Appell ant s u bmi tted she had planned o n ma en d ocr inologi s t, de rma to l o gist, a nd mass ag e th era pis d eparture was to v isi t her family not to obt a in medical The l eg i slation is clea r a nd stat es that a recipi ent may be approved t tha n the legislated 30 d ay s if th e purpose is to o btain practitioner. The Panel finds that the A ppella nt neither provided confi prescribed by a medical practitioner nor that the appointments were the reasons she was leaving BC for lo nger than the prescribed allowable time. Pu r p ose of Avoiding U nd ue Hardship The EAPWDR similarly allows a recipient of disability assistanc 30 days in a calend ar yea r providing th e Ministry giv disability assistanc e for the purpos e of avoiding undue hardship. Section 15(c) appears to be a catch all that is intended by the legislatures to broaden the Ministry's discret ion for non -spe cif ic categorie s that are not listed in se when the failure to give approval for extended absences would result in undue hardship for the recioient. EAAT 003(1 0106101) I AP PEAL l ig i ble i nistry discretionary po wer s t o o t he r wise o leave BC for lon ger than the le gislate d 30 is for attending medical therapy o r f o r the a s sistance t o leave the province fo r longer than tinuance of d isability assistan c e f or t h e y a me dic a l pract i tion er. vide sufficient proof that the medical therapy o n 1 5 (b) of t h e EAPWDR and could not be er that t he legisl ated time . she h a v e a root canal as i t was l es s cost l y than ted that sh e ha d als o plann ed o n see ing an s ess ions a nd massage therap y . way of docu m en t e d referral, that any of the . W h ile the Appell ant s tated t he root ca nal urp o se o f the recom mendation was based on a king an appoint m ent with a d entist , t, she a lso state d the prim ary purp ose for h er therapies as required by section 15( b ). o leav e the pr ovince f o r longer medical therap y prescr ibed by a me d i cal r mation that her intended appointments were e to lea ve the pr ovince for longer than e s prior authorization for the continuance of c t ion 15 ex em p ti ons o f the EAPWDR
I APPEAL The Ministry concluded that section 15( c) did not apply in the circumstances of the Appellant as the Appellant was aware of her upcoming trip and that the Appellant could have properly planned for her absence and avoided the possibility of facing undue hardship on her return. The Appellant submitted that while she is away visiting her parents she will need to continue to pay her rent and other household expenses. Not approving her for the three month departure and continuance of disability benefits will require her to either borrow money or face eviction. The Appellant submitted that borrowing money is not an option and eviction will necessarily ensue which amounts to undue hardship although it was later submitted that the Appellant was not evicted upon her return but was required to borrow money to pay her rent and is now in debt. The Appellant argued that the debt amounts to undue hardship. Section 15(c) of the EAPWDR is one of three exceptions listed that would otherwise allow the Ministry to exempt a recipient from section 15 of the EAPWDR. Those exemptions again are education, medical therapy and undue hardship. The idea behind the exemption is to provide flexibility to allow recipients the opportunity to leave BC if it is in pursuit of education, medical therapy or if there are circumstances beyond these two categories that would cause undue hardship "section c" -a third non-specific category, would remedy any unf o reseen situations. In determining whether or not denying the Appellant extended leave from BC would cause undue hardship the purpose of the Appellant's absence has to be considered. The Appellant was clear that the purpose of her trip was to reunite with her parents whom she had not seen in approximately six years. The Appellant's parents bought her a round trip ticket for a three month stay outside of BC. The Appellant had ample time to prepare for her trip prior to leaving BC and was aware of the Ministry's refusal to grant her authorization for extended travel as early as September 2013. When Appellant realized she would not receive the preapproval she was presented with options. The Appellant had the option to a) reduce her time out of country and return back to BC within the legislated time frame to avoid being denied disability assistance; b) not go on the trip and return the ticket to her parents for either refund or voucher; or c) leave the country for 3 months and be denied disability benefits until the Appellant is reassessed on her return. The Appellant elected to leave the province for three months to visit her family knowing that the Ministry denied her disability assistance while she was absent from BC. The Panel finds the Appellant was inf o rmed by the Ministry that leaving the province for three months would result in the discontinuance of her disability benefits and she choose to leave the province and visit her parents notwithstanding the real risk of eviction. Section 15(c) was not designed to encourage extended trips out of province for more than 30 days to visit family. While the Appellant did run the risk of eviction by doing so, it stands that she cannot now rely on undue hardship as a basis for her appeal. The Appellant once again had options available to her that would have allowed her to visit her parents but return within the stipulated period to avoid anv potential hardship and she elected to EMT 003( 10/06101)
AP PEAL # I leav e for thre e month s. The panel therefore finds the M i n ist r y ' s determina ti on that concluded the Appellantwas deni ed assistance due to b ei ng o ut o f the provin c e f o r more than 30 days was a re as onable application of the appli c ab l e enactment in the c i r cumstances o f the appella nt and conf i rms the de c ision. EAAT 0 03( 10/ 06/01 )
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