APPEAl I PART C -Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (Ministry), reconsideration decision dated July 2, 2014 in which the Ministry denied the Appellant's re q uest for a replacement scooter because the Ministry found the request did not meet the eligibility requirements in the Employment and Assistance for Persons with Disabilities Regulation (EAPWDR). In p articular, the Ministry was not satisfied that: 1. The legislated period of time with respect to replacement of a scooter ; i.e., 5 years after the Ministry had provided the item, had been met pursuant to subsection 3.4 ( 4) of Schedule C of the EAPWDR ; and 2 . The Appellant was eligible for a replacement scooter under section 69 of the EAPWDR, which allows the minister to provide health supplements to or for a person who is otherwise not eligible under the regulation. The Ministry determined that the Appellant was not eli g ible under this section because he qualified for health supplements under sections 2 and 3 of Schedule C of the EAPWDR. PART D -Relevant Le g islation Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) sections 62 and 69 Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) Schedule C, sections 3 and 3.4 EAAT 003(10/06/01)
APPEAl I PART E -Summarv of Facts The evidence before the Ministry at the time of the reconsideration decision included the following: 1. The Appellant's Request for Reconsideration dated June 11, 2014 in which he stated that his scooter was stolen the one time that he left it outside for a few minutes. He requires a replacement scooter because he has "incomplete paraplegia" and cannot walk distances; is prone to frequent falls; is afraid of crossing streets; and has leg spasms and pain when trying to walk in his hilly neighbourhood. 2. A doctor's prescription dated June 16, 2014 for "Mobility 4 wheel scooter" due to "T5 motor incomplete paraplegia". 3. A letter from the Ministry to the Appellant and a Medical equipment and devices decision summary dated April 23, 2014, denying the Appellant's request for a replacement scooter. The Ministry noted that the Appellant is a single person under the age of 65 with Person with Disabilities designation and it had provided a scooter to the Appellant in April 2012. 4. A Medical Equipment Request and Justification signed by a medical practitioner on February 12, 2014 and recommending a "4 wheel mobility scooter" due to "Residual lower extremity spasticity (illegible) past epidural (illegible) '04". 5. A Functional Assessment for a Replacement Scooter from the Appellant's occupational therapist (OT) dated February 14, 2014. The OT indicated that the Appellant received a scooter through the Ministry about 2 years ago but the scooter was stolen in August 2013. The Appellant has "T5 ASIA D paraplegia incomplete" and 2 rods in his spine due to a vehicle accident. These conditions limit his mobility due to decreased coordination, weakness, muscle wasting, and poor sensation and poor proprioception of his lower extremities. He also has a club foot and an overted and supinated ankle which cause him difficulty with walking and stepping off curbs, and make him prone to falls. He has a history of injuries from falling; is nervous crossing the street; needs hand support at all times; and uses a cane outdoors and "furniture walks" indoors. The Appellant also experiences back and leg pain that are exacerbated by walking; he has trialed some 4-wheel scooters; and he requires a replacement scooter due to his mobility issues. 6 . A quotation for a replacement scooter dated February 14, 2014 for $2,761.20; and quotations for the Appellant's original scooter dated March 21, 2012 and February 2, 2012. 7. The Ministry's Medical Equipment Request-Tracking Sheet dated March 21, 2012 noting the Appellant's request for a scooter and recommending the scooter due to his medical conditions a n d f u n c t i o n a l n e e d . 8. A Medical Equipment Request and Justification for the Appellant's original scooter signed by a medical practitioner on February 20, 2012 and recommending a scooter due to "lower extremity spasticity past epidural (illegible)". 9. A Functional Assessment for a Scooter (the Appellant's original scooter) from the Appellant's OT dated February 14, 2012 and detailing his medical diagnoses, functional limitations, trials of scooters, and the OT's recommendation for a scooter. The OT noted that the Appellant requires a scooter to be independent in the community. Subsequent to the reconsideration decision, the Appellant filed a Notice of Appeal dated July 9, 2014, in which he states that he has mobility and balance problems and has had lots of falls and injuries from falling. He stated that he cannot wait until 2017 for another scooter due his fear of further falls and injuries. EMT 003(10/06/01)
APPEAL#. I The Panel finds that the statements in the Notice of Appeal relate to the Appellant's reported need for a replacement scooter. The Panel therefore admits the statements under section 22(4)(b) of the Employment and Assistance Act as submissions in support of information and records that were before the Ministry at the time the decision being appealed was made. The Appellant did not attend the hearing. The Panel confirmed that the Appellant was notified of the hearing date and time and the hearing proceeded under section 86(b) of the Employment and Assistance Act. At the hearing, the Ministry reviewed its reconsideration decision and did not introduce any new evidence. The Ministry noted in its reconsideration decision that the Appellant provided no police report for the stolen scooter. It had also provided him with a walker, which he makes no mention of, and a previous scooter as well. When the previous scooter was no longer working, he left it outside his door and it was eventually removed by the building manager. The Panel makes the following findings of fact: 1. The Appellant is a single person under the age of 65, with Person with Disabilities designation and is therefore eligible for health supplements under section 62(1 )(a) of the EAPWDR. 2. The Ministry provided the Appellant with a scooter in March 2012; the Appellant reported that it was stolen in August 2013; and he requested a replacement scooter in February 2014. 3. The Appellant provided no police report for his stolen scooter. 4. The Appellant's medical diagnoses and physical symptoms limit his general mobility and his ability to walk; and his doctor and OT have recommended a replacement scooter. ' EAAT003(10/06/01)
APPEAL I PART F -Reasons for Panel Decision The issue in this appeal is whether the Ministry's reconsideration decision which determined that the Appellant's request for a replacement scooter did not meet the eligibility requirements set out in Schedule C or section 69 of the EAPWDR was reasonably supported by the evidence or was a reasonable application of the relevant enactment in the circumstances of the Appellant. The legislation that applies to the Appellant's request for a replacement scooter is as follows: EAPWDR -General health supplements 62 (1) Subject to subsections (1.1) and (1.2), the minister may provide any health supplement set out in section 2 [general health supplements] or 3 [medical equipment and devices] of Schedule C to or for a family unit if the health supplement is provided to or for a person in the family unit who is (a) a recipient of disability assistance Health supplement for persons facing direct and imminent life threatening health need 69 The minister may provide to a family unit any health supplement set out in sections 2(1)(a) and (f) [general health supplements] and 3 [medical equipment and devices] of Schedule C, if the health supplement is provided to or for a person in the family unit who is otherwise not eligible for the health supplement under this regulation, and if the minister is satisfied that (a) the person faces a direct and imminent life threatening health need and there are no resources available to the person's family unit with which to meet that need, (b) the health supplement is necessary to meet that need, (c) the person's family unit is receiving premium assistance under the Medicare Protection Act, and (d) the requirements specified in the following provisions of Schedule C, as applicable, are met: (i) paragraph (a) or (f) of section (2)(1) ; (ii) sections 3 to 3.12, other than paragraph (a) of 3(1) . (B.C. Reg. 61/2010) (B.C. Reg. 197/2012) EAPWDR -SCHEDULE C Health Supplements Medical equipment and devices 3 (1) Subject to subsections (2) to (5) of this section, the medical equipment and devices described in sections 3.1 to 3.12 of this Schedule are the health supplements that may be provided by the minister if (B.C. Reg. 197/2012) (a) the supplements are provided to a family unit that is eligible under section 62 [general health supplements] of this regulation, and (b) all of the following requirements are met: (i) the family unit has received the pre-authorization of the minister for the medical equipment or device requested; (ii) there are no resources available to the family unit to pay the cost of or obtain the medical equipment or device; (iii) the medical equipment or device is the least expensive appropriate medical equipment or device. (2) For medical equipment or devices referred to in sections 3.1 to 3.8 or section 3.12, in addition to the requirements in those sections and subsection (1) of this section, the family unit must provide to the minister one or both of the following, as requested by the minister: (B.C. Reg. 197/2012) (a) a prescription of a medical practitioner or nurse practitioner for the medical equipment or device; (b) an assessment by an occupational therapist or physical therapist confirming the medical need for the medical equipment or device. EAAT003(10/06/01)
I APPEAL (2.1) For medical equipment or devices referred to in section 3.9 (1) (b) to (g), in addition to the requirements in that section and subsection (1) of this section, the family unit must provide to the minister one or both of the following, as requested by the minister: (a) a prescription of a medical practitioner or nurse practitioner for the medical equipment or device; (b) an assessment by a respiratory therapist, occupational therapist or physical therapist confirming the medical need for the medical equipment or device. (B.C. Reg. 197/2012) (3) Subject to subsection (6), the minister may provide as a health supplement a replacement of medical equipment or medical device, previously provided by the minister under this section, that is damaged, worn out or not functioning if (a) it is more economical to replace than to repair the medical equipment or device previously provided by the minister, and (b) the period of time, if any, set out in sections 3.1 to 3.12 of this Schedule, as applicable, for the purposes of this paragraph, has passed. (B.C. Reg. 197/2012) (4) Subject to subsection (6), the minister may provide as a health supplement repairs of medical equipment or a medical device that was previously provided by the minister if it is more economical to repair the medical equipment or device than to replace it. (5) Subject to subsection (6), the minister may provide as a health supplement repairs of medical equipment or a medical device that was not previously provided by the minister if (a) at the time of the repairs the requirements in this section and sections 3.1 to 3.12 of this Schedule, as applicable, are met in respect of the medical equipment or device being repaired, and (B.C. Reg. 197/2012) (b) it is more economical to repair the medical equipment or device than to replace it. (6) The minister may not provide a replacement of medical equipment or a medical device under subsection (3) or repairs of medical equipment or a medical device under subsection (4) or (5) if the minister considers that the medical equipment or device was damaged through misuse. (B.C, Reg. 61/2010) Medical equipment and devices -scooters 3.4 (1) In this section, "scooter'' does not include a scooter with 2 wheels. (2) Subject to subsection (5) of this section, the following items are health supplements for the purposes of section 3 of this Schedule if all of the requirements set out in subsection (3) of this section are met: (a) a scooter; (b) an upgraded component of a scooter; (c) an accessory attached to a scooter. (3) The following are the requirements in relation to an item referred to in subsection (2) of this section: (a) an assessment by an occupational therapist or a physical therapist has confirmed that it is unlikely that the person for whom the scooter has been prescribed will have a medical need for a wheelchair during the 5 years following the assessment; (B.C. Reg. 197/2012) (b) the total cost of the scooter and any accessories attached to the scooter does not exceed $3 500 or, if subsection (3.1) applies, $4 500; (B.C. Reg. 197/2012) (c) the minister is satisfied that the item is medically essential to achieve or maintain basic mobility. (3.1)The maximum amount of $4 500 under subsection (3) (b) applies if an assessment by an occupational therapist or a physical therapist has confirmed that the person for whom the scooter has EAAT 003(10/06/01)
APPEAL I been prescribed has a body weight that exceeds the weight capacity of a conventional scooter but can be accommodated by a bariatric scooter. (B.C. Reg. 197/2012) (4) The period of time referred to in section 3 (3) (b) of this Schedule with respect to replacement of an item described in subsection (2) of this section is 5 years after the minister provided the item being replaced. (5) A scooter intended primarily for recreational or sports use is not a health supplement for the purposes of section 3 of this Schedule. (B.C. Reg. 61/201O ) Appellant's position The Appellant's position is that he had always been very responsible in keeping his scooter secure by bringing it inside his home when he wasn't using it. He reported that it "was just that one time I left it right outside my door for a few mins. during mid-day to go to the bathroom and when I returned it was gone." He argued that he really needs a replacement scooter because he is an "incomplete paraplegic" which causes him leg weakness and muscle wasting in both legs. He was also born with a club foot that was semi-corrected with surgery. He requires a scooter because he is unable to lift his right foot completely when he walks; he cannot walk distances; he has fallen many times, and has had many injuries from falling including fractures. He is afraid of crossing streets because he can't walk very fast and is worried about falling and being hit by a car. He has fallen when trying to get up on curbs, and he also has leg spasms and pain when trying to walk up slopes which he cannot avoid in his hilly neighbourhood. The Appellant argued that the prescription from his doctor confirms that he needs a replacement scooter and that he can't wait until 2017 which the Ministry determined to be his next eligibility date. The OT argued on behalf of the Appellant that he requires a replacement scooter to address his mobility issues. He didn't request a replacement right away after his scooter was stolen because he was trying to get around on his own and did not know that he could request a new scooter. However, he can walk only½ to 1 block before his legs cramp up; he is unable to walk unsupported; and he has demonstrated that he can drive a 4-wheel scooter safely. Ministry's position The Ministry's position is that the Appellant's request for a replacement scooter does not meet the legislated requirements in the EAPWDR as it has not been 5 years as required by subsection 3.4(3) of Schedule C since the Ministry provided the Appellant with a scooter. The Ministry stated that it had provided the Appellant with a scooter in March 2012, along with a walker, and a previous scooter in 2008 or 2009. The Ministry noted that the Appellant had left both scooters outside his door and reported that his first scooter was not working, and his most recent one was stolen. However, he provided no police report for the one that was stolen. The Ministry submitted that it has no legislative authority under the EAPWDR to consider a request for a replacement scooter until March 2017. The Ministry further argued that there is also no provision in policy to make an exception in the Appellant's circumstances. At the hearing, in response to questions from the Panel, the Ministry explained that a police report would not have made a difference to the Appellant's eligibility for a replacement scooter because his request for a replacement did not meet the legislated time frame of 5 years. The Ministry stated that most assistance recipients cannot afford to take out insurance for their medical equipment; and while it sympathizes with the loss of the scooter and takes into account EAA T003( 10/06/01)
I APPEAi the Appellant's medical, physical, and functional status, the main reason for denial was that the legislated time frame of 5 years has not passed. The Ministry explained that its hands are therefore tied and it has no legal authority to grant the Appellant's request for a replacement scooter. While the Ministry noted that section 69 of the EAPWDR is intended to provide a remedy for persons facing a direct and imminent life-threatening health need and who are not otherwise eligible to receive a health supplement to meet the need, it found that the Appellant is not eligible for a replacement scooter under this section. The Ministry explained that the Appellant does not require a remedy under section 69 because he is otherwise eligible for health supplements (including medical equipment) pursuant to sections 2 and 3 of Schedule C of the EAPWDR. Panel's decision Basic Eligibility The Ministry reported that the Appellant is a single person under the age of 65, with Person with Disabilities designation. He is therefore eligible for health supplements under section 62(1) (a) of the EAPWDR and that is not in dispute in his appeal. Eligibility for a Scooter Sections 3 and 3.4 of Schedule C of the EAPWDR prescribe various criteria that the Appellant must meet to be approved for the replacement scooter he requested. Section 3 requires a family unit to be eligible for health supplements under section 62 of the EAPWDR. As stated above, the Appellant is eligible under subsection 62(1 )(a) as a single person with disabilities designation. Pursuant to subsection 3.4(2)(a) of Schedule C, the health supplements referred to in section 3 of Schedule C include a scooter. Subsections 3(3) and 3.4(4) of Schedule C specifically address the time period with respect to the replacement of a scooter. Subsection 3(3) states that the minister "may provide as a health supplement a replacement of medical equipment or medical device, previously provided by the minister under this section that is damaged, worn out or not functioning if ... (b) the period of time, if any, set out in sections 3. 1 to 3. 11 of this Schedule, as applicable, for the purposes of this paragraph, has passed." Subsection 3.4(4) of Schedule C states that the period of time with respect to the replacement of a scooter is "5 years after the minister provided the item being replaced." The Panel notes that the 5 year replacement time frame set out in subsection 3.4(4) of Schedule C of the EAPWDR references subsection 3(3) of Schedule C which, as indicated above, refers to medical equipment that is "damaged, worn out or not functioning". The Appellant, however, reported that his scooter was stolen, and he provided no evidence to indicate whether the scooter was "damaged, worn out or not functioning". It is unclear whether the Ministry fully accepts that the scooter was stolen as it noted that no police report was provided for either the reconsideration or for this appeal; however, the Ministry has also not confirmed that the scooter was damaged or broken down. The Panel is unable to find any reference in the EAPWDR to a replacement time frame for a scooter that has been stolen and notes that re ardless of whether the Minis! acce ts the A ellant's word EMT003(10/06/01)
APPEAL I of the theft, the Ministry reported that its main reason for denying a replacement scooter was because the 5 year time frame described in subsection 3.4(4) of Schedule C was not met. It had provided the Appellant with the scooter in March 2012 and he requested for a replacement in February 2014. The Panel notes that there is nothing in the legislation to allow the Ministry to provide a replacement scooter other than for the reasons of a client's scooter being "damaged, worn out or not functioning" as set out in subsection 3(3) of Schedule C of the EAPWDR. The Panel finds that because there is no evidence to indicate that the Appellant's scooter was "damaged, worn out or not functioning" and subsection 3.4(4) references these criteria in relation to the 5 year replacement period, the Ministry unreasonably determined that the Appellant was not eligible for a replacement scooter under subsection 3.4(4) of Schedule C. While the Ministry was unreasonable in applying the 5 year time period for the foregoing reason, the panel notes that the legislation also does not allow the Ministry to provide a replacement for a scooter that has been stolen. Section 69 -Life threatening health need This Ministry also considered the Appellant's request for a replacement scooter under section 69 of the EAPWDR. This section states that the minister may provide a health supplement for medical equipment (e.g., a scooter) if the health supplement is provided to a person who is otherwise not eligible for the health supplement under the regulation, and if the minister is satisfied that the following 4 criteria are met: (a) the person faces a direct and imminent life threatening need for the item and has no resources to meet the need; (b) the health supplement is necessary to meet the need; (c) the family unit is receiving premium assistance from Medicare; and (d) the applicable provisions of sections 2 (general health supplements) and 3 to 3.11 (medical equipment and devices) of Schedule C are met. The Panel notes that the Appellant must meet the criteria specified in section 69 in order to be eligible for a replacement scooter pursuant to this section. Even if the Ministry was not reasonable in applying the 5 year time frame under subsection 3.4(4) of Schedule C due to a lack of evidence on whether the scooter was damaged or not working, the other criteria in section 69, including the "not otherwise eligible criteria" in the lead-in to the section would still need to be met. The Ministry found that the Appellant did not require a remedy under section 69 as he is otherwise eligible to receive the health supplements set out under Schedule C, sections 2 (general health supplements) and 3 (medical equipment and devices). The Ministry determined that the Appellant is eligible for general health supplements and medical equipment because he qualifies for these supplements as a single person, under the age of 65, with Person with Disabilities designation pursuant to the basic eligibility provision in section 62(1) (a) of the EAPWDR. The Ministry noted in its Medical equipment and devices decision summary that the criteria set out in paragraphs (a) to (c) of section 69 were therefore not applicable. For example, the minister did not need to be satisfied that the Appellant had a life threatening health need for an item (a replacement scooter) pursuant to section 69, paragraph (a). The Panel notes that despite his medical diagnoses, and resulting functional limitations with mobility as well as his physician's and OT's recommendations for a replacement scooter, the Appellant is still eligible to receive health supplements under Schedule C, sections 2 and 3 as long as additional criteria for specific items are met. EAAT 003(1 0/06/01)
The p a nel therefore finds that the Ministry reasona b a replacement scooter purs uan t to secti on 69 o f the EAPW re c o nsideration decision as being reasonab ly supported by the evidence interpretat ion of the relevant enactment in the circumstances of the App EMT 003(10/06/01) APPEAL I ly determined that the Appellant is not e ligible f or D R . The Panel con firm s t h e Ministry's a nd a reasonable ellant.
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