I APPEAL# PART C -Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (Ministry's) reconsideration decision dated June 12, 2014 in which the Ministry determined that Employment Insurance (El) earnings should be deducted from the Appellant's disability assistance for the month of June 2014. The Ministry found that El benefits received by the Appellant's spouse in April 2014 are considered unearned income under section 1 of the Employment and Assistance for Persons with Disabilities Regulation, and are subject to the deduction and exemption rules set out in Schedule C of the Regulation. The Ministry found that El benefits must be deducted from the Appellant's disability assistance because no exemptions applied. PART D -Relevant Legislation Employment and Assistance for Persons with Disabilities Regulation (EAPWDR): Sections 1, 9, 24, and 29; Schedule A sections 1, 2, and 4; and Schedule B sections 1, 6, and 7
I APPEAL# PART E -Summarv of Facts The evidence before the Ministry at the time of reconsideration consisted of: 1) The Appellant's Request for Reconsideration dated June 9, 2014 in which he stated that his family unit is a working family with two small children, bill payments, etc. He has to temporarily depend on provincial benefits because his federal disability is yet to be completed. His wife became ill at the end of February; was hospitalized for 25 days in March; and is just now returning to work. 2) A Service Canada account print-out with the notation "El" at the top of the page, showing 4 payments for the reporting period March 16 -May 3, 2014. The net amounts paid for this period were: $432.00 on May 4 th , April 21 st , and April 16 th th , and $216.00 on April 16 · In his Notice of Appeal dated July 3, 2014, the Appellant stated in the attached submission that his wife is the main family income earner and they had to pay dozens of extra expenses out of a somewhat diminished income due to illness. They then lost the vast majority of his disability income and are out $2,500.00 over 3 months. The Panel finds that these statements relate to the Appellant's income and expenses and therefore admits them under section 22(4)(b) of the Employment and Assistance Act as testimony in support of the information and records that were before the Ministry at the time the decision being appealed was made. The Appellant did not provide any other submission for this written hearing and the Ministry relied on its reconsideration decision and did not submit any new information. The Ministry's evidence included information that the Appellant was receiving disability assistance for a family unit of 4 in the amount of $1,474.56 per month ($794.56 support, and $700.00 shelter, less a $20.00 repayment). In May, the Ministry processed the Appellant's monthly earnings report for June and the Appellant declared $1,080.00 El earnings for his spouse which was confirmed by the Service Canada account print-out for April. With the El deducted from his disability assistance, the Appellant received $394.56 for June 2014. The Ministry reported that the $1,080.00 El benefit was the net amount the Appellant's spouse received after allowable deductions. The panel makes the following findings of fact: 1. The Appellant receives $1,474.56 per month in disability assistance for his family of 4. 2. The Appellant's spouse became ill and was hospitalized in March. 3. In May 2014, the Appellant declared $1,080.00 net El earnings for his spouse and the Ministry deducted this amount from his June disability assistance and paid the Appellant $394.56 for June 2014.
APPEAL# I PART F -Reasons for Panel Decision The issue in this appeal is whether the Ministry's decision to deduct El earnings from the Appellant's disability assistance for the month of June 2014 was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the Appellant. The relevant sections of the EAPWDR are as follows: Definitions 1 (l)In this regulation: "unearned income" means any income that is not earned income, and includes, without limitation, money or value received from any of the following: (g) employment insurance; Limits on income 9 (2) A family unit is not eligible for disability assistance if the net income of the family unit determined under Schedule B equals or exceeds the amount of disability assistance determined under Schedule A for a family unit matching that family unit. Amount of disability assistance 24 Disability assistance may be provided to or for a family unit, for a calendar month, in an amount that is not more than (a) the amount determined under Schedule A, minus (b) the family unit's net income determined under Schedule B. Monthly reporting requirement 29 For the purposes of section ll(l)(a) [reporting obligations] of the Act, (a) the report must be submitted by the 5 th day of the calendar month following the calendar month in which there is a change that is listed on paragraph (b), and (b) the information required is all of the following, as requested in the monthly report form prescribed under the Forms Regulation: (i) change in the family's assets; (ii) change in income received by the family unit and the source of that income; (iii) change in the employment and educational circumstances of recipients in the family unit; (iv) change in family unit membership or the marital status of a recipient. (B.C. Reg. 335/2007) SCHEDULE A Disability Assistance Rates Maximum amount of disability assistance before deduction of net income 1 Subject to 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 (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.
Monthly support allowance 2 (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 (5) for each dependent child in the family unit. Item Column 1 r = • Family unit composition ---------------r-----6 Two applicants/recipients and one One applicant/recipient is a person or more dependent children with disabilities, the other is not a person with disabilities and is under Monthly shelter allowance 4(2) The monthly shelter allowance for a family unit is the smaller of (a) the family unit's actual shelter costs, and (b) the maximum set out in the following table for the applicable family size: Column 1 �1 Family Unit Size I 4 persons SCHEDULE B Net Income Calculation Section 1 -Deduction and exemption rules When calculating the net income of a family unit for the purposes of section 24(b) [amount of disability assistance] of this regulation, (a) the following are exempt from income: (I) any income earned by a dependent child attending school on a full-time basis; (Ii) the basic family care rate paid for foster homes; (iii) Income assistance paid to a child In the home of a relative; (Iv) a family bonus, except the portion treated as unearned income under section 10 (1) of this Schedule; (v) the basic child tax benefit; (vi) a goods and services tax credit under the Income Tax Act {Canada); (vii) a sales tax credit under the Income Tax Act (British Columbia); APPEAL# I _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ , _ C o _ l _ u m _ n _ _ _ 3 2 C o l u m n • • status of applicant or Amount of recipient support --'--------i-----'-'----1 $794.56 65 years of age Column 2 Maximum Monthly Shelter $700
APPEAL# I (viii) Individual redress payments granted by the government of Canada to a person of Japanese ancestry; (ix) Individual payments granted by the government of Canada under the Extraordinary Assistance Plan to a person infected by the human Immunodeficiency virus; (x) individual payments granted by the government of British Columbia to a person Infected by the human Immunodeficiency virus or to the surviving spouse or dependent children of that person; (xi) individual payments granted by the government of Canada under the Extraordinary Assistance Plan to thalidomide victims; (xii) money that Is (A) paid or payable to a person if the money Is awarded to the person by an adjudicative panel in respect of claims of abuse at Jericho Hill School for the Deaf and drawn from a lump sum settlement paid by the government of British Columbia, or (B) paid or payable to or for a person if the payment is In accordance with the settlement agreement approved by the Supreme Court in Action No. C980463, Vancouver Registry; (B.C. Reg. 276/2004) (xiii) the BC earned Income benefit; (xiv) money paid or payable under the 1986-1990 Hepatitis C Settlement Agreement made June 15, 1999, except money paid or payable under section 4.02 or 6.01 of Schedule A or of Schedule B of that agreement; (xv) a rent subsidy provided by the provincial government, or by a council, board, society or governmental agency that administers rent subsidies from the provincial government; (xvi) an Income tax refund, or part of an income tax refund, that arises by reason of a payment made by the government of British Columbia to the government of Canada on behalf of a person who incurred a tax liability due to income received under the Forest Worker Transition Program; (xvii) money paid or payable to a person In settlement of a claim of abuse at an Indian residential school, except money paid or payable as income replacement in the settlement; (xviii) post adoption assistance payments provided under section 28 (1) or 30.1 of the Adoption Regulation, B.C. Reg. 291/96; (xix) a rebate of energy or fuel tax provided by the government of Canada, the government of British Columbia, or an agency of either government; (xx) money paid by the government of British Columbia, under a written agreement, to a person with disabilities or to a trustee for the benefit of a person with disabilities to enable the person with disabilities to live in the community instead of in an institution, (xxl) payments granted by the government of British Columbia as Interim Early Intensive Intervention Funding; (xxii) payments granted by the government of British Columbia under section 8 of the Child, Family and Community Service Act [agreement with child's kin and others]; (xxiii) payments granted by the government of British Columbia under the Ministry of Children and Family Development's At Home Program. (B.C. Reg. 115/2003) (xxiv) payments granted by the government of British Columbia under the Ministry of Children and Family Development's Extended Autism Intervention Program (BC Reg. 209/2003) (xxv) payments granted by the Government of British Columbia under an agreement referred to in section 93 (1) (g) (ii\ of the Child, Familv and Community Service Act, for contributions to the sunnort of a child to a Person other than
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R e g . 9 1 / 2 0 0 5 ) o f a h e a l t h a u t h o r i t y t o a r e c i p i e n t , w h o I s a " p e r s o n w i t h l t h A c t , f o r t h e p u r p o s e o f s u p p o r t i n g t h e r e c i p i e n t I n r a d d i c t i o n s r e h a b i l i t a t i o n p r o g r a m . ( B . C . R e g . 9 0 / 2 0 0 5 ) f t h e M i n i s t r y o f H e a l t h , B . C R e g . 2 9 2 / 2 0 0 5 ) t w i t h t r a v e l e x p e n s e s f o r a r e c i p i e n t i n t h e f a m i l y u n i t t o m e n t p r o g r a m , a p p r o v e d b y C o m m u n i t y L i v i n g B C . ( B . C . i v e r s a l C h i l d C a r e B e n e f i t A c t ( C a n a d a ) . ( B . C . R e g . s e t t l e m e n t a g r e e m e n t , t o p e r s o n s w h o c o n t r a c t e d p r i o r t o 1 9 8 6 o r a f t e r J u l y 1 , 1 9 9 0 , e x c e p t m o n e y p a i d 6 5 / 2 0 0 7 ) s p l a n , ( B . C . R e g . 3 6 3 / 2 0 0 7 ) o m e T a x A c t ( C a n a d a ) , ( B . C . 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(xii ii) money paid o r p ayable fr o m a f und th at is es tablished gove r nme n t of Ca nad a and the C ity o f Vancouver i n relation to r the Missing W omen Com miss ion of In q u iry, (B .C. Re g (b) any amo u nt g arnished, a t ta che d, seized, dedu cted or except the ded u ction s p ermitted un d er se ctions 2 and (c) all ear ned income must be inc luded, e xcept t h e dedu inc om e exempte d u nd er sec tions 3 and 4, a nd (d) a ll unear ned inc o me m ust be include d, except th e i ncome e xem pt e d unde r se ct ions 7 and 8 . Se c tion 6 -Deduc t ions fro m unearned inc o me The o n ly ded uc tio ns permitt ed from unearned income ar (a) any income tax d educted at sour ce from employ ment (b) essenti al operating costs of renting self-cont a i ne d sui E xempti o ns -unear ned inc ome S ection 7 -Exe mptions -unear ned inco me The f o llowing unear n ed in c ome i s exem pt: (a ) the po r t ion of in terest from a mortgag e on, o r a gre of res i d en c e if th e int e rest is requ i r ed for th e amount owi cu rrent p l ace of reside nce; (b) $ 5 0 of each m ont hly Federa l Depa rtment o f Vetera u n it; (c ) a cr i m ina l inj u ry com p en s a t i on awar d or o th e r awa unit's ass e ts to ex cee d, a t t he time th e a war d is rec ei l i mits] o f thi s regu la tion; (d) a p ay m ent mad e fro m a tru s t t o or on b eha lf of a p trust for per s on wi t h d i sabil i ties ] o f t his re g ulat i on; ( e) the portio n of C anad a Pe nsion Plan B e nefits th at i s A = t he g ro ss mo nt hl y amount of Cana d a Pension P la n B = (i) in respect of a family un it comprise d o f a sol e applicant children, 1/12 of the am ount det erm i n ed unde r section118 (1) (c) of the Income adjusted under section 117.1 of the Act; or (ii) in respect of any other family unit, the amount under subparagraph (i), plus 1/12 of the amount resulting from the calculation under section 118 (1) (a) (ii under section 117.1 of that Act; C = the sum of the p ercentages of taxable amounts set out under section 117 (2) (a) of the Income Tax Act (Canada) and section 4.1 (1) (a) of the Income Tax Act. (B.C. Reg. 58/2003) Section 9 -Application of deductions and exemptions (1) The deductions and exemptions in thi s Schedu le a pply Is actually received, despite any of the fol lowing: (a) the date the income is payable; (b) the period for which the income is pa y able; I A PPEAL# by t h e g o vernme nt of Brit i sh Columbia, the e comme n d ation 3.2 o f the final r ep or t of . 32 / 2014 ) s et off from i ncom e i s c o nsidered to be inco m e , 6 , c ti ons permi tt ed under se c tion 2 an d a n y earn ed d ed u ctions permitted unde r section 6 and any e the f o llowing: insurance bene f its; t es. em ent for sa le of, the fa mily uni t 's previo us plac e n g on t he purc h ase or r e n tal of th e f amily unit's ns Affairs benefi t s paid t o any perso n in th e fam il y r d, excep t t he amo unt t hat wou ld cause the famil y v ed, t he limit a pp l ica ble unde r se ction 1 0 [asset e r so n refe r red t o in sec t i on 12(2) [ asse ts h eld in calculat ed by t he fo rmul a (A B) x C, w he re Benefits rec eiv e d by an app lica n t or re cipi e nt ; o r a s ole reci pien t w ith no dependent Tax Act ( Canada) as ) of the Inco me Tax Act (Canada) as adjusted only in the c alendar month in whic h t he income
I APPEAL# (c) the date the income is reported to the minister; (d) the date the minister receives notice of the income. Appellant's Position In his Notice of Appeal submission, the Appellant's position is that his wife's illness caused dozens of extra expenses for his family, and losing the vast majority of his disability, $2,500 over 3 months, has been "financially crippling, heart breaking, and massively disrupting to our family unit." He is asking the tribunal to consider that the legislation was written to prevent fraud, and is not intended to be punitive or mean-spirited, yet that is what comes across and adversely affects his family. In his Request for Reconsideration, the Appellant argued that by "cancelling out (his wife's) El benefits, we have been financially punished by a further $2,500 over 3 months r:rlQ@ than what we expected on our already diminished monthly budget due to illness." The Appellant further argued that no household "can withstand this kind of cut regardless of income or station." Ministry's position The Ministry's position is that although it acknowledges the Appellant's financial struggles due to family illness, "there are no exceptions in policy based on your circumstance and legislation must apply." The Ministry argued that the Appellant's wife's El earnings are considered unearned income under section 1 of the EAPWDR; there are no exemptions for El (from the calculation of monthly income) under Schedule B of the regulation; and unearned income must therefore be deducted pursuant to section 24 of the EAPWDR. The Ministry explained that under section 29 of the regulation, income must be reported by the 5 th day of the month following the month in which the income was received. Ongoing eligibility for disability assistance is calculated at the earliest opportunity: the month following the month in which the income is reported. The El income of $1,080.00 was received in April, reported in May, and therefore affected the Appellant's June 2014 disability assistance resulting in the Appellant receiving reduced assistance in the amount of $394.56 for June instead of his regular payment of $1,474.56. Panel's decision Section 1 of the EAPWDR defines unearned income as "any income that is not earned income" and specifies El benefits in subsection 1 (g). The Ministry therefore had no option but to view El as unearned income and the Panel finds that the Ministry was reasonable in determining that unearned income "includes, without limitation, money or value received from employment insurance." Under section 24 of the EAPWDR, the amount of monthly disability assistance is determined by deducting the family's net income calculated under Schedule B of the regulation from the amount of shelter and support allowances calculated under Schedule A. Sections 1, 6, and 7 of Schedule B set out types of unearned income that may be excluded from the calculation of the income that must be deducted. Section 1 describes monies that are exempt from income, including benefits for children, government program payments available to eligible individuals, and payments from legal agreements and court settlements. Section 6 oermits an exemption for income tax deducted at source from El
b e n e f i t s ; a n d s e c t i o n 7 e x e m p t s a v a r i e t y o f u n e a r n p r o p e r t y t r a n s a c t i o n s , f e d e r a l b e n e f i t s , a n d c o u r t a T h e P a n e l n o t e s t h a t n o n e o f t h e d e d u c t i o n s a n d e S c h e d u l e B o f t h e E A P W D R i n c l u d e E l b e n e f i t s . A t a x d e d u c t e d f r o m E l , t h e S e r v i c e C a n a d a a c c o u n t i n f o r m a t i o n i n d i c a t e d t h a t t h e A p p e l l a n t ' s s p o u s e ' s c o n f i r m i n g t h a t d e d u c t i o n s h a d a l r e a d y b e e n m a d e M i n i s t r y r e a s o n a b l y d e t e r m i n e d t h a t n o d e d u c t i o n s E l i n t h e a m o u n t o f $ 1 , 0 8 0 . 0 0 h a d t o b e d e d u c t e d f t o s e c t i o n 2 4 o f t h e E A P W D R . A l t h o u g h t h e A p p e l l a n t a r g u e d t h a t h e w a s o u t $ 2 , 5 t o t h e M i n i s t r y " c a n c e l l i n g o u t " h i s w i f e ' s E l b e n e f i t s p u n i t i v e , t h e P a n e l n o t e s t h a t t h e M i n i s t r y ' s r e c o n s i E l i n c o m e o n t h e A p p e l l a n t ' s d i s a b i l i t y a s s i s t a n c e f o m o n t h s . A l s o , a s n o t e d a b o v e , t h e E A P W D R p e r m S c h e d u l e B ; t h e M i n i s t r y , t h e r e f o r e , h a d n o l e g i s l a t i t h e b a s i s o f c o m p a s s i o n o r o n a c c o u n t o f t h e A p p e A c c o r d i n g l y , t h e p a n e l f i n d s t h a t t h e M i n i s t r y w a s r $ 1 , 0 8 0 . 0 0 t h a t w a s r e p o r t e d i n M a y , a n d p a y i n g t h e 2 0 1 4 . T h e P a n e l f i n d s t h a t t h e M i n i s t r y ' s r e c o n s i d e r e v i d e n c e a n d w a s a r e a s o n a b l e a p p l i c a t i o n o f t h e a A p p e l l a n t . T h e P a n e l t h e r e f o r e c o n f i r m s t h e M i n i s t r I A P P E A L # e d i n c o m e i n c l u d i n g m o n i e s r e l a t i n g t o r e a l w a r d s . x e m p t i o n s l i s t e d i n s e c t i o n s 1 , 6 , a n d 7 o f l t h o u g h s e c t i o n 6 p e r m i t s a n e x e m p t i o n f o r i n c o m e p r i n t o u t a n d t h e M i n i s t r y ' s b a c k g r o u n d E l o f $ 1 , 0 8 0 . 0 0 w a s t h e n e t a m o u n t r e c e i v e d , a t s o u r c e . T h e P a n e l t h e r e f o r e f i n d s t h a t t h e o r e x e m p t i o n s a p p l i e d t o t h e E l i n c o m e a n d , t h u s , r o m t h e A p p e l l a n t ' s d i s a b i l i t y a s s i s t a n c e p u r s u a n t 0 0 . 0 0 i n d i s a b i l i t y a s s i s t a n c e o v e r 3 m o n t h s d u e , a n d t h a t t h e l e g i s l a t i o n i s n o t i n t e n d e d t o b e d e r a t i o n d e c i s i o n o n l y c o n s i d e r e d t h e e f f e c t o f t h e r t h e m o n t h o f J u n e a n d d i d n o t l o o k a t o t h e r i t s o n l y t h o s e e x e m p t i o n s t h a t a r e l i s t e d i n v e a u t h o r i t y o r d i s c r e t i o n t o g r a n t a n e x e m p t i o n o n l l a n t ' s f i n a n c i a l h a r d s h i p . e a s o n a b l e i n d e d u c t i n g t h e E l p a y m e n t o f A p p e l l a n t $ 3 9 4 . 5 6 d i s a b i l i t y a s s i s t a n c e f o r J u n e a t i o n d e c i s i o n w a s r e a s o n a b l y s u p p o r t e d b y t h e p p l i c a b l e e n a c t m e n t i n t h e c i r c u m s t a n c e s o f t h e y ' s r e c o n s i d e r a t i o n d e c i s i o n .
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.