I APPEAL# PART C -Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the ministry) reconsideration decision dated October 15, 2014 which found that the appellant failed to pursue an asset that would enable the appellant to be completely or partly independent of income assistance, as set out in Section 14 of the Employment and Assistance Act (EAA), and reduced the appellant's income assistance until the failure is remedied, pursuant to Section 31 of the Employment and Assistance Regulation (EAR). PART D -Relevant Legislation Employment and Assistance Act (EAA), Sections 1 and 14 Employment and Assistance Regulation (EAR), Sections 1 and 31
PART E -Summ ary of Fact s The evidence b e fore t h e ministry at the t ime of t h e re 1) Print ou t of Term In vestm e n t D et a ils from t he investment cer tifi c ate] wit h a curr e nt v a lu e of $ 2) L ette r dat ed Mar ch 2 7 , 2014 f rom t he a s sistan who m it may conc e rn' rega r d ing a GIC he ld the na me of the ap pellant's s p ouse. The a ssi u ntil Ju l y 2 6 , 2 014. T h e GI C was invest e d for a t redemption in part or in ful l until the m at urit y 3) Let ter dat ed Sept ember 24 , 2014 fro m the m concern ' r egar di n g a GIC he ld i n a RR SP i n wro te t h at the GIC is l ocke d in un til July 2 6, 2019. m ont hs and i s not eli gi ble for early re dempt io 4) Reque st for Re con sid eration date d October In th e Request for Rec on s i de r a t ion, th e appe lla nt wr • Sh e w as u nde r the impressio n fro m her h us [f amily maintenance en f or cem en t pr ogram] • The money in q uestio n was m o v ed be caus e party and t he app ell ant's husba nd. • The B.C . go v ern m ent has the GIC l ock e d a nd • She do e s not have acce ss to th e mon ey in any she is mere ly named a s a be nefic ia ry in case o At the hea rin g , th e ap pell an t pr ovided a f urther doc from the fi nancial inst itu tio n 'To Who m It May Con c that a g arnishment was p l aced on the account with on J an uary 29, 2 0 13. The fu nds held under this p l an a removed or resolved. In her Notice of Ap peal date d Oc tobe r 23, 20 14, the app minis tr y's r econsid e ration d ecis ion a nd wrot e that: • She is not s ure who the m i nist ry spoke to at the fin • Her husband has prov i d e d a l e tter. • The G IC is still locked in and they are still in need of assistance. • She is currently appealing her disability application. In the letter from the appellant's husband dated O ctober • He met with the financial m anager at the financial institution funds held in the G IC and agreed to pay all the penalties for early withdrawal, which were $2,00 0. • W hen the manager called his head of fice for release of the f cannot be released to him because of the hold by FMEP. • The ministry con t ac t ed the financial institution and the ministry was told that this money can be release d . • The case is in the courts through the ISO procedure and has not yet been ruled on. • They_ have no income and need to receive this support in order to survive. I AP PEAL# c on s idera ti on decis io n inclu d ed: financial institu ti o n indi cating a GIC [g u a r a n te ed 17 , 175.36 a nd which matu r es Ju l y 26, 201 4; t bran c h ma nag er at a f inan cia l i ns titution 'T o in a RR SP [registe r e d r etirement savings pla n] in sta nt ma na ge r w rote that the GI C is l oc ked i n e r m of 1 8 mo n ths and is not eligibl e f or early dat e; ana ger at a finan c ial in st itution 'To who m it m a y t he name o f t he a p pe llant 's spouse . Th e manager Th e GIC was invest ed for a te r m of 60 n until t he ma turity d ate; and, 1, 2014. o te th at: ba nd t hat the GIC was under g arni sh ee by FM EP and t hat it was no n-cash able. of the matt er before t he cou r t s betw een a t hir d it c an not be a ccesse d . way. I t is sole ly in her husband ' s name and f death. u me nt, namely a let ter da t e d November 12, 20 14 er n' in whi c h the financia l ser v ic es manager wr o te t he RR SP in t he na m e of the appell ant' s spo use r e unavailable un til the garnis h ment h a s bee n ellant ex pr e s sed her di s agreeme n t w ith the a n c ial institution. 23 , 2014 , he wrote that: and asked him to release th e over u nd s, h e w as t o l d the money
• H e i s d a i l y s e a r c h i n g f o r a j o b a n d w i l l n o t i f y • T h e y h a v e r e p o r t e d a l l t h e i r p a r t t i m e i n c o m A t t h e h e a r i n g , t h e a p p e l l a n t s t a t e d t h a t : • T h e G I C w a s u n d e r a g a r n i s h e e b e f o r e s h e a n d t h e m i n i s t r y w a s a w a r e t h a t i t w a s w o r t h • I f t h e y c o u l d h a v e g o t t e n t h e f u n d s , s h e w o u b e c a u s e s h e d i d n o t w a n t t o a p p l y f o r a s s i s t • T h e r e a r e a r r e a r s o f a b o u t $ 4 4 , 0 0 0 i n c h i l d S h e c a n n o t d o a n y t h i n g a b o u t i t b e c a u s e i t i • S h e i s n a m e d a s a b e n e f i c i a r y o n t h e R R S P i f h e r w a s t o d i e , i t w o u l d t h e n b e c o m e a n i s • T h e i s s u e s w i t h h e r h u s b a n d ' s e x w i f e w e r e h u s b a n d ' s c h i l d r e n a r e n o w o f a g e , a l t h o u g h • S h e u n d e r s t a n d s t h a t t h e e x w i f e i s o n l y e n t t h e e x w i f e i s c l a i m i n g . • T h e s e i s s u e s h a v e b e e n g o i n g o n f o r y e a r s c a n d o t o g e t t h e m o n e y . • T h e " I S O " p r o c e s s i s t h e i n t e r j u r i s d i c t i o n a l s i n a n o t h e r p r o v i n c e . 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T h e m i n i s t ry r e l i e d o n i t s r e c o n s i d e r a t i o n d e c i s i o n , s t a t e d t h a t : • T h e a p p e l l a n t i s a n e m p l o y a b l e r e c i p i e n t w i t • A l t h o u g h t h e G I C i s i n t h e n a m e o f t h e a p p e t e s t e d f o r t h e e n t i r e f a m i l y u n i t a n d a n a s s e t e v e r y o n e i n t h e f a m i l y u n i t . • W h e n t h e a p p e l l a n t a p p l i e d f o r a s s i s t a n c e i n m i n i s t r y i n e r r o r b e c a u s e t h e a p p e l l a n t w a s r i s v a l u e d a t m o r e t h a n t h e a p p l i c a b l e a s s e t l • T h e m i n i s t r y c o n t a c t e d t h e f i n a n c i a l i n s t i t u t i o t h e f u n d s i n t h e h u s b a n d ' s G I C c a n b e r e l e a • R e g a r d i n g t h e l e t t e r f r o m t h e f i n a n c i a l i n s t i t u r e q u i r e s t h a t t h e a p p e l l a n t c a s h t h e G I C d e s t h e n a p p l i e d t o t h e d e b t t h r o u g h F M E P . • T o ' p u r s u e ' t h e R R S P f u n d s w o u l d i n c l u d e c f i n a n c i a l i n s t i t u t i o n t o p a y t h e f u n d s t o t h e a p T h e m i n i s t r y d i d n o t o b j e c t t o t h e a d m i s s i b i l i t y o f t h a p p e l l a n t ' s s p o u s e . T h e p a n e l a d m i t t e d t h e l e t t e r s A s s i s t a n c e A c t a s r e l a t i n g t o t h e a v a i l a b i l i t y o f t h e a i n f o r m a t i o n a n d r e c o r d s t h a t w e r e b e f o r e t h e m i n i s t A P P E A L # I t h e m i n i s t r y a s s o o n a s h e o b t a i n s e m p l o y m e n t . e i n t h e p a s t f r o m j o b s h e h a s b e e n a b l e t o o b t a i n . a p p l i e d f o r i n c o m e a s s i s t a n c e i n M a r c h o f 2 0 1 4 a b o u t $ 1 7 , 0 0 0 a n d s h e c o u l d n o t a c c e s s i t . l d h a v e a s k e d h e r h u s b a n d t o a c c e s s t h e m a n c e . s u p p o r t t h a t t h e y n o w h a v e a l a w y e r l o o k i n g a t . s b e t w e e n h e r h u s b a n d a n d h i s e x w i f e . b u t t h a t i s o n l y f o r i f h e r h u s b a n d w a s t o d i e . E v e n s u e b e t w e e n h e r a n d t h e e x w i f e . f r o m a t i m e l o n g b e f o r e t h e y g o t m a r r i e d a n d t h e o n e s a y s h e i s f u r t h e r i n g h i s e d u c a t i o n . i t l e d f o r c h i l d s u p p o r t d u r i n g p a r t o f t h e t i m e t h a t a n d h e r " h a n d s a r e t i e d " a n d t h e r e i s n o t h i n g s h e u p p o r t o r d e r s i n c e h e r h u s b a n d ' s e x w i f e r e s i d e s r w o r k a t o n e p o i n t s o t h e r e w e r e d e l a y s i n t h e i t i s " o n l y o n p a p e r " a n d s h e c a n n o t g e t t h e f u n d s . I C f o r a n o t h e r 5 y e a r s t o p r o t e c t i t f r o m t h e F M E P . o u g h h i s e m p l o y e r b u t s h e i s n o t s u r e i f i t i s p a r t o f a s s u m m a r i z e d a t t h e h e a r i n g . T h e m i n i s t r y a l s o h a d e p e n d e n t s p o u s e a n d o n e d e p e n d e n t c h i l d . l l a n t ' s h u s b a n d , e l i g i b i l i t y i s i n c o m e a n d a s s e t o w n e d b y o n e p e r s o n a f f e c t s t h e e l i g i b i l i t y f o r M a r c h 2 0 1 4 , t h e G I C w a s s e t a s i d e b y t h e e q u i r e d t o p u r s u e t h i s a s s e t a t t h e t i m e b e c a u s e i t i m i t . n a n d w a s a d v i s e d t h a t , i n a h a r d s h i p s i t u a t i o n , s e d . t i o n d a t e d N o v e m b e r 1 2 , 2 0 1 4 , t h e m i n i s t r y p i t e t h e g a r n i s h m e n t a n d e v e n i f a l l t h e f u n d s a r e a s h i n g o r r e d e e m i n g t h e G I C a n d d i r e c t i n g t h e p e l l a n t ' s s p o u s e . e l e t t e r s f r o m t h e f i n a n c i a l i n s t i t u t i o n o r f r o m t h e p u r s u a n t t o S e c t i o n 2 2 ( 4 ) o f t h e E m p l o y m e n t a n d s s e t i n q u e s t i o n a n d b e i n g i n s u p p o r t o f ry a t r e c o n s i d e r a t i o n .
APPEAL# I PART F -Reasons for Panel Decision The issue on appeal is whether the ministry's decision, which found that the appellant failed to pursue an asset that would enable the appellant to be completely or partly independent of income assistance, as set out in Section 14 of the Employment and Assistance Act (EM), and reduced the appellant's income assistance until the failure is remedied pursuant to Section 31 of the Employment and Assistance Regulation (EAR), is reasonably supported by the evidence or a reasonable application of the applicable enactment in the circumstances of the appellant. Section 14 of the EAA provides: Consequences of not accepting or disposing of property 14 (1) The minister may take action under subsection (3) if, within 2 years before the date of application for income assistance or hardship assistance or at any time while income assistance or hardship assistance is being provided, an applicant or a recipient has done either of the following: (a) failed to accept or pursue income, assets or other means of support that would, in the minister's opinion, enable the applicant or recipient to be completely or partly independent of income assistance, hardship assistance or supplements; (b) disposed of real or personal property for consideration that, in the minister's opinion, is inadequate. (2) A family unit is not eligible for income assistance for the prescribed period if, within 2 years before the date of application for income assistance or hardship assistance or at any time while income assistance or hardship assistance is being provided, an applicant or a recipient has done either of the following: (a) disposed of real or personal property to reduce assets; (b) [Not in force.] (3) In the circumstances described in subsection (1) , the minister may (a) reduce the amount of income assistance or hardship assistance provided to or for the family unit by the prescribed amount for the prescribed period, or (b) declare the family unit of the person ineligible for income assistance or hardship assistance for the prescribed period. Section 31 of the EAR provides that: Effect of failing to pursue or accept income or assets or of disposing of assets 31 (1) For the purposes of section 14 (3) (a) [consequences of not accepting or disposing of property] of the Act in relation to a failure to accept or pursue income, assets or other means of support referred to in section 14 (1) (a) of the Act, the amount of a reduction is $100 for each calendar month for each applicant or recipient in the family unit and the period of the reduction is (a) if the income, assets or other means of support are still available, until the failure is remedied, and (b) if the income, assets or other means of support are no longer available, for one calendar month for each $2 000 of the value of the forgone income, assets or other means of support. (2) For a family unit that is declared ineligible under section 14 (3) (b) of the Act for income assistance or hardship assistance because an applicant or recipient in the family unit failed to accept or pursue income, assets or other means of support referred to in section 14 (1) (a) of the Act, the period of
i n e l i g i b i l i t y i s , ( a ) i f t h e i n c o m e , a s s e t s o r o t h e r m e a n s o f s u p p o t h e f a i l u r e i s r e m e d i e d , a n d ( b ) i f t h e i n c o m e , a s s e t s o r o t h e r m e a n s o f s u p p o m a d e , o n e c a l e n d a r m o n t h f o r e a c h $ 2 0 0 0 o f m e a n s o f s u p p o r t . ( 3 ) F o r t h e p u r p o s e s o f s e c t i o n 1 4 ( 3 ) ( a ) o f t h e A c t i n w h o h a s d i s p o s e d o f r e a l o r p e r s o n a l p r o p e rt y f o r i n a d e q u a t e , ( a ) t h e a m o u n t o f t h e r e d u c t i o n i s $ 1 0 0 f o r e a c h c a f a m i l y u n i t , a n d ( b ) t h e p e r i o d o f t h e r e d u c t i o n i s o n e c a l e n d a r m o n c o n s i d e r a t i o n . ( 4 ) F o r t h e p u r p o s e s o f s e c t i o n 1 4 ( 3 ) ( b ) o f t h e A c t i n w h o h a s d i s p o s e d o f r e a l o r p e r s o n a l p r o p e r t y f o r i n a d e q u a t e , t h e p e r i o d o f t h e i n e l i g i b i l i t y i s o n e c a f o r g o n e c o n s i d e r a t i o n . ( 5 ) F o r t h e p u r p o s e s o f s e c t i o n 1 4 ( 2 ) ( a ) o f t h e A c t , t h $ 2 0 0 0 o f t h e v a l u e o f t h e r e a l o r p e r s o n a l p r o p e r t y S e c t i o n 1 o f t h e E A R p r o v i d e s t h a t : 1 ( 1 ) I n t h i s r e g u l a t i o n : " a s s e t " m e a n s ( a ) e q u i t y i n a n y r e a l o r p e r s o n a l p r o p e r t y t h a t c a n ( b ) a b e n e f i c i a l i n t e r e s t i n r e a l o r p e r s o n a l p r o p e r t y ( c ) c a s h a s s e t s . " c a s h a s s e t s " i n r e l a t i o n t o a p e r s o n , m e a n s ( a ) m o n e y i n t h e p o s s e s s i o n o f t h e p e r s o n o r t h e p ( b ) m o n e y s t a n d i n g t o t h e c r e d i t o f t h e p e r s o n o r t h ( i ) a s a v i n g s i n s t i t u t i o n , o r ( i i ) a t h i r d p a r t y t h a t m u s t p a y i t t o t h e p e r s o n o r t h e d e p e n d a n t o n ( c ) t h e a m o u n t o f a m o n e y o r d e r p a y a b l e t o t h e p e r ( d ) t h e a m o u n t o f a n i m m e d i a t e l y n e g o t i a b l e c h e q u S e c t i o n 1 o f t h e E A A p r o v i d e s t h a t : I n t e r p r e t a t i o n 1 ( 1 ) I n t h i s A c t : " d e p e n d a n t " , i n r e l a t i o n t o a p e r s o n , m e a n s a n y o A P P E A L # I rt a r e s t i l l a v a i l a b l e w h e n t h e d e c l a r a t i o n i s m a d e , u n t i l r t a r e n o l o n g e r a v a i l a b l e w h e n t h e d e c l a r a t i o n i s t h e v a l u e o f t h e f o r g o n e i n c o m e , a s s e t s o r o t h e r r e l a t i o n t o t h e f a m i l y u n i t o f a n a p p l i c a n t o r r e c i p i e n t c o n s i d e r a t i o n t h a t , i n t h e m i n i s t e r ' s o p i n i o n , i s l e n d a r m o n t h f o r e a c h a p p l i c a n t o r r e c i p i e n t i n t h e t h f o r e a c h $ 2 0 0 0 o f t h e v a l u e o f t h e f o r g o n e r e l a t i o n t o t h e f a m i l y u n i t o f a n a p p l i c a n t o r r e c i p i e n t c o n s i d e r a t i o n t h a t , i n t h e m i n i s t e r ' s o p i n i o n , i s l e n d a r m o n t h f o r e a c h $ 2 0 0 0 o f t h e v a l u e o f t h e e p e r i o d o f i n e l i g i b i l i t y i s 2 c a l e n d a r m o n t h s f o r e a c h t h a t w a s d i s p o s e d o f t o r e d u c e a s s e t s . b e c o n v e r t e d t o c a s h , h e l d i n t r u s t , o r e r s o n ' s d e p e n d a n t , e d e p e n d a n t w i t h d e m a n d , s o n o r t h e d e p e n d a n t , o r e p a y a b l e t o t h e p e r s o n o r t h e d e p e n d a n t ; n e w h o r e s i d e s w i t h t h e p e r s o n a n d w h o
APPEAL# I (a) is the spouse of the person, (b) is a dependent child of the person, or (c) indicates a parental role for the person's dependent child; "family unit" means an applicant or a recipient and his or her dependants; Ministry's position The ministry's position is that the GIC held in an RRSP account in the name of the appellant's spouse is an asset that is available for redemption to the family unit even if there is a penalty to redeem it. The ministry argued that when the appellant's spouse locked in the GIC for an additional 60 months in July 2014, the appellant's family unit failed to pursue the asset that, in the ministry's opinion, would have enabled the appellant to be completely or partly independent of income assistance. The ministry argued that, in these circumstances, the ministry may reduce the amount of income assistance provided to or for the family unit by the prescribed amount, for the prescribed period, pursuant to Section 14(3) of the EAA. The ministry argued that, pursuant to Section 31 (1) of the EAR, the prescribed amount is $100 for each calendar month for each recipient in the family unit, or a total of $200 for the appellant and her husband, and the period of the reduction is until the failure is remedied since the asset is still available. Appellant's position The appellant's position is that although her husband has a GIC in an RRSP account in his name, she does not have access to the money in any way as she is merely named as a beneficiary in case of her husband's death. The appellant argued that the financial institution confirmed, in the letter dated November 12, 2014, that a garnishment was placed on the account with the RRSP in the name of the appellant's spouse on January 29, 2013 and the funds held under this plan are unavailable until the garnishment has been removed or resolved. The appellant argued that the money in question was moved because of the matter before the courts between the appellant's husband and his ex-wife. The appellant argued that the issues between her husband and his ex-wife have been going on for years and her "hands are tied" and there is nothing she can do to get the money. Panel decision Section 14(1) (a) of the EAA stipulates that the ministry may take action under subsection (3) if, at any time while income assistance is being provided, a recipient has failed to pursue income, assets or other means of support that would, in the ministry's opinion, enable the recipient to be completely or partly independent of income assistance. As the definition of "family unit" set out in Section 1 of the EAA means a recipient of income assistance and her dependants and "dependant" means anyone who resides with the appellant and who is her spouse, the panel finds that the appellant's spouse is both her dependant and part of the appellant's family unit. Therefore, while the appellant argued that the GIC belongs to her husband and that she has no say regarding the funds, the panel finds that the ministry reasonably determined that the GIC is in the name of a member of the appellant's family unit and is an asset available for the appellant to pursue. The ministry pointed out at the hearing that when the appellant and her husband applied for income assistance they provided a copy of the Term Investment Details from the financial institution indicating a GIC with a current value of $17,175.36 which matured on July 28, 2014 and the ministry had erroneously advised the appellant that this asset would be exempt until the maturity date since the appellant was actually required to pursue this asset immediately because it is valued at more than the applicable asset limit. In the letter dated October 23, 2014, the appellant's husband wrote that he
APPEAL# I met with the financial manager at the financial institution and asked him to release the funds held in the GIC and agreed to pay all the penalties for early withdrawal, which were over $2,000, but when the manager called his head office for release of the funds, he was told the money cannot be released to the appellant's husband because of the hold by FMEP. In her Request for Reconsideration, the appellant acknowledged that the money in question was moved on the maturity date because of the matter before the courts between a third party and the appellant's husband. The panel finds the action by the financial institution on the GIC maturity date, by following the direction of the appellant's husband to invest the RRSP funds in a new GIC for a period of 5 years, demonstrates that the appellant's husband maintained control of the RRSP funds and that the financial institution followed his direction and did not honour a "hold" by FMEP or pay the funds over to the garnishee at that time even though the garnishee had been in place since January of 2013. The panel finds that the ministry reasonably determined that the appellant failed to pursue the RRSP funds as an asset that would enable her, in the ministry's opinion, to be completely or partly independent of income assistance. While the financial institution is required to immediately apply the funds requested by the appellant's spouse to his outstanding debt, as re-directed by the FMEP garnishee, the amount of the garnishee is not confirmed and there may be some funds remaining to pay out to the appellant's spouse. At the hearing, the appellant stated that there are arrears of about $44,000 in child support that she and her husband are now having a lawyer look at and she understands that the amount may be less since the ex-wife is only entitled for child support during part of the time that she is claiming. In the absence of information to confirm the amount of any judgment in favour of FMEP that must be recovered through the garnishee, the panel finds that the ministry reasonably determined that the RRSP funds are an asset that, in the ministry's opinion, would enable the appellant to be at least partly independent of income assistance. In these circumstances, Section 14(3)(a) of the EAA provides that the ministry may reduce the amount of income assistance provided to or for the family unit by the prescribed amount for the prescribed period. Section 31 (1)(a) of the EAR set out that for the purposes of section 14 (3)(a) of the EAA in relation to a failure to pursue assets, the amount of a reduction is $100 for each calendar month for each recipient in the family unit and the period of the reduction, if the assets are still available, is until the failure is remedied. As the appellant and her spouse are both recipients of income assistance, the panel finds that the ministry reasonably reduced the amount of income assistance provided to or for the appellant's family unit by a total of $200 per month until the failure is remedied, or the RRSP funds are pursued and the GIC redeemed. Conclusion The panel finds that the ministry decision was a reasonable application of the applicable enactment in the circumstances of the appellant and confirms the reconsideration decision pursuant to Section 24(2)(a) of the EAA.
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.