PART C – Decision under Appeal
The decision under appeal is the Ministry of Social Development and Social Innovation (the
“ministry”) reconsideration decision of July 22, 2015, which found that the appellant did not qualify for
the Persons with Persistent Multiple Barriers (PPMB) status. The ministry determined that the
appellant had an employability screen score of less than 15 and in the opinion of the minister the
medical condition of the appellant did not preclude him from searching for, accepting, or continuing in
employment as required by section 2 of the Employment and Assistance Regulation (EAR) (Note that
the ministry incorrectly cited section 2 of the Employment and Assistance Act in the Reconsideration
Decision).
PART D – Relevant Legislation
EAR section 2
PART E – Summary of Facts
With the consent of both parties the hearing was conducted as a written hearing pursuant to section
22(3)(b) of the Employment and Assistance Act (EAA).
The information before the ministry at the time of reconsideration included the following:
1.
A Medical Report – Persons with Persistent Multiple Barriers dated April 22, 2015 that was
completed by the appellant’s general practitioner and reports that the appellant has a primary
medical condition of severe depression with an onset of (around) 2010 and a secondary
medical condition of social anxiety with the date of onset not indicated. The report notes that
the appellant has been treated by a psychiatrist with minimal change in outcome and that the
appellant has refused medications to date. The report states that the appellant has had this
condition(s) for 10 ½ years (which does not concur with the stated date of onset) and is
constant rather than episodic in nature. The expected duration of the condition(s) is 2 years or
more. The physician also notes “Condition affects almost all aspects of life & is unable to do
any type of work currently.”
2.
An undated Employability Screen that reports a total score of 8.
3.
The appellant’s Request for Reconsideration signed and dated by the appellant on June 6,
2015. In it the appellant explains that he had completed the employability screen incorrectly for
questions #3, #5 and #6. His suggested alternate responses go to argument and are
discussed in Part F. He goes on to explain that many days he is unable to function in public
and consequently cannot perform in a job regularly. The appellant included a handwritten
statement expanding upon his reasons for requesting reconsideration. He noted that his doctor
has indicated the impact his medical condition has upon his ability to work (noted above) and
comments that his psychiatrist agreed that his condition severely limits his life and work.
Unfortunately, this statement appears to continue beyond the one-page included in the appeal
package but the balance of the appellant’s statement is not available to the panel.
The appellant’s Notice of Appeal was dated August 5, 2015. He includes an undated letter which
states that he has worked part time for the last year or two making an average of $250 - $400 a
month. He reports that this is the most he has been able to work in 7-8 years. The rest of the
statement goes to argument and is included in Part F. Also included with the Notice of Appeal was a
note from the appellant’s physician dated August 5, 2015 that states “This is to confirm that (the
appellant) is severely unwell with mental health concerns & therefore unable to work. Please support
him to apply for disability.”
In the Reconsideration Decision the ministry indicates that it accepts the appellant’s proposal that
question #5 on the Employability Screen should be “a – Post-secondary program – degree or
diploma” but it does not agree with the appellant’s suggested alternate responses to questions #3
and #6. The ministry concludes that the appellant’s score on the Employability Screen is less than 15.
In addition, the ministry concludes that the information provided by the appellant’s doctor does not
support that his medical condition is expected to preclude him from searching for, accepting, and
maintaining employment.
PART F – Reasons for Panel Decision
The issue in this appeal is whether the ministry’s decision to deny the appellant PPMB status was
reasonably supported by the evidence or was a reasonable application of the applicable enactment in
the circumstances of the appellant. In particular, was the ministry reasonable in determining that the
appellant has an Employability Screen score of less than 15 and in the opinion of the minister the
medical condition of the appellant did not preclude him from searching for, accepting, or continuing in
employment as required by section 2 of the Employment and Assistance Regulation (EAR).
The relevant legislation is as follows:
EAR
Persons who have persistent multiple barriers to employment
2 (1) To qualify as a person who has persistent multiple barriers to employment, a person must meet
the requirements set out in
(a) subsection (2), and
(b) subsection (3) or (4).
(2) The person has been a recipient for at least 12 of the immediately preceding 15 calendar months
of one or more of the following:
(a) income assistance or hardship assistance under the Act;
(b) income assistance, hardship assistance or a youth allowance under a former Act;
(c) a disability allowance under the Disability Benefits Program Act;
(d) disability assistance or hardship assistance under the Employment and Assistance for Persons
with Disabilities Act.
(3) The following requirements apply
(a) the minister
(i) has determined that the person scores at least 15 on the employability screen set out in
Schedule E, and
(ii) based on the result of that employability screen, considers that the person has barriers that
seriously impede the person's ability to search for, accept or continue in employment,
(b) the person has a medical condition, other than an addiction, that is confirmed by a medical
practitioner and that,
(i) in the opinion of the medical practitioner,
(A) has continued for at least one year and is likely to continue for at least 2 more years, or
(B) has occurred frequently in the past year and is likely to continue for at least 2 more years, and
(ii) in the opinion of the minister, is a barrier that seriously impedes the person's ability to search for,
accept or continue in employment, and
(c) the person has taken all steps that the minister considers reasonable for the person to overcome
the barriers referred to in paragraph (a).
(4) The person has a medical condition, other than an addiction, that is confirmed by a medical
practitioner and that,
(a) in the opinion of the medical practitioner,
(i) has continued for at least one year and is likely to continue for at least 2 more years, or
(ii) has occurred frequently in the past year and is likely to continue for at least 2 more years, and
(b) in the opinion of the minister, is a barrier that precludes the person from searching for, accepting
or continuing in employment.
The Appellant’s Position
The appellant argues that his condition is misunderstood. Although he has worked part time for the
last year or so he states that this is the most he has been able to work for 7 – 8 years but he has only
earned $250 - $400 a month and this is not enough to live on. The appellant notes that the
reconsideration decision states that the employer has made no special arrangements for the
appellant’s condition but the appellant points out that he did not want to tell his employer about his
condition. He wanted to try to get better and get back to working to see how capable he was without
pushing himself in a way that was unhealthy for him in his condition. He states that his psychiatrist
agreed with this. He reports that he has had a lower back injury since childhood and is incapable of
keeping up the work on top of the mental emotional stress it generates. He indicates that there have
been many days when he has been unable to work and it is a severe push to get himself to go to
work which often results in exhaustive repercussions which shut him down for days. He notes that the
reconsideration package stated that the ministry concluded that the correct response to question #6
on the Employability Screen should be “a – More than 12 months” whereas he considers the correct
response to be “d – None or very limited work experience” since he is unable to earn enough money
to survive on. He states that he has no family home or money to fall back on.
The Ministry’s Position
In the Reconsideration Decision the ministry states “To be eligible for PPMB, a recipient must meet
the criteria in the Employment and Assistance Regulation (“the Regulation”), Sections 2, by meeting
subsection 2 and either 3 or 4. The ministry has determined that you meet subsections 2 and 4
therefore are eligible for PPMB.” But in the Reconsideration Decision the ministry goes on to state
that while the appellant meets subsection 2 (which requires that the applicant have been in receipt of
income assistance for at least 12 of the past 15 months), it reports that subsection 3 is not applicable
(because the appellant has an employability screen score of less than 15) and subsection 4 is not
met (because in the opinion of the ministry the information provided does not support that the
appellant’s medical condition is expected to preclude him from searching for, accepting, and
maintaining employment). The ministry argues that a medical condition is considered to preclude
working when as a result of the medical condition, the recipient is unable to participate in any type of
employment for any length of time, except in a supported or sheltered-type work environment. Since
the appellant is not in such a supported or sheltered work environment the ministry concluded that
the appellant’s medical condition did not preclude him from searching for, accepting or continuing in
employment.
Conclusion
The panel reviewed the appellant’s employability screen score. Question #3 asks “Apart from your
current application, how many times have you been on income or Social Assistance anywhere in
Canada in the last 3 years? The appellant argued that the correct response to question #3 was “c –
More than 3 times” and explained that this was the correct response “as I have been on income
assistance since 2007.” The ministry selected “a – Never” as the correct response to this question
and explained that this was the correct response because the appellant’s current application opened
December 28, 2006. The panel accepts the ministry’s answer to this question because it states “Apart
from your current application . . . “ The appellant has provided no information to support the claim that
he has been on Social Assistance more than three times in the past three years apart from his
current application. The ministry did concur with the appellant that the correct response to question
#5 is “a – Post-secondary program – degree or diploma”. For question #6 the appellant argued that
the correct response was “d – None or very limited work experience” whereas the ministry chose “a –
More than 12 months” as the correct response. Since question #6 specifies time spent in paid
employment and the appellant has been in paid employment since August 2013, the panel accepts
the ministry’s judgment that “a” is the correct response to question #6. The panel notes that the
adjusted response to question #5 (i.e. “a”) increases the appellant’s employability screen score by 1
point but the adjusted response to question #6 (i.e. “a”) results in the appellant’s revised employability
screen score remaining at 8 which is well short of the requirement of 15. Accordingly, the panel finds
that the ministry reasonably determined that the appellant does not satisfy the requirements of
section 2(3) of the EAR.
The panel acknowledges that the appellant’s medical condition affects his ability to function and
observes that the doctor’s note of August 5, 2015 states that the appellant is unable to work.
Nonetheless, the panel also notes that the appellant reported in his undated letter accompanying the
Notice of Appeal that his plan to get back into working and see how capable he was to do so had
been approved by his psychiatrist. Moreover, section 2(4) of the EAR clearly provides for the minister
to have discretion in determining whether a person is precluded from searching for, accepting or
continuing in employment due to their medical condition though that discretion must be exercised
reasonably. In the case of the appellant there is no dispute by either party that he has maintained
part-time employment for a minimum of the past 12 months without special support from his employer
and for this reason the minister reasonably determined that his medical condition did not preclude
him from searching for, accepting or continuing in employment. Accordingly, the panel finds that the
ministry reasonably determined that the appellant does not satisfy the requirements of section 2(4) of
the EAR.
Having reviewed and considered all of the evidence and the relevant legislation, the panel finds that
the ministry’s determination that the appellant has not met the requirements of section 2 of the EAR
for PPMB status was a reasonable application of the applicable enactment in the circumstances of
the appellant.
The panel therefore confirms the ministry decision.
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.