PART C – Decision under Appeal
The decision under appeal is the Ministry of Social Development and Social Innovation (the
“ministry”) reconsideration decision dated November 16, 2015 wherein the ministry denied the
appellant’s application for qualification as a person with persistent multiple barriers to employment
(“PPMB”). The ministry determined that the appellant satisfied all statutory criteria for PPMB
designation except that, in the ministry’s opinion, the appellant’s medical conditions do not preclude
her from searching for, accepting, or continuing in employment as required by section 2(4)(b) of the
Employment and Assistance Regulation (“EAR”).
PART D – Relevant Legislation
EAR: section 2 [persons who have persistent multiple barriers to employment], and Schedule B
section 3(6)(d) [exemption – earned income].
PART E – Summary of Facts
The information before the ministry at the time of reconsideration included the following:
A PPMB Medical Report form dated April 15, 2014. The appellant’s primary medical condition
was listed as “anxiety/depression.” The secondary condition is “eating disorder.” Related
restrictions were described by the appellant’s physician as “Tends to self isolate. Marginal
social skills in public situations.” The physician commented “Struggles academically.
Reclusive – struggles with public situations.” The appellant is under CBT treatment and takes
antidepressant medication.
A PPMB Medical Report form dated March 23, 2015. The appellant’s primary medical
condition was listed as “anxiety/depression,” and secondary condition as “learning difficulties.”
Related restrictions were described by the physician as “Limited ability to concentrate/learn
new tasks/organize herself.” The physician commented “Struggles with anxiety and
depression. Learning difficulties.” The appellant is under CBT treatment and takes
antidepressant medication.
The appellant has been a recipient of income assistance for 14 of the past 15 months. She is
attending a program of study (the “Program”) at a local university that the ministry stated in its
reconsideration decision is “specifically designed for students with developmental and cognitive
disabilities and is designed to assist student’s development with personal, interpersonal, and
employment skills.”
At reconsideration the appellant made written submissions stating that:
She is not ready for employment because she is currently enrolled in the Program to gain
employment.
Her physician has shown in writing how severe her depression and anxiety are.
She is not able to cope with a job search and attending school.
She is in the first year of a two year course.
In her oral testimony on appeal, the appellant (sometimes speaking for herself, but primarily through
her mother who represented her), the appellant stated that:
She is anxious and prone to panic. She often freezes up in public.
She is maturing and her skills are improving but she is not yet ready for the demands of
employment. Her mother cannot afford to keep her at home. She is not good with crowds or
new situations.
The Program has been very helpful. The second year of the program will provide an
opportunity for job shadowing and subsequent employment.
In response to a question from the ministry, the appellant stated that she attends the Program three
days a week, from 9:00 a.m. to noon. They learn how to speak to people, how to dress for work, and
one of the mornings each week is dedicated to working outdoors on a community garden and
community farm store to learn employment skills. The class consists of approximately 13 students
with developmental issues similar to the appellant’s.
In response to a question from the panel the appellant stated through her representative that she
does not dispute the employment screen score of 12.
At the hearing the appellant, through her representative, submitted a letter from her physician for
consideration. In the letter, dated December 17, 2015 the physician wrote that:
“I am writing in support of this young woman’s application for disability status. (sic) She is now
[age]. She has a well established learning disorder. She is quite disorganized and would have
trouble coping with most employment stressors. Her thought processes are very concrete and
she is easily overwhelmed by anxiety and panic. She has difficulty undertaking complex
multistep tasks. She is somewhat agorophobic (sic) and uncomfortable with people she doesn’t
know well. In order to cope in any employment situation she would have to be very closely
supervised and directed. This would preclude her participating in most jobs except in very
special circumstances.”
The ministry expressly took no position on admissibility of the physician’s letter.
In the panel’s view, the physician’s letter of December 17, 2015 substantially reiterates information
that was in the two PPMB Medical Reports, while at the same time providing more detail which is
consistent with, and tends to corroborate, the earlier information. Accordingly the panel has admitted
this letter into evidence in accordance with section 22(4) of the Employment and Assistance Act
(“EAA”).
The appellant’s oral testimony provided more detail about – and tended to corroborate - information
that was before the ministry at the time of reconsideration. Accordingly, the panel has admitted the
oral testimony into evidence in accordance with EAA section 22(4).
The ministry relied on its reconsideration decision.
PART F – Reasons for Panel Decision
The issue on appeal is the reasonableness of the ministry’s reconsideration decision wherein the
ministry denied the appellant’s application for qualification as a PPMB. The ministry determined that
the appellant satisfied all statutory criteria for PPMB designation except that, in the ministry’s opinion,
the appellant’s medical conditions do not preclude her from searching for, accepting, or continuing in
employment as required by section 2(4)(b) of the 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.
EAR Schedule B
Exemption — earned income
3 (1) Subject to subsection (2), the amount of earned income calculated under subsection (6) is
exempt for a family unit.
(2) If an application for income assistance (part 2) form is submitted to the minister, the family
unit may not claim an exemption under this section in relation to the first calendar month
for which the family unit becomes eligible for income assistance unless a member of the
family unit received disability assistance under the Employment and Assistance for Persons
with Disabilities Act for the calendar month immediately preceding that first calendar
month.
(3)-(5) Repealed. [B.C. Reg. 145/2015, Sch. 1, s. 16. ]
(6) The exempt amount for a family unit is the lesser of the family unit's total earned income in
the calendar month of calculation and the following:
…
(d) $500, if the family unit includes a person who has persistent multiple
barriers to employment.
* * *
The appellant’s position is that there is sufficient evidence to demonstrate that the appellant qualifies
for designation as a PPMB. She stated that the physician has demonstrated the severity of her
anxiety and depression, and argued that while she is improving and learning new skills in the
Program, she cannot engage in the Program and search for employment at the same time.
The ministry’s position, as stated in its reconsideration decision, is that the physician has not provided
enough information on the restrictions resulting from the appellant’s medical condition to establish
that her condition would preclude her from searching for and maintaining employment. The ministry
argued that the appellant acknowledged that she cannot engage in the Program and search for
employment at the same time, implying that she could engage in employment if she weren’t enrolled
in the Program.
Panel Decision
The only issue in dispute is whether the appellant’s medical condition is a barrier that precludes her
from searching for, accepting or continuing in employment as contemplated by section 2(4)(b) of the
EAR. The usual meaning of the word “preclude” is “to make impossible or prevent from happening.”
However, reading the legislation as a whole it is clear that the legislative intent is not to interpret
“preclude” in such a literal fashion, since the earnings exemption in section 3(6)(d) of EAR Schedule
B anticipates that a PPMB may earn some employment income. The ministry acknowledged that a
less stringent interpretation of “preclude” is appropriate in citing its policy that “a medical condition
precludes employment 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.”
The ministry did not directly address the statutory interpretation issue and apply it to the evidence,
other than to conclude that the physician did not provide enough evidence of restrictions imposed by
the appellant’s medical conditions. The ministry also inferred that the appellant cannot attend the
Program and search for work, but that she is capable of either individually. However, reading the two
PPMB Medical Reports together with the physician’s letter of December 17, 2015 (which the panel
acknowledges was not before the reconsideration officer), the evidence demonstrates that the
appellant’s medical condition restricts her from engaging in a work environment that presents typical
“employment stressors.” She is currently engaged in the Program for only a very few hours per week,
in an environment which in the appellant’s circumstances reflects the “supported or sheltered-type”
environment contemplated by the ministry’s policy and the legislative intent.
Based on the foregoing rationale, the panel finds the ministry’s reconsideration decision was not a
reasonable application of the legislation in the appellant’s circumstances, and rescinds the decision in
the appellant’s favour.
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