PART C – Decision under Appeal
The decision under appeal is the reconsideration decision dated January 7, 2016 made by the
Ministry of Social Development and Social Innovation (the ministry) which determined that the
appellant does not qualify as a Person with Persistent Multiple Barriers to Employment (PPMB)
because:
1.
she does not have an employability score of at least 15 as required by section 2(3)(a)(i) of the
Employment and Assistance Regulation (EAR), and
2.
the minister is not satisfied that the appellant has a medical condition that is a barrier that
precludes her from searching for, accepting or continuing in employment in accordance with
section 2(4)(b) of the EAR.
PART D – Relevant Legislation
The relevant legislation is section 2 of the EAR.
PART E – Summary of Facts
The evidence before the ministry at the time of the reconsideration decision consisted of:
(1) A Medical Report – PPMB (MR) dated September 14, 2015 completed by the appellant’s
physician indicating that the appellant suffers from PTSD Anxiety with an onset of 1979 and
likely to continue for 2 or more years. Under “Treatment” the physician has written “N/A”. In
section 3 of the form entitled “Restrictions”, which asks the physician to “describe the nature of
any restrictions specific to the above medical condition(s)” the physician entered “No physical
restrictions”. Section 4 of the form, also entitled “Restrictions”, asks the physician to “enclose
copies of documentation that supports the severity and restrictions of the medical condition”.
No such documents were included with the MR.
(2) An employability screen completed by the appellant with a score of 13.
(3) A letter (Letter) dated December 17, 2015 prepared by a community services organization on
behalf of the appellant and completed by the appellant’s physician which lists six “Restrictions”
experienced by the appellant and asks the physician to indicate either ‘yes’ or ‘no’ beside
each. The physician has indicated ‘yes’ to each of the following:
i.
Due to childhood trauma involving a motor vehicle accident, panic attacks are triggered
intersections, traffic lights, vehicles on the road. This occurs as a driver and a
pedestrian.
ii.
Anxiety around germs, being around people who cough, sneeze, just smelling other
people causes major anxiety.
iii.
People being close to her, coming into her personal space causes panic attacks.
iv.
Unfamiliar people, unfamiliar situations, surroundings increase anxiety causing panic
attacks.
v.
Hypersensitive to sounds, easily afraid, needs to be in complete control of her
surroundings in order to manage anxiety attacks.
vi.
Sciatic pain has been ongoing for many years. Flares up with cold or damp weather.
The Letter contains a space for comments which has been left blank.
PART F – Reasons for Panel Decision
The issue under appeal is whether the ministry’s determination that the appellant’s medical condition
is not a barrier that precludes her from searching for, accepting or continuing in employment in
accordance with section 2(4)(b) of the EAR and so cannot designate the appellant as a PPMB was
reasonably supported by the evidence and/or a reasonable application of the legislation.
The criteria for being designated as a PPMB are set out in s. 2 of the 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.
This was a written hearing.
THE APPELLANT’S POSITION
In her appeal submission the appellant writes: “I do not have a grade 10. I have less than that. I have
a hard time w/ the wording. I have education 9-10 modified. This would bring me to the needed 15
score.”
THE MINISTRY’S POSITION
In its written submission that ministry argues that the new information provided by the appellant
regarding her education level was information that “was not before the ministry at the time of the
reconsideration decision and should be considered new information by the tribunal.”
The ministry indicates that it stands by its reconsideration decision in which it determined that the
appellant met the requirements of subsection (2), but that with an employability screen score of 13
she did not meet the requirements of subsection (3) so that in order to qualify as a PPMB she must
meet the requirements of subsection (4). The ministry found that the appellant met the requirements
of subsection 4(a) but not of subsection 4(b) because the appellant was currently enrolled and
participating in an employment program in which she had completed 23 job search activities between
December 1 and 15.
THE PANEL’S DECISION
Admissibility of New Evidence
In accordance with section 24(2) of the Employment and Assistance Act, the panel may only admit
information and records that were either before the ministry at the time of the reconsideration
decision or are in support of information and records that were before the ministry at the time of the
reconsideration decision.
The appellant’s statement that she has not completed grade 10 is not information that was before the
ministry at the time of the reconsideration decision. To be admissible, it must therefore be evidence in
support of information that was before the ministry at the time of the reconsideration decision. In this
case, the evidence clearly contradicts the information that was before the ministry at the time of the
reconsideration decision and so cannot be in support of that information.
Based on this analysis, the evidence submitted by the appellant is not admissible.
Reasonableness of the Ministry’s Decision
Based on the information before the ministry the appellant had an employability score of 13 and so
did not qualify for PPMB under subsection 2(3). In order to qualify as PPMB she must therefore meet
the requirements under subsection 2(4).
The ministry found that the appellant did not qualify under subsection 2(4) because it was not of the
opinion that the appellant’s medical condition is a barrier that precludes her from searching for,
accepting or continuing in employment. This determination was based on the MR, which indicates
“No physical restrictions” and the Letter which lists the appellant’s “Restrictions”.
The MR provides no information that would establish that the appellant’s medical condition precludes
her from searching for, accepting or continuing in employment. It simply states that she has PTSD
and that she has no physical restrictions based on this condition. The Letter, while providing more
information about the appellant’s medical condition, again, does not provide any indication as to how
these conditions are a barrier that precludes her from searching for, accepting or continuing in
employment.
Finally, as the ministry points out, the appellant was actually currently enrolled and participating in an
employment program at the time of the reconsideration decision in which she had carried out
numerous job search activities. This de facto demonstrates that the appellant’s medical condition is
not a barrier that precludes her from searching for, accepting or continuing in employment.
Accordingly, the panel concludes that the ministry's decision that the appellant does not qualify for
PPMB designation because she does not meet the requirements of paragraph 2(4)(b) of the EAR
was reasonably supported by the evidence before it, and confirms the ministry’s decision.
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