PART C – Decision under Appeal
The decision under appeal is the reconsideration decision of the Ministry of Social Development and
Social Innovation (the ministry) dated March 1, 2016 declaring the appellant for designation as a
Person with Disabilities (PWD). The ministry determined that the appellant did not meet all of the
required criteria for PWD designation set out in the Employment and Assistance for Persons with
Disabilities Act, Section 2. Specifically, the ministry determined that the information provided did not
establish that in the opinion of a prescribed professional the appellant’s severe mental impairment:
(i) directly and significantly restricts his ability to perform daily living activities (DLA) either
continuously or periodically for extended periods; and,
(ii) as a result of those restrictions, he requires help to perform those activities.
The ministry determined that the appellant satisfied the other 3 criteria: he has a severe mental
impairment, has reached 18 years of age and in the opinion of a medical practitioner his impairment
is likely to continue for at least 2 years.
PART D – Relevant Legislation
Employment and Assistance for Persons with Disabilities Act (EAPWDA) – section 2
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) – section 2
PART E – Summary of Facts
The hearing was originally set down for April 4, 2016. The appellant requested an adjournment to a
different venue because he was unable to access the second-floor room where the hearing was
arranged. The ministry representative supported the appellant’s request for an adjournment. The
panel chair approved the appellant’s request, and the appeal hearing reconvened on April 14, 2016.
The evidence before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD designation application submitted September 11, 2015, which contained:
Physician Report (PR) dated September 8, 2015, completed by the appellant’s general
practitioner (GP) who has known the appellant since birth and who has seen him 2-10
times in the past year;
Assessor Report (AR) dated July 27, 2015 completed by a social worker (SW)
employed by Community Living BC (CLBC), who has known the appellant for 1 months
and has seen him 2-10 times during that period;
Self Report (SR) completed July 28, 2015.
2.
Request for Reconsideration received by the ministry on February 18, 2016 with the following
attachments:
i.
Psycho-educational assessment of the appellant dated June 24, 2011undertaken to
assist the appellant in post-secondary education or employment;
ii.
Psychiatric consultation report co-authored by psychiatrist Dr. M dated July 9, 2014
containing a psychiatric assessment of the appellant;
iii.
Letter authored by a social worker/mental health clinician and psychiatrist Dr. P
supporting the appellant’s PWD designation.
In the PR the GP lists the following diagnoses related to the appellant’s impairment: major
depression, generalized anxiety disorder, attention deficit disorder and developmental disability
(“intellectually impaired”).
Evidence from the PR and AR is summarized as follows:
Severity/Health History:
Physical Impairment:
PR:
Part B - Health History:
The GP writes: “appellant has trouble being around people due to anxiety and intellectual
impairment. He will require help in all aspects of his life as he moves forward”. The GP notes
that the appellant has not been prescribed any medication and/or treatments that interfere with
his ability to perform DLAs.
Part C - Functional Skills:
The GP reports that the appellant can walk 4+ blocks and climb 5+ steps unaided, and has no
limitations around lifting or remaining seated. He experiences difficulties with communication
due to his cognitive/intellectual impairment, and has significant deficits in cognitive and
emotional function, specifically:
-
executive function (planning, organizing, sequencing, calculations, judgment)
-
memory (ability to learn and recall information)
-
perceptual psychomotor (visual spatial) function
-
emotional disturbance (eg. depression, anxiety)
-
attention or sustained concentration.
AR:
Part B - Mental or Physical Impairment:
1.
The Assessor writes that the appellant suffers from anxiety (panic attacks), depression,
Attention Deficit Disorder, and mild intellectual disability, adding that he is supported by CLBC.
2.
All 4 areas outlined in “ability to communicate” (speaking, reading, writing, hearing) are
described as Good.
3.
The Assessor also marks him as being Independent in mobility and physical mobility.
4.
In “Cognitive and Emotional Functioning” the assessor indicates:
- Major impact in functioning in areas of Emotion (excessive/inappropriate anxiety,
depression), Executive ( planning, organizing, sequencing, abstract thinking, problem-
solving, calculations), Memory and Motivation;
- Moderate impact in Consciousness (orientation, alert/drowsy, confusion),
Attention/concentration and other Neuropsychological problems (eg. learning
disabilities);
- Minimal Impact in Bodily Functions, Impulse Control, Insight and Judgment, Motor
Activity and Language;
- No impact in the area of Psychotic Symptoms.
The Assessor comments that the appellant gets angry from time to time. When frustrated the
appellant may hit a tree with his hand, and uses the pain to calm down his anger.
Ability to perform DLA:
PR:
Part E - The GP notes that the appellant has no restrictions in personal self care, medication
management, shopping, mobility and transportation use. He does not know if the appellant is
restricted in meal preparation, basic housework or managing his finances.
In social functioning, which includes daily decision-making, interacting, relating and
communicating the GP indicates that the appellant is continuously restricted, and explains:
“Cannot function in groups, severe anxiety/depression”. The GP does not provide additional
comments regarding the degree of the appellant’s restriction.
In reply to the question concerning what assistance the appellant needs with ADLs, the GP
notes: “May need assistance managing finances, executive functions.”
Part F – the GP did not provide any additional information considered relevant to an
understanding of the significance of the appellant’s medical condition, the nature and extent of
his impairment and its impact on his daily functioning.
AR:
The Assessor indicates that the appellant is independent in all DLAs except social functioning
DLAs. She comments that although the appellant can use public transit independently he
does not do so due to his anxiety of being in a crowd.
In DLAs related to social functioning the Assessor adds the following explanations:
-
Appropriate social decisions : Independent, but avoids social situations due to
anxiety;
-
Developing/maintaining relationships: Independent;
-
Interacts appropriately with others: Independent, but does not socialize outside of
family;
-
Ability to deal appropriately with unexpected demands: Independent, but does not
like surprises;
-
Able to get assistance from others: requires Periodic Support/Supervision.
Requires others to reach out to him, needs support navigating “systems”.
In describing how the appellant’s mental impairment impacts his immediate social network the
Assessor notes that he has Marginal functioning, with lack of engagement and communication
in relationships.
In describing the impact on the appellant’s extended social networks the Assessor again notes
Marginal functioning (little more than basic acts to fulfill basic needs), with very little
engagement with extended social networks.
In describing the support/supervision required to help maintain the appellant in the community
the Assessor noted that support is needed to draw him out and ensure he is getting the
necessary attention to maintain health and safety
Assistance Provided
The Assessor notes that family and community services agencies (through CLBC) provide support.
The appellant does not require an assistive device or an assistance animal.
Additional Information
The Assessor states that the appellant has been diagnosed with an intellectual disability and receives
support from CLBC. He struggles greatly with his mental health – anxiety and depression and is
supported by a psychiatrist at the Developmental Disability Mental Health clinic.
At the hearing the appellant tendered a letter from CLBC dated January 13, 2015 which confirmed
that as a CLBC client the appellant has met the diagnostic criteria for a developmental disability. The
ministry did not object to the admission of this letter. The panel determined that the letter was
admissible under EAA Section 22(4) as evidence in support of the information before the ministry at
the time of reconsideration because it corroborated the diagnoses in the PR.
At the hearing the appellant’s CLBC worker (“B”) told the panel that the when the appellant has a bad
day his anxiety disorder affects his ability to perform DLA’s. He can’t eat properly and can’t carry on
with his plans for the day. Recently the appellant was introduced to an employment coach, who
stated that he was not ready to attempt employment due to the severity of his panic attacks. The
appellant’s grandfather prepares his meals and drives him to appointments.
PART F – Reasons for Panel Decision
The issue in this appeal is whether the ministry decision that determined that the appellant did not
meet two of the five statutory requirements of Section 2 of the EAPWDA for designation as a person
with disabilities (PWD) is reasonably supported by the evidence or is a reasonable application of the
legislation in the circumstances of the appellant. The ministry found that the appellant had a severe
mental impairment, met the age requirement and, in the opinion of a medical practitioner, his
impairment is likely to continue for at least two years. However, the ministry was not satisfied that the
evidence establishes that:
the appellant's DLA are, in the opinion of a prescribed professional, directly and significantly
restricted either continuously or periodically for extended periods; and,
as a result of these restrictions, the appellant requires the significant help or supervision of
another person, the use of an assistive device, or the services of an assistance animal to
perform DLA.
The relevant legislation is as follows:
EAPWDA:
2 (1) In this section:
"assistive device" means a device designed to enable a person to perform a daily living
activity that, because of a severe mental or physical impairment, the person is unable to
perform;
"daily living activity" has the prescribed meaning;
"prescribed professional" has the prescribed meaning.
(2) The minister may designate a person who has reached 18 years of age as a person with
disabilities for the purposes of this Act if the minister is satisfied that the person has a severe
mental or physical impairment that
(a) in the opinion of a medical practitioner is likely to continue for at least 2 years, and
(b) in the opinion of a prescribed professional
(i) directly and significantly restricts the person's ability to perform daily living activities
either
(A) continuously, or
(B) periodically for extended periods, and
(ii) as a result of those restrictions, the person requires help to perform those activities.
(3) For the purposes of subsection (2),
(a) a person who has a severe mental impairment includes a person with a mental
disorder, and
(b) a person requires help in relation to a daily living activity if, in order to perform it, the
person requires
(i) an assistive device,
(ii) the significant help or supervision of another person, or
(iii) the services of an assistance animal.
EAPWDR:
2 (1)For the purposes of the Act and this regulation, "daily living activities",
(a) in relation to a person who has a severe physical impairment or a severe mental
impairment,
means the following activities:
(i) prepare own meals;
(ii) manage personal finances;
(iii) shop for personal needs;
(iv) use public or personal transportation facilities;
(v) perform housework to maintain the person's place of residence in acceptable
sanitary condition;
(vi) move about indoors and outdoors;
(vii) perform personal hygiene and self care;
(viii) manage personal medication, and
(b) in relation to a person who has a severe mental impairment, includes the following
activities:
(i) make decisions about personal activities, care or finances;
(ii) relate to, communicate or interact with others effectively.
(2) For the purposes of the Act, "prescribed professional" means a person who is
(a) authorized under an enactment to practise the profession of
(i) medical practitioner,
(ii) registered psychologist,
(iii) registered nurse or registered psychiatric nurse,
(iv) occupational therapist,
(v) physical therapist,
(vi) social worker,
(vii) chiropractor, or
(viii) nurse practitioner, or
(b) acting in the course of the person's employment as a school psychologist by
(i) an authority, as that term is defined in section 1 (1) of the Independent
School Act, or
(ii) a board or a francophone education authority, as those terms are defined
in section 1 (1) of the School Act,
if qualifications in psychology are a condition of such employment.
Direct and significant restrictions in the ability to perform DLA:
Appellant:
In his SR the appellant reports that his constant fear, extreme anxiety, low energy, mood swings,
panic attacks, depression, anger, ADHD and learning disability stop him from having a normal life.
On bad days he can’t perform his DLAs, can’t eat properly and can’t leave the house. His family
members do the shopping, cooking and driving for him. He adds that there are more bad days than
good days. At the hearing the appellant’s advocate/support worker told the panel that the when the
appellant has a bad day his anxiety disorder affects his ability to perform DLA’s. He can’t eat
properly and can’t carry on with his plans for the day. Recently the appellant was introduced to an
employment coach, who stated that he was not ready to attempt employment due to the severity of
his panic attacks. The appellant’s grandfather prepares his meals and drives him to appointments.
Ministry:
In the reconsideration decision the ministry determined that there was insufficient evidence to
establish that the appellant’s mental impairment “directly and significantly” restricted his DLAs
“continuously” or “periodically for extended periods”. In coming to its determination the ministry notes
the following:
-
in the PR the GP notes that the appellant is unrestricted in his ability to do personal
care, management of medications, daily shopping, mobility outside the home and
use of transportation. In assessing whether the appellant is restricted in his ability to
perform meal preparation, basic housework and management of finances the GP
writes “unknown”, and adds the additional comment: “may need assistance
managing finances, executive functions”.
-
The GP also notes that the appellant is continuously restricted in social functioning,
adding that he “cannot function in groups, severe anxiety/depression”, but the GP
does not explain the degree of restriction experienced by the appellant, or the type
of assistance he requires to function socially.
-
in the AR the assessor indicates that the appellant is independent in all his DLAs
except that he requires periodic assistance in reaching out to others. In all other
areas of physical and social functioning the assessor indicates that the appellant is
independent. Although the assessor comments that the appellant needs support
and avoids social situations, she does not explain the degree or duration of
assistance or supervision required.
-
in the February 16, 2016 letter from psychiatrist Dr. P and a mental health clinician it
is noted that the appellant’s mental impairment “significantly impacts his DLAs in
areas of motivation, avoidance, social isolation and problem solving, to the point
where he is unable to work or attend school” and “it will be essential for the appellant
to receive support in these areas”. The ministry argues that Dr. P and the mental
health clinician focus on employability and education, which are not criteria in the
PWD application.
Panel Decision
The legislation set out in EAPWDA Section 2(2)(b) requires that a prescribed professional confirm
that the appellant’s impairments directly and significantly restrict his ability to perform his DLAs
continuously or periodically for extended periods. The panel notes that although a prescribed
professional may indicate that, because of a restriction, an individual requires assistance either
continuously or periodically for extended periods, this does not necessarily meet the legislative test of
being a “direct and significant restriction.” The DLAs to be considered for a person with a mental
impairment are, as set out in subs. 2(1) of the EAPWDR, as follows:
Prepare own meals;
Manage personal finances;
Shop for personal needs;
Use public or personal transportation facilities;
Perform housework;
Move about indoors and outdoors;
Perform personal hygiene and self care;
Manage personal medication;
Make decisions about personal activities, care or finances; and
Relate to, communicate or interact with others effectively.
The GP who completed the appellant’s PR noted that the appellant was “unrestricted” in his ability to
do personal care, management of medications, daily shopping, mobility outside the home and use of
transportation. In assessing whether the appellant is restricted in his ability to perform meal
preparation, basic housework and management of finances the GP writes “unknown”, and adds the
additional comment: “may need assistance managing finances, executive functions”. The GP notes
that the appellant is continuously restricted in social functioning, adding that he “cannot function in
groups, severe anxiety/depression”, but the GP does not explain the degree of restriction
experienced by the appellant, or the type of assistance he requires to function socially. Although in
Part B, Question # 1 of the PR the GP comments that the appellant “will require help in all aspects of
his life as he moves forward” he does not explain how this statement applies to his subsequent
assessment of most of the appellant’s DLAs as independent, and does not explain the degree of the
restriction or the type of assistance required.
The assessor who completed the appellant’s AR indicated that the appellant is independent in all his
DLAs except that he requires periodic assistance in reaching out to others. In all other areas of
physical and social functioning the assessor indicated that the appellant is independent. Although the
assessor commented that the appellant needs support and avoids social situations, she did not
explain the degree or duration of assistance or supervision required.
The February 16, 2016 letter jointly written by psychiatrist Dr. P and the mental health clinician focus
on employability and education, which are not criteria considered in a PWD application, and which do
not directly address the degree of restriction or assistance required with managing DLAs.
The panel acknowledges that the appellant’s severe mental impairment restricts his ability to manage
his DLAs. However, in considering the evidence as a whole, particularly the evidence contained in
the PR and AR, the panel concludes that the ministry reasonably determined that the evidence is
insufficient to establish that the appellant’s ability to perform his DLAs is directly and significantly
restricted either continuously or periodically for extended periods.
Help Required for DLAs
Panel Decision
EAPWDA Section 2(b)(ii) states that in order to meet the final PWD eligibility criterion, namely that a
person requires help to perform his DLAs, it must first be established that the person’s ability to
perform his DLAs is directly and significantly restricted either continuously or periodically for extended
periods. For the reasons provided above it has not been established that the appellant’s DLAs are
directly and significantly restricted either continuously or periodically for extended periods. The panel
therefore finds that the ministry reasonably concluded that because DLAs were determined not to be
significantly restricted, it cannot be determined that significant help is required from other persons.
Conclusion
Having reviewed and considered all of the evidence and the relevant legislation, the panel finds that
the ministry’s decision that the appellant was not eligible for PWD designation is reasonably
supported by the evidence, and confirms the ministry’s 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.