PART C – Decision under Appeal
The decision under appeal is the Ministry of Social Development and Social Innovation (“Ministry”)
reconsideration decision dated September 9, 2016 in which the Ministry determined that the Appellant is not
eligible for income assistance for the month of September, 2016 due to receiving Employment Insurance (EI)
benefits in July, 2016 that exceeded her income assistance rate, pursuant to section 10(2) of the Employment
and Assistance Regulation.
PART D – Relevant Legislation
Employment and Assistance Regulation (EAR) sections 1, 10, 28; Schedule A, sections 1, 2, 4; Schedule B,
sections 1, 6, 7
PART E – Summary of Facts
The Appellant was not in attendance at the hearing. After confirming that the Appellant was notified, the
hearing proceeded under section 86(b) of the Employment and Assistance Regulation.
Information before the minister at reconsideration included:
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A copy of a page titled “My Payments” from “My Service Canada Account” in the Appellant’s name for
the period January 31 to August 13, 2016, showing payments of $1,460 processed in the month of July.
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The Appellant’s monthly report to the Ministry dated July 29, 2016, showing Employment Insurance
payments of $800.
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The Appellant’s Request for Reconsideration, dated August 29, 2016, with a note stating that she had
income in July and ended up spending [it] through her addiction and she is now in recovery and
needing financial help to get clean.
In her Notice of Appeal to the Tribunal, the Appellant wrote that she understands that she got X amount from
EI and it went straight towards child [support?] and that she is in recovery, needing help to get back on track
and not become homeless.
The Ministry relied on facts in the reconsideration decision and provided no additional evidence.
PART F – Reasons for Panel Decision
The issue in this appeal is the reasonableness of the in which the Ministry determined that the Appellant is not
eligible for income assistance for the month of September, 2016 due to receiving Employment Insurance (EI)
benefits in July, 2016 that exceeded her income assistance rate, pursuant to section 10(2) of the Employment
and Assistance Regulation.
Legislation:
EAR
Definitions
1 (1) In this regulation:
"assistance" means income assistance, hardship assistance or a supplement;
"unearned income" means any income that is not earned income, and includes, without limitation, money or
value received from any of the following:
(g) employment insurance;
Limits on income
10 (1) For the purposes of the Act and this regulation, "income", in relation to a family unit, includes an
amount garnished, attached, seized, deducted or set off from the income of an applicant, a recipient or
a dependant.
(2) A family unit is not eligible for income assistance if the net income of the family unit determined
under Schedule B equals or exceeds the amount of income assistance determined under
Schedule A for a family unit matching that family unit.
Amount of income assistance
28 Income assistance may be provided to or for a family unit, for a calendar month, in an amount that is not
more than
(a) the amount determined under Schedule A, minus
(b) the family unit's net income determined under Schedule B.
Schedule A
Maximum amount of income assistance before deduction of net income
1 (1) Subject to this section and sections 3 and 6 to 10 of this Schedule, the amount of income assistance
referred to in section 28 (a) [amount of income assistance] of this regulation is the sum of
(a) the monthly support allowance under section 2 of this Schedule for a family unit matching the family
unit of the applicant or recipient, plus
(b) the shelter allowance calculated under sections 4 and 5 of this Schedule.
(2) Despite subsection (1) but subject to subsection (3), income assistance may not be provided in respect
of a dependent child if support for that child is provided under section 8 (2) or 93 (1) (g) (ii) of the
Child, Family and Community Service Act.
(3) If
(a) an application is made by a parenting dependent child under section 5 (4) [application by parent
who is dependent youth] of this regulation,
(b) the family unit is found eligible for income assistance, and
(c) support is provided for the parenting dependent child or his or her dependent child, or for both,
under section 8 (2) or 93 (1) (g) (ii) of the Child, Family and Community Service Act,
the restriction in subsection (2) does not apply, but the amount of income assistance that may otherwise
be provided to the family unit is to be reduced by the amount of that support.
Monthly support allowance
(1) A monthly support allowance for the purpose of section 1 (a) is the sum of
(a) the amount set out in Column 3 of the following table for a family unit described in Column 1 of an
applicant or a recipient described in Column 2, plus
(b) the amount calculated in accordance with subsections (2) to (4) for each dependent child in the
family unit.
Item
Column 1
Column 2
Column 3
Family unit composition
Age or status of applicant or
Amount of support
recipient
1
Sole applicant/recipient and no
Applicant/recipient is under 65
$235.00
dependent children
years of age
Monthly shelter allowance
4 (2) The monthly shelter allowance for a family unit to which section 15.2 of the Act does not apply is the
smaller of
(a) the family unit's actual shelter costs, and
(b) the maximum set out in the following table for the applicable family size:
Column 1
Column 2
Item
Family Unit Size Maximum Monthly Shelter
1
1 person
$375
Schedule B
Deduction and exemption rules
1 When calculating the net income of a family unit for the purposes of section 28 (b) [amount of income
assistance] of this regulation,
(a) the following are exempt from income:
(i) any income earned by a dependent child attending school on a full-time basis;
(ii) the basic family care rate paid in respect of a child in care;
(iii) Repealed. [B.C. Reg. 48/2010, Sch. 1, s. 1 (b).]
(iv) a family bonus, except the portion treated as unearned income under section 10 (1) of this
Schedule;
(v) the basic child tax benefit;
(vi) a goods and services tax credit under the Income Tax Act (Canada);
(vii) a tax credit under section 8 [refundable sales tax credit], 8.1 [low income climate action tax
credit] or 8.2 [BC harmonized sales tax credit] of the Income Tax Act (British Columbia);
(viii) individual redress payments granted by the government of Canada to a person of
Japanese ancestry;
(ix) individual payments granted by the government of Canada under the Extraordinary
Assistance Plan to a person infected by the human immunodeficiency virus;
(x) individual payments granted by the government of British Columbia to a person infected by
the human immunodeficiency virus or to the surviving spouse or dependent children of that
person;
(xi) individual payments granted by the government of Canada under the Extraordinary
Assistance Plan to thalidomide victims;
(xii) money that is
(A) paid or payable to a person if the money is awarded to the person by an adjudicative
panel in respect of claims of abuse at Jericho Hill School for the Deaf and drawn from a
lump sum settlement paid by the government of British Columbia, or
(B) paid or payable to or for a person if the payment is in accordance with the settlement
agreement approved by the Supreme Court in Action No. C980463, Vancouver Registry;
(xiii) the BC earned income benefit;
(xiv) money paid or payable under the 1986-1990 Hepatitis C Settlement Agreement made June
15, 1999, except money paid or payable under section 4.02 or 6.01 of Schedule A or of
Schedule B of that agreement;
(xv) a rent subsidy provided by the provincial government, or by a council, board, society or
governmental agency that administers rent subsidies from the provincial government;
(xvi) Repealed. [B.C. Reg. 197/2012, Sch. 1, s. 22 (a).]
(xvii) money paid or payable to a person in settlement of a claim of abuse at an Indian
residential school, except money paid or payable as income replacement in the settlement;
(xviii) post adoption assistance payments provided under section 28 (1) or 30.1 of the Adoption
Regulation, B.C. Reg. 291/96;
(xix) a rebate of energy or fuel tax provided by the government of Canada, the government of
British Columbia, or an agency of either government;
(xx) Repealed. [B.C. Reg. 85/2012, Sch. 1, s. 5.]
(xxi) payments granted by the government of British Columbia under section 8 [agreement with
child's kin and others] of the Child, Family and Community Service Act;
(xxii) payments granted by the government of British Columbia under the Ministry of Children
and Family Development's At Home Program;
(xxiii) Repealed. [B.C. Reg. 85/2012, Sch. 1, s. 5.]
(xxiv) payments granted by the government of British Columbia under an agreement referred to
in section 93 (1) (g) (ii) of the Child, Family and Community Service Act, for contributions to the
support of a child;
(xxv) a loan that is
(A) not greater than the amount contemplated by the recipient's business plan, accepted
by the minister under section 77.2 of this regulation, and
(B) received and used for the purposes set out in the business plan;
(xxvi) payments granted by the government of British Columbia under the Ministry of Children
and Family Development's
(A) Autism Funding: Under Age 6 Program, or
(B) Autism Funding: Ages 6 — 18 Program;
(xxvii) Repealed. [B.C. Reg. 148/2015, App. 1, s. 1 (a).]
(xxviii) payments made by a health authority or a contractor of a health authority to a recipient,
who is a "person with a mental disorder" as defined in section 1 of the Mental Health Act, for the
purpose of supporting the recipient in participating in a volunteer program or in a mental health
or addictions rehabilitation program;
(xxix) a refund provided under Plan I as established under the Drug Plans Regulation;
(xxx) payments provided by Community Living BC to assist with travel expenses for a recipient
in the family unit to attend a self-help skills program, or a supported work placement program,
approved by Community Living BC;
(xxxi) a Universal Child Care Benefit provided under the Universal Child Care Benefit Act
(Canada);
(xxxii) money paid by the government of Canada, under a settlement agreement, to persons
who contracted Hepatitis C by receiving blood or blood products in Canada prior to 1986 or after
July 1, 1990, except money paid under that agreement as income replacement;
(xxxiii) money withdrawn from a registered disability savings plan;
(xxxiv) a working income tax benefit provided under the Income Tax Act (Canada);
(xxxv) Repealed. [B.C. Reg. 180/2010, s. 1 (b).]
(xxxvi) the climate action dividend under section 13.02 of the Income Tax Act;
(xxxvii) money paid or payable to a person under the Criminal Injury Compensation Act as
compensation for non-pecuniary loss or damage for pain, suffering mental or emotional trauma,
humiliation or inconvenience that occurred when the person was under 19 years of age;
(xxxviii) money that is paid or payable to or for a person if the payment is in accordance with the
settlement agreement approved by the Supreme Court in Action No. S024338, Vancouver
Registry;
(xxxix) payments granted by the government of British Columbia under the Ministry of Children
and Family Development's Family Support Services program;
(xl) payments granted by the government of British Columbia under the Ministry of Children and
Family Development's Supported Child Development program;
(xli) payments granted by the government of British Columbia under the Ministry of Children and
Family Development's Aboriginal Supported Child Development program;
(xlii) money paid or payable from a fund that is established by the government of British
Columbia, the government of Canada and the City of Vancouver in relation to recommendation
3.2 of the final report of the Missing Women Commission of Inquiry;
(xliii) payments granted by the government of British Columbia under the Temporary Education
Support for Parents program;
(xliv) a BC early childhood tax benefit;
(xlv) child support;
(xlvi) orphan's benefits under the Canada Pension Plan Act (Canada);
(xlvii) gifts, other than recurring gifts;
(xlviii) compensation paid or payable under section 17 [compensation in fatal cases] or 18
[addition to payments] of the Workers Compensation Act to a dependant, as defined in section 1
of that Act, who is a child, as defined in section 17 of that Act,
(b) any amount garnished, attached, seized, deducted or set off from income is considered to be
income, except the deductions permitted under sections 2 and 6 of this Schedule,
(c) all earned income must be included, except the deductions permitted under section 2 and any
earned income exempted under sections 3 and 4 of this Schedule, and
(d) all unearned income must be included, except the deductions permitted under section 6 and any
income exempted under sections 7 and 8 of this Schedule.
Deductions from unearned income
6 The only deductions permitted from unearned income are the following:
(a) any income tax deducted at source from employment insurance benefits;
(b) essential operating costs of renting self-contained suites.
Exemptions — unearned income
7 (0.1) In this section:
"disability-related cost" means a disability-related cost referred to in paragraph (a), (b) or (c) of
the definition of disability-related cost in section 13 (1) [assets held in trust for person receiving
special care] of this regulation;
"disability-related cost to promote independence" means a disability-related cost referred to in
paragraph (d) of the definition of disability-related cost in section 13 (1) of this regulation;
"intended registered disability savings plan or trust", in relation to a person referred to in
section 13.1 (2) [temporary exemption of assets for person applying for disability designation or
receiving special care] of this regulation, means an asset, received by the person, to which the
exemption under that section applies;
"structured settlement annuity payment" means a payment referred to in subsection (2) (b) (iii)
made under the annuity contract referred to in that subsection.
(1) The following unearned income is exempt:
(a) the portion of interest from a mortgage on, or agreement for sale of, the family unit's previous
place of residence if the interest is required for the amount owing on the purchase or rental of the
family unit's current place of residence;
(b) $50 of each monthly Federal Department of Veterans Affairs benefits paid to any person in the
family unit;
(c) a criminal injury compensation award or other award, except the amount that would cause the
family unit's assets to exceed, at the time the award is received, the limit applicable under section 11
[asset limits] of this regulation;
(d) a payment made from a trust to or on behalf of a person referred to in section 13 (2) [assets held
in trust for person receiving special care] of this regulation if the payment is applied exclusively to or
used exclusively for
(i) disability-related costs,
(ii) the acquisition of a family unit's place of residence,
(iii) a registered education savings plan, or
(iv) a registered disability savings plan;
(d.1) subject to subsection (2), a structured settlement annuity payment made to a person referred to
in section 13 (2) (a) of this regulation if the payment is applied exclusively to or used exclusively for
an item referred to in subparagraph (i), (ii), (iii) or (iv) of paragraph (d) of this subsection;
(d.2) money expended by a person referred to in section 13.1 (2) [temporary exemption of assets for
person applying for disability designation or receiving special care] of this regulation from an intended
registered disability savings plan or trust if the money is applied exclusively to or used exclusively for
disability-related costs;
(d.3) any of the following if applied exclusively to or used exclusively for disability-related costs to
promote independence:
(i) a payment made from a trust to or on behalf of a person referred to in section 13 (2) of this
regulation;
(ii) a structured settlement annuity payment that, subject to subsection (2), is made to a
person referred to in section 13 (2) (a) of this regulation;
(iii) money expended by a person referred to in section 13.1 (2) of this regulation from an
intended registered disability savings plan or trust;
(e) the portion of Canada Pension Plan Benefits that is calculated by the formula (A-B) x C, where
A = the gross monthly amount of Canada Pension Plan Benefits received by an applicant or
recipient;
B = (i) in respect of a family unit comprised of a sole applicant or a sole recipient with no
dependent children, 1/12 of the amount determined under section 118 (1) (c) of the Income
Tax Act (Canada) as adjusted under section 117.1 of that Act, or
(ii) in respect of any other family unit, the amount under subparagraph (i), plus 1/12 of the
amount resulting from the calculation under section 118 (1) (a) (ii) of the Income Tax Act
(Canada) as adjusted under section 117.1 of that Act;
C = the sum of the percentages of taxable amounts set out under section 117 (2) (a) of the
Income Tax Act (Canada) and section 4.1 (1) (a) of the Income Tax Act;
(f) a tax refund;
(g) a benefit paid under section 22, 23 or 23.2 of the Employment Insurance Act (Canada) to any
person in the family unit.
(2) Subsection (1) (d.1) and (d.3) (ii) applies in respect of a person only if
(a) the person has entered into a settlement agreement with the defendant in relation to a claim for
damages in respect of personal injury or death, and
(b) the settlement agreement requires the defendant to
(i) make periodic payments to the person for a fixed term or the life of the person,
(ii) purchase a single premium annuity contract that
(A) is not assignable, commutable or transferable, and
(B) is designed to produce payments equal to the amounts, and at the times, specified
in the settlement agreement,
(iii) make an irrevocable direction to the issuer of the annuity contract to make all payments
under that annuity contract directly to the person, and
(iv) remain liable to make the payments required by the settlement agreement.
The Appellant’s position is that she spent the income she received in July through her addiction. She is now in
recovery and needs financial help to get clean.
The Ministry position is that the Appellant received unearned income in July that was in excess of her income
assistance rate, therefore she is ineligible for income assistance for the month of September.
The Panel notes that the Appellant reported unearned income from EI benefits of $800 for the month of July,
2016; however the Ministry calculated the Appellant’s EI benefits as $1,460. The benefit statement provided by
the Appellant lists payments processed on July 31 of $526 and $134; on July 17, $400 and on July 3, $400, for
a total of $1,460. The Panel finds that the Ministry reasonably determined that the listed payments were
income for the month of July, 2016.
The EI benefits received by the Appellant are defined as unearned income under section 1, EAR. They are not
listed as a type of income that may be exempted from consideration as unearned income under section 1 of
Schedule B, EAR, and the deductions from unearned income listed in section 6 of Schedule B do not apply,
therefore the Panel finds that the Ministry reasonably determined that the Appellant’s EI benefits must be
deducted from her income assistance in accordance with section 28, EAR. The Panel finds that the Ministry
reasonably determined that the Appellant is not eligible for September, 2016 income assistance under section
10(2), EAR because she had income in excess of her income assistance rate.
The Panel therefore confirms the Ministry decision. The Appellant is not successful on appeal.
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