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 October 3, 2016, which held that the appellant did not qualify
for a diet supplement for her medical condition because her dietary supplement is not required for
one of
the
9
conditions
listed
in
the
Employment
and
Assistance
for Persons With Disabilities
Regulation, Schedule C, Section 6(1), and the Appellant did not qualify for a supplement for a high
protein diet because the Appellant does not have one of the 12 medical conditions listed in the
Employment and Assistance for Persons With Disabilities Regulation, Schedule C, Section 6(2).
PART D – Relevant Legislation
Employment and Assistance for Persons With Disabilities Regulation (EAPWDR), Section 66
Employment and Assistance for Persons With Disabilities Regulation (EAPWDR), Schedule C,
Section 6
PART E – Summary of Facts
NATURE OF THE APPELLANT’S APPLICATION
The Appellant applied for a high protein diet supplement said to be necessary because of liver
disease. Her application was denied, and she asked for a reconsideration, which also denied her the
supplement.
DOCUMENTS AND EVIDENCE BEFORE THE MINISTRY AT TIME OF RECONSIDERATION
The evidence before the ministry at the time of the reconsideration decision included
1.
A letter from a health care clinic, undated, advising the Appellant:
Requires financial support for certain conditions which are:
Has a liver disease diagnosed in July 2016
Currently shows no sign of liver inflammation but states the diagnosis can progress to
necroinflammatory changes which can lead to fibrosis of the liver
is currently being treated on a standard of care which involves life style changes, achieved,
among other things, with health diet habits and vitamin supplements.
2.
A 2
nd
letter from the same primary health care clinic as in (1) above, undated, about a client
with the same first name as the Appellant but giving a different last name, and appearing otherwise to
be the same as the letter in (1) above.
3.
A 3
rd
letter from the same primary health care clinic, undated, advising the Appellant needs a
diet stipend for her liver disease, with a diet rich in fruit, vegetables and protein and the need for
which will be ongoing and a follow up will be done in the months following.
4.
A letter from an advocacy group dated September 21, 2016 attaching another letter dated
September
19,
2016
explaining
the
Appellant’s
liver
condition
which
includes
a
letter
from
the
Appellant setting out her requirements as to vitamins, proteins, vegetables and sugar replacement.
5.
A request for reconsideration dated September 19, 2016 in which it was related that:
On August 17, 2016 the Appellant requested a high protein diet supplement
The Appellant had it explained to her what the eligibility criteria were, including requiring
written confirmation from a doctor, type of diet required, and expected duration of the diet
Ministry policy restricts the provision of a diet supplement to one diet supplement per month,
and that diet supplement is the one with the highest dollar value if an applicant is otherwise
entitled to more than one diet supplement.
6.
A letter from the ministry to the Appellant dated August 30, 2016 explaining that the Appellant
was not eligible for a diet supplement as she currently receives another diet supplement, stating that
she may only receive the amount for the highest diet supplement for which she is eligible.
7.
Health Supplement info sheet entitled “Diet Supplements”.
8.
The fact that the Appellant already receives a gluten-free diet supplement of $40 per month.
APPELLANT’S EVIDENCE AT APPEAL
At the appeal the Appellant gave her age, said she needs more money, that she is pre-diabetic, has
received chemotherapy in the past but is not now receiving it, has fatty liver disease, has a low
immune system, is a cancer survivor but has no active cancer at this time, her health is going
downhill, needs preventative measures, and that she is anticipating finger surgery in the near future.
The panel finds pursuant to the Employment and Assistance Act, section 22(4) that the foregoing
evidence, except for the evidence of future finger surgery, is admissible because it is oral testimony
in support of information and records that were before the minister when the decision being appealed
was made.
The panel finds pursuant to the Employment and Assistance Act, section 22(4) that the evidence of
future finger surgery is not admissible because it is not oral testimony in support of information and
records that were before the minister when the decision being appealed was made.
MINISTRY’S EVIDENCE AT APPEAL
The ministry relied upon the evidence that was before the minister at reconsideration and did not
submit any further evidence.
PART F – Reasons for Panel Decision
ISSUE ON APPEAL
The decision on appeal is whether the reconsideration decision of the Ministry of Social Development
and
Social
Innovation
(the
ministry)
dated
October
3,
2016,
was
reasonably
supported
by
the
evidence or was a reasonable application of the applicable enactment in the circumstances of the
appellant. The ministry found that that the appellant did not qualify for a diet supplement for her
medical condition because her dietary supplement is not required for one of the 9 conditions listed in
the Employment and Assistance for Persons With Disabilities Regulation (EAPWDR), Schedule C,
Section 6(1), and the Appellant did not qualify for a supplement for a high protein diet because the
Appellant does not have one of the 12 medical conditions listed in the Employment and Assistance
for Persons With Disabilities Regulation (EAPWDR), Schedule C, Section 6(2),
RELEVANT LEGISLATION
Employment and Assistance For Persons With Disabilities Regulation, section 66
66 (1) Subject to subsection (2), the minister may pay for a diet supplement in accordance with section 6 [diet
supplements] of Schedule C that is provided to or for a family unit in receipt of disability assistance, if the
supplement is provided to or for a person in the family unit who
(a) is described in section 6 (1) of Schedule C, and
(b) is not described in section 8 (1) [people receiving special care] of Schedule A.
(2) A person is not eligible to receive a supplement under subsection (1) unless
(a) the person is not receiving another nutrition-related supplement, and
(b) a medical practitioner, nurse practitioner or registrant of the College of Dietitians of British Columbia
established under the Health Professions Act confirms in writing the need for the special diet.
Employment and Assistance For Persons With Disabilities Regulation, Schedule C, section 6
6 (1) The amount of a diet supplement that may be provided under section 66 [diet supplements] of this regulation
is as follows:
(a) $10 for each calendar month for a person who requires a restricted sodium diet;
(b) $35 for each calendar month for a person who has diabetes;
(c) $30 for each calendar month for a person who requires kidney dialysis if the person is not eligible
under the kidney dialysis service provided by the Ministry of Health Services;
(d) $40 for each calendar month for a person who requires a high protein diet;
(e) $40 for each calendar month for a person who requires a gluten-free diet;
(f) $40 for each calendar month for a person who has dysphagia;
(g) $50 for each calendar month for a person who has cystic fibrosis;
(h) $40 for each calendar month for which a person requires a ketogenic diet;
(i) $40 for each calendar month for which a person requires a low phenylalanine diet.
(2) A diet supplement under subsection (1) (d) may only be provided if the diet is confirmed by a medical
practitioner or nurse practitioner as being necessary for one of the following medical conditions:
(a) cancer that requires nutritional support during
(i) radiation therapy,
(ii) chemotherapy,
(iii) surgical therapy, or
(iv) ongoing medical treatment;
(b) chronic inflammatory bowel disease;
(c) Crohn's disease;
(d) ulcerative colitis;
(e) HIV positive diagnosis;
(f) AIDS;
(g) chronic bacterial infection;
(h) tuberculosis;
(i) hyperthyroidism;
(j) osteoporosis;
(k) hepatitis B;
(l) hepatitis C.
(3) A person who is eligible for a supplement under subsection (1) (d) or (f) is also eligible for a $30 payment
towards the purchase of a blender.
(4) If a person has more than one of the medical conditions set out in subsection (1), the person may receive
only the amount of the highest diet supplement for which he or she is eligible.
GENERAL SCHEME OF THE LEGISLATION
The general scheme of the legislation is to allow a dietary supplement for someone who requires it for
any one of nine listed conditions, and a medical practitioner, nurse practitioner, or dietitian confirms in
writing that the special diet is needed, and in addition, where a high protein diet is required, it may
only be provided if a medical practitioner or nurse practitioner confirms it is necessary for one of
another 12 medical conditions, so long as the Applicant is not in a special care facility, and the
Applicant is not already receiving another nutrition-related supplement.
ANALYSIS
EAPWDR, Section 66(1)(a) – Diet Supplement Generally
The minister may pay for a diet supplement for someone in receipt of disability assistance if it is for
someone described in Schedule C, Section 6 EAPWDR. In order to qualify for a diet supplement, an
applicant must require it for at least 1 of 9 listed conditions of Schedule C, Section 6(1), confirmed in
writing to exist by a medical or nurse practitioner or dietician. Under Section 66(2)(a) EAPWDR an
applicant may receive only one supplement.
Disability Assistance
The ministry found at reconsideration that the Appellant is in receipt of disability assistance, and
therefore this criterion is met.
Appellant’s Position
The Appellant’s position was that the money she receives is not sufficient for her needs, and without
more money for food and vitamins her health will continue to decline. She agreed when asked by the
Ministry representative that she does not fit the criteria but argued that she is fed up with the system
and it is terrible.
The Appellant’s advocate argued that the appeal in part is to create awareness that poverty results in
poor outcomes for individuals and by participating in the appeal she and the Appellant are advocating
for all people on disability, and that the list of medical conditions which are medical conditions
qualifying an Applicant for a dietary supplement is too limited.
Ministry’s Position
While the Appellant does have hepatic steatosis (fatty liver disease), she does not have any of the
listed conditions set out in Schedule C, Section 6(1) EAPWDR, except for requiring a gluten-free diet.
Those conditions are that an applicant must require a restricted sodium diet, have diabetes, require
kidney dialysis not paid for by the Ministry of Health, require a high protein diet, require a gluten-free
diet, have dysphagia, have cystic fibrosis or require a ketogenic diet. The Appellant already receives
a gluten-free diet supplement as allowed for under Schedule C, Section 6(1)(e) EAPWDR, and
therefore does not qualify for another diet supplement, because Section 66(2)(a) EAPWDR limits a
person to only one nutrition-related supplement.
Panel Finding
The panel finds that there is no evidence that the Appellant requires a diet supplement for any of the
9 listed conditions of Schedule C, Section 6(1) EAPWDR, except for a gluten-free diet, for which she
already receives a supplement. The panel finds that under Section 66(2)(a)
EAPWDR that the
Appellant is not entitled to receive a second supplement.
The panel therefore finds that the Ministry’s determination at reconsideration that the Appellant was
not entitled to a diet supplement was a reasonable application of the EAPWDR in the circumstances
of the Appellant and was reasonably supported by the evidence.
Someone Described in Schedule C, Section 6(2) – High Protein Diet
Under Schedule C, Section 6(2) EAPWDR, in order to qualify for a high protein diet, an applicant
must have any of the following 12 conditions: cancer requiring nutritional support on account of a
further 4 circumstances, chronic inflammatory bowel disease, Crohn’s disease, uncreative colitis,
HIV positive diagnosis, AIDS, chronic bacterial infection, tuberculosis, hyperthyroidism, osteoporosis,
hepatitis B or hepatitis C. The condition must be confirmed by a medical practitioner or nurse
practitioner.
Appellant’s Position
The Appellant had applied for a high protein diet supplement. Her argument at appeal did not
specifically
address
a
high
protein
diet,
although
her
entitlement
to
one
was
dealt
with
at
reconsideration.
Ministry’s Position
The ministry representative did address a high protein diet. She argued that in order to qualify for a
high
protein
diet,
an
applicant
must
have
any
of
12
conditions,
specifically:
cancer
requiring
nutritional support on account of a further 4 circumstances, chronic inflammatory bowel disease,
Crohn’s
disease,
uncreative
colitis,
HIV
positive
diagnosis,
AIDS,
chronic
bacterial
infection,
tuberculosis, hyperthyroidism, osteoporosis, hepatitis B or Hepatitis C.
The ministry representative argued that there was no evidence that the Appellant suffered from any of
the 12 listed conditions, and that therefore the Appellant did not qualify for a high protein diet.
Panel Finding
There is no evidence the Appellant has any of the conditions listed in Schedule C, Section 6(2)
EAPWDR. The panel therefore finds that the Ministry’s determination at reconsideration that the
Appellant was not entitled to a high protein diet was a reasonable application of the EAPWDR in the
circumstances of the Appellant and was reasonably supported by the evidence.
Conclusion
The panel finds that the Ministry’s decision in denying the Appellant a diet supplement, including
denying her a high protein diet supplement, was a reasonable application of the evidence in the
circumstances of the Appellant and was reasonably supported by the evidence.
The panel confirms the Ministry decision and the Appellant is not successful in her appeal.
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.