Ministry of Social Development and Poverty Reduction

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 21 September 2016 that denied the appellant 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 the appellant has a severe mental or physical impairment that in the opinion of a prescribed professional (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 2 criteria: he has reached 18 years of age and his impairment in the opinion of a medical practitioner 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 evidence before the ministry at reconsideration consisted of the following: 1. The appellant’s PWD Designation Application dated 11 February 2016. The Application contained:  A Self Report (SR) completed by the appellant.  A Physician Report (PR) dated 17 February 2016, completed by a specialist in psychiatry (the psychiatrist), who has known the appellant for 2 years and seen him 2-10 times over the past year.  An Assessor Report (AR) dated 29 April 2016, completed by a registered nurse (RN) who has known the appellant for 6 months and seen him 2-10 times in that period.. 2. The appellant’s Request for Reconsideration submitted on 01 September 2016. In the PR, the psychiatrist diagnoses the appellant with anxiety disorder NOS, dysthymia, avoidant personality disorder, and R/6 borderline personality disorder. Onset for all these conditions is given as “years.” The panel will first summarize the evidence from the PR and the AR as it relates to the PWD criteria at issue in this appeal. [Panel note: the psychiatrist and RN provided no commentary/explanation/description except as set out below.] Severity/health history Physical impairment PR: Regarding functional skills, the psychiatrist reports that the appellant can walk 4+ blocks unaided, can climb 5+ steps unaided, there are no limitations to lifting, and it is unknown for how long he can remain seated. The psychiatrist indicates that the appellant has not been prescribed medication and/or treatments that interfere with his ability to perform DLA. He also indicates that the appellant does not require any prostheses or aids for his impairment. AR: Regarding mobility and physical ability, the RN assesses the appellant as independent for all listed activities: walking indoors, walking outdoors, climbing stairs, standing, lifting, and carrying and holding. Mental impairment PR: Under Health History, the psychiatrist writes: “He suffers from a severe mental illness that impairs his ability to have employment. His anxiety and avoidance (to lower anxiety) are severe that it impacts on ADL’s, interpersonal relationships, ability to motivate himself to get to even essential appointments.”

Under Degree and Course of Impairment the psychiatrist indicates that the impairment is likely to continue for two or more years, commenting, “This is a long-standing mental health issue which does not respond to medications. Our next goal is to start the day program for socialization and anxiety groups.” The psychiatrist does not indicate whether the appellant has difficulties with communication, though marks “Cognitive” as a cause. The psychiatrist indicates that the appellant has significant deficits with cognitive and emotional function. He indicates that these deficits are in the following areas: executive, memory, emotional disturbance, motivation, and attention or sustained concentration. AR: The RN assesses the appellant's ability to communicate as satisfactory for all listed aspects: speaking, reading, writing, and hearing. Regarding cognitive and emotional functioning, the RN indicates that the appellant's mental impairment has the following impacts: Major impact: emotion. Moderate impact: insight and judgment, attention/concentration, executive, memory, and motivation. Minimal impact: bodily functions, consciousness, impulse control, motor activity, language, and psychotic symptoms. No impact: other neuropsychological problems, and other emotional or mental problems. Ability to perform DLA PR: The psychiatrist indicates that the appellant’s impairment directly restricts his ability to perform DLA. The psychiatrist assesses the appellant as restricted in his ability to perform the following DLA on a continuous basis: personal self care, mobility outside the home, and use of transportation. The psychiatrist assesses the appellant as independent for meal preparation, management of medications, basic housework, daily shopping, mobility inside the home, and management of finances. The psychiatrist provides no assessment with regard to social functioning, but comments, “avoids social interactions because of severe anxiety.” AR: The RN assesses the assistance required for managing DLA as follows: Personal care – independent for all aspects. Basic housekeeping – periodic assistance from another person required for laundry and basic housekeeping. Shopping – independence in all aspects.

Meals – periodic assistance from another person required for meal planning, food preparation, cooking, and safe storage of food. Pay rent and bills – periodic assistance from another person required for banking, budgeting, and paying rent and bills. Medications – periodic assistance from another person required for filling/refilling prescriptions, taking as directed, and safe handling and storage. Transportation – independent for all aspects. With respect to social functioning, the RN assesses the appellant as independent for making appropriate social decisions and interacting appropriately with others. The RN assesses the appellant as requiring periodic support/supervision for ability to develop and maintain relationships (comment: “withdrawn, socially isolative”), dealing appropriately with unexpected demands, and for securing assistance from others (comment: “family”). The RN assesses the impact of the appellant's mental impairment on his immediate social and extended social networks as marginal functioning. In commenting on the support/supervision indicated above that would help maintain him in the community, the RN writes, “Client requires psychiatric care and care management from a mental health centre.” Help provided/required PR: The psychiatrist indicates that the appellant does not require any prostheses or aids to compensate for her impairment. AR: The RN indicates that help is provided to the appellant by family, friends, health authority professionals, and community service agencies. The RN indicates “N/A” as to whether that the appellant requires any of the listed aids to compensate for his impairment. Self report In describing his disability, the appellant writes that it is mainly characterized by depression and anxiety, with long periods of lethargy, apathy, and general malaise, punctuated by crippling anxiety and panic attacks, both spontaneously and in response to social and important/seemingly important situations. He has occasional bouts of hyperactivity and restlessness, usually insomnia. As to how his disability affects his life and his ability to take care of himself, the appellant writes that on the average day he lacks the motivation to take basic care of himself or even leave his bed. He struggles to leave the house unless faced with something like a doctor’s appointment, which he often ends up rescheduling due to anxiety. The idea of being outside/away from home for very long generally triggers anxiety or full-blown panic attacks, leading to him usually hiding under the covers for hours instead, or the use of alcohol. This is mainly why he has been

incapable of working. He usually called in sick far too often or in some cases literally hiding while at work and failing to do his job. The general apathy he has towards keeping himself healthy is made worse by being diabetic. He takes poor care of his glucose levels and eats heavily as a coping mechanism. Periods of hyperactivity have slowed down considerably since he was in his late teens, but still show up as multiple daylong periods of being awake, often completely inverting his personality as he spends a week or more staying out, going to friends’ houses, spending money recklessly, not eating, and ignoring any appointments or responsibilities. He has ended up going for long walks and sleeping outside, or planning ridiculous moves to other towns or even other countries, despite having no money. He has tried many times to “suck it up” and behave as a neuro-typical person. He is incapable of this and admits that he must humbly request the help he needs. Request for Reconsideration Under Reasons, the appellant writes: “My mental state is unpredictable and confusing, and keeps me from consistently being able to leave the house, to manage confrontation and conversation, make phone calls or appointments. I'm unable to responsibly fulfill obligations and plans/appointments. I have regular panic attacks and unpredictable & irrational mood swings. I do not consider myself capable of acquiring and holding a job. I want to be independent and not rely on my father to be a caregiver and supply my housing and medical supplies and emergency funds and be on the hook for essentially my entire life. I'm comfortable admitting that I need help and that I consider myself mentally unable to work. If necessary I am fully willing to discuss this orally to a tribunal. My psychiatrist listed me as having “severe mental illness” that is the cause of my “inability to work.” If I am unable to keep up with hygiene, unable to regularly leave the home or speak to strangers or keep a schedule, how am I going to keep a job?” The balance of the appellant’s reconsideration submission goes to argument (see Part F, Reasons for Panel Decision, below). Notice of Appeal The appellant’s Notice of Appeal is dated 30 September 2016. Under Reasons for Appeal, he requests an extension to provide supporting documentation. The hearing At the hearing, the appellant was accompanied and assisted by his health authority caseworker, the RN who completed the AR. Both remarked that the issue was not any physical problem, but the effects of the appellant’s mental illness on his daily life. They reviewed the assessments in the AR, commenting as follows: Under cognitive and emotional functioning:  Bodily functions: the appellant stated that the impact was greater than minimal, as his general apathy led to poor diet inconsistent with his diabetes, and general neglect of his hygiene, particularly brushing his teeth.  Impulse control: the appellant thought that the impact was more than minimal, as demonstrated by his failure to resist his tendency to stay isolated  Insight and judgment: the appellant said that the impact was more than moderate, considering his diabetes and poor attention to managing his diet, with all that implied for

his future physical health.  Attention/concentration, executive, memory and motivation: the RN stated that he would be inclined to reassess these impacts as major rather than moderate, considering the appellant's difficulties in focusing on any task at hand and the short-term memory problems that are commonly associated with depression.  Language: the RN noted that when the appellant is overly anxious he tends to stutter.  Psychotic symptoms: the RN and the appellant thought that the assessment should be greater than minimal impact, as when the appellant is in panic mode his thinking becomes disorganized. Under Daily Living Activities:  Personal care – for bathing, the appellant remarked that because of his apathy he will go days without taking a shower.  Basic housekeeping – for laundry, the appellant stated that he regularly needs help: he will wash some clothes, then won't bother to fold them and put them away properly; he has many outfits, but most of them are dirty and he will only bother to wear a couple of them day in and day out.  Shopping – the appellant stated that the assessments for the listed tasks are out of date. When the AR was completed, he was living next door to a grocery store and could go there quickly no matter how he was dressed. As he does not drive, he now needs a ride to and from a store if he can manage to motivate himself to do any shopping.  Meals – the appellant stated that his father does most of the meal planning, food preparation and cooking, as left to himself his meals would mainly consist of high sugar carbohydrates, not the kind of diet he needs to manage his diabetes.  Medications – the RN stated that the appellant has a history of not adjusting well to changes in medication prescribed for his mental health. In answer to a question, the appellant stated that he has Type I diabetes, diagnosed when he was 9 years old. He used to see an endocrinologist, but stopped going to appointments because it was too much, considering all his other appointments relating to his mental illness. He now has a general practitioner, who he hopes will refer him to another endocrinologist. He has an insulin pump, but it does not work very well because of his diet. The ministry stood by its position at reconsideration. Admissibility of additional information Section 22(4) of the Employment and Assistance Act (EAA) provides that panels may admit as evidence the information and records that were before the minister when the decision being appealed was made and “oral or written testimony in support of the information and records” before the minister when the decision being appealed was made. These limitations reflect the jurisdiction of the panel established under section 24 of the EAA - to determine whether the ministry’s reconsideration decision is reasonably supported by the evidence or a reasonable application of the enactment in the circumstances of an appellant. That is, panels are limited to determining if the ministry’s decision is reasonable and are not to assume the role of decision- makers of the first instance. Accordingly, panels cannot admit information that would place them in that role.

In this case, much of the testimony of the appellant and the RN at the hearing tends to be information that would indicate a higher degree of mental impairment than that which was set out in the AR that before the ministry at reconsideration, for reasons that were also not before the ministry. The panel therefore finds that this information is not in support of the information and records before the ministry at reconsideration as it goes beyond the assessments provided in the AR and therefore cannot be said to corroborate or substantiate those assessments. In accordance with sections 22(4) and 24 of the EAA, the panel therefore does not admit this information as evidence – i.e. will not take this information into account in the panel’s decision. The panel accepts the balance of the testimony of the appellant and the RN as argument.

PART F – Reasons for Panel Decision The issue in this appeal is whether the ministry decision that determined that the appellant did not meet three 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 met the age requirement and that, 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 has a severe physical or mental impairment;  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 following section of the EAPWDA applies to this appeal: 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 is in a prescribed class of persons or 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 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. The following sections of the EAPWDR applies to this appeal: 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. Alternative grounds for designation under section 2 of Act 2.1 The following classes of persons are prescribed for the purposes of section 2 (2) [persons with disabilities] of the Act: (a) a person who is enrolled in Plan P (Palliative Care) under the Drug Plans Regulation, B.C. Reg. 73/2015; (b) a person who has at any time been determined to be eligible to be the subject of payments made through the Ministry of Children and Family Development's At Home Program; (c) a person who has at any time been determined by Community Living British Columbia to be eligible to receive community living support under the Community Living Authority Act; (d) a person whose family has at any time been determined by Community Living British Columbia to be eligible to receive community living support under the Community Living Authority Act to assist that family in caring for the person; (e) a person who is considered to be disabled under section 42 (2) of the Canada Pension Plan (Canada). Severity of impairment Physical impairment Panel decision. The appellant does not argue that he has a severe physical impairment. The psychiatrist has not provided a diagnosis of a physical impairment. The psychiatrist did not indicate that the appellant had any limitations with regard to functional skills requiring physical effort (can walk 4+ blocks unaided, etc.) and the RN assessed the appellant as independent in all listed aspects of mobility and physical functioning. Neither the psychiatrist nor the RN noted the requirement for an assistive device to compensate for any physical impairment. Accordingly, the panel finds that the ministry was reasonable in determining that a severe impairment of the appellant’s physical functioning had not been established.

Mental impairment The appellant’s position The appellant's position, as stated at the hearing and as set out in his Request for Reconsideration, is that, quoting section 2(2) of the EAPEDA, “In my opinion [section 2(2)] has already been decided and recorded in my existing PWD booklet by my psychiatrist [name]. He is a legal “health professional” and his decision that I require/qualify for disability benefits seems like exactly what the Assistance for Persons with Disabilities Act is asking for.” The ministry’s position In the reconsideration decision, the ministry reviewed the information provided by the psychiatrist in the PR and by the RN in the AR, and noted the following:  The ministry referred to the psychiatrist's statement under Health History that the appellant “suffers from a severe mental illness that impairs his ability to have employment. His anxiety and avoidance (to lower anxiety) are severe that it impacts on ADL’s, interpersonal relationships, ability to motivate himself to get to even essential appointments.” The ministry noted that the psychiatrist does not describe the severity of impacts to daily living activities, interpersonal relationships, and motivation. The ministry also notes that for the purposes of determining eligibility for PWD designation an applicant's employability or ability to work is not taken into consideration.  The psychiatrist does not indicate whether the appellant has difficulties with communication, but does indicate a “cognitive” cause, while the RN indicates that the appellant has satisfactory ability with all listed areas of communication.  Although the psychiatrist indicates significant deficits in cognitive and emotional functioning in the areas of executive, memory, motivation, and attention/sustained concentration, in the AR the RN indicates moderate impacts to cognitive and emotional functioning in these areas.  While the psychiatrist states that the appellant “avoids social interactions because of severe anxiety,” no description is provided regarding the frequency or duration of his avoidance of social interactions  A review of the RN’s assessments of the impacts of cognitive and emotional functioning in the listed areas shows that the RN indicated major impacts to one area, moderate impacts to the five areas, and minimal impacts to six areas, with no impact in two areas. The ministry found that the cumulative impact to cognitive and emotional functioning, as indicated by these assessments, is indicative of moderate as opposed to a severe impairment of mental functioning.  With regard to social functioning, the RN did not describe the frequency or duration of the periodic support/supervision the appellant requires being able to develop/maintain relationships, being able to deal appropriately with unexpected demands, and being able to secure assistance from others. The ministry also noted that although the RN indicates that the appellant has marginal functioning with his immediate social network, he also indicates that he is provided assistance by family and friends. Further the RN reported no safety issues with regards to social functioning. Therefore the ministry found it difficult to establish a severe impairment of mental functioning based on the RNs assessments of social functioning