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 10 January 2017 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) – sections 2 and 2.1.

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 August 2016, submitted on his behalf by the Public Guardian and Trustee of BC (“Public Guardian”). The Application contained:  A Self Report (SR).  A Physician Report (PR) dated 31 August 2016, completed by general practitioner (GP), who has known the appellant for 25 years and seen him more than 11 times over the past year.  An Assessor Report (AR) dated 31 August 2016, completed by the same GP.  A Court Order dated 08 December 1997 assigning the Public Guardian and Trustee of BC to manage and administer the affairs of the appellant. 2. The appellant’s Request for Reconsideration dated 20 December 2016, to which is attached a letter from the appellant’s Public Guardian case manager. In the PR, the GP diagnoses the appellant with traumatic osteoarthritis of the left knee and left shoulder (onset 1993), and severe head injury (onset 1993). 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 GP provided no commentary/explanation/description except as set out below.] Severity/health history Physical impairment PR: Regarding functional skills, the GP reports that the appellant can walk 4+ blocks unaided can climb 5+ steps unaided, and there are no limitations to remaining seated; no information is provided regarding any limitations as to lifting. The GP indicates that the appellant has not been prescribed any 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: Asked to describe the appellant’s impairment that impacts his ability to manage DLA, the GP writes, “Manages ADL’s independently.” As to mobility and physical ability, the GP assesses the appellant as independent for all listed activities: walking indoors, walking outdoors, climbing stairs, standing, lifting, and carrying and holding, commenting that the appellant has a weak left shoulder and weak left knee secondary to injury in 1993.

Mental impairment PR: Under Health History, the GP writes: “Severe head injury 1993 with frontal lobe damage. Impulsivity & judgment permanently impaired due to brain injury.” Under Additional Comments, the GP writes: “This patient is active and independent. He has travelled to [overseas country] golfing on his own. He is reliable about taking his seizure medications but drinks [alcohol] on occasion which is contraindicated due to brain injury & seizure disorder.” The GP indicates that the appellant has no difficulties with communication. The GP indicates that the appellant has significant deficits with cognitive and emotional function. He indicates that these deficits are in area of executive function. AR: The GP assesses the appellant's ability to communicate as good for all listed aspects: speaking, reading, writing, and hearing. Regarding cognitive and emotional functioning, the GP indicates that the appellant's mental impairment has the following impacts: Major impact: none. Moderate impact: none. Minimal impact: impulse control, insight and judgment, attention/concentration, executive, and motivation. No impact: bodily functions, consciousness, emotion, memory, motor activity, language, psychotic symptoms, other neuropsychological problems, and other emotional or mental problems. Ability to perform DLA PR: The GP indicates that the appellant lives alone, owning his house, with a tenant living in a spare room. The GP indicates that the appellant’s impairment does not directly restrict his ability to perform DLA. AR: The GP assesses the assistance required for managing DLA as follows: Personal care – independent for all aspects. Basic housekeeping – independent in all aspects. Shopping – independence in all aspects. Meals – independent in all aspects. Pay rent and bills – independent for banking; periodic assistance from another person

required for budgeting, and paying rent and bills. Medications – independent in all aspects. Transportation – independent for all aspects. With respect to social functioning, the GP assesses the appellant as independent in all listed areas: making appropriate social decisions, developing and maintaining relationships, interacting appropriately with others, dealing appropriately with unexpected demands, and securing assistance from others. The GP assesses the impact of the appellant's mental impairment on his immediate social and extended social networks as good functioning. Help provided/required PR: The GP indicates that the appellant does not require any prostheses or aids to compensate for his impairment. AR: The GP indicates that help is provided to the appellant by others – “Public Trustee helps with financial planning.” Regarding assistive devices, the GP indicates that the appellant routinely uses a brace for his left knee to compensate for his impairment. Self report In the SP, the appellant’s Public Guardian case manager describes his impairment as “ Head injury from a motor vehicle accident […] 1993.” She describes how his disability affects his life as follows: “Unable to work due to disability from motor vehicle accident.” Request for Reconsideration In her letter, the appellant's Public Guardian case manager writes: “[The appellant] has been a client of the Public Guardian since December 1997, a few years after he sustained a severe head injury. He has been struggling in managing his affairs and also had been financially abused by others around him. For nearly the last 20 years, the Public Guardian has assisted [the appellant] as he has been deemed incapable of managing due to a severe mental handicap. As such all of his financial and legal matters are managed by our office. The Public Guardian has had to set up supports in place such as purchasing a property on behalf of [the appellant] so that he would have a permanent place to reside, and also contracts maintenance and upkeep on the property. We are liaison with his doctor and pharmacy and we also [make] weekly disbursements to help him with his money management and ensure his bills are paid. It is

only with the assistance of the Public Guardian that [the appellant] is able to enjoy a carefree enhanced quality of life. If the Public Guardian was not a constant in his life, [the appellant's] severe disabilities would be more prevalent in that he would not be able to take care of his home and would end up homeless, or worse. Typically, when an individual has been deemed incapable of managing their affairs and fall under a government agency to take them over, I would consider this individual is a person with a disability. I disagree with the doctor's assessment that he requires “periodic assistance” as this is not the case. This client does not have positive relationships and does have major social isolation. All of these items fall under the “continuous assistance” as well as the social functioning. I would implore [the ministry] contact the doctor to review this information.” Notice of Appeal The appellant’s Notice of Appeal, submitted on his behalf by his public guardian case manager, is dated 31 January 2017. She writes: “[The appellant] is supported by the Public Guardian and Trustee as he has been found incapable of managing his legal and financial affairs. The Hearing At the hearing, the appellant's case manager described the support of Public Guardian provides the appellant as a “vulnerable adult,” much along the lines set out in her letter at reconsideration. She explained that the support she provides relates mainly to the appellant's financial and legal affairs. For instance, she sees to having the appellant's income tax return completed and filed, his utility bills and property tax paid and his house inspected annually. In terms of liaising with the GP and the pharmacy, she has set up an account with the pharmacy to pay for prescription medications not covered by MSP. She also arranges appointments for the appellant to see the GP, and coordinated the preparation of the PWD designation application. The appellant has a debit card for day-to-day purchases and the case manager transfers funds to the account attached to this card on a weekly basis. In arguing that the appellant is deemed to be a person with disabilities by other government agencies, she noted that the appellant is a recipient of a CPP disability pension, with that amount deducted from his monthly income assistance rate. The balance of the case manager’s presentation went to argument (see Part F, Reasons for Panel Decision, below). The ministry stood by its position at reconsideration. Admissibility of additional information With the exception noted below, the panel finds that the testimony of the appellant's case manager at the hearing is in support of the information and records before the ministry at reconsideration, as the information provided tends to corroborate that in her letter at reconsideration. The panel therefore admits this information as evidence under section 22(4) of

the Employment and Assistance Act. The panel does not admit as evidence the information provided by the case manager that the appellant is a recipient of a CPP disability pension, as this information was not before the ministry at reconsideration – that is, this information is not included in the Record of the Ministry Decision. While not admitting this information as evidence, the appellant or his case manager may wish to advise the ministry immediately that, in connection with PWD designation, he is a recipient of a CPP disability pension. Section 2(2) of the EAPWDA (as amended 01 September 2016) provides that the minister may designate a person as PWD if the minister is satisfied that the person is in a prescribed class of persons. Section 2.1 of the EAPWDR sets out these alternative grounds for PWD designation, including “(e) a person who is considered to be disabled under section 42 (2) of the Canada Pension Plan (Canada).” If, as the case manage states, the appellant is receiving a CPP disability pension, then he would have, in order to qualify, been considered to be “disabled” under the CPP legislation. For reference, section 42 (2) of the CPP legislation is shown below. When person deemed disabled 42 (2) For the purposes of this Act, (a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph, (i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and (ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and (b) a person is deemed to have become or to have ceased to be disabled at the time that is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person — including a contributor referred to in subparagraph 44(1)(b)(ii) — be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.

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). Alternative grounds for designation. Panel decision The appellant’s case manager argues that typically, when an individual has been deemed incapable of managing their affairs and falls under a government agency to take them over, this individual would be considered a person with a disability. The ministry did not address this possibility in the reconsideration decision. As explained above under “Admissibility of new information,” section 2(2) of the EAPWDA provides that the minister may designate a person as PWD if the minister is satisfied that the person is in a prescribed class of persons. However, a person in receipt of services provided by the Public Guardian is not a proscribed classes of persons listed in section 2.1 of the EAPWDR. As there was no information in the Record of the Ministry Decision that the appellant fell under one of the prescribe classes of persons, the panel finds that the ministry was reasonable in applying the 4 “impairment” criteria set out in section 2 of the EAPWDA.

Severity of impairment Physical impairment Panel decision. At the hearing, the case manager stated that the appellant does not argue that he has a severe physical impairment. The GP diagnosed the appellant as having traumatic osteoarthritis of the left knee and left shoulder, but did not indicate that the appellant had any limitations with regard to functional skills requiring physical effort (can walk 4+ blocks unaided, etc.) and assessed the appellant as independent in all listed aspects of mobility and physical functioning. While the GP notes that the appellant uses a brace for his left knee, he also states that the appellant “Manages ADLs independently.” 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 In her letter at reconsideration and at the hearing, the appellant’s case manage argued that the appellant suffered a severe head injury in 1993. It is only with the assistance of the Public Guardian that he is able to enjoy a carefree enhanced quality of life. If the Public Guardian was not a constant in his life, the appellant's severe disabilities would result in him not being able to take care of his home and he would end up homeless, or worse. The case manager therefore submits that it was unreasonable for the ministry to have determined that the appellant does not have a severe mental impairment. The ministry’s position In the reconsideration decision, the ministry reviewed the assessments provided by the GP in the PR and in the AR related to the appellant's mental functioning, including the appellant having a significant deficit with cognitive and emotional functioning in one area, that of executive, with this deficit resulting in minimal impacts to daily functioning in 5 areas. The ministry also noted that the GP indicates that the appellant does not require support/supervision with any aspects of social functioning and that he has good functioning with both his immediate and extended social networks. The ministry concluded that the information provided by the GP does not establish that the appellant has a severe mental impairment. Panel decision A diagnosis of a serious medical condition does not in itself determine PWD eligibility. Under the legislation, eligibility for PWD hinges on an “impairment” and its severity. An “impairment” is more than a diagnosed medical condition. An impairment is a medical condition that results in restrictions to a person’s ability to function independently, appropriately, effectively or for a reasonable duration. To assess the severity of impairment one must consider the nature of the impairment and the extent of its impact on daily functioning, as evidenced by functional skill limitations and the degree to which