Ministry of Social Development and Poverty Reduction

PART C – Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the ministry) reconsideration decision dated June 1, 2017 which found that the appellant did not meet three of the five statutory requirements of Section 2 of the Employment and Assistance for Persons with Disabilities Act for designation as a person with disabilities (PWD). The ministry found that the appellant met the age requirement and that his impairment is likely to continue for at least two years. However, the ministry was not satisfied the evidence establishes that:  the appellant has a severe physical or mental impairment;  the appellant's daily living activities (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 nor was the ministry satisfied that the appellant fit with in one of the five classes of persons eligible for PWD designation under section 2.1 of the Employment and Assistance for Persons with Disabilities Regulation (EAPWDR). PART D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA), Section 2(2) Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Sections 2 and 2.1

PART E – Summary of Facts Documents and Information Before the Minister at Reconsideration The evidence before the ministry at the time of the reconsideration decision included A. The Persons with Disabilities (PWD) application dated February 16, 2017, Applicant Information Section, in which the appellant’s medical conditions are described by an advocate as  Diabetes Level 1  Neuropathy  Major Depression, which, because of exhaustion, depression and anxiety from coping with his depression and diabetes make him feel too overwhelmed to even begin let alone complete basic tasks, and his personal care suffers from neglect; he skips meals because his depression impedes motivation, and food shopping increases his depression and on occasion anxiety causes him to leave without making purchases. He cannot do housekeeping due to depression and lack of motivation, and finds managing his finances overwhelming. He also finds managing public transportation to be too overwhelming to attempt and his diabetic neuropathy makes his feet to sore for him to be mobile. His anxiety and depression make it very difficult for him to function socially. B. The Persons with Disabilities Designation Denial Decision Summary dated April 12, 2017 The adjudicator reports that the appellant is 18 years of age or more and that his impairment is likely to continue for two or more years, repeats some of the information in the PR and the AR and acknowledges that the appellant has some restrictions based on the evidence but says that it has not been confirmed that the appellant is physically impaired to such a degree that his ability to function independently is severely limited. In a later part of the Decision Summary the adjudicator says it cannot be determined that there is a severe impairment that directly restricts the Appellant’s DLA and as a result requires help of a significant nature. There is no analysis as to how the conclusion was reached. The adjudicator does not explain why he or she has not mentioned the physician’s statement that the impairment directly restricts the appellant’s ability to perform DLA. C. A Medical Report (MR) completed by an endocrinologist dated February 3, 2017, which included a section reporting on the Appellant’s Daily Living Activities (DLAs), reporting that the appellant  had no restrictions with the DLA of Personal Self-Care, Meal Preparation, Medication Management, Use of Transportation or Financial Management  was continuously restricted in the DLA of Basic Housework, Daily Shopping and Mobility outside the Home, and  was periodically restricted in the DLA of Mobility Inside the Home, and the restriction was periodic because it varied with and was dependent on the severity of the appellant’s peripheral neuropathy, and that the appellant’s impairment directly restricted the appellant in his ability to perform DLA. The endocrinologist stated “Yes” in answer to the query “Does the impairment directly restrict the person’s ability to perform Daily Living Activities?”. The appellant has been the endocrinologist’s patient for 17 months, and the endocrinologist has seen the appellant between 2 and 10 times in the past year. The endocrinologist diagnosed the appellant with Type 1 Diabetes since age 9, painful Sensory Neuropathy affection function affecting activity and work, Diabetic Retinopathy, Variable Glycemic Control with frequent hypoglycemia. The appellant requires frequent medication adjustments and does not require a prosthesis or aids.

The endocrinologist reported that the appellant could walk 1 to 2 blocks unaided, climb 5 or more steps unaided, could remain seated for 2 to 3 hours, but that it was unknown if the appellant experienced limitations in lifting. D. An Assessor’s Report (AR) dated February 22, 2017 and completed by a Registered Nurse who has known the appellant for 2 weeks and has seen him between 2 and 10 times in the past year. She reports that the appellant’s mental or physical impairments that impact his ability to manage DLA are Diabetes Type 1 with diabetic peripheral neuropathies, Diabetic Retinopathy, Depression, Anxiety, Glaucoma and Cataracts. She reports the appellant is “good” or “satisfactory” in the 4 tasks under Ability to Communicate. Respecting Mobility and Physical ability, the appellant requires periodic assistance from another person in 2 of the 6 tasks. He takes significantly longer than typical in 5 of the 6 tasks. In the 14 areas under Cognitive and Emotional Functioning, the appellant experiences a major impact in 10 of them, a minimal impact in 2 of them, and no impact in 2 of them, but she observes that with an increase in blood sugar concentration the appellant’s depression and anxiety increases, causing him problems with communication and his speech is not coherent. For DLA, the assessor reports that she has obtained her information from the physician’s file/chart, but not from the appellant, the home assessment, friends, other professionals, community services or other sources. She reports that with the DLA of  Personal Care, where there are 8 listed tasks, the appellant is independent in 2, and takes significantly longer than typical in six but does not require periodic or continuous assistance or the use of an assistive device in any  Basic Housekeeping, the appellant requires periodic assistance, provided by friends, in both listed tasks  Shopping, where there are 5 listed tasks the appellant is independent in 1, requires periodic assistance in 1, such assistance being described as being required if carrying purchases home are too heavy, and takes significantly longer in 3 of the tasks, but does not require continuous assistance or an assistive device in any of the 5  Meals, where there are 4 listed tasks, the appellant is independent in 1 and takes five times longer than typical in the remaining 3  Pay Rent and Bills, the appellant is independent in all three listed tasks  Medications, the appellant is independent in all three listed tasks  Transportation, the assessor or does not rate the appellant’s ability in any of the three listed tasks but does say that he takes three times longer than typical and five times longer when he has pain, due to his anxiety and peripheral neuropathies  Social Functioning, which is only to be completed if the appellant has an identified mental impairment, where there are 4 listed specific tasks, the appellant is independent in 3 and requires continuous support or supervision in the remaining 2, but there is no explanation as to what sort of support or supervision is required although there is a space to include that explanation, and the assessor describes that the mental impairment causes the appellant very disruptive functioning in his relationship with both his immediate social network and his extended social network. The assessor provides an opinion that help is required in the form of an insulin pump which monitors blood sugar and releases insulin, presumably as needed and that while the appellant does not have an assistance animal, he would benefit from having a service dog.

Information Provided on Appeal Appellant’s Additional Evidence Written Evidence The appellant submitted a letter dated June 22, 2017written by his advocate in which it is indicated that the endocrinologist’s letter was for the ministry to justify the appellant not having to look for work at this time, and that the appellant’s anxiety and depression is prolonged and severe enough to last as long as the appellant’s other disabilities. Ministry Position on Additional Written Evidence The ministry was not opposed to admission of the appellant’s additional written evidence. Panel Finding on Additional Written Evidence The panel finds that the Appellant’s additional written evidence is in support of the information and records that were before the minister when the reconsideration decision being appealed was made and admits that additional evidence pursuant to section 22(4) Employment and Assistance Act (EAA). Appellant’s Additional Oral Evidence The appellant gave evidence of his diabetic neuropathy, said that he is not curable and he manages it using pain medication. He said that some days he cannot put his socks or shoes on because of the pain. He said that the pain was a “little like walking on broken glass” and that it is present with him 24 hours a day seven days a week. He said that about 1½ years ago he was capable of working but now he cannot and he struggles financially. He said that his GP has now prescribed a cane for him because of his neuropathy, but he was not using a cane at the time of his application nor at the time of his request for reconsideration. Ministry Position on Appellant’s Additional Oral Evidence The ministry was not opposed to admission of the appellant’s additional oral evidence. Panel Finding on Appellant’s Additional Oral Evidence The panel finds that the Appellant’s additional oral evidence, except for the evidence concerning the prescription for and use of the cane, is in support of the information and records that were before the minister when the reconsideration decision being appealed was made and admits that additional evidence pursuant to section 22(4) EAA. The panel notes that in the MR the endocrinologist stated “No” in answer to the question “Does the applicant require any prostheses or aids for his/her impairment?” The appellant said that his GP prescribed the cane about 1 ½ months ago, and the panel notes that at the time the Request for Reconsideration was received by the ministry on May 17, 2017, there was no evidence the appellant required an assistive device, specifically a cane. The panel finds that the oral evidence concerning the prescription for and use of the cane is not admissible as, pursuant to section 22(4) EAA, at the time of the reconsideration decision the appellant had not been prescribed and was not using the cane, which is an assistive device. Witness’ Additional Oral Evidence The witness gave evidence that she is a friend, not a paid support worker. She goes to the appellant’s home daily as he is depressed and has trouble getting out of bed. When at the appellant’s home she makes coffee, cleans for him, makes meals, helps with the shopping, carrying groceries, and with the laundry. She said the appellant has difficulty doing these tasks on his own and his

condition is going downhill, rather than improving, and now he uses a cane. She also checks to make sure the appellant is taking his medications because he is a Type 1 Diabetic. She said that she does the chores enumerated on a daily basis and if she was not there, the appellant would likely lay on the couch and do nothing more. Ministry Position on Witness’ Additional Oral Evidence The ministry was not opposed to admission of the witness’ additional oral evidence. Panel Finding on Witness’ Additional Oral Evidence The panel finds that the witness’ additional oral evidence, except for the evidence concerning the prescription for and use of the cane, is in support of the information and records that were before the minister when the reconsideration decision being appealed was made and admits that additional evidence pursuant to section 22(4) EAA. The witness’ oral evidence concerning the cane is not admissible for the same reason as the appellant’s evidence concerning it is not admissible. Ministry’s Additional Evidence The ministry did not submit additional evidence.

PART F – Reasons for Panel Decision Issue on Appeal The issue on appeal is whether the Ministry of Social Development and Social Innovation’s (the ministry) reconsideration decision dated June 1, 2017, to deny the Appellant designation as a PWD was reasonably supported by the evidence or was a reasonable application of the applicable enactment, namely section 2(2) EAPWDA and sections 2 and 2.1 EAPWDR, in the circumstances of the Appellant. The Ministry of Social Development and Social Innovation (the ministry) reconsideration decision dated June 1, 2017 which found that the appellant did not meet three of the five statutory requirements of Section 2 of the Employment and Assistance for Persons with Disabilities Act for designation as a person with disabilities (PWD). The ministry found that the appellant met the age requirement and that his impairment is likely to continue for at least two years. However, the ministry was not satisfied the evidence establishes that:  the appellant has a severe physical or mental impairment;  the appellant's daily living activities (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 nor was the ministry satisfied that the appellant fit with in one of the five classes of persons eligible for PWD designation under section 2.1 of the EAPWDR. Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA) (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 or nurse 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. Employment and Assistance for Persons with Disabilities Regulation (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. 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). General Scheme of the Legislation The general scheme of section 2 EAPDWA and sections 2 and 2.1 EAPDWR is that in order to be designated as a Person With Disabilities (PWD), an applicant must satisfy the Minister that he has a severe mental or physical impairment which is likely to continue for at least 2 years, and that impairment, in the opinion of one of the members of a prescribed class of professionals, directly and significantly restricts his ability to perform Daily Living Activities continuously or periodically for extended periods, and as a result he requires help to perform them. Alternatively, if an applicant fits within any 1 of 5 classes of people described in section 2.1 EAPDWR, the person may be designated as a PWD.

Parties’ Positions at Appeal Analysis Section 2(2) EAPDWA Age and Duration and Severe Impairment Requirement Section 2(2) EAPWDA requires that an applicant for PWD status must be 18 years of age of older, have a severe mental or physical impairment, and that in the opinion of a prescribed professional, is likely to continue for at least 2 years. At reconsideration the ministry found that the Appellant met the age requirement, and that the Appellant, in the opinion of a physician, had neither a severe physical impairment nor a severe mental impairment. The ministry found that while the Appellant had significant defects with cognitive and emotional functioning in the area of emotional disturbance and motivation, the physician indicated that the impairment was minimal to moderate, not severe, and that the minimal to moderate impairment was likely to continue for at least 2 years. Thus the requirements of section 2(2) of the EAPWDA as to age and duration had been met. Severe Physical Impairment At reconsideration the ministry found that the appellant did not have a severe physical impairment. The legislative requirement respecting DLA set out in section 2(2)(b) of the EAPWDA is that the minister be satisfied that as a result of a severe physical or mental impairment a person is, in the opinion of a prescribed professional, directly and significantly restricted in the ability to perform DLA either continuously or periodically for extended periods. Consequently, while other evidence - such as that of the witness and of the appellant - may be considered for clarification or support, the ministry’s determination as to whether or not it is satisfied is dependent upon the evidence from prescribed professionals. DLA are defined in section 2(1) of the EAPWDR and are listed in both the PR and the AR sections of the PWD application with the opportunity for the prescribed professional to check marked boxes and provide additional narrative. While there was evidence from the endocrinologist and the appellant to the effect that the appellant was unable to work, DLA, as defined in the legislation, do not include the ability to work. In this case, the prescribed professionals who have provided information respecting the appellant’s ability to perform DLA are the endocrinologist for the MR, and the Registered Nurse for the AR. A diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a “severe” impairment. An “impairment” is a medical condition that results in restrictions to a person’s ability to function independently or effectively. To assess the severity of an impairment, the ministry must consider both 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 the ability to perform DLA is restricted. In making its determination the ministry must consider all the relevant evidence, including that of the appellant. However, the legislation is clear that the fundamental basis for the analysis is the evidence from a prescribed professional – in this case, the endocrinologist and the Registered Nurse. Appellant’s Position The appellant’s position was that he was severely physically impaired, but submitted no further