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 June 15, 2017, which held that the appellant did not meet 3 of the 5 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 and duration requirements, but was not satisfied that:  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 those restrictions, the appellant requires an assistive device, the significant help or supervision of another person or the services of an assistance animal to perform DLA. 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 On March 24, 2017 the ministry received the appellant’s PWD application comprised of a Medical Report (MR) and an Assessor Report (AR) completed by the appellant’s General Practitioner (the “Physician”) on March 13, 2017, and the appellant’s Self-report (SR) dated March 13, 2017. The appellant also provided the following: - Consult report from a psychiatrist (the “Psychiatrist”) dated July 7, 1998 - Letter from another general practitioner (the “Doctor”) dated January 14, 1999 - Consult report from the Psychiatrist dated December 29, 1999 The appellant’s request for PWD designation was denied on May 3, 2017. On June 2, 2017the appellant submitted her completed Request for Reconsideration (RFR) dated June 2, 2017. The appellant also provided the following: - Letter from another psychiatrist (“Psychiatrist 2”) dated April 11, 2017 - Letter from the Physician dated May 31, 2017 - Letter from the appellant’s social worker dated June 1, 2017 On June 30, 2017, the tribunal received the appellant’s Notice of Appeal. Summary of relevant evidence Diagnoses The Psychiatrist indicates that the appellant has a dependent personality disorder and a history of recurrent depressions. In the MR, the Physician diagnoses the appellant with generalized anxiety disorder, PTSD, complicated bereavement and recurrent depression, onset in 1997. In his letter dated April 11, 2017 Psychiatrist 2 states that the appellant has a history of mixed anxiety and depressive disorder since her teen years. In his letter dated May 31, 2017 the Physician indicates that the appellant has a diagnosis of generalized anxiety disorder and major depressive disorder. Physical Impairment In the Health History portion of the MR, the Physician indicates that the appellant has poor appetite, weight loss (50 pounds in 4 months), and poor sleep. In the MR for Functional Skills, the Physician indicates that the appellant is able to walk 4+ blocks unaided on a flat surface, can climb 5+ steps unaided, can lift between 15 to 35 pounds, and has no limitation with remaining seated. In the AR the Physician indicates that the appellant is independent with all mobility and physical ability tasks.

Mental Impairment In the MR, the Physician indicates that the appellant has significant deficits with cognitive and emotional function in the areas of memory, emotional disturbance, motivation and attention or sustained concentration. The Physician comments that the symptoms are coming from her depression and anxiety of moderate to severe severity. In the AR, the Physician indicates that the appellant’s ability to communicate with speaking and hearing are good and that her reading and writing are satisfactory, explaining that she has difficulty with concentrating on reading and writing. The Physician indicates that the appellant has major impacts to the areas of bodily functions, emotion, and motivation and moderate impacts in the areas of attention/concentration, executive, and memory. The appellant has no impact in the areas of consciousness, impulse control, insight and judgment, motor activity, language, psychotic symptoms, other neuropsychological problems and other emotional or mental problems. The Physician comments that the appellant has poor appetite, has lost 50 pounds in 4 months, and has poor motivation, excessive anxiety and depression as a result of her depression, anxiety and PTSD. In the July 7, 1998 letter, the Psychiatrist indicates that the appellant has a history of recurrent depression, chronic anxiety, and was experiencing grief-related phenomena mainly manifested as inappropriate shame and guilt. The Psychiatrist states that her thought processes and cognition were intact and she demonstrated reasonable insight and judgment. In his letter dated January 14, 1999, the Doctor states that the appellant was suffering from abnormal grief reaction related directly to the death of her common law spouse in 1997. In his letter dated December 29, 1999 the Psychiatrist indicates that the appellant had become anxious and demoralized in response to the progression of her dysfunctional and co-dependent common law relationship. In his letter dated April 11, 2017, Psychiatrist 2 indicates that the appellant had no history of alcohol or illicit drug use and that she declined to take antidepressant medications but agreed to attend an anxiety management program. Psychiatrist 2 states that in his opinion the appellant has a long-term disability and she is a suitable candidate for PWD allowance. He states that she is quite a vulnerable individual and ongoing financial stressors may predispose her and may also precipitate anxiety and depression. In his letter dated May 31, 2017 the Physician indicates that the appellant has been seen by psychiatry more recently and started on medications and referred for counseling. He indicates that she has moderate to severe symptoms including low mood, poor concentration, poor focus and attention, and poor motivation. He indicates that these symptoms make her unable to manage in a work environment, as she is not able to focus on her work task or perform the cognitive tasks required. In the RFR the appellant states that after years of suffering from anxiety she is finally getting some help with her anxiety. She states that she had previously tried coping with her feelings and unhealthy thinking and choices with alcohol and being very codependent with others. She states that she needs a home, food, transportation and time in order to accomplish her goal of improving her mental health.

DLA In the MR the Physician indicates that the appellant has not been prescribed any medications that interfere with her ability to perform DLA. In the AR, the Physician indicates that the appellant is independent with all aspects of personal care except regulating diet with which she requires continuous assistance from another person and it takes her significantly longer than typical explaining that part of depression is not eating to the point of losing 50 pounds in the past 4 months. The Physician indicates that the appellant is independent with all aspects of basic housekeeping, shopping, rent and bills, medications and transportation. With respect to meals, the appellant is independent with safe storage of food but requires continuous assistance from another person with meal planning, food preparation and cooking, indicating that part of her depression is that she is unable to find the motivation to cook for herself, resulting in major weight loss. With respect to social functioning the Physician indicates that the appellant requires continuous support/supervision with making appropriate social decisions, developing and maintaining relationships, interacting appropriately with others, dealing appropriately with unexpected demands and securing assistance from others. The Physician indicates that the appellant has very disrupted functioning with her immediate and extended social networks commenting that she is unable to secure long term accommodation, lives in marginalized living conditions, and is basically isolated from other people. In his letter dated May 31, 2017 the Physician indicates that the appellant has traumatic events in her life going back 20 years so her symptoms are long standing. He indicates that treatment with medications and counselling is expected to be prolonged. Need for Help In the MR, the Physician does not indicate what assistance the appellant needs with DLA. In the AR, the Physician does not describe the support/supervision required which would help to maintain the appellant in the community. The Physician indicates that nobody is helping the appellant at this point although he indicates that the appellant has recently reconnected with counselling and psychiatry for March-April 2017. The appellant does not have an Assistance Animal. In the letter dated April 11, 2017 Psychiatrist 2 indicates that the appellant declined to take antidepressant medication but has agreed to attend anxiety management program. He also indicated that he referred the appellant to a program for sheltered environment. In the letter dated June 1, 2017, the social worker indicates that the appellant is willing to access supports and to follow through with treatment recommendations and has been accepted into a community mental health program as a participant.

Additional information provided In her Notice of Appeal dated June 30, 2017, the appellant states that she feels that her anxiety and depression are too severe for her to be working and now she needs to seek help about her newly diagnosed alcoholism. She states that she is not functioning at home. At the hearing the appellant provided a letter from the Physician dated June 30, 2017 indicating that the appellant has a history of major depressive disorder and generalized anxiety disorder. He also indicates that she meets criteria for alcohol addiction. At the hearing the appellant stated that she has suffered since she was a teenager and despite some success in her early life, began using alcohol to cope with her mental health issues. When her spouse was murdered in 1997 she suffered significant grief and began using alcohol to cope and could not hold a job. She subsequently had a 16-year relationship and had periods where she did somewhat better but the relationship ended last year and lost her home and she has been drinking all the time. The appellant attended a support program in another city and found some benefit from that but has not found that benefit in the current city in which she resides. The appellant states that she has spent a considerable portion of the last year either living in isolation or in dysfunctional living situations, as she does not have the income or ability to live on her own. The appellant states that she has struggled with having motivation to cook and eat, that her sleeping has been very poor and that she does not make very good choices. She feels very frustrated as she does not feel capable of explaining how she feels, only able to say that she just can’t cope. The appellant states that she has recently been prescribed a medication that helps her anxiety, and she is eating more and sleeping better, but she has increased depressive symptoms. She states that even though she is eating again she has lost 10 pounds in the past 2 weeks and six weeks ago she started losing hair. Her TSH (thyroid tests) are up and down, she was on thyroid medication and is being weaned off that. She thinks her hair loss is due to the thyroid medication but that needs to be investigated further. The appellant stated that she is currently living with a woman and is performing a variety of tasks such as taking down wallpaper, cleaning, gardening, cooking meals, and grocery shopping in exchange for room and board. She states that she cannot cook freely for herself given the current living situation so she is not sure whether her motivation to cook is better now or not but she is eating with her landlady and eating more meals than before. The appellant states that she does not have any family support. The appellant stated that although the AR indicates that there is no impact to her impulse control or insight and judgment, she has struggles with confusion, and she did not tell the Physician about the extent of her alcohol problems. The appellant also stated that she did not think depression was a major problem and that it was her anxiety that was the most troublesome but she now understands that her depression is a significant problem too. The social worker stated that she began working with the appellant in May and the appellant is lacking in terms of natural support. She stated that the appellant is often very anxious or distressed but she is doing great at keeping her appointments. The social worker stated that the appellant needs support several times per week. The social worker indicated that while the Physician in the AR indicated that the appellant has no impact in the areas of impulse control and insight and judgment that is likely a reflection of the fact that the appellant had not provided him with all the information about her alcohol problems.

Admissibility of New Information The ministry did not object to the new evidence. The panel has admitted the information in the Notice of Appeal, the letter from the Physician, the appellant’s oral testimony, and the social worker’s oral testimony with respect to the information provided regarding her diagnoses of generalized anxiety disorder, PTSD, complicated bereavement and recurrent depression as it tends to corroborate the information before the ministry at the time of reconsideration, in accordance with section 22(4) of the Employment and Assistance Act. In particular, the information relates to the Physician’s reports in the MR and AR, and information at reconsideration respecting the self-reported severity of the appellant’s impairment. However, the panel has not admitted the information in the Notice of Appeal, the letter from the Physician, the appellant’s oral testimony or the social worker’s oral testimony regarding the appellant’s newly diagnosed alcoholism and consequent impacts to her DLA. As this new information does not corroborate the information before the ministry at the time of reconsideration and includes a completely new diagnosis, the ministry did not have the opportunity to review this information or consider the new diagnosis and impacts to the appellant’s DLA, it takes the panel away from reviewing the reasonableness of the ministry’s reconsideration decision. As the ministry did not have the opportunity to review this new information, the appellant may wish to put this information before the ministry in the future.

PART F – Reasons for Panel Decision Issue on Appeal The issue on appeal is whether the ministry’s decision to deny the appellant designation as a PWD was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. In particular, was the ministry reasonable when concluding it was not satisfied that  a severe physical or mental impairment was established;  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 those restrictions, in the opinion of a prescribed professional, the appellant requires help, as it is defined in the legislation, to perform DLA? Relevant Legislation EAPWDA 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 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. (4) The minister may rescind a designation under subsection (2).

EAPWDR Definitions for Act 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. (3) The definition of "parent" in section 1 (1) applies for the purposes of the definition of "dependent child" in section 1 (1) of the Act. 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). Panel Decision The legislation provides that the determination of severity of an impairment is at the discretion of the minister, taking into account all of the evidence including that of the appellant. However, the legislation is also clear that the fundamental basis for the analysis is the evidence from a prescribed professional respecting the nature of the impairment and its impact on daily functioning. While the legislation does not define “impairment”, the MR and AR define “impairment” as a “loss or abnormality of psychological, anatomical or physiological structure or functioning causing a restriction in the ability to function independently, effectively, appropriately or for a reasonable duration.” While this is not a legislative definition, and is therefore not binding on the panel, in the panel’s opinion, it reflects the legislative intent and provides an appropriate analytical framework for assessing the degree of impairment resulting from a medical condition. When considering the evidence provided respecting the severity of impairment, the ministry must exercise its decision-making discretion reasonably by weighing and assessing all of the relevant evidence and cannot simply defer to the opinion of a prescribed professional as that would be an improper fettering of its decision-making authority. Severe Physical Impairment The appellant states that she is experiencing severe hair loss, weight loss, and her TSH levels are not right, but she did not argue that she had a severe physical impairment. The ministry’s position is that the MR, AR and other medical documentation do not establish a severe physical impairment. In particular, the ministry notes that the Physician’s assessment of the appellant’s functional skills in the MR is not indicative of a severe physical impairment. Although the Health History portion of the MR indicates that the appellant has lost 50 pounds in 4 months, the MR does not indicate a diagnosis of a physical impairment. The MR indicates that the appellant does not require any prosthesis or aids for her impairment. For functional skills, the Physician indicates that the appellant can walk 4+ blocks unaided on a flat surface, can climb 5+ steps unaided, can lift 15 to 35 pounds and has no limitation with respect to being seated. In the AR, the Physician indicates that the appellant is independent with all aspects of mobility and physical ability. The other medical documentation, while providing information regarding the appellant back ground and mental impairment, does not provide further information about the appellant’s level of functioning with mobility or physical ability.