PART C – DECISION UNDER APPEAL
The decision under appeal is the reconsideration decision of the Ministry of Social Development
and Poverty Reduction (“the ministry”) dated 03 January 2017 that denied the appellant
designation as a person with disabilities (PWD). The ministry determined that the appellant did
not meet 3 of 5 of the required criteria for PWD designation set out in section 2 of the
Employment and Assistance for Persons with Disabilities Act. 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 her ability to perform daily living activities (DLA) either
continuously, or periodically for extended periods; and,
ii.
as a result of those restrictions, she requires help to perform those activities.
The ministry determined that the appellant satisfied the other 2 criteria: she has reached 18
years of age and her 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,
2.1 and 72.
PART E – SUMMARY OF FACTS
The evidence before the ministry at reconsideration consisted of the following:
1.
The appellant’s PWD Designation Application dated 10 August 2017. The Application
contained:
A Self Report (SR).
A Medical Report (MR), undated, completed by a general practitioner (GP) who has
known the appellant for 5 - 7 years and seen her 2 – 10 times in the past 12 months.
An Assessor Report (AR) dated 04 September 2017, completed by the same GP.
A medical imaging report and accompanying medical note, both dated 17 July 2017.
2.
The appellant’s Request for Reconsideration, signed on 01 December 2017.
Accompanying the Request is a letter from the appellant of the same date requesting an
extension.
3.
The ministry’s original decision dated 27 October 2017 denying the appellant’s
application for PWD designation. Accompanying the decision sent to the appellant is a
ministry brochure entitled “Reconsideration and Appeals” (see Part F, Reasons for Panel
Decision, below).
In the MR, the GP provides the following diagnosis related to the appellant’s impairment:
osteoarthritis at the right and left knee (onset 2004)
The panel will first summarize the evidence from the MR, the AR and the medical reports as it
relates to the PWD criteria at issue in this appeal.
Severity of impairment
Physical impairment
MR:
Under Health History, the GP writes, “Significant right knee pain with walking, standing, bending
as well as some pain at night.” The GP refers to appellant being prescribed anti-inflammatory
medications and having intra-articular depot-medial injections. The GP adds that the appellant
may need an off-loader brace but cost may be an issue.
The GP indicates that the appellant has not been prescribed any medication and/or treatments
that interfere with her ability to perform DLA
Regarding functional skills, the GP reports that the appellant can walk 2 to 4 blocks unaided on
a flat surface, can climb 5+ steps unaided, her lifting ability is unknown and she has no limitation
in remaining seated.
Medical imaging report:
Exam date: 17 July 2017.
“Right knee and patella: Moderate narrowing of the lateral joint compartment is present. There is
mild osteophyte lipping at the margins of both femoroltibial joints. Minimal osteophyte lipping at
the margins of the patella is noted.”
Medical note:
Date: 17 July 2017.
“Right knee osteoarthritis. Valgus knee. Lateral > medial OA. General quad pain.”
AR:
Respecting mobility and physical ability, the GP provides no assessment for walking indoors. He
indicates that the appellant takes significantly longer than typical for walking outdoors (“slowly, 2
to 4 blocks”), climbing stairs (“slowly ~ 5 stairs”), and standing (“10 – 15 minutes”). He indicates
the appellant is independent for lifting and carrying and holding.
Mental impairment
MR:
The GP indicates that the appellant has no difficulties with communications.
The GP indicates that the appellant has no significant deficits with cognitive and emotional
function.
AR:
The GP assesses the appellant’s ability to communicate as good for speaking, reading, writing,
and hearing.
The GP puts a line through the table showing the degree of impact of the appellant's mental
impairment on daily functioning.
Daily living activities
MR:
The GP indicates that the appellant’s activity is not restricted for personal self care,
management of medications and management of finances. He indicates “unknown” for meal
preparation. He indicates that the appellant is restricted on a continuous basis (“managing, but
much slower with frequent breaks”) for basic housework, daily shopping, mobility inside the
home, mobility outside the home, and use of transportation.
The GP provides no assessment or commentary for social functioning.
In providing additional comments on the degree of restriction, the GP writes, ”Moderate
restriction.”
AR:
The GP provides the following assessments of the assistance the appellant requires in
performing DLA (the GP’s comments in parenthesis):
Personal care: independent in all aspects.
Basic housekeeping: takes significantly longer than typical for laundry and basic
housekeeping ([illegible] slower due to reduced mobility and elevated pain).
Shopping: takes significantly longer than typical for going to and from stores and carrying
purchase home (2 – 4 blocks walking slowly/not driving); independent for reading prices
and labels, making appropriate choices and paying for purchase.
Meals: independent in all aspects (limited 10 – 15 minutes standing for food preparation).
Pay rent and bills: independent in all aspects.
Medications: independent in all aspects.
Transportation: no assessment for getting in and out of a vehicle; independent and takes
significantly longer than typical for using public transit (slower to get to bus stop); N/A for
using transit schedules and arranging transportation.
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 put a line through the questions as to the appellant’s functioning with her immediate
and her extended social networks, as well as the question as to what support/supervision might
be required to maintain her in the community
Under additional comments, the GP writes, “Also significant language barrier.”
Help provided/required
MR:
The GP indicates that the appellant requires a prosthesis or aid to compensate for her
impairment, noting that she may benefit from an off-loader brace.
AR:
The GP indicates that the appellant routinely uses braces, noting, “Pending (knee brace).”
In terms of equipment required but not currently used, the GP gives as the needed device, “off-
loader knee brace.”
The GP indicates that the appellant is provided help by her family, commenting, “Lives with
family who can help when available.”
Self Report
In describing her disability, the appellant writes that she has pain in both of her legs and knees,
especially her right knee. This pain started a few years ago and the pain is getting worse and
worse. The pain is so severe that it makes it very hard or impossible to walk or stand, especially
for extended time periods. She has gone to her family doctor many times and nothing he has
prescribed, such as pills or injections, seems to work.
In explaining how her disability affects her life and her ability to take care of herself, the
appellant writes that it affects her life a great deal, because she cannot walk or climb the stairs
to her apartment building. Since she doesn't drive, she relies on walking and taking the bus to
do basic things like grocery shopping and going to her doctor's appointments. Even when she
does do basic things like cooking and doing house cleaning there is constant pain.
She writes that she is in constant pain in her knees with any minor movements. Each day her
condition is getting worse and worse and when she walks or does any movement for an
extended time the pain stays with her all day and night and it even affects her sleeping so that
she can't sleep.
Request for Reconsideration.
At reconsideration the appellant submitted the following:
A Request for Reconsideration, signed by the appellant on 01 December 2017. Attached
to the Request for Reconsideration is a letter dated 01 December 2017 in which the
appellant requests “an extension so that I can acquire supporting documentation from my
doctor and work with my advocate…”
A letter from the appellant and her advocate dated 12 December 2017, stating that due to
holiday time they request at least a month of extension to acquire supporting
documentation from the doctor and filing the letter of reconsideration.
A letter from the appellant dated 02 January 2018, requesting an extension, “since the
office was closed from Dec 23 to Jan 3, 2018, I need time to acquire supporting
documentation from my doctor and work with my advocate to finish my letter for
reconsideration.”
A letter from the appellant's advocate, undated, received by the ministry on 03 January
2018. The advocate writes, “[Advocacy organization] was closed for the holidays. Client
was unable to get the support. Due date for the submission is January 3, which is today.
[Advocacy organization] advocate is working on gathering additional information from the
doctor to complete the reconsideration submission. We request you consider client's
request for an extension.”
Notice of Appeal
The appellant’s Notice of Appeal is dated 11 January 2018. Under Reasons for Appeal, she
writes, “The ministry is not fair in the decision as I was not allowed to submit my reconsideration
documents on Jan 3, 2018 (due date for submission).”
The hearing
At the hearing, the appellant's advocate limited her submission to the procedural fairness issue
raised in the Notice of Appeal (see also Part F, Reasons for Panel Decision, below). She called
as a witness the appellant's daughter, who testified that:
She went to the ministry office on 02 January 2018 to deliver the letter of the same date
[see above] from the appellant requesting an extension. She was told that there was
nobody in authority at the office at that time who would be able to grant such an
extension. She was advised to come back the next day.
She went to the ministry office around 10:30 AM the next day, 03 January 2018, and was
told by a ministry worker that there could not be an extension, and to submit any
information that might be available by 4:00 PM that afternoon.
She went again to the ministry office around 2:30 PM and presented a package of
reconsideration materials that the advocate had managed to put together. The same
ministry worker told her that it was too late, the opportunity for submitting new information
had passed and a decision had already been made.
The advocate stated that she had not finalized a reconsideration package when the appellant’s
daughter went to the ministry office on the morning of 03 January to request an extension, but
on learning that an extension would not be granted, rushed to put together as best she could the
material to be presented that afternoon. The advocate contended that, had this additional
information been considered, the reconsideration decision might have been different.
The ministry referred to the reconsideration decision, reading,
“… the maximum allowed time for the ministry to render a reconsideration decision, and in
turn the maximum extension allowed for client to submit reconsideration materials, is 20
business days from the date the client submits their signed reconsideration request.
In your particular case, the ministry received your signed request for reconsideration on
December 1, 2017. As noted above, the ministry approved your request for an extension,
resulting in a due date of January 3, 2018 to submit additional documents or information
(i.e. 20 business days from December 1, 2017). Unfortunately, the EAPWD Regulations do
not set out for an extension beyond 20 business days from the date you submitted your
signed reconsideration request (as set out in EAPWD Regulation Section 72).”
The ministry stated that it was unfortunate that the appellant's daughter had been given
incorrect information in the morning of 03 January 2018. The ministry noted that if the appellant
was not successful in this appeal, she has the right to submit a new application and any new
information could be incorporated into it.
With respect to the PWD designation denial decision under appeal, the ministry stood by its
position at reconsideration.
The panel accepts the advocate’s submission and the daughter’s testimony 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. Specifically, the ministry
determined that the information provided did not establish that the appellant has a severe
physical or mental impairment that, in the opinion of a prescribed professional,
(i) directly and significantly restricts her ability to perform daily living activities (DLA) either
continuously or periodically for extended periods; and,
(ii) as a result of those restrictions, she requires help to perform those activities.
The ministry determined that the appellant satisfied the other 2 criteria: she has reached 18
years of age; and her impairment in the opinion of a medical practitioner is likely to continue for
at least 2 years.
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 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).
The following section 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.
Time limit for reconsidering decision
72 The minister must reconsider a decision referred to in section 16 (1) of the Act, and mail a
written determination on the reconsideration to the person who delivered the request
under section 71 (1) [how a request to reconsider a decision is made],
(a) within 10 business days after receiving the request, or
(b) if the minister considers it necessary in the circumstances and the
person consents, within 20 business days after receiving the request.
Analysis
The appellant’s advocate submits that, by denying the appellant the opportunity to submit new
information on 03 January 2018, the ministry did not meet its obligations for procedural fairness.
The advocate referred to the reconsideration decision, where it states, “It is noted that upon
receipt of your December 1, 2017 submission, the ministry granted your request for an
extension with a due date of January 3, 2018 to submit additional documents or information.”
The advocate submits that, on the basis of testimony from the appellant’s daughter, this
deadline was met and the ministry was in breach of procedural fairness requirements in not
considering the information that was presented on time but not accepted by the ministry.
The panel notes that the thrust of EAPWDR section 72 is to place an obligation on the ministry
to make a timely decision – within 10, or at the most 20, business days of receipt of the Request
for Reconsideration. This means that the reconsideration decision must be finalized by the close
of business on day 10 or 20, as applicable. The legislation provides for the ministry to defer a
decision from 10 to 20 days if it considers it necessary under the circumstances, subject
however to the consent of the person requesting a reconsideration (not the other way around).
Nevertheless, as the ministry acknowledged in the reconsideration decision, the ministry
granted the appellant’s request for an extension with a specified due date of January 3, 2018 to
submit additional documents or information. The panel also notes that the legislation does not
provide any consequences for the ministry if the 10 or 20 business day deadline is missed, but if
the person seeking a reconsideration decision does not provide additional information on time,
the consequence is a possible denial of the redress sought through the reconsideration process.
The panel finds that the appellant had a legitimate expectation that if she presented new or
additional information before the close of business on 03 January 2018, that this information
would be considered at reconsideration and might have an effect on the decision. This
expectation was reinforced by her daughter’s visit to the ministry office on morning of 03
January 2018, when the daughter was advised to submit any additional information before 4 PM
that afternoon. As the reconsideration decision states, “It is noted that upon receipt of your
December 1 2017 submission, the ministry granted your request for an extension with a due-
date of January 3, 2018 to submit additional documents or information,” without specifying the
time on the due-date the material had to be submitted.
The panel also notes that the ministry’s “Reconsideration and Appeals” brochure, sent to the
appellant with the original decision, also does not provide any guidance as to what time on the
due date any additional materials must be submitted. For example:
Under Reconsideration requests outside of My Self Serve: » Generally a decision will be mailed
to you within 10 business days of receiving your Request for Reconsideration form, or if you do not have a
mailing address, the decision will be available for pickup at your local Employment and Assistance Once.
At any time after your submission has been received and before a reconsideration decision is made, you
can request an extension of 10 business days, if more time is needed to gather and submit information.
Without being given a specific time before which additional material had to be presented, the
panel finds that the appellant would have a legitimate expectation that the material must be
presented by the close of business on the specified “due-date.” As noted above, this
expectation was reinforced by representations made by ministry staff to the appellant’s daughter
that additional material would be accepted until 4:00 p.m. on 03 January 2018. The panel finds
that the appellant relied on this representation and attempted to submit additional material to he
ministry before 4:00 p.m. on 03 January 2018 but was not permitted to do so.
As the appellant was not permitted to present new or additional information inside of what she
legitimately expected to be her submission deadline, the panel finds a breach of procedural
fairness. The appellant was unfairly denied the opportunity to have new information considered
at reconsideration.
Conclusion
Given the breach of procedural fairness discussed above, the panel finds that the ministry’s
decision denying the appellant PWD designation was not a reasonable application of EAPWDR
section 72 in the circumstances of the appellant. Accordingly, the panel rescinds the ministry’s
decision in favour of the appellant.
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.