PART C – DECISION UNDER APPEAL
The decision under appeal is the Ministry of Social Development and Poverty Reduction
(the “ministry”) reconsideration decision dated December 19, 2017 which determined
that the appellant was not eligible for November disability assistance because the
appellant’s net income from September exceeded the ministry rate of assistance for the
appellant’s family unit size. In particular the minister determined that the appellant’s
ICBC settlement met the definition of unearned income under section 1 (t) of the
Employment and Assistance for Persons With Disabilities Regulation and was not exempt
from disability assistance.
PART D – RELEVANT LEGISLATION
Employment and Assistance for Persons with Disabilities Act (EAPWD) section 5
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) sections 1
(t), 9 (2), 24, 24.1, Schedule A - sections 1, 2 and 4, Schedule B - sections 1, 6, 7, and 8
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PART E – SUMMARY OF FACTS
The appellant was injured in a motor vehicle accident on March 21, 2013. As a result the
plaintiff made a claim for damages sustained and hired legal counsel in that regard.
The appellant’s claim was settled in late 2016. The claim was settled for a certain global
amount “plus costs and disbursements to be assessed or agreed”. Settlement of the costs
and disbursements could not be reached for several months. That issue was resolved by
legal counsel in August 2017.
Previously, the appellant’s lawyers had received the damages portion of the appellant’s
settlement in December 2016. The appellant’s lawyers paid to the appellant on
December 23, 2016 a certain amount from settlement funds and held the balance in
trust.
After resolution of the costs and disbursements, the appellant’s lawyers held in their
trust account for the appellant the sum of $4,659.95 and that amount was paid to the
appellant in late August/early September 2017.
The evidence before the ministry at the time of the reconsideration decision consisted of
the following:
-
the appellant’s monthly report dated October 2, 2017 declaring “all other income
or money received” of $4,659.95;
-
the appellant’s written submissions;
-
a letter dated December 7, 2017 from the appellant’s law firm confirming her claim
was settled in late 2016, stating that the appellant signed a release on December
23, 2016 and confirming that the law firm’s undertakings had been discharged and
that they had settlement funds in their trust account belonging to the appellant,
that the amount held in trust was subject to a direction to pay a certain amount to
a medical treatment provider and was subject to the law firm’s statement of
account yet to be issued, advising that the appellant’s legal costs to be paid to her
by ICBC pursuant to the settlement had not yet been resolved, that that issue was
resolved in August 2017 wherein ICBC agreed to pay a certain amount to the
appellant on account of those costs, that the amount was paid to the law firm in
trust in August 2017, that the law firm then issued a statement of account to the
appellant, and after all accountings paid the balance of $4,659.95 to the appellant,
the funds being sent to the appellant in late August/early September 2017;
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-
a letter dated October 23, 2017 from the appellant’s law firm confirming
settlement details;
-
a copy of the full and final release of all claims signed by the appellant on
December 23, 2016 in respect of the appellant’s claim for damages for injuries
sustained in the subject motor vehicle accident;
-
a copy of the settlement cheque from ICBC to the appellant’s law firm for the
principal settlement amount;
-
a copy of the settlement cheque from ICBC to the appellant’s law firm for the
agreed legal costs;
-
a copy of a cheque dated August 30, 2017 from the appellant’s law firm to the
appellant in the amount of $4,659.95 being the balance owing to the appellant
after accounting for the law firm’s legal fees, disbursements and taxes.
In the appellant’s undated written submissions in her request for reconsideration the
appellant stated that the money held in trust by her lawyer was an asset converted from
one form to another, paid on demand.
The appellant stated that the monies were held by her lawyers in their trust account to
her credit.
The appellant noted that her lawyers paid to her $30,000 by trust cheque received
December 24, 2016, $1,800 paid to a medical treatment provider pursuant to her
instructions in December 2016, and $4,659.95 by trust cheque received September 19,
2017.
The appellant noted certain provisions of the Employment and Assistance for Persons
with Disabilities Act and the EAPWDR.
The appellant argued that the ministry’s decision was incorrect. She noted that despite
her assertions that the funds were an asset held by her lawyers in trust she was told by
the ministry to enter the amount as other income without being properly informed of the
implications of listing the funds as directed. She was under the impression from her
conversation with the ministry representative that the category of “other money”
included both unearned money as well as assets. She did not understand that this would
mean that money would be deducted dollar for dollar from her disability assistance,
otherwise she would have requested further instructions before proceeding.
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The appellant argued that “the ministry decision unfairly penalizes [her] asset and puts
[her] in a financially compromised position”. As she is unable to work she does not have
the ability to replace those funds with earnings. She argued that the funds were part of
her assets prior to going on disability assistance.
The appellant stated that when she first went on benefits she informed the ministry
representative who assessed her that there was an additional asset beyond her bank
account but that it could not be quantified. The appellant stated that she was told this is
not a problem as long as when she could quantify the amount she declared it on her
report. The appellant argued that it is unfair to be penalized for obeying the instructions
provided.
The appellant argued that the funds should not be taken into account when calculating
her disability assistance benefits for November 2017 because the amount is exempt
unearned income pursuant to Schedule B, section 7(1)(c) of the EAPWDR and/or the
amount is an asset as defined in section 1 of the EAPWDR.
The appellant argued that the funds were a nonrecurring award and do not exceed her
asset limit at the time received. Therefore the amount is an exemption and should not be
included in the calculation of her disability assistance benefits for November 2017.
The appellant argued that the definition of asset in section 1 of the EAPWDR includes
cash assets. She argued that “cash assets” is further defined in section 1 as” including
money standing to the credit of the person that must pay it to the person on demand and
the amount of an immediately negotiable cheque payable to the person”.
The appellant argued that the funds were held in her lawyers’ trust account to her credit.
Once her lawyers’ fees and disbursements were deducted the remaining balance
belonged to her. The balance must be paid to her on demand. The funds were paid to her
on demand. The funds were paid to her by her lawyers’ trust check dated August 30,
2017 and received by her September 19, 2017. She argued that therefore the funds were
an asset and should not be included in the calculation of her disability assistance benefits
for November 2017.
In her notice of appeal dated January 5, 2018 the appellant states:
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“I disagree with the ministry’s reconsideration decision regarding the classification of my
money. The money in question was awarded to me prior to my being on benefits. The
money was held in trust and payable to me on demand. This was an asset converted from
one form to another.”
The appellant did not attend the hearing and, having confirmed that the appellant had
been notified of the hearing date and time, the hearing proceeded under section 86(b) of
the Employment and Assistance Regulation.
At the hearing, the ministry reiterated its reliance upon the sections of the EAPWDR
referred to in the reconsideration decision and, additionally, the sections referred to in
the reconsideration decision from Schedule A and Schedule B of the EAPWDR.
In particular the ministry referred to the definition of “unearned income” in section 1 of
the EAPWDR. The ministry indicated that in respect of the underlying facts upon which it
relied in making the reconsideration decision, it relied on the evidence of the appellant’s
lawyers regarding the identification and categorization of the funds at issue. The ministry
argued that based upon at the information from the appellant’s lawyers the funds were
properly categorized as “compensation”.
In response to a question from the panel, the ministry indicated that it often sees
circumstances similar to the appellant’s where a recipient has received compensation in
respect of a motor vehicle accident. The ministry advised that in those cases it obtains
clarification as to the nature of the payment; in particular what type of loss the payment
is meant to compensate for, to ensure the type of loss is not one of the type where the
compensation is exempt or deductible such as income loss or the loss of a vehicle.
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PART F – REASONS FOR PANEL DECISION
The relevant sections of the EAPWDR are as follows:
Definitions
1 (1) In this regulation:
"asset" means
(a) equity in any real or personal property that can be converted to cash,
(b) a beneficial interest in real or personal property held in trust, or
(c) cash assets;
"cash assets" in relation to a person, means
(a) money in the possession of the person or the person's dependant,
(b) money standing to the credit of the person or the dependant with
(i) a savings institution, or
(ii) a third party
that must pay it to the person or the dependant on demand,
(c) the amount of a money order payable to the person or the dependant, or
(d) the amount of an immediately negotiable cheque payable to the person or the dependant;
"unearned income" means any income that is not earned income, and includes, without limitation,
money or value received from any of the following:
(t) any other financial awards or compensation;
Limits on income
9 (1) For the purposes of the Act and this regulation, "income", in relation
to a family unit, includes an amount garnished, attached, seized, deducted or
set off from the income of an applicant, a recipient or a dependant.
(2) A family unit is not eligible for disability assistance if the net income of
the family unit determined under Schedule B equals or exceeds the amount
of disability assistance determined under Schedule A for a family unit
matching that family unit.
Amount of disability assistance
24 Subject to section 24.1 (3), disability assistance may be provided to or
for a family unit, for a calendar month, in an amount that is not more than
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(a) the amount determined under Schedule A, minus
(b) the family unit's net income determined under Schedule B.
[am. B.C. Reg. 175/2016, App. 1, s. 4.]
Disability assistance in the form of transportation support allowance
24.1 (1) The minister may provide to or for a family unit, for a calendar
month, in respect of each applicant or recipient who is designated as a
person with disabilities in the family unit, one of the following forms of
transportation support allowance:
(a) in money, in the amount of $52;
(b) in kind, in the form of a monthly pass for the personal use of
the person with disabilities to use a public passenger transportation
system in a transit service area established under section 25 of the
British Columbia Transit Act, or in a transportation service region as
defined in the South Coast British Columbia Transportation
Authority Act, which is deemed to have a value in the amount of
$52 for the purposes of this regulation.
(2) If an applicant or recipient who is provided a transportation support
allowance under either paragraph (a) or (b) of subsection (1) gives the
minister notice that the recipient wishes to be provided the other form of
transportation support allowance provided under that subsection, the
minister may provide that other form of transportation support allowance for
a subsequent month.
(3) If the amount of disability assistance calculated in respect of a family unit
under section 24 is less than the applicable amount for the family unit's
transportation support allowance, disability assistance may be provided in
accordance with this section up to an amount equal to the applicable amount
for the family unit's transportation support allowance.
[en. B.C. Reg. 175/2016, App. 1, s. 5.]
Schedule A
Disability Assistance Rates
Maximum amount of disability assistance before deduction of net income
1 (1) Subject to this section and sections 3 and 6 to 9 of this Schedule, the
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amount of disability assistance referred to in section 24 (a) [amount of
disability assistance] of this regulation is the sum of
(a) the monthly support allowance under section 2 of this Schedule
for a family unit matching the family unit of the applicant or
recipient, plus
(b) the shelter allowance calculated under sections 4 and 5 of this
Schedule.
(2) Despite subsection (1), disability assistance may not be provided in
respect of a dependent child if support for that child is provided under section
8 (2) or 93 (1) (g) (ii) of the Child, Family and Community Service Act.
Monthly support allowance
2 (0.1) For the purposes of this section:
"deemed dependent children", in relation to a family unit, means the
persons in the family unit who are deemed to be dependent children
under subsection (5);
"warrant" has the meaning of warrant in section 14.2 [consequences in
relation to outstanding arrest warrants] of the Act.
(1) A monthly support allowance for the purpose of section 1 (a) is the sum
of
(a) the amount set out in Column 3 of the following table for a
family unit described in Column 1 of an applicant or a recipient
described in Column 2, plus
(a.1) subject to section 24.1 [disability assistance in the form of
transportation support allowance], the amount set out in Column 4
of the following table for the family unit, plus
(b) the amount calculated in accordance with subsections (2) to (4)
for each dependent child in the family unit.
[TABLE OMITTED]
Monthly shelter allowance
4 (1) For the purposes of this section:
"family unit" includes a child who is not a dependent child and who resides
in the parent's place of residence for not less than 40% of each month,
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under the terms of an order or an agreement referred to in section 1
(2) of this regulation;
"warrant" has the meaning of warrant in section 14.2 [consequences in
relation to outstanding arrest warrants] of the Act.
(2) The monthly shelter allowance for a family unit to which section 14.2 of
the Act does not apply is the smaller of
(a) the family unit's actual shelter costs, and
(b) the maximum set out in the following table for the applicable
family size:
[TABLE OMITTED]
Schedule B
Net Income Calculation
Deduction and exemption rules
1 When calculating the net income of a family unit for the purposes of
section 24 (b) [amount of disability assistance] of this regulation,
(a) the following are exempt from income:
(i) any income earned by a dependent child attending school
on a full-time basis;
(ii) Repealed. [B.C. Reg. 96/2017, App. 2, s. 2 (a).]
(iii) Repealed. [B.C. Reg. 48/2010, Sch. 1, s. 2 (c).]
(iv) a family bonus, except the portion treated as unearned
income under section 10 (1) of this Schedule;
(iv.1) the Canada child benefit, except the portion treated as
unearned income under section 10 (1) of this Schedule;
(v) the basic child tax benefit;
(vi) a goods and services tax credit under the Income Tax
Act (Canada);
(vii) a tax credit under section 8 [refundable sales tax
credit], 8.1 [low income climate action tax credit] or 8.2 [BC
harmonized sales tax credit] of the Income Tax Act (British
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Columbia);
(viii) individual redress payments granted by the government
of Canada to a person of Japanese ancestry;
(ix) individual payments granted by the government of
Canada under the Extraordinary Assistance Plan to a person
infected by the human immunodeficiency virus;
(x) individual payments granted by the government of British
Columbia to a person infected by the human
immunodeficiency virus or to the surviving spouse or
dependent children of that person;
(xi) individual payments granted by the government of
Canada under the Extraordinary Assistance Plan to
thalidomide victims;
(xii) money that is
(A) paid or payable to a person if the money is
awarded to the person by an adjudicative panel in
respect of claims of abuse at Jericho Hill School for the
Deaf and drawn from a lump sum settlement paid by
the government of British Columbia, or
(B) paid or payable to or for a person if the payment is
in accordance with the settlement agreement
approved by the Supreme Court in Action No.
C980463, Vancouver Registry;
(xiii) the BC earned income benefit;
(xiv) money paid or payable under the 1986-1990 Hepatitis
C Settlement Agreement made June 15, 1999, except money
paid or payable under section 4.02 or 6.01 of Schedule A or
of Schedule B of that agreement;
(xv) a rent subsidy provided by the provincial government,
or by a council, board, society or governmental agency that
administers rent subsidies from the provincial government;
(xvi) Repealed. [B.C. Reg. 197/2012, Sch. 2, s. 11 (a).]
(xvii) money paid or payable to a person in settlement of a
claim of abuse at an Indian residential school, except money
paid or payable as income replacement in the settlement;
(xviii) post adoption assistance payments provided under
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section 28 (1) or 30.1 of the Adoption Regulation, B.C. Reg.
291/96;
(xix) a rebate of energy or fuel tax provided by the
government of Canada, the government of British Columbia,
or an agency of either government;
(xx) money paid by the government of British Columbia,
under a written agreement, to a person with disabilities or to
a trustee for the benefit of a person with disabilities to
enable the person with disabilities to live in the community
instead of in an institution;
(xxi) Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 7.]
(xxii) payments granted by the government of British
Columbia under section 8 [agreement with child's kin and
others] of the Child, Family and Community Service Act;
(xxiii) payments granted by the government of British
Columbia under the Ministry of Children and Family
Development's At Home Program;
(xxiv) Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 7.]
(xxv) payments granted by the government of British
Columbia under an agreement referred to in section 93 (1)
(g) (ii) of the Child, Family and Community Service Act, for
contributions to the support of a child;
(xxvi) a loan that is
(A) not greater than the amount contemplated by the
recipient's business plan, accepted by the minister
under section 70.1 of this regulation, and
(B) received and used for the purposes set out in the
business plan;
(xxvii) payments granted by the government of British
Columbia under the Ministry of Children and Family
Development's
(A) Autism Funding: Under Age 6 Program, or
(B) Autism Funding: Ages 6 — 18 Program;
(xxviii) Repealed. [B.C. Reg. 148/2015, App. 2, s. 1 (a).]
(xxix) payments made by a health authority or a contractor
of a health authority to a recipient, who is a "person with a
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mental disorder" as defined in section 1 of the Mental Health
Act, for the purpose of supporting the recipient in
participating in a volunteer program or in a mental health or
addictions rehabilitation program;
(xxx) a refund provided under Plan I as established under
the Drug Plans Regulation;
(xxxi) payments provided by Community Living BC to assist
with travel expenses for a recipient in the family unit to
attend a self-help skills program, or a supported work
placement program, approved by Community Living BC;
(xxxii) a Universal Child Care Benefit provided under the
Universal Child Care Benefit Act (Canada);
(xxxiii) money paid by the government of Canada, under a
settlement agreement, to persons who contracted Hepatitis
C by receiving blood or blood products in Canada prior to
1986 or after July 1, 1990, except money paid under that
agreement as income replacement;
(xxxiv) money withdrawn from a registered disability savings
plan;
(xxxv) a working income tax benefit provided under the
Income Tax Act (Canada);
(xxxvi) Repealed. [B.C. Reg. 180/2010, s. 2 (b).]
(xxxvii) the climate action dividend under section 13.02 of
the Income Tax Act;
(xxxviii) money paid or payable to a person under the
Criminal Injury Compensation Act as compensation for non-
pecuniary loss or damage for pain, suffering mental or
emotional trauma, humiliation or inconvenience that
occurred when the person was under 19 years of age;
(xxxix) money that is paid or payable to or for a person if
the payment is in accordance with the settlement agreement
approved by the Supreme Court in Action No. S024338,
Vancouver Registry;
(xl) payments granted by the government of British
Columbia under the Ministry of Children and Family
Development's Family Support Services program;
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(xli) payments granted by the government of British
Columbia under the Ministry of Children and Family
Development's Supported Child Development program;
(xlii) payments granted by the government of British
Columbia under the Ministry of Children and Family
Development's Aboriginal Supported Child Development
program;
(xliii) money paid or payable from a fund that is established
by the government of British Columbia, the government of
Canada and the City of Vancouver in relation to
recommendation 3.2 of the final report of the Missing
Women Commission of Inquiry;
(xliv) payments granted by the government of British
Columbia under the Temporary Education Support for
Parents program;
(xlv) a BC early childhood tax benefit;
(xlvi) child support;
(xlvii) orphan's benefits under the Canada Pension Plan Act
(Canada);
(xlviii) money or other value received, by will or as the result
of intestacy, from the estate of a deceased person;
(xlix) gifts;
(l) education and training allowances, grants, bursaries or
scholarships, other than student financial assistance;
(li) money withdrawn from a registered education savings
plan;
(lii) compensation paid or payable under section 17
[compensation in fatal cases] or 18 [addition to payments]
of the Workers Compensation Act to a dependant, as defined
in section 1 of that Act, who is a child, as defined in section
17 of that Act;
(liii) money that is paid or payable by or for Community
Living BC to or for a person if the payment is in accordance
with an award in a legal proceeding or with a settlement
agreement in respect of a claim for injury, loss or damage
caused by Community Living BC, an employee of Community
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Living BC or a person retained under a contract to perform
services for Community Living BC;
(liv) money that is paid or payable by the government of
British Columbia to or for a person if the payment is in
accordance with an award in a legal proceeding or with a
settlement agreement in respect of a claim for injury, loss or
damage caused by the minister, the ministry, an employee
of the ministry or a person retained under a contract to
perform services for the ministry;
(lv) a disabled contributor's child's benefit paid or payable
under the Canada Pension Plan;
(lvi) payments granted under an agreement referred to in
section 94 of the Child, Family and Community Service Act;
(lvii) money that is paid or payable, in respect of a child,
from property that comes into the control of, or is held by,
the Public Guardian and Trustee;
(lviii) money that is paid or payable from a settlement in
respect of Treaty No. 8 agricultural benefits,
(b) any amount garnished, attached, seized, deducted or set off
from income is considered to be income, except the deductions
permitted under sections 2 and 6,
(c) all earned income must be included, except the deductions
permitted under section 2 and any earned income exempted under
sections 3 and 4, and
(d) all unearned income must be included, except the deductions
permitted under section 6 and any income exempted under
sections 3, 7 and 8.
Deductions from unearned income
6 The only deductions permitted from unearned income are the following:
(a) any income tax deducted at source from employment insurance
benefits;
(b) essential operating costs of renting self-contained suites.
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Exemptions — unearned income
7 (0.1) In this section:
"disability-related cost" means a disability-related cost referred to in
paragraph (a), (b), (c) or (e) of the definition of disability-related cost
in section 12 (1) [assets held in trust for person with disabilities] of this
regulation;
"disability-related cost to promote independence" means a disability-
related cost referred to in paragraph (d) of the definition of disability-
related cost in section 12 (1) of this regulation;
"intended registered disability savings plan or trust", in relation to a
person referred to in section 12.1 (2) [temporary exemption of assets
for person with disabilities or person receiving special care] of this
regulation, means an asset, received by the person, to which the
exemption under that section applies;
"structured settlement annuity payment" means a payment referred to
in subsection (2) (b) (iii) made under the annuity contract referred to in
that subsection.
(1) The following unearned income is exempt:
(a) the portion of interest from a mortgage on, or agreement for
sale of, the family unit's previous place of residence if the interest
is required for the amount owing on the purchase or rental of the
family unit's current place of residence;
(b) $50 of each monthly Federal Department of Veterans Affairs
benefits paid to any person in the family unit;
(c) a criminal injury compensation award or other award, except
the amount that would cause the family unit's assets to exceed, at
the time the award is received, the limit applicable under
section 10 [asset limits] of this regulation;
(d) a payment made from a trust to or on behalf of a person
referred to in section 12 (1) [assets held in trust for person with
disabilities] of this regulation if the payment is applied exclusively
to or used exclusively for
(i) disability-related costs,
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(ii) the acquisition of a family unit's place of residence,
(iii) a registered education savings plan, or
(iv) a registered disability savings plan;
(d.1) subject to subsection (2), a structured settlement annuity
payment made to a person referred to in section 12 (1) of this
regulation if the payment is applied exclusively to or used
exclusively for an item referred to in subparagraph (i), (ii), (iii) or
(iv) of paragraph (d) of this subsection;
(d.2) money expended by a person referred to in section 12.1
(2) [temporary exemption of assets for person with disabilities or
person receiving special care] of this regulation from an intended
registered disability savings plan or trust if the money is applied
exclusively to or used exclusively for disability-related costs;
(d.3) any of the following if applied exclusively to or used
exclusively for disability-related costs to promote independence:
(i) a payment made from a trust to or on behalf of a person
referred to in section 12 (1) of this regulation;
(ii) a structured settlement annuity payment that, subject to
subsection (2), is made to a person referred to in section 12
(1) of this regulation;
(iii) money expended by a person referred to in section 12.1
(2) of this regulation from an intended registered disability
savings plan or trust;
(e) the portion of Canada Pension Plan Benefits that is calculated
by the formula (A-B) x C, where
A = the gross monthly amount of Canada Pension Plan Benefits
received by an applicant or recipient;
B = (i)
in respect of a family unit comprised of a sole applicant or a
sole recipient with no dependent children, 1/12 of the
amount determined under section 118 (1) (c) of the Income
Tax Act (Canada) as adjusted under section 117.1 of that
Act, or
(ii) in respect of any other family unit, the amount under
subparagraph (i), plus 1/12 of the amount resulting from
the calculation under section 118 (1) (a) (ii) of the Income
Tax Act (Canada) as adjusted under section 117.1 of that
Act;
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C = the sum of the percentages of taxable amounts set out under
section 117 (2) (a) of the Income Tax Act (Canada) and section
4.1 (1) (a) of the Income Tax Act;
(f) a tax refund;
(g) a benefit paid under section 22, 23 or 23.2 of the Employment
Insurance Act (Canada) to any person in the family unit.
(2) Subsection (1) (d.1) and (d.3) (ii) applies in respect of a person only if
(a) the person has entered into a settlement agreement with the
defendant in relation to a claim for damages in respect of personal
injury or death, and
(b) the settlement agreement requires the defendant to
(i) make periodic payments to the person for a fixed term or
the life of the person,
(ii) purchase a single premium annuity contract that
(A) is not assignable, commutable or transferable, and
(B) is designed to produce payments equal to the
amounts, and at the times, specified in the settlement
agreement,
(iii) make an irrevocable direction to the issuer of the
annuity contract to make all payments under that annuity
contract directly to the person, and
(iv) remain liable to make the payments required by the
settlement agreement.
(2.1) Repealed. [B.C. Reg. 204/2015, App. 2, s. 4 (b).]
(3) Repealed. [B.C. Reg. 197/2012, Sch. 2, s. 13 (f).]
Discussion and Decision
Section 24 of the EAPWDR provides that disability assistance may be provided to or for a
family unit for a calendar month in an amount that is not more than the family unit’s net
income determined under Schedule B.
In respect of limits on income, section 9(2) of the EAPWDR provides that a family unit is
not eligible for disability assistance if the net income of the family unit determined under
Schedule B equals or exceeds the amount of disability assistance determined under
Schedule A for a family unit matching that family unit.
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“Unearned income” means, under the definitions in section 1 of the EAPWDR, income
that is not earned income and includes any “other financial awards or compensation”.
Schedule B of the EAPWDR sets out exemptions from unearned income. Exempt
unearned income includes “a criminal injury compensation award or other award…”
(section 7(1)(c)).
There is no issue that the net income of the family unit determined under Schedule B
equals or exceeds the amount of disability assistance determined under Schedule A. The
issue is whether the income is exempt.
The appellant argues that the unearned income is exempt under Schedule B, section
7(1)(c). That section exempts “a criminal injury compensation award or other award”.
The appellant’s unearned income is not an “other award”. The panel accepts that an
“award” is an amount awarded by someone of authority, for example a judge. In this case
the funds received by the appellant are compromised settlement funds subsequent to an
injury from a motor vehicle accident. This is made clear by the letters from the
appellant’s lawyers and the disclosed documentation including the release executed by
the appellant upon settlement of the claim.
The appellant also argued that the funds received by her “is an asset as defined in section
1 of the EAPWDR”. In particular the appellant argued it is a “cash asset” as defined i.e.
money standing to her credit with a third party that must pay it to the person on
demand.
The panel concludes that the funds were not held to the appellant’s credit and payable
on demand. No funds were payable to the appellant until the issue of “costs and
disbursements” were resolved with ICBC. The resolution of that issue took several
months. During that time the funds were held in trust by the appellant’s lawyers on
conditions; in particular as security for the lawyers’ fees, disbursements and taxes. The
appellant was unable to demand payment of funds from her lawyers until those issues
were resolved and until the lawyers rendered their final account to the appellant and the
account was paid from trust i.e. the trust/settlement funds.
Section 24 of the EAPWDR states that a person’s income, calculated under Schedule B,
must be deducted from their disability assistance, calculated under Schedule A.
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Section 9(2) of the EARWDR states that a family unit is not eligible for assistance if the
net income of the family determined under Schedule B equals or exceeds the amount of
income assistance is determined under Schedule A for a family unit matching that family
unit.
Unearned income must be deducted from disability assistance except that which meets
the exemption criteria in the legislation. Sections 1, 6, 7, and 8 list the deductions and
exemptions from unearned income that are permitted for the purposes of calculating
income. The ICBC settlement income is not included as income that is exempted or which
might be deducted for the reasons noted above.
The relevant payment to the appellant, the sum of $4659.95 received by the appellant in
September, meets the definition of unearned income under section 1 (t) of the EAPWDR
and is not exempt from disability assistance. The rate of disability assistance for a sole
recipient under Schedule A is $706.42 support, $375 shelter, and a transportation
support allowance of $52 for a total of $1,133.42. As a result the appellant is not eligible
for November disability assistance because her net income of $4,659.95 exceeds the
$1,133.42 amount of assistance determined for her family unit size under Schedule A.
On a review of all of the evidence and relevant legislation, the panel finds that the
reconsideration decision was a reasonable application of the EAPWDR in the appellant’s
circumstances and was reasonably supported by the evidence. In the result the panel
confirms the ministry’s decision and the appellant is not successful in the appeal.
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