PART C – DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction (the “Ministry”) reconsideration decision dated September 12, 2018 which determined that pursuant to section 10(2) of the Employment and Assistance Regulation (“EAR”), the appellant was not eligible for income assistance (IA) for August 2018 because his net income in June 2018 determined under Schedule B of the EAR exceeded his IA rate determined under Schedule A of the EAR. PART D – RELEVANT LEGISLATION Section 10 Employment and Assistance Regulation (“EAR”) Schedule A, B EAR Section 86(b) EAR
PART E – SUMMARY OF FACTS The appellant is the sole recipient of IA with no dependents. He receives $710 per month. His assistance file opened January 17, 2018. Before the Ministry at reconsideration: - The appellant started working on May 7, 2018 and had not declared any earnings and only submitted one pay stub. - It was determined that the appellant was hired to work at $18 per hour and should have had 2 pay periods in the month of June. - The appellant submitted bank statements for May and June which indicated a number of deposits into his bank account, which the appellant states were reimbursements from his employer for expenses. - The Ministry determined that due to the total bank deposits in June his income was in excess of his IA and the appellant was not eligible for ongoing IA as of August, 2018. - The appellant initially submitted to the Ministry: o A bank statement for the period June 2 – July 3, 2018 reporting a payroll deposit from his employer for $764.79 on June 13, 2018 and multiple deposits and e-transfers. o A bank statement for the period of May 1 – June 1, 2018 reporting a payroll deposit from his employer of $1070 on May 30, 2018 and multiple deposits and e-transfers. o A paystub dated May 25, 2018 showing net pay of $1070 (YTD $1180). o A monthly report dated July 27, 2018 reporting $764.79 in employment income received in June 2018. o He also sent photographs of email confirmations of the e-transfers into his bank account, copies of the text messages back and forth from his employer over various questions related to the business and problems with pay rate/hours, and a copy of the complaint he filed with Employment Standards. - On August 7, 2018 the appellant submitted his request for reconsideration (“RFR”). He reports that: o he was unexpectedly and wrongfully terminated from by his employer on June 27, 2018 and has been unable to pay his August rent. o he was constantly being sent “float money” from his employer to handle company duties, go about business, and pay for daily items like dump fees. o gas receipts, dump receipts, and every expense would be documented at the company head office in another province. o his employer is ignoring his requests for pay records and he has already submitted a formal complaint to Employment Standards about his employer for illegally withholding employment information. The appellant also submitted: - Monthly reports declaring no employment income in May, employment income of $764.79 in June and no monthly employment income in July. - A copy of the complaint to employment standards. - The employer’s daily report summaries for the dates June 12, 13, 16, 18, 19, and 20. - A craigslist note from his landlord about rent and possible future eviction. The appellant’s notice of appeal states: - He disagrees with the Ministry decision because he was given inaccurate information about what he was required to provide. - The poor assistance from Ministry workers and handling discrepancies have affected his case.
PART F – REASONS FOR PANEL DECISION The issue on appeal is whether the Ministry’s reconsideration decision dated September 12, 2018 which determined that under section 10(2) of the EAR, the appellant was not eligible for income assistance (IA) for August 2018 because his net income in June 2018 determined under Schedule B of the EAR exceeded his IA rate determined under Schedule A of the EAR. was reasonably supported by the evidence or a reasonable interpretation of the legislation in the circumstances of the appellant. The legislation provides: EAR – Procedures 86 The practices and procedures of a panel include the following: (a) a party to an appeal may be represented by an agent; (b) the panel may hear an appeal in the absence of a party if the party was notified of the hearing; EAR – Section 10 - Limits on income 10 (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 income assistance if the net income of the family unit determined under Schedule B equals or exceeds the amount of income assistance determined under Schedule A for a family unit matching that family unit. EAR - Schedule A and B Schedule A Income Assistance Rates Maximum amount of income assistance before deduction of net income 1 (1) Subject to this section and sections 3 and 6 to 10 of this Schedule, the amount of income assistance referred to in section 28 (a) [amount of income 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. Monthly support allowance 2 (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
(b) the amount calculated in accordance with subsections (2) to (4) for each dependent child in the family unit. Item Column 1 Column 2 Column 3 Family unit composition Age or status of applicant or Amount of support recipient 1 Sole applicant/recipient and no dependent Applicant/recipient is under 65 years of $335.00 children age … Monthly shelter allowance 4 (1) For the purposes of this section: (2) The monthly shelter allowance for a family unit to which section 15.2 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: Item Column 1 Column 2 Family Unit Size Maximum Monthly Shelter 1 1 person $375 Schedule B Net Income Calculation (section 28 (b) ) Deduction and exemption rules 1 When calculating the net income of a family unit for the purposes of section 28 (b) [amount of income 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. 1, s. 2 (a).] (iii) Repealed. [B.C. Reg. 48/2010, Sch. 1, s. 1 (b).] (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 [climate action tax credit] or 8.2 [BC harmonized sales tax credit] of the Income Tax Act (British 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. 1, s. 22 (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 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) Repealed. [B.C. Reg. 85/2012, Sch. 1, s. 5.] (xxi) 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; (xxii) payments granted by the government of British Columbia under the Ministry of Children and Family Development's At Home Program; (xxiii) Repealed. [B.C. Reg. 85/2012, Sch. 1, s. 5.] (xxiv) 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; (xxv) a loan that is (A) not greater than the amount contemplated by the recipient's business plan, accepted by the minister under section 77.2 of this regulation, and (B) received and used for the purposes set out in the business plan; (xxvi) 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;
(xxvii) Repealed. [B.C. Reg. 148/2015, App. 1, s. 1 (a).] (xxviii) payments made by a health authority or a contractor of a health authority to a recipient, who is a "person with a 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; (xxix) a refund provided under Plan I as established under the Drug Plans Regulation; (xxx) 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; (xxxi) a Universal Child Care Benefit provided under the Universal Child Care Benefit Act (Canada); (xxxii) 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; (xxxiii) money withdrawn from a registered disability savings plan; (xxxiv) a working income tax benefit provided under the Income Tax Act (Canada); (xxxv) Repealed. [B.C. Reg. 180/2010, s. 1 (b).] (xxxvi) the climate action dividend under section 13.02 of the Income Tax Act; (xxxvii) 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; (xxxviii) 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; (xxxix) payments granted by the government of British Columbia under the Ministry of Children and Family Development's Family Support Services program; (xl) payments granted by the government of British Columbia under the Ministry of Children and Family Development's Supported Child Development program; (xli) payments granted by the government of British Columbia under the Ministry of Children and Family Development's Aboriginal Supported Child Development program; (xlii) 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; (xliii) payments granted by the government of British Columbia under the Temporary Education Support for Parents program; (xliv) a BC early childhood tax benefit; (xlv) child support; (xlvi) orphan's benefits under the Canada Pension Plan Act (Canada); (xlvii) gifts, other than recurring gifts; (xlviii) 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;
(xlix) 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 Living BC or a person retained under a contract to perform services for Community Living BC; (l) 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; (l.1) 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 of Children and Family Development, that ministry, an employee of that ministry or a person retained under a contract to perform services for that ministry; (l.2) money that is paid or payable by the government of British Columbia to or for a person because the person was a resident of Woodlands School; (li) a disabled contributor's child's benefit paid or payable under the Canada Pension Plan; (lii) payments granted under an agreement referred to in section 94 of the Child, Family and Community Service Act; (liii) 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; (liv) 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 of this Schedule, (c) all earned income must be included, except the deductions permitted under section 2 and any earned income exempted under sections 3 and 4 of this Schedule, and (d) all unearned income must be included, except the deductions permitted under section 6 and any income exempted under sections 7 and 8 of this Schedule. Deductions from earned income 2 The only deductions permitted from earned income are the following: (a) any amount deducted at source for (i) income tax, (ii) employment insurance, (iii) medical insurance, (iv) Canada Pension Plan, (v) superannuation, (vi) company pension plan, and (vii) union dues; (b) if the applicant or recipient provides both room and board to a person at the applicant's or recipient's place of residence, the essential operating costs of providing the room and board;
(c) if the applicant or recipient rents rooms that are common to and part of the applicant's or recipient's place of residence, 25% of the gross rent received from the rental of the rooms. Exemption — earned income 3 (1) Subject to subsection (2), the amount of earned income calculated under subsection (6) is exempt for a family unit. (2) A family unit may not claim an exemption under this section in relation to the first calendar month for which the family unit becomes eligible for income assistance unless a member of the family unit received disability assistance or income assistance in at least one of the 3 calendar months immediately preceding that first calendar month. (3) to (5) Repealed. [B.C. Reg. 145/2015, Sch. 1, s. 16.] (6) The exempt amount for a family unit is the lesser of the family unit's total earned income in the calendar month of calculation and the following: (a) $400, if the family unit is not described in paragraph (b), (c) or (d); ….. Small business exemption 4 (1) In this section and section 5, "permitted operating expenses" means costs, charges and expenses incurred by a person in the operation of a small business, under a self-employment program in which the person is participating, for the following: (a) purchase of supplies and products; (b) accounting and legal services; (c) advertising; (d) taxes, fees, licences and dues incurred in the small business; (e) business insurance; (f) charges imposed by a savings institution on an account and interest; (f.1) payments, including principal and interest, on a loan that is (i) not greater than the amount contemplated by the recipient's business plan, accepted by the minister under section 77.2 of this regulation, and (ii) received and used for the purposes set out in the business plan; (g) maintenance and repairs to equipment; (h) gross wages paid to employees of the small business, but not including wages paid to (i) the person participating, or (ii) a person in the family unit of the person participating; (i) motor vehicle expenses; (j) premiums for employment insurance or workers' compensation benefits; (k) employer contributions for employment insurance, workers' compensation or the Canada Pension Plan; (l) rent and utilities, excluding rent and utilities for the place of residence of the persons described in subparagraphs (i) and (ii) of paragraph (h) unless
(i) there is an increase for rent or utilities and the increase is attributable to the small business, and (ii) the increase is not provided for in the calculation of the family unit's shelter allowance under Schedule A of this regulation; (m) office expenses; (n) equipment purchases or rentals. (2) Earned income of a recipient of income assistance is exempted from the total income of the recipient's family unit if (a) the recipient is participating in a self-employment program, and (b) the earned income is derived from operating a small business under the self-employment program in which the recipient is participating and (i) is used for permitted operating expenses of the small business, or (ii) is deposited in a separate account, established by the recipient in a savings institution, which account (A) consists exclusively of funds reserved by the recipient for the purpose of paying permitted operating expenses of that small business, and (B) the amount deposited does not increase the current balance of the separate account to a sum that exceeds $5 000, or (iii) is used for costs of renovations to the recipient's place of residence up to but not exceeding $5 000 in total or a greater amount accepted by the minister, if the renovations are part of a business plan accepted by the minister under section 77.2 of this regulation. Withdrawals and expenditures from reserve account 5 The amount of any expenditure or withdrawal out of a separate account described in section 4 (2) (b) (ii) of this Schedule is earned income for all purposes of this regulation, unless (a) the expenditure or withdrawal is for the payment of permitted operating expenses of the small business referred to in section 4 (2) of this Schedule, and (b) in the case of a withdrawal, the amount withdrawn is used within one month after the date of withdrawal to pay permitted operating expenses of the small business referred to in section 4 (2) (b) (i) of this Schedule. 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. Exemptions — unearned income 7 (0.1) In this section: "disability-related cost" means a disability-related cost referred to in paragraph (a), (b) or (c) of the definition of disability-related cost in section 13 (1) [assets held in trust for person receiving special care] 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 13 (1) of this regulation;
"intended registered disability savings plan or trust", in relation to a person referred to in section 13.1 (2) [temporary exemption of assets for person applying for disability designation or 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 11 [asset limits] of this regulation; (d) a payment made from a trust to or on behalf of a person referred to in section 13 (2) [assets held in trust for person receiving special care] of this regulation if the payment is applied exclusively to or used exclusively for (i) disability-related costs, (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 13 (2) (a) 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 13.1 (2) [temporary exemption of assets for person applying for disability designation or 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 13 (2) of this regulation; (ii) a structured settlement annuity payment that, subject to subsection (2), is made to a person referred to in section 13 (2) (a) of this regulation; (iii) money expended by a person referred to in section 13.1 (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;
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. 1, s. 4 (b).] (3) Repealed. [B.C. Reg. 197/2012, Sch. 1, s. 24 (f).] The panel finds: The appellant did not attend the hearing. After confirming that the notice of hearing was delivered to the appellant, the panel determined that they could proceed pursuant to s.86(b) EAR. At the hearing the Ministry explained their process of ensuring that ministry clients disclose employment income. At the time the appellant received IA he would have signed a declaration confirming that he will report income. Clients have until the 5 th of the following month to report income from the previous month. There are tick mark boxes regarding employment income and work BC financial reports. In the case of this appellant he did not submit information about his employment until mid-July and he submitted a monthly report at the end of July. However, the appellant should have submitted it by July 5, 2018. In the top corner of the report the appellant wrote his June income as $764.79. The appellant did not provide an actual paystub for June 2018 however the appellant has a paystub for May 2018. The Ministry founds that the $764.79 was earned income and that the appellant was eligible for a $400 exemption as a sole employable receipt. The Ministry determined that based on that earned income and applying the exemption, $364.79 would be deducted from the appellant’s August assistance. In addition to the $764.79 in employment income there were numerous other e-transfers during the month of June into the appellant’s bank account. The Ministry calculates these e-transfers at $2692.00. The bank statements are not part of the appeal record. The Ministry representative told the panel that the Ministry obtained the bank records directly from the appellant. The Ministry couldn’t explain why the bank records were not part of the appeal record.
The appellant acknowledges that he routinely received e-transfers but stated that it was float money that went out of his account. However the appellant only provided some evidence of e-transfers exiting his account and those did not show the amounts or any proof that the amounts existing were going back to his employer. Section 10(2) of the EAR states that a family unit is not eligible for IA if the net income of the family unit exceeds the amount of income assistance determined in Section A. In the appellant’s situation his IA rate is $710 per month. The appellant declared employment income of $764.79 for June and the Ministry calculated the amount to be deducted at $364.79 (after a 400 exemption), however there was an additional $2692.00 in e-transfers into the appellant’s bank account during June that the appellant does not dispute. The appellant hasn’t provided enough evidence to show the e-transfers in to his bank account were for expenses and subsequently returned to his employer, therefore the panel finds that the ministry was reasonable in determining that the additional $2692 was employment income that should have also been declared by the appellant. The panel finds that the appellant’s total income in June being the $364.79 of employment income plus the additional unexplained $2692.00 in e- transfers to be higher than his $710 IA received in June. The panel finds that the Ministry reconsideration decision, which determined that the appellant was not eligible for August 2018 assistance, was reasonably supported by the evidence before the Ministry at the time of reconsideration. The appellant is not successful in his appeal.
PART G – ORDER THE PANEL DECISION IS: (Check one) UNANIMOUS BY MAJORITY THE PANEL CONFIRMS THE MINISTRY DECISION RESCINDS THE MINISTRY DECISION If the ministry decision is rescinded, is the panel decision referred back to the Minister for a decision as to amount? Yes No LEGISLATIVE AUTHORITY FOR THE DECISION: Employment and Assistance Act Section 24(1)(a) or Section 24(1)(b) and Section 24(2)(a) or Section 24(2)(b) PART H – SIGNATURES PRINT NAME MEGHAN WALLACE (by telephone) DATE (YEAR/MONTH/DAY) 2018/10/16 PRINT NAME JEAN LORENZ SIGNATURE OF MEMBER DATE (YEAR/MONTH/DAY) 2018/10/16 PRINT NAME JANET WARD SIGNATURE OF MEMBER DATE (YEAR/MONTH/DAY) 2018/10/16
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