Ministry of Social Development and Poverty Reduction

I PART C - DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction (the ministry) · 1 "�u;v11 · · 11 ............, ... , __ __ ,, ......... , L.u 1,::1 wlli1,,;11 1uu11u Llldl me appe11am rece1vea an overpayment of disability assistance for which she was not eligible under section 24 of the Employment and Assistance for Persons with Disabilities Regulation and is required to repay the amount to the ministry as per Employment and Assistance for Persons with Disabilities Act (EAPWDA) Section 18. The ministry determined that the appellant received child support payments as unearned income that was not deducted from her disability assistance and that these child support payments are not considered exempt income according to Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) Schedule B section 1.

PART D - RELEVANT LEGISLATION Employment and Assistance for Persons with Disabilities Act (EAPWDA) sections 11, 18, 19

Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) sections 1, 9, 24; Schedule A, sections 1, 2 4; Schedule B, sections 1, 2, 3, 6, 7

I PART E - SUMMARY OF FACTS Information before the minister at reconsideration included:

A letter from the ministry to the appellant dated March 21, 2013 advising that the ministry determined that she received an overpayment of disability assistance, A copy of a ministry Overpayment Notification dated March 21, 2013, A handwritten note dated Nov. 16, 2012 stating that the appellant [was] paid $1 ODO for child support on November 15, 2012, A handwritten note dated November 12, 2012, signed by the appellant, stated that she received a total of $8000 from June, 2012 to November, 2012 in child support. A note dated August 12, 2012, signed by the appellant, stating that she received $700 in June, 2012, $2000 in July, 2012 and $300 in August, 2012. A note dated September 26, 2011, notarized September 28, 2011, signed by the appellant, stating that she received $500 on September 16, 2010 and $5000 on September 30, 2010. A note dated September 16, 2010, signed by the appellant, notarized September 16, 2010, stating that the appellant received $6000 cash for child support, A letter from the ministry to the appellant dated January 31, 2013 asking for clarification. A copy of a Family Maintenance Enforcement Program request for information dated January 31, 2013. A B.C. Family Maintenance Enforcement Program account statement in the appellant's name as recipient for the period August 29, 2011 to February 22, 2013, stating that the amount of $9,000 was received for the period. A copy of a bank statement for the period January 28, 2012 to February 2, 2013, A ministry Overpayment Chart dated March 21, 2013. A letter from the ministry to the appellant dated February 28, 2013 requesting records for an eligibility review. A letter from the ministry to the appellant dated February 8, 2013 requesting information for an eligibility review. A letter from the ministry to the appellant dated January 25, 2013 requesting information for an eligibility review, - A letter from the ministry to the appellant dated March 21, 2013 advising the appellant that an overpayment occurred. - A letter from the Family Maintenance Enforcement Program to the appellant dated January 31, 2013 requesting confirmation of amounts received. - The appellant's Request for Reconsideration, signed April 19, 2013, with a note from the appellant - A letter from the appellant, dated February 6, 2019, outlining why she was seeking reconsideration in February 2019

At the hearing, the appellant stated that she came to Canada as a spouse. The appellant advised that her marriage subsequently failed and she was left with 3 children under the age of 6. The appellant stated that she had few marketable skills, so she was unable to make mortgage payments. She stated further that her husband refused to pay the mortgage. The appellant said she was denied income assistance due to her assets. She stated further that she had to sell her house. Her eldest son was sent to jail where he was injured badly. She told the panel that she did not know what to do. The appellant stated that her husband, the child's father, sent money to her which she then sent to her son. The appellant advised that this was not child support but rather money owed to her by her husband for past unpaid child support when all three of her children were dependents. The appellant stated that she felt very depressed about the situation. She stated that her husband did not want to give her any money and only did so if she signed a receipt for double the amount she actually received from her husband. She stated that he owed unpaid child support in the amount of $70,000, but when the house was sold, she had to pay his legal fees,

In response to questions from the panel, the appellant stated that she had one dependant when she was receiving disability assistance. She informed the panel that the amounts shown on the Overpayment Chart are the correct amounts paid to her by her husband, which she subsequently passed on to her son, The appellant denied that the navments were child sunnort since her son was no lonaer a minor and the money was for unpaid child sunnort

I deemed owing from the past. The ministry responded that their decision was based on the Act and Reaulations that were in force at the time the appellant was in receipt of disability assistance. The Annual Earnings Exemption has changed since 2013. The ministry stated that the appellant is not currently receiving disability assistance. However, during the period of time when she was receiving disability assistance, the appellant received earned income, unearned income, and child support that she failed to report. The ministry referred to the amounts stated on the Overpayment Chart and the amounts shown on her bank statements. The ministry made reference to the requirement set out in section 11 (1) EAPWDA that a recipient must report any change in circumstances or information that may affect the eligibility of the family unit. The ministry stated that under section 24 of the EAPWDR the amount of disability assistance that may be provided to a family unit is not more than the amount of assistance determined under Schedule A minus the family's net income under Schedule B. In this case, the appellant's income exceeded her disability assistance amount and she is subject to repayment.

I PART F - REASONS FOR PANEL DECISION The issue in this appeal is the reasonableness of the ministry decision which found that the appellant received an •

_ , - _J 01 · · · _J -�� 1v1 vv1 ,;...,, • .-::.1,<;, vva.v 11v� • • U11uer section L£+ ot me t:.mp1oyment and Assistance for Persons with Disabilities Regulation and is required to repay the amount to the ministry as per

Employment and Assistance for Persons with Disabilities Act (EAPWDA) Section 18.

Legislation EAPWDA Reporting obligations 11 (1)For a family unit to be eligible for disability assistance, a recipient, in the manner and within the time specified by regulation, must (a)submit to the minister a report that (i)is in the form prescribed by the minister, and (ii)contains the prescribed information, and

(b)notify the minister of any change in circumstances or information that (i)may affect the eligibility of the family unit, and (ii)was previously provided to the minister. (2)A report under subsection (1) (a) is deemed not to have been submitted unless the accuracy of the information provided in it is confirmed by a signed statement of each recipient.

Overpayments 18 (1 )If disability assistance, hardship assistance or a supplement is provided to or for a family unit that is not eligible for it, recipients who are members of the family unit during the period for which the overpayment is provided are liable to repay to the government the amount or value of the overpayment provided for that period. (2)The minister's decision about the amount a person is liable to repay under subsection (1) is not appealable under section 16 (3) [reconsideration and appeal rights].

Liability for and recovery of debts under Act 19 (1 )An amount that a person is liable to repay under this Act is a debt due to the government that may be (a)recovered in a court that has jurisdiction, or (b)deducted, in accordance with the regulations, from any subsequent disability assistance, hardship assistance or supplement for which the person's family unit is eligible or from an amount payable to the person by the government under a prescribed enactment. (2)Subject to the regulations, the minister may enter into an agreement, or accept any right assigned, for the

repayment of an amount referred to in subsection (1 ). (3)An agreement under subsection (2) may be entered into before or after the disability assistance, hardship assistance or supplement to which ii relates is provided. (4)A person is jointly and separately liable for a debt referred to under subsection (1) that accrued in respect of a family unit while the person was a recipient in the family unit.

EAPWDR (September, 2012 to March, 2013) Definitions 1 (1 )In this regulation:

"earned income" means (a)any money or value received in exchange for work or the provision of a service,

I "unearned income" means any income that is not earned income, and includes, without limitation, money or value ----k.iGeived from any of lhe-followin><;>'-: -----------------------------1--­ (p)maintenance under a court order, a separation agreement or other agreement;

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 Disability assistance may be provided to or for aJamily unit, for a calendar month, in an amount that is not more than (a)the amount determined under Schedule A, minus (b)the family unit's net income determined under Schedule B.

Reporting requirement 29 For the purposes of section 11 (1) (a) [reporting obligations} of the Act, (a)the report must be submitted by the 5th day of the calendar month following the calendar month in which one or more of the following occur: (i)a change that is listed in paragraph (b) (i) to (v); (ii)a family unit receives earned income as set out in paragraph (b) (vi); (iii)a family unit receives unearned income that is compensation paid under section 29 or 30 of the Workers Compensation Act as set out in paragraph (b) (vii), and (b)the information required is all of the following, as requested in the monthly report form prescribed under the Forms Regulation, B.C. Reg. 87/201 B: (i)change in the family unit's assets; (ii)change in income received by the family unit and the source of that income; (iii)change in the employment and educational circumstances of recipients in the family unit; (iv)change in family unit membership or the marital status of a recipient; (v)any warrants as described in section 14.2 ( 1) of the Act; (vi)the amount of earned income received by the family unit in the calendar month and the source of that income; (vii)the amount of unearned income that is compensation paid under section 29 or 30 of the Workers Compensation Act received by the family unit in the calendar month.

Schedule B Net Income Calculation (section 24 (b))

Deduction and exemption rules 1When 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; Iii\ the basic familv care rate paid for foster homes;

I (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 1 0 (1) of this ----1-----_,:;,,APflt!l�;

(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 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 (8) 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 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 IA\ not □realer than the amount contemnlated bv the recipient's business plan, accepted bv

I the minister under section 70.1 of this regulation, and (B) received and used for the purposes set out in the business plan;

'.""""' , ---nted by th�lisll-Gelumbia-l!flaeF-tA�l6fefH3fl""·---l-- ­u Family Development's (A) Autism Funding: Under Age 6 Program, or (B) Autism Funding: Ages 6 - 18 Program;

(xxviii) that portion of the maintenance paid for and passed on to a person with disabilities or a person aged 19 or older under a maintenance order or agreement filed with a court;

(xxix) 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;

(xxx) a refund provided under Plan I, "Fair PharmaCare", of the PharmaCare program established under the Continuing Care Programs Regulation, B.C. Reg. 146195;

(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;

(xi) payments granted by the government of British Columbia under the Ministry of Children and Family Development's Family Support Services program;

(xii) payments granted by the government of British Columbia under the Ministry of Children and Family Development's Supported Child Development program;

(xiii) payments granted by the government of British Columbia under the Ministry of Children and Family Development's Aboriginal Supported Child Development program,

(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, 3.1 and 4, and

(d) all unearned income must be included, except the deductions permitted under section 6 and any income exempted under sections 7, 7.1, 7.2 and 8.

Deductions from earned income 2The only deductions permitted from earned income are the following: (a) any amount deducted at source for m income tax,

I (ii) employment insurance, (iii) medical insurance, \IV/ 1..,anaaa ,-,ens1on ,-,,an, (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,

3(1) Subject to subsections (2) and (2.1 ), the amount of earned income calculated under subsection (3) is exempt for a family unit

(2) If an application for disability assistance (part 2) form is submitted to the minister, the 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 disability assistance unless

(a) a member of the family unit who is designated as a person with disabilities previously received disability assistance under the Act or a former Act, or

{b) a member of the family unit received income assistance under the Employment and Assistance Act for the calendar month immediately preceding that first calendar month,

(2.1) A new family unit described in section 3.1 (3) (b), (4) (b), (10) (b) or (11) (b) that does not provide written notice to the minister in accordance with section 3.1 (3) (c), {4) (c), (10) (c) or (11) (c), as applicable, may claim an exemption under this section except in relation to the calendar month in which the new family unit forms.

(3) The exempt amount for a family unit that qualifies under this section is to be calculated as follows: (a) in the case of a family unit that includes only one recipient who is designated as a person with disabilities, the exempt amount is calculated as the lesser of

(i) $800, and (ii) the family unit's total earned income in the calendar month of calculation; (a, 1) in the case of a family unit that includes two recipients, only one of whom is designated as a person with disabilities, the exempt amount is calculated as the lesser of

(i) $1 000, and (ii) the family unit's total earned income in the calendar month of calculation; (b) in the case of a family unit that includes two recipients who are designated as persons with disabilities, the exempt amount is calculated as the lesser of

(i) $1 600, and (ii) the family unit's total earned income in the calendar month of calculation.

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

I regulation; "disability-related cost to promote independence" means a disability-related cost referred to in ----+----=, "'•agffip�fi1titio11 of disabttity-1elated cost iI1 sectiOII 12 (1) of tt,;� ,�"'"'�';""•

"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 1 0 [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, (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;