Ministry of Social Development and Poverty Reduction

I APPEAL NUMBER: PART C - DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction's ("ministry") reconsideration decision dated May 21, 2019, in which the ministry found that the appellant was not eligible for designation as a Person with Disabilities ("PWD") under section 2 of the Employment and Assistance for Persons with Disabilities Act ("EAPWDA"). The ministry found that the appellant meets the age and duration requirements, but was not satisfied that:

• the appellant has a severe mental or physical impairment; • the appellant's impairment, in the opinion of a prescribed professional, directly and significantly restricts her ability

to perform daily living activities ("DLA") either continuously or periodically for extended periods; and • as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.

The ministry also found that the appellant is not one of the prescribed classes of persons who may be eligible for PWD designation on the alternative grounds set out in section 2.1 of the Employment and Assistance for Persons with Disabilities Regulation ("EAPWDR"). As there was no information or argument provided for PWD designation on alternative grounds, the panel considers that matter not to be at issue in this appeal.

PART D - RELEVANT LEGISLATION Employment and Assistance for Persons with Disabilities Act - EAPWDA - section 2

Employment and Assistance for Persons with Disabilities Regulation - EAPWDR - section 2

I APPEAL NUMBER PART E - SUMMARY OF FACTS The evidence and documentation before the minister at the reconsideration consisted of: 1. Information from the ministry's record of decision indicating that the PWD application was received by the ministry on March 27, 2019 and denied on April 11, 2019. On May 10, 2019, the appellant submitted a Request for Reconsideration ("RFR") and on May 21, 2019, the ministry completed the review of the RFR

2. An RFR, signed by the appellant on May 6, 2019 with attached submission in which the appellant provides argument for the reconsideration and describes her medical conditions and restrictions as follows:

• She has multiple ailments including chronic back, neck, shoulder and arm pain; deafness in her right ear; vision problems; drug and alcohol addictions; and depression and anxiety. • Back pain impacts her mobility when walking, and when she tries to raise her arm it will "freeze up" causing extreme pain. • She has to sit in a straight, hard back chair as a soft chair causes increased back pain and restricts her from sitting up straight. • When transferring items, she is limited to using her right arm. She is unable to carry items that weigh more than 5-10 lbs. with her left arm without suffering increased pain. • She struggles with anxiety and impulse control and needs a repetitive daily routine; otherwise she becomes withdrawn, agitated and confused, and ''shuts down." • She struggles to concentrate and her memory is very poor. She relies on assistance from family as she has difficulty following through on anything and is unable to retain information. The appellant states that she would not shower, put on clean clothes, or eat without reminders. • She relies on her family to prepare and cook meals and is unable to perform those tasks without supervision "as I forget what I am doing and walk away." • It is a struggle to attend to housework as bending and twisting increases her back pain and she needs to take frequent breaks which in turn cause her to lose focus. • As well as being deaf in her right ear, she has "floaties" in her eyes that cause vision issues. • Because of her addictions, she cannot responsibly manage finances and will spend her money impulsively. • A psychiatrist has diagnosed her with Fetal Alcohol Syndrome ("FAS") with limited intellectual functioning; Borderline Personality Disorder; and Multiple illicit substance abuse, and the report is attached to her PWD application [Panel note: There is no psychiatric report with the application or Record of decision].

3. The ministry's Decision Summary with attached letter dated April 11, 2019, indicating the appellant does not meet all of the criteria for PWD designation.

4. The appellant's PWD application comprised of: • the applicant information (self-report - "SR") dated December 7, 2018; • a Medical report ("MR") dated March 4, 2019, completed by a General Practitioner ("GP") who has seen the appellant 11 or more times in the past 12 months; and • an Assessor Report ("AR") dated November 9, 2018, completed by a Registered Nurse ("RN") who indicates she had never seen the appellant prior to the assessment. The RN based the assessment on an office interview with the appellant.

APPEAL NUMBER: Summary of relevant evidence from the application: Diagnoses In the MR, the appellant is diagnosed with alcohol abuse, substance use disorder, Post-Traumatic Stress Disorder ("PTSD") and anxiety. Under Health History, the GP provides the following information for each condition: • PTSD: "feels very tense, flashbacks of traumatic events, scared people might hurt her"; • Anxiety: "episodes of panic, many people cause anxiety"; • Alcohol abuse: "stable now, done counselling, did Alcoholics Anonymous ("AA")"; and • Substance abuse: "not using now, gave her energy, gave her courage, improved confidence." Functional skills Self-report The appellant reports that she "feels lopsided" when walking due to chronic pain and she has to stop frequently to rest. She reports that her left arm will freeze momentarily when she uses it in a raised position and "this is extremely painful." The appellant states that she normally uses her right arm to carry items and is unable to lift or carry more than 5-10 lbs. with her left arm without increased pain. The appellant states that she is unable to sit on a

soft chair without pain and she is unable to stand up straight.

The appellant states that she struggles with anxiety and impulse control and is constantly fidgeting. The appellant states that if something interferes with her daily routine, she "shuts down and withdraws" and becomes "overly agitated, confused, and disorientated." The appellant states that she feels uptight and tense all the time and she also struggles with concentration and memory issues and relies on family for reminders. The appellant states that

she has difficulty following through with plans and is unable to retain information.

The appellant indicates that she has difficulty with her vision (she explains that she has "floaties" that affect her ability to see clearly). The appellant states that she struggles with her alcohol addiction and "drinks to excess" if there is alcohol available. The appellant reports that she uses marijuana daily and other drugs when available. The appellant states that she suffers from a lack of confidence and often feels embarrassed and paranoid.

Medical Report Under section D, Functional Skills, the GP indicates the appellant can walk 4 or more blocks unaided on a flat surface and climb 5 or more steps unaided. The appellant has no limitations with lifting and no limitation with remaining seated.

The GP reports that the appellant has difficulties with communication (no comments are provided). The appellant has significant deficits with cognitive and emotional function in the areas of Language, Emotional disturbance, Motivation, and Impulse control (comments: "feels depressed most of the time. Impulse control better now, language - poor speech quality"). Under Additional Comments, the GP states that the appellant experienced early childhood trauma, has never had a job, and her speech is "slightly slurred - difficult to understand. Deaf in right ear.u

Assessor Report Under section 8-2, Ability to Communicate, the RN assesses the appellant's ability in all areas of communication as Good (Speaking) and Satisfactory (Reading, Writing, and Hearing: comment, "deaf in right ear"). The RN states that the appellant has "'floaties' in her left eye - affects vision - has been ongoing this year - can't afford to see optometrist to get it checked out."

Under section 8-3, Mobility and Physical Ability, the RN marks the appellant as independent with the 6 listed skills: Walking indoors, Walking Outdoors, Climbing stairs, Standing, Lifting, and Carrying/ho/ding. The RN comments that the appellant is "unable to stand still due to anxiety" and "client states that due to neck pain has more difficulty lifting with her left arm."

APPEAL NUMBER For section B-4, Cognitive and Emotional Functioning, the RN completed the checklist, indicating that a mental impairment or brain injury restricts or impacts the appellant's functioning as follows: • Other emotional or mental problems: no impact; • Bodily functions, Insight and judgment, Motivation, Motor activity, Language, Psychotic symptoms, and Other neuro-psychological problems: minimal impact;

• Impulse control, Attention/concentration, Executive, and Memory: moderate impact; and • Consciousness, and Emotion: major impact. Under Additional comments (recorded in section C), the RN reports that the appellant has difficulty sleeping, "states that she can only sleep for 3-4 hours, wakes up with nausea - can [illegible] - states usually feels rested when she wakes up."

The RN further comments: client states that she has a [illegible] daily if anything interferes with her [illegible] she can't cope - gets confused, disoriented, has to withdraw - tries to calm herself down - occurs at least once or twice a day, causes agitation, further worsens anxiety, everything makes her anxious when she is anxious.

Daily Living Activities Self-report The appellant states that she relies on daily reminders from family to shower and to put on clean clothes and she also needs reminders for appointments and reminders to eat. The appellant reports that a family member usually does her laundry and although the appellant can do laundry, she states that "I don't sort it, and I usually overload the machine."

The appellant reports that her family does the shopping "because of my inability to concentrate and I usually forget items." The appellant states that she cooks "but only with support and supervision as I forget what I'm doing and walk away." The appellant states that she tries to help with housework but bending increases her back pain and she takes frequent rest breaks. The appellant states that family assists her with budgeting as she "spends impulsively."

Medical Report The GP indicates No, the appellant has not been prescribed medications or treatments that interfere with her ability to perform DLA.

The GP checks Unknown when asked if the impairment restricts the person's ability to perform DLA. Regarding specific DLA listed on the form, the GP checks that there are no restrictions with 9 of the 1 0 DLA: Personal self­ care, Meal preparation, Management of medications, Basic housework, Daily shopping, Mobility inside and outside the home, Use of transportation, and Management of finances.

The GP checks that there are restrictions with Socia/ functioning. When asked to explain, the GP comments, "poor speech, interacting with people is difficult for her." No additional comments are provided regarding the degree of restriction.

Assessor Report When asked to describe which impairments impact the applicant's ability to manage DLA, the RN writes, "chronic back and neck pain - affects mobility, history of alcohol and drug abuse, uses daily if available, anxiety and depression (on medication), unable to sit/stand still."

In section C of the AR, the RN indicates the appellant is independent with 5 of the 8 listed DLA: • Personal care: The appellant is independent in all areas except Grooming for which she requires periodic assistance from another person, [comment "(family) will remind her to shower and put on clean clothes"]. • Basic housekeeping: The appellant is independent in all areas.

APPEAL NUMBER: • Shopping: The appellant is independent in all areas except Going to and from stores [c omment: "states that (family) does shopping, 'I'm not into it "' ]. • Medications: The appellant is independent in all areas. • Transportation: The appellant is independent in all areas [comments: "client does not have a driver's license, takes the bus only when she has to - gets increased anxiety taking the bus, usually sits at the back, tries to walk everywhere"].

The RN indicates that the 3 remaining DLA are restricted: • Meals: The appellant requires continuous assistance from another person with 3 of the 4 listed areas: Meal planning, Food preparation, and Cooking [comments: "states that (family) does all the cooking - states that she has just started making her own tea - quit cooking as felt what (illegible) she tried upset others"]. • Pay Rent and Bills: The appellant is independent with Banking and requires periodic assistance with Budgeting and continuous assistance with Pay rent and bills [comments: "Rent is taken off her cheque and paid directly - can't trust herself to pay bills. Needs help with budgeting. Does not have a bank account"]. • Social Functioning: The appellant is independent with 2 of the 5 areas listed: Able to deal appropriately with unexpected demands, and Able to secure assistance from others. The appellant requires periodic support/supervision from another person with the remaining 3 areas: Appropriate social decisions [comment: "relies on (family)"]; Able to develop and maintain relationships [comment, "uses social media"]; and Interacts appropriately with others [comment: "client does not appear to have good insight into her cognitive disabilities"]. • The RN indicates the appellant has good functioning with her immediate social network and marginal functioning with her extended social networks [comment: "not involved with community - isolates self a lot, often with music"]. The RN left the space blank when asked to describe any support/supervision that is required to help maintain the person in the community. The RN did not fill in Additional Comments including identification of any safety issues. • Under Additional Information (and its effect on DLA), the RN states that the appellant has had neck and back pain for over a year and has severe anxiety and depression from the abuse she suffered in the past including domestic abuse in relationships. The RN states that the appellant now isolates herself and has poor self-esteem and difficulty trusting people. The appellant has used alcohol and drugs to try and cope but is now mostly just using marijuana. The appellant has: ongoing hearing and vision problems, agitation is chronic and often annoys other people. This increases the client's paranoia and worsens self-esteem, client needs (family) to help with reminding her to attend to personal care - provides meals for her, assists her with financial management. States that living with (family) makes her the most comfortable and allows her to maintain Activities of Daily Living ("ADL'J.

Need for help In the SR, the appellant reports that she needs help with most household tasks. In the MR, the GP check marks No, the appellant does not require any prostheses or aids for her impairment. In the AR, the RN indicates the appellant lives with family and they provide assistance with DLA Section D -Assistance Provided for Applicant was left blank.

When asked what equipment or devices the applicant requires but does not currently use, the RN states, "needs to have hearing and eyes tested." The RN check marks that the appellant does not have an assistance animal.

5. A hospital discharge record dated March 7, 2018 (discharge date); admission date was March 4, 2018. The record includes a Discharge Summary, and Inpatient Consult Note completed by the appellant's GP. The following information is reported: • The appellant presented with delusions and the diagnosis was possible drug-induced psychosis, as well as FAS with limited intellectual functioning, Borderline Personality Disorder, and multiple illicit substance abuse. The GP reports that the appellant has an extensive history of substance abuse and tested positive for drugs at admission. • The appellant was not clinically depressed, overly psychotic, or suicidal and it appeared that her intellectual limitations were contributing to her symptoms.

I APPEAL NUMBER • The appellant was given medications in the hospital and prescriptions at discharge and was encouraged to connect with community supports. The GP states that a psychiatric follow-up appointment will be arranged if necessary. • The GP notes that the appellant has a noticeable speech impediment "which is characterized by being slurred and nasal in production." The GP noted previous episodes of self-harming and states that the appellant has no previous psychiatric history. The appellant acknowledged regular drug use and denied any sustained biological symptoms of depression or auditory hallucinations.

6. Hand-written clinical notes from the RN dated November 7, 2018, describing the appellant's conditions and symptoms: • Anxiety: The appellant gets physically agitated, cannot think clearly, and isolates herself. • Depression: The appellant has suffered abuse and states that she has always had difficulty with relationships. The appellant has experienced loss and family dysfunction and "socially isolates, feels sad a lot, states that medication helps her." • Impulse control: The appellant has a history of alcohol and drug abuse. She will drink excessively if alcohol is available and she uses marijuana daily (and hard drugs when available). The appellant tries to only use marijuana, she states that it helps her eat, sleep, and "chill out." • Suicidal ideation: The appellant used to cut herself but has not done so for more than a year and does not feel suicidal at present. • Attention, memory, and executive function: The appellant is easily distracted and states that she can't remember the last two months of her life as she "blacked out." The appellant states that her memory is inconsistent and she usually asks family to assist her with anything that involves planning/organizing. The appellant describes having to learn something repetitively before it "clicks in." • Motivation: The appellant states that she can stay motivated as long as she has music to listen to, and she relies on family to wake her up and get her going each day. • Motor activity: The appellant is agitated, her hands are always moving; she fidgets and has difficulty standing/sitting still. The appellant states that her fidgeting often aggravates other people and that will make her upset. • Language: The appellant "gets tongue-tied" and "speaks gibberish." She has a speech impediment and cannot make the sounds of certain letters. The appellant had a hearing and speech teacher when she was in school. • Psychotic symptoms (hallucinations and delusions): The appellant states that she hears voices daily which are hard for her to ignore, and sees shapes that are not in pictures. She attributes the hallucinations to "birthmarks that make her see things." The appellant states that she often sees lights flickering (even when they are not).

Additional information With the consent of both parties, the appeal proceeded as a written hearing pursuant to section 22(3)(b) of the Employment and Assistance Act ("EAA"). Subsequent to the reconsideration decision neither party filed any new evidence requiring an admissibility determination in accordance with section 22(4) of the EAA. The appellant filed a

Notice of Appeal with a brief type-written statement that the panel accepts as argument. In an email to the Tribunal, the ministry states that the reconsideration summary is the ministry's submission on appeal.

I APPEAL NUMBER PART F - REASONS FOR PANEL DECISION The issue on appeal is whether the ministry's decision that found the appellant ineligible for PWD designation is reasonably supported by the evidence or is a reasonable application of the legislation in the circumstances of the appellant. Was the ministry reasonable in finding that the following eligibility criteria in section 2 of the EAPWDA were not met?

• the appellant has a severe mental or physical impairment; • the appellant's impairment, in the opinion of a prescribed professional, directly and significantly restricts her ability to perform DLA either continuously or periodically for extended periods; and • as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.

The ministry based the reconsideration decision on the following legislation: EAPWDA 2 (1) In this section: "assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform; "daily living activity" has the prescribed meaning; "prescribed professional'' has the prescribed meaning. (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person 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 (8) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities. (3) For the purposes of subsection (2), (a) a person who has a severe mental impairment includes a person with a mental disorder, and (b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires (i) an assistive device, (ii) the significant help or supervision of another person, or (iii) the services of an assistance animal. (4) The minister may rescind a designation under subsection (2).

EAPWDR Definitions for Act 2 (1) For the purposes of the Act and this regulation, "daily living activities", (a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities: (i) prepare own meals; (ii) manage personal finances; (iii) shop for personal needs; (iv) use public or personal transportation facilities; (v) perform housework to maintain the person's place of residence in acceptable sanitary condition; (vi) move about indoors and outdoors; (vii) perform personal hygiene and self-care; (viii) manage personal medication, and (b) in relation to a person who has a severe mental impairment, includes the following activities: (i) make decisions about personal activities, care or finances; (ii) relate to, communicate or interact with others effectively.

I APPEAL NUMBER: Analysis Severe mental or physical impairment To be eligible for the PWD designation, the legislation requires several criteria to be met including the minister being satisfied that the applicant has a severe mental or physical impairment. "Severe" is not defined in the legislation but the diagnosis of a serious medical condition does not in itself establish a severe impairment of

mental or physical functioning.

Mental impairment To assess the severity of a mental impairment, the ministry must consider the extent of any impact on daily functioning as evidenced by limitations/restrictions with mental functions; restrictions with DLA requiring mental/social functioning; and whether significant help is required to manage DLA.

Arguments - mental impairment In her submission on appeal, the appellant argues that the ministry did not give sufficient consideration to her mental state. In her RFR submission, the appellant submits that she struggles with anxiety, impulse control, and cognitive and speech deficits. The appellant argues that the information from the GP and the RN confirms a severe impairment that significantly restricts DLA. The appellant argues that a psychiatric assessment confirms the impacts of FAS, Borderline Personality Disorder, and substance abuse on her ability to function.

The ministry argues that the information provided in the PWD reports and RFR confirms a moderate as opposed to a severe impairment of mental functioning. The ministry notes inconsistencies between the MR and AR, arguing that the GP identifies significant deficits in areas of cognitive and emotional functioning which the RN assesses as