I APPEAL NUMBER PART C -DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) decision dated 10 July 2019, which denied the appellant's request for a reconsideration of the ministry's January 15, 2019 decision because she had not filed a request for reconsideration within 20 business days of being informed of the ministry's decision as set out in section 71 (2) the Employment and Assistance for Persons with Disabilities Regulation. PART D -RELEVANT LEGISLATION Employment and Assistance for Persons with Disabilities Act (EAPWDA) -section 16 Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) -section 71
P A R T E S U M M A R Y O F F A C T S E v i d e n c e b e f o r e t h e m i n i s t r y a t r e c o n s i d e r a t i o n c o n T h e a p p e l l a n t h a d b e e n a r e c i p i e n t o f p r o v i n c i a l d i s m i n i s t r y d i s c o n t i n u e d h e r b e n e f i t s b e c a u s e s h e h a d a p p l i c a t i o n a s r e q u i r e d a n d t h e m i n i s t r y b e i n g u n a b I n A u g u s t 2 0 1 8 t h e a p p e l l a n t c o n t a c t e d t h e m i n i s t r y a p p l i c a t i o n . I n S e p t e m b e r 2 0 1 8 t h e a p p e l l a n t ' s e l i g i b i l i t y f o r p r o v O n J a n u a ry 9 , 2 0 1 9 , t h e a p p e l l a n t c o n t a c t e d t h e m i s h e h a d n o t r e c e i v e d a s s i s t a n c e ( O c t o b e r 2 0 1 7 t o A O n J a n u a r y 1 5 , 2 0 1 9 t h e m i n i s t r y c o n t a c t e d t h e a p p r e t r o a c t i v e d i s a b i l i t y b e n e f i t s . O n J a n u a r y 1 7 , 2 0 1 9 t h e m i n i s t r y p r e p a r e d a r e c o n d a t e f o r w h i c h w a s F e b r u a r y 1 2 , 2 0 1 9 . O n F e b r u a r y 2 8 , 2 0 1 9 t h e m i n i s t r y c l o s e d t h e r e c o n t h e a p p e l l a n t h a d n o t s u b m i t t e d a r e q u e s t f o r r e c o n O n J u n e 1 8 , 2 0 1 9 t h e a p p e l l a n t c o n t a c t e d t h e m i n i s O n J u n e 2 5 , 2 0 1 9 t h e a p p e l l a n t w a s a d v i s e d o f h e r r e q u e s t f o r r e c o n s i d e r a t i o n w a s s e n t t o h e r v i a M y S O n J u n e 2 6 , 2 0 1 9 t h e a p p e l l a n t s u b m i t t e d a r e q u e s N o t i c e o f A p p e a l I n t h e N o t i c e o f A p p e a l d a t e d 2 5 J u l y 2 0 1 9 , t h e f o l l o s a y i n g I d o n ' t q u a l i f y fo r re c o n s i d e r a t i o n b e c a u s e I d t h e t i m e fra m e . I n e v e r r e c e i v e d a n y fo r m s i n J a n u a h a p p e n i n g w i t h m y r e c o n s i d e r a t i o n i n F e b r u a ry , I k e e v e n s e e m e d t o k n o w wh a t w a s g o i n g o n . I n e v e r e p l a c e . W i t h t h e N o t i c e o f A p p e a l , t h e a p p e l l a n t s u b m i t t e d a e l i g i b l e f o r C P P d i s a b i l i t y a n d a 2 p a g e w r i t t e n s u b m p e r i o d f o r w h i c h t h e m i n i s t r y h a d d e t e r m i n e d s h e w a A p p e a l S u b m i s s i o n s A t t h e h e a r i n g , t h e a p p e l l a n t a r g u e d t h a t t h e m i n i s t r fo r a r e c o n s i d e r a t i o n a n d t h a t s h e h a d n o t r e c e i v e d p h o n e c a l l , a s s h e b e l i e v e d t h a t t h i s w a s h o w a r e c o 6 -8 w e e k s w e n t b v a n d s h e h a d n ' t h e a r d f r o m a n v o I A P P E A L N U M B E R s i s t e d o f t h e f o l l o w i n g : a b i l i t y ( P W D ) b e n e f i t s u n t i l N o v e m b e r 2 0 1 7 , w h e n t h e f a i l e d t o s u b m i t a C P P ( C a n a d a P e n s i o n P l a n ) l e t o r e a c h h e r . a n d w a s a d v i s e d t h a t s h e m u s t c o m p l e t e t h e C P P i n c i a l d i s a b i l i t y b e n e f i t s w a s r e e s t a b l i s h e d . n i s t r y t o r e q u e s t b a c k d a t e d a s s i s t a n c e f o r t h e t i m e u g u s t 2 0 1 8 ) . e l l a n t t o a d v i s e h e r t h a t s h e w a s i n e l i g i b l e f o r s i d e r a t i o n p a c k a g e a t t h e a p p e l l a n t ' s r e q u e s t , t h e d u e s i d e r a t i o n f i l e . I t w a s d e e m e d a b a n d o n e d b e c a u s e s i d e r a t i o n . t r y t o r e q u e s t a r e v i e w o f h e r e l i g i b i l i t y f o r b e n e f i t s . r i g h t s i n r e l a t i o n t o t h e J a n u a r y 2 0 1 9 d e c i s i o n a n d a S ( t h e m i n i s t r y p o r t a l f o r c l i e n t s e r v i c e s ) . t f o r r e c o n s i d e r a t i o n . w i n g r e a s o n s f o r a p p e a l a r e p r o v i d e d : t h e y a r e i d n o t s u b m i t t h e f o r m s s e n t t o m e i n J a n u a ry w i t h in r y . W h e n I p h o n e d b a c k t o f i n d o u t w h a t w a s p t g e t ti n g t h e " r u n a r o u n d " o v e r a n d o v e r . N o o n e v e n k n e w I w a s s u p p o s e d t o g e t f o rm s in t h e f i r s t l e t t e r f r o m S e r v i c e C a n a d a i n d i c a t i n g t h a t s h e i s n o t i s s i o n o u t l i n i n g t h e a p p e l l a n t ' s p o s i t i o n r e g a r d i n g t h e s i n e l i g i b l e f o r P W D b e n e f i t s . y d i d n o t i n f o r m h e r t h a t a n y p a p e r w o r k w a s r e q u i r e d a n y s u c h p a p e rw o r k . I n s t e a d , s h e w a s e x p e c t i n g a n s i d e r a t i o n w o u l d b e c o n d u c t e d . S h e e x p l a i n e d t h a t n e , s o s h e c a l l e d t h e m i n i s t r v a n d d i d n o t o e t a n v
c l e a r a n s w e r s . S h e e v e n t u a l l y f o u n d o u t t h a t s h e s h r e c e i v e a n d a s k e d fo r s o m e o n e t o c a l l h e r b a c k b u t w e e k s l a t e r a n d w a s t o l d t h a t h e r t i m e h a d r u n o u t . i n a n d o u t o f t h e m i n i s t r y o ff i c e o n m u l t i p l e o c c a s i o n r e a p p l y f o r a r e c o n s i d e r a t i o n p a c k a g e . T h e a p p e l l a p a c k a g e , w h i c h s h e h a d r e c e i v e d o n l i n e , o n a b o u t e x t r e m e l y f r u s t r a t e d w i t h t h i s p r o c e s s a n d f e e l s t h a T h e m i n i s t r y r e l i e d o n t h e r e c o n s i d e r a t i o n d e c i s i o n . A d m i s s i b i l i t y T h e p a n e l f i n d s t h a t t h e i n f o r m a t i o n p r o v i d e d i n t h e S u b m i s s i o n s c o n s i s t s o f a r g u m e n t , w h i c h d o e s n o t w i t h s e c t i o n 2 2 ( 4 ) ( b ) o f t h e E m p l o y m e n t a n d A s s i s I A P P E A L N U M B E R o u l d h a v e g o t t e n s o m e p a p e r w o r k t h a t s h e d i d n o t t h i s d i d n o t h a p p e n . S h e p h o n e d a g a i n s e v e r a l S e v e r a l m o n t h s p a s s e d , d u r i n g w h i c h t i m e s h e w a s s , u n t i l s h e w a s i n f o r m e d i n J u n e t h a t s h e s h o u l d n t s t a t e d t h a t s h e c o m p l e t e d a n d s u b m i t t e d t h i s J u n e 2 6 , 2 0 1 9 . T h e a p p e l l a n t e x p l a i n e d t h a t s h e i s t s h e i s b e i n g s e n t b a c k t o s q u a r e o n e . a p p e l l a n t ' s N o t i c e o f A p p e a l a n d A p p e a l r e q u i r e a n a d m i s s i b i l i t y d e t e r m i n a t i o n i n a c c o r d a n c e t a n c e A c t .
APPEAL NUMBER I PART F -REASONS FOR PANEL DECISION The issue in this appeal is whether the ministry decision that determined that the appellant did not meet statutory requirements of section 71 (2) of the EAPWDR, for reconsideration of the ministry's January 15, 2019 decision, is reasonably supported by the evidence or is a reasonable application of the legislation in the circumstances of the appellant. Applicable Legislation Employment and Assistance for Persons with Disabilities Act Reconsideration and appeal rights 16 (1) Subject to section 17, a person may request the minister to reconsider any of the following decisions made under th is Act: (a)a decision that results in a refusal to provide disability assistance, hardship assistance or a supplement to or for someone in the person's family unit; (b )a decision that results in a discontinuance of disability assistance or a supplement provided to or for someone in the person's family unit; (c)a decision that results in a reduction of disability assistance or a supplement provided to or for someone in the person's family unit; (d)a decision in respect of the amount of a supplement provided to or for someone in the person's family unit if that amount is less than the lesser of (i)the maximum amount of the supplement under the regulations, and (ii) the cost of the least expensive and appropriate manner of providing the supplement; (e)a decision respecting the conditions of an employment plan under section 9 [employment plan]. (2) A request under subsection (1) must be made, and the decision reconsidered, within the time limits and in accordance with any rules specified by regulation. (3)Subject to a regulation under subsection (5) and to sections 9 (7) [employment plan], 17 and 18 (2) [overpayments], a person who is dissatisfied with the outcome of a request for a reconsideration under subsection (1) (a) to (d) may appeal the decision that is the outcome of the request to the tribunal. (4)A right of appeal given under subsection (3) is subject to the time limits and other requirements set out in the Employment and Assistance Act and the regulations under that Act. (5) The Lieutenant Governor in Council may designate by regulation {a)categories of supplements that are not appealable to the tribunal, and (b)circumstances in which a decision to refuse to provide disability assistance, hardship assistance or a supplement is not appealable to the tribunal. Employment and Assistance for Persons with Disabilities Regulation How a request to reconsider a decision is made 71 (1) A person who wishes the minister to reconsider a decision referred to in section 16 (1) [reconsideration and appeal rights] of the Act must deliver a request for reconsideration in the form specified by the minister to the ministry office where the person is applying for or receiving assistance. (2) A request under subsection (1) must be delivered within 20 business days after the date the person is notified of the decision referred to in section 16 (1) of the Act and may be delivered by (a)leaving it with an employee in the ministry office, or (b)being received through the mail at that office. Time limit for reconsidering decision 72 The minister must reconsider a decision referred to in section 16 (1) of the Act, and mail a written determination on the reconsideration to the person who delivered the request under section 71 (1) [how a request to reconsider a decision is made], (a)within 10 business davs after receivinq the reauest, or
I APPEAL NUMBER (b)if the minister considers it necessary in the circumstances and the person consents, within 20 business days after receiving the request. [en. B.C. Reg. 76/2008.) The appellant argues that she did not receive a reconsideration package following the January 2019 decision. The appellant stated that she had always updated her address with the ministry and was certain they had her correct address. She suggested that perhaps the mail was not delivered to her as the mail person for her building was notorious for delivering mail to the wrong address. She suspected someone who had erroneously received her reconsideration package might have thrown it in the garbage. The appellant argued that it was not made clear to her in January that any paperwork was required for a reconsideration and that she had never received any documents. Further, she argued that if she had received any documents, she would have completed them. She stated that she had believed that reconsideration would have consisted of a conversation by phone. The ministry's position is that, pursuant to section 71 EAPWDR, a request for reconsideration must be delivered to the ministry within twenty business days after the date the person is notified of the ministry's decision. The ministry argued that there was a note on the appellant's file indicating that the reconsideration process was explained to her on January 15, 2019 and she was notified of the associated timelines. The due date for any request for reconsideration was February 12, 2019 and the ministry closed the request for reconsideration on February 27, 2019 because it had not received a request for reconsideration. The ministry argued that it was not until June 18, 2019 that the appellant requested another review of her eligibility for retroactive benefits. The ministry submitted that it is standard for ministry staff to explain the reconsideration process, including the 20 days timeline and the possibility of requesting an extension of time. Panel Decision EAPWDA Section 16(2) requires a person to request a reconsideration of a ministry decision that affects assistance within the time limits and rules specified in the EAPWDR. Section 71 (2) of the EAPWDR requires a person who wishes reconsideration of a ministry decision to deliver the request in the form specified by the minister, either by leaving it with an employee at the office where the person is applying for or receiving assistance or by mailing it to that office within twenty business days after the date on which the person is notified of the decision. The panel notes that the original Request for Reconsideration form indicates that the ministry informed the appellant of its decision on January 15, 2019 and that the Requester must submit the completed form by February 12, 2019. The appellant does not dispute the applicable dates as articulated by the ministry. The panel also finds that there is no dispute that the appellant spoke to ministry staff by telephone on January 15, 2019. The appellant argues that she was not informed during this call of any requirement to complete and file documents. The ministry argues that the notes on the appellant's file indicate that the reconsideration process was explained in detail to the appellant, that she was advised of time frames and had requested reconsideration. The panel is unable to make a finding based on the record before it as to what exactly was said to the appellant during the telephone conversation with ministry staff on January 15, 2019. The panel does note that ministry clients rely on ministry staff to provide them with information regarding ministry requirements and timeframes. The panel finds that the appellant did not understand from this telephone call that she would be required to file a request for reconsideration. However, in making this finding the panel notes that there is no provision in the applicable legislation or requlations that would require ministrv staff to ensure that this information was provided, nor that the
I APPEAL NUMBER appellant understood it. The panel notes that the appellant also disputes that she ever received a reconsideration package from the ministry. The appellant did not argue that a reconsideration package was not sent. Instead, she ar gued that perhaps the mail was delivered incorrectly and thrown away by another person. The ministry's submission in this regard is that, unless a client requests otherwise, the standard is for documents to be sent by mail. The ministry submitted that there is no record of the appellant's reconsideration package having been returned as undeliverable. The ministry also explained that if the client had requested that the reconsideration package be delivered by any means other than by mail, there would be a note on that client's file to indicate that they had requested delivery by MySS or in person pick up for documents. The ministry argued that there is no such note on the appellant's file. The panel finds that the ministry did send a reconsideration package to the appellant by mail as the ministry asserts, but is unable to make any finding on the information before it as to what happened to that reconsideration package. The panel notes there is nothing in the appeal record that indicates that the appellant made a request f o r reconsideration within 20 business days of the time the decision was made and communicated to the appellant in January 2019. The panel finds that the information before ii demonstrates that a request for reconsideration was not completed and submitted until June 2019. The panel finds that the appellant did not meet the required timeline for filing a request for reconsideration within 20 business days. Therefore, the panel finds that the ministry reasonably determined that the appellant did not submit a request for reconsideration of the ministry decision within the twenty business days time limit set out in EAPWDR Section 71 (2). Conclusion The panel finds that the ministry's reconsideration decision, determining that the appellant had not met the legislated criteria for filing a request f o r reconsideration, was a reasonable application of the legislation in the circumstances of the appellant and was reasonably supported by the evidence. The panel confirms the ministry's reconsideration decision. The appellant is not successful on appeal.
APPEAL NUMBER I PART G-ORDER THE PANEL DECISION IS:(Check one) [g]UNANIMOUS OBY MAJORITY THE PANEL [g]CONFIRMSTHE MINISTRY DECISION ORESCINDSTHE MINISTRY DECISION If the ministry decisions rescinded, is the panel decision referred back to the Minister for a decision as to amount? □Yes □No LEGISLATIVEAUTHORITYFORTHEDECISION: Employment and Assistance Act Section 24(1 )(a) [g) or Section 24(1 )(b) [g) and Section 24(2)(a) [g) or Section 24(2){b) 0 PARTH-SIGNATURES PRINTNAME Jennifer Smith SIGNATUREOFCHAIR OATE(YEAR/MONTH/DAY) 2019/08/019 PRINTNAME Inge Morrissey SJGNATUREOFMEMBER DATE(YEAR/MONTH/DAY) 2019/08/019 PRINTNAME Marnee Pearce SIGNATUREOFMEMBER DATE{YEAR/MONTHIDAY) 2019/08/019
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