Ministry of Social Development and Poverty Reduction

APPEAL NUMBER PART C – DECISION UNDER APPEAL The decision under appeal is the reconsideration decision of the Ministry of Social Development and Poverty Reduction (the ministry) dated 24 October 2019 that denied the appellant designation as a person with disabilities (PWD). The ministry determined that the appellant did not meet all of the required criteria for PWD designation set out in section 2 of the Employment and Assistance for Persons with Disabilities Act, section 2. Specifically, the ministry determined that the information provided did not establish that the appellant has a severe mental or physical impairment that in the opinion of a prescribed professional (i)directly and significantly restricts the appellant’s ability to perform daily living activities (DLA) either continuously or periodically for extended periods; and, (ii)as a result of those restrictions, the appellant requires help to perform those activities. The ministry determined that the appellant satisfied the other criteria of having reached 18 years of age and the impairment continuing for at least 2 years. T he ministry also found that it has not been demonstrated that the appellant is in 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. As there was no information or argument provided by the appellant regarding alternative grounds for designation, the panel considers this 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) – sections 2 and 2.1.

APPEAL NUMBER PART E – SUMMARY OF FACTS Evidence before the ministry at reconsideration 1. The appellant’s PWD Designation Application, undated. The Application contained: • A Self Report (SR). • A Medical Report (MR) dated 03 May 2019, completed by a general practitioner (GP) who has known the appellant for 1 year and has seen the appellant 11 or more times in the past year. • An Assessor Report (AR) dated 02 August 2019, completed by the same GP. 2. Th e appellant’s Request for Reconsideration, dated 08 October 2019, in which the appellant provides reasons. In the MR, the GP provides the following diagnoses related to the appellant’s impairment: post-traumatic stress disorder (PTSD), borderline personality traits, and cannabis use (daily). The GP indicates the onset of these conditions is uncertain. In th e AR, the GP describes the appellant’s impairment as PTSD, with the impairment impacting ability to manage DLA as “Anxiety impairs social interaction, affecting concentration.” Th e panel will first summarize the evidence from the MR and the AR as it relates to the PWD criteria at issue in this appeal. Severity/health history Phy sical impairment MR: Regarding functional skills, the specialist indicates that the appellant can walk 4+ blocks unaided on a flat surface, can climb 5+ steps unaided, and that there are no limitations regarding lifting or remaining seated. The GP indicates that the appellant has not been prescribed medication and/or treatments that interfere with the ability to perform DLA, noting that the appellant “declines pharmacological treatment.” AR: Respecting mobility and physical ability, the GP assesses the appellant as independent for all listed areas of mobility and physical ability: walking indoors, walking outdoors, climbing stairs, standing, lifting, and carrying and holding. Mental impairment MR: Under Health History, the GP writes: “Post-Traumatic Stress Disorder •Reflecting on past trauma as child, previously living on streets

APPEAL NUMBER •Daily symptoms of anxiety •Intermittent social isolation •Intermittent thoughts of self-harm B orderline Personality Disorder Traits •Struggles to connect with people, interaction limited and of short duration Gender Dysphoria •Currently in transition Attention Deficit Hyperactivity Disorder •Distractibility and restlessness C annabis Use Disorder, Previous Methamphetamines •Uses daily (smokes marijuana) •Intermittent auditory hallucinations Above based on assessment by Psychiatrist, [name], on 19 May 2019. I do concur these findings.” U nder Additional Comments, the GP writes, “I am hopeful that, with medication and psychotherapy, [the appellant] will be able to function in the open labour market. [The appellant] is currently in counselling.” T he GP indicates that the appellant has no difficulties with communication. T he GP indicates that the appellant has significant deficits with cognitive and emotional function in the areas of psychotic symptoms, emotional disturbance and attention or sustained concentration. The GP comments, “No current features of psychosis.” AR: The GP assesses the appellant's ability to communicate as good for speaking, reading, writing, and hearing. The GP assesses the degree to which the appellant’s mental impairment impacts daily functioning as follows: • Major impact: emotion. • Moderate impact: impulse control, insight and judgment, attention/concentration, and memory. • Minimal impact: executive and motivation. • No impact: bodily functions, consciousness, emotion, motor activity, language, psychotic symptoms, other neuropsychological problems, and other emotional or mental problems. Under Additional Information, the GP writes, “Started an antidepressant today. We shall continue with close follow-up.”

APPEAL NUMBER Ability to perform DLA MR: The GP reports that appellant’s ability to perform DLA is restricted as follows: • Not restricted: personal self-care, meal preparation, management of medications, basic housework, daily shopping, mobility inside the home, ability outside the home, use of transportation, and management of finances. • Restricted on a periodic basis: social functioning. . The GP explains restrictions with social functioning by writing, “Difficulty in establishing relationships. Symptoms of anxiety make socializing difficult.” As an additional comment, the GP writes, “Able to work as [tradesperson] at times.” AR: The GP provides the following assessments of the assistance the appellant requires in performing DLA: • Personal care – independent for all tasks. • Basic housekeeping – independent for all tasks. • Shopping – independent for all tasks. • M eals – independent for all tasks. • Pay rent and bills – independent for all tasks • Medications – independent for all tasks. • Transportation – independent for all tasks. T he GP comments, “[The appellant] feels that interacting with others is difficult. Hypervigilance – e.g. noises and clock ticking will distract and disturb [the appellant]}.” And “intermittent poor impulse control.” Social functioning The GP assesses the appellant as requiring periodic support/supervision in the following areas, along with the GP’s comments: • Making appropriate social decisions – “Assisted by [12-step groups]. Has alcohol; counselor.” • Developing and maintaining relationships – no comments. • Interacting appropriately with others – “Therapist at [ charitable organization].” • Dealing with unexpected demands – no comments. • Securing assistance from others – “Paranoid at times.” The GP assesses the appellant's relationship with both immediate and extended social networks as “marginal.” The GP also comments, “Intermittent history of suicidal ideation (nil currently.)”

APPEAL NUMBER Help provided/required MR: The GP indicates that the appellant does not require any prostheses or aids to compensate for impairment. AR: The GP does not indicate that the appellant requires the use of an assistive device. The GP indicates that the appellant does not have an assistance animal, while commenting, “Expressed interest in getting therapy dog.” The GP indicates that assistance is provided by community service agencies, referring to the comments provided above regarding assistance with social functioning. Self Report I n the SR, the appellant provides the following disability description: “S ocial trauma from being physically assaulted. Anxious to where I have physical discomfort. Traumatic experiences in my life have impacted me. Therapy is suggested. I am a victim of child abuse physical, sexual and emotional. I am hypersensitive and hyperactive. There are 5/7 days a week I have trouble leaving the house or getting out of bed. I get mental flashbacks every day of traumatic events that have happened all my life. I use the bathroom a lot due to stress and emotion. M usic and meditation therapy help but organizing my day or having ability to interact is a daily struggle. Flashbacks and having an “emotion” stomach leaves me with not enough energy to focus on feeling calm.” The appellant then describes the impact of the disability as follows: “My disability affects my life in the way that I have less time and courage to communicate in public. This makes working on advancing hard. I find it hard to support myself financially without food and personal hygiene products. These barriers make it hard to stick to a routine or have good mental health to interact with the public. There have been a lot of times where I feel despair feeling lost and overwhelmed with flash backs and negative emotions.

APPEAL NUMBER Eating and resting is hard with a daily mental state of anxious feelings and on edge from being afraid of violence. With not being able to focus my attention I miss opportunities, or I have setbacks due to anxiety/trauma. When I am in public, I sweat a lot and when interacting with anyone for too long I feel trapped and can’t breathe. When I have an appointment or meeting, I feel as though I will pass out/lose consciousness, nausea with diarrhea. When I am expected to be somewhere at a specific time, I get confused and overwhelmed, stressed and panicked. After being in the public I wash my hands often from germs. Loud noises bother me.” Request for Reconsideration T he appellant provides the following reasons for requesting a reconsideration: “After having a second diagnosis from [the psychiatrist] (documents being forwarded), she has recommended a reconsideration. I have problems concentrating because of extreme ADHD. My IBS from my diagnosis of anxiety makes me go to the bathroom regularly and on myself on a daily basis. Also, my PTSD makes me have trouble concentrating and breathing to the point of panic. With my personality disorder interacting with others makes me not be able to breathe and regress into a state of panic and withdrawal. Daily activities are affected, and I am in need of assistance, so I am not homeless and without help. Everyday is hard to get out of bed or follow routine.” [In the reconsideration decision, the ministry noted that as of the time of writing of the decision, it had not received any documents from the psychiatrist.] Not ice of Appeal In submitting the Notice of Appeal, dated 30 October 2019, the appellant wrote under Reasons for Appeal, “I have supporting documents.” The hearing The appellant did not attend the hearing. After confirming that the appellant was notified of the hearing, the hearing proceeded in accordance with section 86(b) of the Employment and Assistance Regulation The ministry stood by its position at reconsideration.

APPEAL NUMBER PART F – REASONS FOR PANEL DECISION The issue in this appeal is whether the ministry decision that determined that the appellant did not meet three of the five statutory requirements of Section 2 of the EAPWDA for designation as a person with disabilities (PWD) is reasonably supported by the evidence or is a reasonable application of the legislation in the circumstances of the appellant. Specifically, the ministry determined that the information provided did not establish that the appellant has a severe physical or mental impairment that in the opinion of a prescribed professional, (i)directly and significantly restricts the appellant’s ability to perform daily living activities (DLA) either continuously or periodically for extended periods; and, (ii)as a result of those restrictions, the appellant requires help to perform those activities. The ministry determined that the appellant satisfied the other criteria of having reached 18 years and the impairment continuing for at least 2 years. T he following section of the EAPWDA applies to this appeal: 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) i n the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and (b) i n the opinion of a prescribed professional (i)directly and significantly restricts the person's ability to perform daily living activities either (A)continuously, or (B)per iodically for extended periods, and (ii)as a result of those restrictions, the person requires help to perform those activities. (3) F or 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)a n assistive device, (ii)the significant help or supervision of another person, or (iii)the services of an assistance animal. The following sections of the EAPWDR applies to this appeal: 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) pr epare own meals; (ii)manage personal finances; (iii) s hop 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;

APPEAL NUMBER (vii)perform personal hygiene and self care; (viii)manage personal medication, and (b) i n relation to a person who has a severe mental impairment, includes the following activities: (i) m ake decisions about personal activities, care or finances; (ii)relate to, communicate or interact with others effectively. (2)F or the purposes of the Act, "prescribed professional" means a person who is (a)authorized under an enactment to practise the profession of (i ) m edical practitioner, (ii) registered psychologist, (iii) registered nurse or registered psychiatric nurse, (iv ) occupational therapist, (v) p hysical therapist, (vi) social worker, (vii) chiropractor, or (viii) nurse practitioner, or (b)ac ting in the course of the person's employment as a school psychologist by (i ) an authority, as that term is defined in section 1 (1) of the Independent School Act, or (ii) a board or a francophone education authority, as those terms are defined in section 1 (1) of the School Act, if qualifications in psychology are a condition of such employment. Alternative grounds for designation under section 2 of Act 2.1 The following classes of persons are prescribed for the purposes of section 2 (2) [persons with disabilities] of the Act: (a)a person who is enrolled in Plan P (Palliative Care) under the Drug Plans Regulation, (b)a person who has at any time been determined to be eligible to be the subject of payments m ade through the Ministry of Children and Family Development's At Home Program; (c)a person who has at any time been determined by Community Living British Columbia to be eligible to receive community living support under the Community Living Authority Act; (d)a person whose family has at any time been determined by Community Living British Columbia t o be eligible to receive community living support under the Community Living Authority Act to assist that family in caring for the person; (e)a person who is considered to be disabled under section 42 (2) of the Canada Pension P lan (Canada). Analysis Severity of impairment Preliminary Considerations For the minister to be “satisfied” that the person’s impairment is severe, the panel considers it reasonable for the ministry to expect that the information submitted by the independent and professional medical practitioner and prescribed professional (in this case the GP) completing the application provides the minister with sufficient information on the nature and extent of the impacts of the person's medical conditions on daily functioning. As the legislation requires the minister to make determinations regarding the degree of impairment, the degree of restrictions in the ability to perform DLA and the resulting degree of help required, it is therefore important

APPEAL NUMBER that the MR and the AR include explanations, descriptions or examples in the spaces provided so that the minister has the information needed to make these determinations. Significant weight must also be placed on the evidence of the applicant, unless there is a legitimate reason not to do so. Such information provided by the applicant, while optional in the Application form, may be helpful in fleshing out the general picture provided by the medical practitioner/prescribed professional. The reconsideration process provides the opportunity for the prescribed professionals and applicant to clarify or add to the information provided on application, and the panel hearing an appeal must consider any information provided on appeal, as long as the panel finds it admissible. P hysical impairment The GP has not diagnosed the appellant with any medical condition that would restrict physical functioning. In the Request for Reconsideration, the appellant mentions IBS [irritable bowel syndrome], but attributes that to his diagnosis of anxiety. As the ministry noted in the reconsideration decision, in the MR the GP assessed the appellant as not being restricted in terms of physical functional skills (can walk 5+ blocks unaided, etc.) and in the AR as being independent in managing activities requiring mobility and physical ability (walking indoors and outdoors, etc.). The GP also indicated that the appellant does not require an assistive device for any impairment of his physical functioning. Panel finding Considering the lack of evidence that would point to any restriction in physical functioning, the panel finds that the ministry was reasonable in determining that a severe physical impairment has not been established. Mental impairment The panel understands from the Request for Reconsideration that the appellant had seen the psychiatrist subsequent to the GP’s completion of the MR and AR, and that as a result documents from the psychiatrist were being forwarded to the ministry. The position of the appellant would appear to be that the information provided in such documents would establish the appellant having a severe mental impairment. In referring to the content of such documentation, the appellant refers to a number of mental health conditions with impacts on daily functioning: • “extreme” ADHD with resulting problems with concentration and anxiety resulting in IBS and frequent bathroom visits, • PTSD with trouble concentrating and breathing to the point of panic, and • personality disorder so that interacting with others causes not being able to breathe and regressing into a state of panic and withdrawal. Unfortunately, as the ministry noted in the reconsideration decision, no documentation from the psychiatrist was provided to the ministry or to the panel. The position of the ministry, as set out in the reconsideration decision, is that the information provided by the appellant in the PWD application does not demonstrate a severe impairment of

APPEAL NUMBER mental functioning. In reaching this conclusion, the ministry first reviewed the information in the MR and AR regarding cognitive and emotional functioning. The ministry noted that in the MR, the GP diagnosed the appellant with PTSD, borderline personality disorder and cannabis use (daily), did not identify any difficulties with communication, and identified significant deficits to the appellant’s cognitive and emotional functioning in the areas of psychotic symptoms, emotional disturbance and attention or sustained concentration. The ministry then noted the GP’s assessments in the AR of the impacts to the appellant’s cognitive and emotional functioning, with a major impact to emotion and moderate impacts to impulse control, insight and judgment, attention/concentration, and memory. The ministry also found that the GP’s assessments to manage DLA does not demonstrate any impairment in the ability to make decisions about personal activities, care or finances. The ministry then reviewed the information in the MR and AR regarding social functioning, including the GP’s assessment in the MR that the appellant is restricted in the ability to manage social functioning periodic basis and in the AR that the appellant requires periodic support/supervision with the 5 listed social functioning abilities (making appropriate social decisions, etc.) and related commentary the type of such support/supervision (e.g. 12-step groups, counselor, therapist). (See section E above for details). The ministry held that the assessments provided by the GP suggests that the restrictions and need for support/supervision with social functioning are episodic in nature. However, the GP does not describe the frequency or duration of these episodes, thus making it challenging to determine whether the restrictions and the support/supervision required are significant and demonstrated a severe impairment. The ministry acknowledged that the appellant has limitations with social functioning related to the medical conditions diagnosed by the psychiatrist. However, the ministry found that the assessments of the appellant’s social functioning as provided by the GP demonstrates that the appellant has a moderate impairment of ability relating to, communicating or interacting with others effectively. Panel finding The GP has diagnosed the appellant with PTSD, borderline personality traits, and cannabis use (daily). The GP has also indicated concurrence with the psychiatrist’s additional diagnoses of gender dysphoria (in transition) and ADHD. However, as the ministry noted in its decision, the diagnosis of a serious medical condition or conditions does not in itself determine PWD eligibility or establish a severe impairment. An “impairment”, as defined by the ministry in the MR and AR, is a loss or abnormality of psychological, anatomical or physiological structure or function causing a restriction in the ability to function independently, effectively, appropriately or for a reasonable duration. The panel finds this definition of impairment to be reasonable, given the emphasis in the legislation on restrictions and help required. To assess the severity of impairment, the ministry must consider the nature of the impairment and the extent of its impact on daily functioning. In terms of impacts on daily functioning, the GP assessed one major impact – with emotion – and moderate impacts in four areas: impulse control, insight and judgment, attention/concentration, and memory. However, the GP has not provided much descriptive