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 November 13, 2019, which held that the appellant did not meet 3 of the 5 statutory requirements of section 2 of the Employment and Assistance for Persons with Disabilities Act for designation as a person with disabilities (PWD). The ministry found that the appellant met the age and duration requirements, but was not satisfied that: • t he appellant has a severe physical and/or mental impairment; • the appellant’s daily living activities (DLA) are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and • as a result of those restrictions, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA. I n addition, the ministry found that it had not been demonstrated that the appellant is one of the prescribed classes of persons who may be eligible for PWD designation on alternative grounds, which includes: a person who is enrolled in palliative care; a person who has at any time been determined eligible for At Home Program payments through the Ministry of Children and Family Development; a person who has at any time been determined eligible by Community Living BC for community living support; and a person who is considered disabled under section 42(2) of the Canadian Pension Plan Act. PART D – RELEVANT LEGISLATION Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 2 E mployment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 2

APPEAL NUMBER PART E – SUMMARY OF FACTS The evidence before the ministry at the time of the Reconsideration Decision included: 1. The information before the ministry at the time of reconsideration included the appellant’s PWD application comprised of a Medical Report (MR) [dated September 18, 2019] and an Assessor Report (AR) [dated September 18, 2019], which was completed by the appellant’s psychiatrist (the ‘psychiatrist’), who had known the appellant since November 2017 and seen him 2-10 times in the past 12 months. The approaches and sources used to conduct the MR and AR were not indicated. The PWD application also included the appellant’s Self-Report (SR) dated September 16, 2019. 2. A second AR, completed by the appellant’s advocate, which is not signed or dated by either the advocate or the psychiatrist. The ministry is of the opinion that this assessment is part of the appellant’s self-report. 3. A letter from the advocate to the psychiatrist signed and dated September 16, 2019, which explains that the second AR is the appellant’s perspective of his restrictions to DLA and the assistance he needs for DLA. The advocate also indicated that they are not a qualified assessor and the second AR should not be included with the PWD application. In the letter, the psychiatrist is asked to indicate agreement with the contents of the second AR via a narrative. 4. Request for Reconsideration (RFR), signed and dated October 30, 2019, in which the appellant described that, when younger, he did not realize that he had problems of a mental nature. He had learning problems, believes that he may be autistic or bipolar and was diagnosed with PTSD (post-traumatic stress disorder). From 2008 to present he has had about 75 jobs and this employment instability began when he no longer had the support of working for his family’s business. He experiences severe anxiety and ‘meltdowns’ before work. The last 5 years have been worse as his anxiety, depression and mood disorder has escalated to the point that he cannot function. Diagnoses In the MR, the psychiatrist diagnosed the appellant with mood disorder (onset 2017) and anxiety (onset 2017). Physi cal Impairment In the MR, the psychiatrist indicated the following about the appellant: • It is unknown how far the appellant can walk unaided and the section on climbing stairs unaided was left blank. • It is unknown how much the appellant can lift or how long he can remain seated. In the AR, the psychiatrist indicated the following about the appellant: • Walking indoors/outdoors, climbing stairs, standing, lifting and carrying/holding are performed independently. In the SR, the appellant indicated: • Can walk unaided for 4+ blocks. • Can climb 5+ stairs unaided. • Can lift no more than 5-15lbs. • Can sit for 10 minutes. • Walking indoors/outdoors and climbing stairs are performed independently • Standing (unable over 10 minutes), lifting (unable over 10lbs) and carrying/holding was indicated as requiring continuous assistance

APPEAL NUMBER Mental Impairment In the MR, the psychiatrist indicated the following about the appellant: • The appellant has unspecified anxiety and unspecified depression and is in partial remission. • The section on difficulties with communication was left blank. • The section on significant deficits with cognitive and emotional function indicated ‘emotional disturbance’ with no comment provided. I n the AR, the psychiatrist indicated the following about the appellant: • Communication, including speaking, reading, writing and hearing, are all indicated as good. • In terms of cognitive and emotional functioning, there are moderate impacts to emotion, impulse, insight/judgment, attention/concentration, and motivation. • All other listed areas under cognitive and emotional functioning are indicated as minimal or no impact. • Under DLA, ‘pay rent/bills’, ‘medications’, under ‘shopping’ – reading labels, making appropriate choices and paying for purchases – and under ‘meals’ – meal planning - are all indicated as performed independently. • Under ‘social functioning’, other than able to secure assistance from others (which is perform ed i ndependently) all listed tasks require periodic support/supervision, and the appellant has marginal functioning with immediate and extended social networks. I n the SR, the appellant indicated: • Difficulties with communication are indicated as cognitive with the comment: ”written comprehension and expression difficulties”. • Significant deficits with cognitive and emotional function in the areas of consciousness, language, memory (short-term), emotional disturbance, impulse control, motor activity and attention or sustained concentration. • Under ability to communicate, writing (messy) and hearing (possible hearing loss in right ear) are indicated as satisfactory and speaking (has difficulty putting thoughts into words) and reading ( has to read things 3 times to be able to comprehend) are indicated as poor. • 8 of the 14 items listed under cognitive and emotional functioning are indicated as major impact on daily functioning and the other 6 are indicated as no impact on daily functioning. • The following narrative was also provided: o “Eating problems – goes 8 hours without eating, no appetite due to anxiety. o Toileting problems – fissure, cramping in stomach, blood in stool. o Sleep disturbances – sleep apnea, only gets 4-5 hours of actual sleep a night, night terror. o Anxiety, depression, PTSD, impulsive, easily distracted, unable to maintain concentration, poor memory, agitation, extreme tension, expression/comprehension problems”. • All listed tasks under ‘pay rent/bills’ are listed as requiring continuous assistance – “overdrawn, poor budgeting, gets [illegible] into financial difficulties [and] behind on bills”. • Under social functioning, ‘able to develop and maintain relationships’, ‘able to deal appropriately with unexpected demands’ and ‘able to secure assistance from others’ require continuous assistance – “sticks to people he already knows, doesn’t maintain relationships he already [has], overwhelmed/anxious when met with unexpected demands [and] has no one to ask for assistance from”. The appellant indicated marginal functioning with immediate and extended social networks. D aily Living Activities In the MR, the GP indicated the following about the appellant: • No medications that interfere with the ability to perform DLA have been prescribed.

APPEAL NUMBER In the AR, the psychiatrist indicated the following about the appellant: • All listed tasks under DLA are performed independently. In the SR, the appellant indicated the following: • All listed tasks of DLA are performed independently with the exception of the following which require continuous assistance: o Regulating diet – “will go 8 hours without eating, no appetite”. o Carrying purchases home – “unable over 10 pounds”. o Meal planning, food preparation and cooking – “relies on easy non-healthy foods due to depression, anxiety and being overwhelmed”. He lp In the MR, the GP indicated the following about the appellant: • Requires no prostheses or aids for her impairment. In the AR, the psychiatrist indicated the following about the appellant: • Help is required by ‘Health Authority Professionals’ without indication of what help is required for or by whom. • Under the sections assistance provided through the use of Assistive Devices and Assistance Animals are left blank. E vidence Submitted Prior to the Hearing T he appellant submitted that following information prior to the hearing: • A clinical evaluation, signed and dated April 18, 2017, of the appellant for stomach cancer. The impression indicated “surveillance EGD indicated for patient’s previous history of Barrett’s and his ongoing GERD symptoms. Noted risk factors for esophageal cancer also include ongoing smoking. • Emergency Documentation, dated February 2, 2017, which indicated that the appellant utilized emergency services for throat pain. The diagnosis was Pharyngitis. • A request for a psychiatric assessment, signed and dated January 15, 2017, or anxiety disorder, which was accompanied by a Patient Health Questionnaire –9 (PHQ-9), dated January 15, 2017 on which the appellant scored for moderate depression, and a Generalized Anxiety Disorder questionnaire -7(GAD-7) dated January 15, 2017 on which the appellant scored in the low range of severe anxiety disorder. • Emergency Documentation, dated January 8, 2017, which indicated that the appellant utilized emergency hospital services for heart palpitations. The results of a heart test were also included. The impression was that the heart sounds regular and strong and the lungs were clear. The appellant was sent home with a monitor. • An initial report by an urologist signed and dated June 20, 2016, which outlines the impression and plans for a medical procedure for the appellant. • A report by the same urologist as above, signed and dated July 27, 2016, which outlines the medical procedure conducted on the appellant with after-care instructions. • Emergency Documentation, dated February 26, 2016, which indicated that the appellant utilized emergency hospital services for an allergic reaction. • Emergency Documentation, dated November 16, 2015, which indicated that the appellant utilized emergency hospital services for a planters wart.

APPEAL NUMBER Evidence on Appeal N otice of Appeal (NOA), signed and dated November 29, 2019, which described, in part, that the appellant’s current situation, and the following: • Has difficulty learning, understanding and has bouts of anxiety and depression. • When the family business was sold in 2008, there was a downhill slide with depression, m ood swings, and difficulty hold down a job. • Crippled to deal with day to day living, keeping a job or daily responsibilities. • With each job or life situations comes panic and he cannot eat or sleep. • There are terrible periods of psychiatric episodes, blackouts and night terrors. The night terrors may be due to PTSD T he panel found that the information in the NOA consists of the appellant’s argument and does not require an admissibility determination. E vidence at the Hearing At the hearing, the appellant reiterated the information found in the RFR and NOA, and stated, in part, the following: • He did not realize that when the advocate asked questions from the second AR it would be a part of his PWD application. • The statements provided to the psychiatrist or advocate were not truthful or complete because he was embarrassed to admit to the reality of his mental condition and how he functions. Therefore he painted a ‘nicer’ picture of himself and his abilities. • He regrets not being truthful at the time but would not go through this process (the PWD designation process) if it was not needed. • He is not arguing that he has a physical impairment. • He has good hygiene because he has obsessive compulsive disorder (OCD) and able to function in this area. • In general, he cannot function or socialize and he has lost family and friends as a result. • He is on the highest dosage of his anxiety medication. • When married, he had help from his wife with daily functioning. However, now that is no longer married, the inability to focus/concentrate causes anxiety. He then becomes overwhelmed and therefore cannot function or complete tasks. The PWD application process took him a year to complete. • Unexpected demands are not manageable due to anxiety. • He has had PTSD, anxiety and depression since childhood. • He has no help other than his roommate, who does most of the cleaning and daily tasks. Though the appellant tries to help, he cannot focus and becomes overwhelmed. • He is not currently in counselling. • The information provided prior to the hearing was submitted to fill in the gaps the ministry felt the PWD application had. At the hearing, the ministry relied on its reconsideration decision. Admissibility of Additional Information A panel may consider evidence that is not part of the record as the panel considers is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

APPEAL NUMBER In this case, the panel determined that the information submitted prior to the hearing and the appellant’s reference to his roommate and the help provided by the roommate is admissible and keeping with the procedures stated above. The panel finds that the information submitted prior to the hearing did not confirm a physical medical condition that results in restrictions to the appellant’s ability to function independently or effectively, or confirm a causal link between the severe physical or mental impairment and any significant restriction in daily functioning. The panel also finds that the information provided prior to the hearing was primarily from 2016 and 2017; whereas the information contained in the PWD application is more current. For these reasons, the panel places little weight on the information submitted prior to the hearing.

APPEAL NUMBER PART F – REASONS FOR PANEL DECISION The issue on appeal is whether the ministry's reconsideration decision, which found that the appellant is not eligible for designation as a PWD, was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. The ministry found that the evidence does not establish that the appellant has a severe mental or physical impairment and that his DLA are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods. Also, as a result of those restrictions, it could not be determined that the appellant requires the significant help or supervision of another person. T he criteria for being designated as a PWD are set out in Section 2 of the EAPWDA as follows: Persons with disabilities 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 wit h 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)in the opinion of a prescribed professional (i)directly and significantly restricts the person's ability to perform daily living activities either (A) c ontinuously, or (B) pe riodically 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) t he 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). The EAPWDR provides as follows: Definitions for Act 2 (1) For the purposes of the Act and this regulation, "daily living

APPEAL NUMBER 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) m anage 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)i n 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. ( 2) Fo r the purposes of the Act, "prescribed professional" means a person who is (a) authorized under an enactment to practise the profession of (i) medical practitioner, (ii) registered psychologist, (iii) r egistered nurse or registered psychiatric nurse, (iv) occupational therapist, (v) physical therapist, (vi) social worker, (vii) chiropractor, or (viii) nu rse 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.C. Reg. 73/2015;

APPEAL NUMBER (b)a person who has at any time been determined to be eligible to be the subject of payments made 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 to 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 Plan Panel Decision Severe Impairment In the reconsideration decision, the ministry was not satisfied that the information provided establishes a severe physical or mental impairment. Determining a severe physical or mental impairment requires weighing the evidence provided against the nature of the impairment and its reported functional skill limitations. A diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a severe impairment. An “impairment” is a medical condition that results in restrictions to a person’s ability to function independently or effectively. To assess the severity of an impairment, the ministry must consider the nature of the impairment and the extent of its impact on daily functioning. T he panel finds that employability is not a consideration for eligibility for PWD designation because employability is not a criterion in section 2(2) of the EAPWDA nor is it listed among the prescribed daily living activities in section 2 of the EAPWDR. Physical Impairment The appellant did not argue that he has a physical impairment. T he ministry argued that based on the information provided in the PWD application, a severe impairment of the appellant’s physical functioning has not been established. In its reconsideration decision, the ministry noted that the psychiatrist did not provide a diagnosis of medical condition which explicitly gives rise to a physical impairment. The ministry also noted that the psychiatrist does not confirm the appellant’s ability to walk or climb stairs unaided, lift or remain seated. The ministry noted that the psychiatrist indicated that the appellant performs mobility tasks independently, such as walking indoor/outdoor, climbing stairs, standing, lifting and carrying/holding. Finally the ministry noted that all DLA tasks requiring physical functioning are indicated by the psychiatrist as performed independently. Though the SR indicated some physical limitations (such as standing, lifting and carrying/holding), the ministry argued that this information has not been confirmed by the psychiatrist. The panel finds that the ministry reasonably concluded that the information provided by psychiatrist regarding the appellant’s physical functioning does not support a finding of a severe physical impairment. That is, there is no diagnosis provided of a physical impairment functional skills are not confirmed, mobility and physical ability is indicated as independent. Furthermore, though the he stated that he has

APPEAL NUMBER some physical limitations, the appellant does not argue that he has a physical impairment. Finally the panel notes that the information provided at appeal does not confirm a physical impairment. G iven the overall assessments of the appellant’s functional ability, and mobility and physical ability in the PWD application and the lack of any additional information provided at appeal from a prescribed professional, the panel finds that the ministry was reasonable in its determination that the evidence does not support a finding that the appellant suffers from a severe physical impairment and that the legislative criteria outlined in Section 2(2) of the EAPWDA have not been met. Mental Impairment The appellant argued that he suffers from PTSD, anxiety and depression, which restricts his ability to function day to day. T he ministry’s position is that based on the assessments provided in the PWD application, a severe impairment of mental functioning has not been established. In its reconsideration decision, the ministry noted that the psychiatrist indicated unspecified anxiety and depression, and that the appellant is in partial remission. It was also noted that the psychiatrist indicated that there are significant deficits with cognitive and emotional functioning in the area of emotional disturbance. The ministry noted that the psychiatrist indicated that there are moderate impacts to cognitive and emotional functioning in the areas of emotion, impulse control, insight/judgement, attention/concentration and motivation. However the psychiatrist also indicated that the appellant is independent with making decisions about personal activities, care and finances. Finally the ministry noted that though the psychiatrist indicated that the appellant requires periodic support/supervision with some areas of social functioning, the nature or frequency of the support/supervision required was not specified. The ministry stated that, as a result, it is difficult to establish a severe mental impairment. Furthermore, though the second AR indicated major impacts to 8 listed areas of cognitive and emotional functioning and difficulty with communication, the PWD application completed by the psychiatrist did not indicate as such. The panel finds that the two AR’s have inconsistencies and further information from a prescribed professional was not provided to rectify the inconsistencies. The panel concurs with the ministry’s determination and findings as stated above and also notes that the PHQ-9 indicates moderate depression and the GAD-7 indicates severe anxiety. However this information is from 2017 and an additional or current clinical impression has not been provided. Furthermore, the panel notes that the appellant is not currently in counselling; therefore it is difficult to determine if the appellant’s difficulties with anxiety and depression are manageable. G iven the overall assessments of the appellant’s mental, cognitive and emotional ability and functioning in the PWD application and the lack of any additional information provided at appeal from a prescribed professional, the panel finds that the ministry was reasonable in its determination that the evidence does not support a finding that the appellant suffers from a severe mental impairment and that the legislative criteria outlined in Section 2(2) of the EAPWDA have not been met. Restrictions in the ability to perform DLA Section 2(2)(b)(i) of the EAPWDA requires that the minister be satisfied that in the opinion of a prescribed professional, a severe mental or physical impairment directly and significantly restricts the appellant’s ability to perform DLA either continuously or periodically for extended periods. While other evidence may be considered for clarification or support, the ministry’s determination as to whether or not it is satisfied that the legislative criteria are met, is dependent upon the evidence from prescribed