APPEAL NUMBER 2020-00152
PART C – DECISION UNDER APPEAL
The decision under appeal is the Ministry of Social Development and Poverty Reduction (the ministry)
reconsideration decision dated May 27, 2020 which held that the appellant is not eligible for payment of
retroactive Persons with Disabilities (PWD) disability assistance, pursuant to Section 23(1) (a) of the
Employment and Assistance Persons with Disabilities Regulation (EAPWDR). Specifically the ministry
determined that because the ministry designated the appellant as a PWD on April 21, 2020, the appellant’s
eligibility for disability assistance is effective May 1, 2020, which, under the EAPWDR, is the first day of the
month following the month in which the ministry designated the appellant as a PWD.
PART D – RELEVANT LEGISLATION
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) – sections 2.1 (e) and 23
Employment and Assistance Act (EAA) – section 24 (1) and (2)
APPEAL NUMBER 2020-00152
PART E – SUMMARY OF FACTS
The information before the ministry at reconsideration included the following:
• appellant’s application for PWD Designation – Prescribed Class dated March 27, 2020;
• ministry’s letter dated April 21, 2020, advising that the appellant was eligible for PWD designation effective
May 1, 2020;
• appellant’s request for reconsideration submitted to the Ministry on May 13, 2020;
• January 10, 2017 letter from the Canada Pension Plan (CPP) approving the appellant’s application for CPP
disability benefits with payment retroactive to November 2015;
• statement of CPP disability benefits for the year 2019;
• appellant’s credit card statement dated May 20, 2020 showing an outstanding balance of $696.48.
APPEAL NUMBER 2020-00152
PART F – REASONS FOR PANEL DECISION
The issue in this appeal is the reasonableness of the ministry’s reconsideration decision which held that the
appellant is not eligible for retroactive payment of disability assistance pursuant to Section 23(1) (a) of the EAPWDR.
Specifically the ministry determined that because the ministry designated the appellant as a PWD on April 21, 2020 the
appellant’s eligibility for disability assistance is May 1, 2020, which, under the EAPWDR, is the first day of the month following
the month in which the ministry designated the appellant as a PWD.
Relevant legislation:
EAPWDA:
Decision of panel
24 (1)After holding the hearing required under section 22 (3) [panels of the tribunal to conduct appeals], the panel must
determine whether the decision being appealed is, as applicable,
(a)reasonably supported by the evidence, or
(b) a reasonable application of the applicable enactment in the circumstances of the person
appealing the decision.
(2)For a decision referred to in subsection (1), the panel must
(a)confirm the decision if the panel finds that the decision being appealed is reasonably supported by
the evidence or is a reasonable application of the applicable enactment in the circumstances of the
person appealing the decision, and
(b) otherwise, rescind the decision, and if the decision of the tribunal cannot be implemented without
a further decision as to amount, refer the further decision back to the minister.
EAPWDR:
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:
(e)a person who is considered to be disabled under section 42 (2) of the Canada Pension
Plan (Canada).
Effective date of eligibility
23 (1)Except as provided in subsections (1.1), (3.11) and (3.2), the family unit of an applicant for designation as a person
with disabilities or for both that designation and disability assistance
(a) is not eligible for disability assistance until the first day of the month after the month in which the
minister designates the applicant as a person with disabilities, and
(b) on that date, the family unit becomes eligible under section 4 and 5 of Schedule A for that portion
of that month's shelter costs that remains unpaid on that date.
(1.1)The family unit of an applicant who applies for disability assistance while the applicant is 17 years of age and who
the minister has determined will be designated as a person with disabilities on the applicant's 18th birthday
(a)is eligible for disability assistance on that 18th birthday, and
(b) on that date, is eligible under section 4 and 5 of Schedule A for that portion of the month’s shelter
costs that remains unpaid on that date.
(1.2)A family unit of an applicant for disability assistance who has been designated as a person with disabilities
becomes eligible for
(a)a support allowance under sections 2 and 3 of Schedule A on the disability assistance
application date,
(b)for a shelter allowance under sections 4 and 5 of Schedule A on the first day of the calendar
month that includes the disability assistance application date, but only for that portion of that month's
shelter costs that remains unpaid on the date of that submission, and
(c) for disability assistance under sections 6 to 9 of Schedule A on the disability assistance
application date.
APPEAL NUMBER 2020-00152
(2)Subject to subsections (3.01) and (3.1), a family unit is not eligible for a supplement in respect of a period before the
minister determines the family unit is eligible for it.
(3.01)If the minister decides, on a request made under section 16 (1) [reconsideration and appeal rights] of the Act, to
provide a supplement, the family unit is eligible for the supplement from the earlier of
(a)the date the minister makes the decision on the request made under section 16 (1) of the Act, and
(b) the applicable of the dates referred to in section 72 of this regulation.
(3.1)If the tribunal rescinds a decision of the minister refusing a supplement, the family unit is eligible for the
supplement on the earlier of the dates referred to in subsection (3.01).
(3.11)If the minister decides, on a request made under section 16 (1) of the Act, to designate a person as a person with
disabilities, the person's family unit becomes eligible to receive disability assistance at the rate specified under
Schedule A for a family unit that matches that family unit on the first day of the month after the month containing the
earlier of
(a)the date the minister makes the decision on the request made under section 16 (1) of the Act, and
(b) the applicable of the dates referred to in section 72 of this regulation.
(3.2)If the tribunal rescinds a decision of the minister determining that a person does not qualify as a person with
disabilities, the person's family unit is eligible to receive disability assistance at the rate specified under Schedule A for
a family unit that matches that family unit on the first day of the month after the month containing the earlier of the
dates referred to in subsection (3.11).
(4)If a family unit that includes an applicant who has been designated as a person with disabilities does not receive
disability assistance from the date the family unit became eligible for it, the minister may backdate payment but only to
whichever of the following results in the shorter payment period:
(a)the date the family unit became eligible for disability assistance;
(b) 12 calendar months before the date of payment.
Appellant’s Position
The appellant argues that EAPWDR Section 23 (1) is harsh and unreasonable in delaying eligibility for disability
assistance to the first day of the month after the month in which the ministry designates the applicant as a PWD.
The appellant submits that provincial PWD benefits should be calculated retroactively as was the case when the
appellant became eligible for federal CPP disability benefits, or at least retroactive to the date on which the ministry
designated the appellant as a PWD. The appellant describes the financial hardship he faced because “the first few
months of disability are very hard emotionally, mentally and financially.”
The Ministry’s Position
The ministry relies on EAPWDR Section 23 (1)(a) which states that an applicant is not eligible for disability
assistance until the first day of the month after the month in which the minister designates the applicant as a PWD.
Because the appellant was designated a PWD on April 21, 2020, the ministry argues that eligibility for disability
assistance does not begin until May 1, 2020.
Panel Decision
Date of Eligibility
The jurisdiction of this appeal tribunal is limited to determining whether the reconsideration decision being appealed
is reasonably supported by the evidence or is a reasonable application of the applicable enactment in [the
appellant’s] circumstances (Employment and Assistance Act, S. 24 (1)). The tribunal does not have the jurisdiction
to change the applicable legislation.
Subsection (1) (a) of EAPWDR Section 23 clearly states that the family unit of an applicant is not eligible for
disability assistance until the first day of the month after the month in which the applicant is designated as a PWD.
The legislation allows for certain exceptions to this rule. These exceptions are found in subsections (1.1), (3.11)
and (3.2) of Section 23. Subsection (1.1) applies to persons who are 17 years of age at the time of application.
Subsection (3.11) applies to a person who has initially been denied PWD designation but is successful upon
reconsideration. Subsection (3.2) applies when the Employment and Assistance Appeal Tribunal rescinds a
ministry decision which determined that a person does not qualify for PWD designation.
APPEAL NUMBER 2020-00152
None of these exceptions is applicable to the appellant’s circumstances because the evidence indicates the
appellant was not 17 years of age at the time of the application; was designated as a PWD by the ministry prior to
the reconsideration; and has not had a decision on PWD eligibility rescinded by the Tribunal. The panel therefore
finds that the ministry reasonably determined that pursuant to subsection (1) (1) of EAPWDR Section 23 the
appellant is not eligible for retroactive disability assistance.
Application of CPP Retroactive Benefits Rules
In the reconsideration decision the ministry noted that eligibility for CPP disability payments does not automatically
establish eligibility for PWD benefits. CPP disability is governed by federal legislation, whereas the EAPWDA and
EAPWDR are provincial enactments that apply to PWD benefits. These are two separate programs, each with its
own eligibility criteria. The appellant was entitled to apply for PWD designation as a member of a “prescribed
class” as set out in EAPWDR Section 2.1 (e) because the appellant is considered to be disabled under CPP
legislation. All of the EAPWDR provisions for PWD benefits apply in that circumstance, including the date upon
which eligibility for disability allowance is deemed to commence. The panel therefore finds that the ministry
reasonably determined that eligibility for retroactive CPP disability payments does not make the appellant eligible
for retroactive disability assistance under the EAPWDR.
Conclusion
The panel finds that the ministry reasonably determined that the appellant is not eligible for retroactive PWD
disability assistance and confirms the reconsideration decision. The appellant is not successful in this appeal.
APPEAL NUMBER 2020-00152
PART G – ORDER
THE PANEL DECISION IS: (Check one)
X UNANIMOUS
BY MAJORITY
THE PANEL
X CONFIRMS THE MINISTRY DECISION
RESCINDS THE MINISTRY DECISION
If the ministry decision is rescinded, is the panel decision referred back to the Minister
for a decision as to amount?
Yes
No
LEGISLATIVE AUTHORITY FOR THE DECISION:
Employment and Assistance Act
Section 24(1)(a)
or Section 24(1)(b) X
and
Section 24(2)(a) X or Section 24(2)(b)
PART H – SIGNATURES
PRINT NAME
Joan Bubbs
SIGNATURE OF CHAIR
DATE (YEAR/MONTH/DAY)
2020/Jul/08
PRINT NAME
Daniel Chow
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2020/Jul/08
PRINT NAME
Margaret Koren
DATE (YEAR/MONTH/DAY)
2020/Jul/08
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