APPEAL NUMBER 2020-00198 PART C – DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) reconsideration decision of 31st July 2020 (the “Reconsideration Decision” or the “RD”), which held that the appellant was not eligible for income assistance as the appellant’s income exceeds the maximum rate of assistance for the appellant’s family unit, as prescribed in Sections 1 and 10 of the Employment and Assistance Regulation. PART D – RELEVANT LEGISLATION Employment and Assistance Regulation (EAR), Section 1, Section 10 and Schedules A & B
APPEAL NUMBER 2020-00198 PART E – SUMMARY OF FACTS The information and evidence before the ministry at reconsideration included the following: 1. Application for Assistance dated 15th June 2020 by the appellant and the appellant’s spouse. Amongst other matters, it states that: a. the appellant and the appellant’s spouse are a married two parent family with dependent children; b. the appellant and the appellant’s family unit were not applying for income assistance as persons with disability (PWD); c. the appellant was not employed due to medical reasons; and d. the appellant’s spouse was employed. 2. A copy of a Bank Statement for the period 2nd April 2020 to 2nd May 2020 (Pages 50 and 51 or 77 and 78 of Record of Appeal) 3. Shelter Information dated 2nd July 2020. Amongst other matters, it states that the appellant’s portion of the rent is $500.00 per month; 4. A communication dated 15th July 2020 from the appellant to the ministry. Amongst other matters, it states that: a. the appellant has had traumatic experiences in 2016 that have resulted in certain medical conditions, which required treatment as well as regular use of prescribed medication; b. due to the medical condition of the appellant, the appellant has had to give up the appellant’s work in 2017; c. the appellant has sold all of the appellant’s “assets” to help out around the house; and d. the appellant’s spouse has gone into debt, which makes the appellant feel like a burden. In addition to the information described above, the panel reviewed the Reconsideration Decision dated 31st July 2020. Amongst other matters it states that: 1. the appellant is a member of a two-parent family unit with two dependent children, and had applied for income assistance on June 15, 2020; 2. the appellant had stated that the appellant was not employed, and last worked in December 2017. The appellant’s spouse was employed, and the appellant had been living off the income and savings of the appellant’s spouse; 3. with the appellant’s application, the appellant had provided bank statements showing the income of the appellant’s spouse’s income from the spouse’s employer, which showed the following deposits: i. April 15 $1,309.51 from Spouse’s employer ii. April 20 $1,023.90 from Government of Canada iii. April 29 $1,364.91 from Spouse’s employer iv. May 13 $1,309.51 from Spouse’s employer v. May 20 $1,623.90 from Government of Canada
APPEAL NUMBER 2020-00198 4. the appellant submitted a request for reconsideration, which explained that (i) the appellant experienced significant trauma that has resulted in substantial difficulties in the appellant’s life and (ii) although the appellant has worked continuously since a young age, the appellant’s trauma is affecting the appellant’s ability to maintain employment; 5. the appellant has provided contact information for the appellant’s physician and another official, as they are advocating for the appellant to apply for income assistance; 6. while the ministry is empathetic to the circumstance of the appellant, the relevant legislation does not allow for discretion when calculating the net income of the appellant’s family unit; 7. the ministry noted that the deposits in the bank account of the appellant’s spouse received on April 20 and May 20 is likely “child tax benefit”, which is exempt when determining eligibility for income assistance. Therefore, this income is not included in the net income calculation of the appellant; 8. the deposits received by the appellant’s spouse from the spouse’s employer on April 15, 29 and May 13 are earned income because it is money received in exchange for work or the provision of service. The appellant has not disputed this and has not indicated that the income of the appellant’s spouse has changed. As the appellant’s family unit has not received assistance in the past three months, the said income is not exempt; 9. the net income of the appellant’s family unit for April is $2,674.52 and for May is $1,309.51 according to the bank statements provided by the appellant. 10. The maximum rate of income assistance for the appellant’s family ($601.60 in income support and $700.00 in shelter support) is $1,301.60. As the family unit’s income exceeds the maximum rate of assistance for the appellant’s family unit, the appellant’s family unit was not eligible for income assistance based on the provisions of Section 1 and 10 and Schedules A and B of the EAR; 11. The ministry noted that the appellant may apply for PWD designation; and 12. disability assistance is an income and asset tested program. The ministry will assess the appellant’s eligibility for disability assistance, if the appellant’s designation for PWD is approved, based on the appellant’s income and assets at that time. Additional Information – New Documentary Evidence The appeal package contains the appellant’s Notice of Appeal dated 13th August 2020, which amongst other matters, states that: (i) the income shown for the appellant’s spouse total $300.00 more than is typically the case; (ii) the appellant’s spouse received the $300.00 as a COVID19 top up pay for April 2020; and (iii) the appellant would look in to applying for a PWD designation. The panel considered whether the Notice of Appeal contains legal arguments or new evidence, and whether such new information is admissible as new evidence. The panel notes that the ministry did not object to the said additional information being admitted as additional evidence before the panel. Section 22 (4) of the Employment Assistance Act (EAA), states that: (4) 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. Having considered the foregoing new information and evidence, the panel finds that the additional information described in the Notice of Appeal is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.
APPEAL NUMBER 2020-00198 Therefore, the panel finds that, pursuant to the provisions of Section 22(4)(b) of the EAA, the information is admissible as evidence, as it is reasonably required in support of the information and records that were before the ministry at the time of reconsideration. Oral Evidence at the Hearing At the hearing the appellant provided the following information and made the following submissions: • The appellant has: o a mental disability due to a trauma and is considering applying for a person with disability (PWD) designation; o used up all the appellant’s assets, including RRSP monies, for the support of the appellant and the appellant’s family; o not yet applied for any CPP disability benefits; • The appellant’s: o spouse and the appellant are still married and living together as a family unit with children; o spouse is still employed and continuing to receive salary income; o spouse’s bi-weekly income is approximately $1300.00; o spouse received a one-time COVID-19 salary top-up of $300.00 as during the month of May 2020 At the hearing, the ministry relied upon the Reconsideration Decision and made the following submissions: • The appellant would be eligible for $601.60, as income support, plus $700.00 , as shelter allowance, for a total of $1301.60 per month; • The appellant was eligible to apply for a PWD designation. However, the income eligibility requirements for persons with a PWD designation was the same both under the EAR and the Employment assistance Persons with Disability Regulation (EDPWR). Therefore, even as a PWD designation, the same or similar principles would apply; • The appellant may be eligible for income assistance under CPP disability assistance and that the appellant should consider applying for it; • The one-time salary top-up of $300.00 received by the appellant’s spouse in May 2020 was “earned income” and was therefore included in the calculation of the net income of the appellant; • The ministry had no explanation as to why the Record of Appeal only included legislation relating to EAPWDR. However, the appellant’s income assistance was considered under EAR, which is expressly referenced in the Reconsideration Decision. Findings of Fact Having regard to the issues it has to decide, the panel finds that the evidence before it establishes the following facts: (a) The panel notes that although the Application for Assistance dated 15th June 2020 lists the name of only one child of the appellant’s family, the ministry has acknowledged and confirmed in the Reconsideration Decision that the appellant’s family unit has two dependent children. Based on such evidence, the panel finds that the appellant and the appellant’s spouse are a married two parent family with two dependent children. (b) A deposit of $1309.51, a deposit of $1364.91, and a deposit of $1309.51, respectively received by the appellant’s spouse from the spouse’s employer on 15th April 2020, 29th April 2020 and 13th May 2020, are “earned income” described in Section 1(c) of Schedule A, because they represent amounts received by the appellant’s spouse in exchange for work or provision of services rendered for the spouse’s employer.
APPEAL NUMBER 2020-00198 (c) A deposit of $1623.90, received by the appellant’s spouse from the spouse’s employer on 20th May 2020 includes a one-time COVID-19 top-up pay of $300.00. This pandemic pay is not a wage increase, but merely a one-time top-up salary benefit in exchange for work or provision of services to the spouse’s employer. It is therefore not a deduction permitted from the “earned income” of the appellant, as provided in Section 2 of Schedule B of EAR.
APPEAL NUMBER 2020-00198 PART F – REASONS FOR PANEL DECISION The issue on the appeal is whether the ministry’s Reconsideration Decision, which denied the appellant’s application for income assistance on the grounds that the appellant’s net income exceeds the maximum rate of assistance for the appellant’s family unit, was reasonably supported by the evidence or a reasonable application of the applicable enactment in the circumstances of the appellant. The relevant applicable legislation is as follows: Employment and Assistance Act: Interpretation 1.(1) In this Act "applicant" means the person in a family unit who applies under this Act for income assistance, hardship assistance or a supplement on behalf of the family unit, and includes (a)the person's spouse, if the spouse is a dependant, and (b)the person's adult dependants; "child" means an unmarried person under 19 years of age; "dependant", in relation to a person, means anyone who resides with the person and who (a)is the spouse of the person, or (b)is a dependent child of the person; "dependent child", with respect to a parent, means a child, other than a child who is 18 years of age and is a person with disabilities, who resides in the parent's place of residence for more than 50% of each month and relies on that parent for the necessities of life, and includes a child in circumstances prescribed under subsection (2) but excludes a child in circumstances prescribed under subsection (2.1); "family unit" means an applicant or a recipient and his or her dependants; Employment and Assistance Regulation: Part 1 — Interpretation Definitions 1 (1) In this regulation: "earned income" means (a) any money or value received in exchange for work or the provision of a service, (b) Repealed. [B.C. Reg. 197/2012, Sch. 1, s. 1 (a).]
APPEAL NUMBER 2020-00198 (c) pension plan contributions that are refunded because of insufficient contributions to create a pension, (d) money or value received from providing room and board at a person's place of residence, or (e) money or value received from renting rooms that are common to and part of a person's place of residence. "unearned income" means any income that is not earned income, and includes, without limitation, money or value received from any of the following: Limits on income 10 (1) For the purposes of the Act and this regulation, "income", in relation to a family unit, includes an amount garnished, attached, seized, deducted or set off from the income of an applicant, a recipient or a dependant. (2) A family unit is not eligible for income assistance if the net income of the family unit determined under Schedule B equals or exceeds the amount of income assistance determined under Schedule A for a family unit matching that family unit. Schedule A Income Assistance Rates (section 28 (a) ) Maximum amount of income assistance before deduction of net income 1 (1) Subject to this section and sections 3 and 6 to 10 of this Schedule, the amount of income assistance referred to in section 28 (a) [amount of income assistance] of this regulation is the sum of (a) the monthly support allowance under section 2 of this Schedule for a family unit matching the family unit of the applicant or recipient, plus (b) the shelter allowance calculated under sections 4 and 5 of this Schedule. Monthly support allowance 2 (1) A monthly support allowance for the purpose of section 1 (a) is the sum of (a) the amount set out in Column 3 of the following table for a family unit described in Column 1 of an applicant or a recipient described in Column 2, plus (b) the amount calculated in accordance with subsections (2) to (4) for each dependent child in the family unit. Item Column 1 Column 2 Column 3 Family unit composition Age or status of applicant or Amount of support recipient 12 Two applicants/recipients and one or Both applicants/recipients are under $601.06 more dependent children 65 years of age
APPEAL NUMBER 2020-00198 (2) If the family unit includes one or more dependent children or deemed dependent children, the support allowance under subsection (1) for a calendar month is increased by an amount equal to (a) the total BC child adjustment amount for all dependent children and all deemed dependent children in the family unit, minus (b) the sum of (i) the family bonus, if any, paid to the family unit for the preceding month, (ii) the Canada child benefit, if any, paid to the family unit for the preceding month in respect of dependent children in the family unit, up to a maximum of the BC child adjustment amount in respect of those dependent children, and (iii) the total amount of the supplements, if any, provided to or for the family unit under section 61 [supplement for delayed, suspended or cancelled family bonus] or 61.1 [supplement for delayed, suspended or cancelled Canada child benefit] of this regulation for the current calendar month. (2.1) If the amount calculated under subsection (2) is less than zero, it is deemed to be zero for the purposes of this section. (3) In calculating the adjustment under subsection (2), an amount that, under the Income Tax Act (British Columbia) or the Income Tax Act (Canada), is deducted or set off from the family bonus or the Canada child benefit must be treated as if it were paid to a person in the family unit. (4) The support allowance under subsection (1) for a calendar month is not increased under subsection (2) if a person in the family unit refuses to (a) apply for the family bonus or the Canada child benefit for the preceding calendar month, or (b) accept the family bonus or the Canada child benefit for the preceding calendar month in respect of a dependent child in the family unit who is, or may be, a qualified dependant within the meaning of the Income Tax Act (Canada). Monthly shelter allowance 4 (2) The monthly shelter allowance for a family unit to which section 15.2 of the Act does not apply is the smaller of (a) the family unit's actual shelter costs, and (b) the maximum set out in the following table for the applicable family size: Column 1 Column 2 Item Family Unit Size Maximum Monthly Shelter 4 4 persons $700
APPEAL NUMBER 2020-00198 Schedule B Net Income Calculation (section 28 (b) ) Deduction and exemption rules 1 When calculating the net income of a family unit for the purposes of section 28 (b) [amount of income assistance] of this regulation, (v) the basic child tax benefit; (b) any amount garnished, attached, seized, deducted or set off from income is considered to be income, except the deductions permitted under sections 2 and 6 of this Schedule, (c) all earned income must be included, except the deductions permitted under section 2 and any earned income exempted under sections 3 and 4 of this Schedule, and (d) all unearned income must be included, except the deductions permitted under section 6 and any income exempted under sections 7 and 8 of this Schedule. Deductions from earned income 2 The only deductions permitted from earned income are the following: (a) any amount deducted at source for (i) income tax, (ii) employment insurance, (iii) medical insurance, (iv) Canada Pension Plan, (v) superannuation, (vi) company pension plan, and (vii) union dues; Exemption — earned income 3 (1) Subject to subsection (2), the amount of earned income calculated under subsection (6) is exempt for a family unit. (2) A family unit may not claim an exemption under this section in relation to the first calendar month for which the
APPEAL NUMBER 2020-00198 family unit becomes eligible for income assistance unless a member of the family unit received disability assistance or income assistance in at least one of the 6 calendar months immediately preceding that first calendar month. Application of deductions and exemptions 9 (1) The deductions and exemptions in this Schedule apply only in the calendar month in which the income is actually received, despite any of the following: (a) the date the income is payable; (b) the period for which the income is payable; (c) the date the income is reported to the minister; (d) the date the minister receives notice of the income. (2) Despite subsection (1), income that is received before the date that subsection (1) comes into force is subject to the application of section 9 of this regulation as it read immediately before subsection (1) came into force. Panel Decision The panel considered the “Finding of Facts” made by the panel in SECTION E –SUMMARY OF FACTS (above) and the following provisions of the applicable enactment, which are set out above: • Section 1 of the EAR, Section 10 of the EAR, which defines: (i) “earned income” and “unearned income” and (ii) the limits on income; • Schedule A of the EAR, which prescribes: (i) the maximum amount of income assistance before deduction of net income; (ii) monthly support allowance; • Schedule B, which describes the formula for the calculation of net income of the family unit and prescribes (i) the “Deduction and exemption rules” for “Net Income Calculation”; (ii) the deductions from “earned income” and “earned income” exemptions; and (iii) “unearned income” exemptions. As a result of the foregoing, the panel finds that the ministry reasonably determined that the appellant, as a member of a two-parent family unit with two dependent children, would be eligible to receive a maximum income assistance of up to $1301.60, consisting of $601.60 for monthly income support and $700.00, as a monthly shelter allowance in accordance with the applicable legislation. The panel further notes that the appellant has not disputed this determination made by the ministry. The ministry determined that the deposits in the appellant’s spouses accounts received on 20th April and 20th May 2020 possibly included basic “child tax benefit”, which is exempt under Section 1 (a) (v) of Schedule B when determining eligibility for income assistance. The amount was not included by the ministry in the appellant’s net income calculation. The panel finds that the ministry reasonably determined that any “child tax benefit” received by the appellant should not be included in the appellant’s net income calculation. According to the appellant’s information in the Notice of Appeal and oral evidence at the hearing, the appellant’s spouse received $300.00 in May 2020 as COVID-19 top-up pay for services rendered by the spouse to the employer. The panel finds that the ministry reasonably determined that the said top-up pay should be included as
APPEAL NUMBER 2020-00198 “earned income” in the payment of $1623.90 received by the appellant’s spouse on 20 May 2020. The appellant’s income, as determined above, is $2674.52 for the month of April 2020 and $1609.51 for the month of May 2020. As these amounts exceed the maximum of assistance of $1301.60 that the appellant’s family unit would be eligible to receive, the panel finds that the ministry reasonably determined that the appellant was not eligible for income assistance. The panel therefore confirms the Reconsideration Decision.
APPEAL NUMBER 2020-00198 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 X No LEGISLATIVE AUTHORITY FOR THE DECISION: Employment and Assistance Act Section 24(1)(a) X or Section 24(1)(b) and Section 24(2)(a) X or Section 24(2)(b) PART H – SIGNATURES PRINT NAME TAJDIN MITHA SIGNATURE OF CHAIR DATE (YEAR/MONTH/DAY) 2020/09/03 PRINT NAME ANIL AGGARWAL SIGNATURE OF MEMBER DATE (YEAR/MONTH/DAY) 2020/09/04 PRINT NAME LINDA SMERYCHYNSKI SIGNATURE OF MEMBER DATE (YEAR/MONTH/DAY) 2020/09/03
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