Ministry of Social Development and Poverty Reduction

APPEAL NUMBER 2020-00265 PART C – DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated November 16, 2020, in which the ministry found the appellant was not eligible for designation as a Person with Disabilities (“PWD”) under section 2 of the Employment and Assistance for Persons with Disabilities Act (“EAPWDA”). The ministry found that the appellant met the age and duration requirements but was not satisfied that:

• the appellant has a severe mental or physical impairment; • the appellant’s impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform daily living activities (“DLA”) either continuously or periodically for extended periods; and

• as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.

The ministry also found that the appellant was not 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 (“EAPWDR”). As there was no information or argument provided for PWD designation on alternative grounds, the panel considers that 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 - section 2

APPEAL NUMBER 2020-00265 PART E – SUMMARY OF FACTS The evidence and documentation before the minister at the reconsideration consisted of:

1. Information from the ministry’s record of decision indicating that the PWD application was received on September 23, 2020 and denied on September 30, 2020. On November 4, 2020, the ministry received the signed Request for Reconsideration (“RFR”) and completed the review of the RFR on November 16, 2020.

2. An RFR signed by the appellant on November 4, 2020, with a submission from a family member who described the appellant’s need for financial assistance and help with finding community activities and employment. The family member explained that the appellant has challenges with numbers (“cannot manage money by herself”); verbal communication (“her verbiage can be very simplistic”); and personal hygiene (“needs reminders”) but never received support from the government. The submission stated that the appellant was guided through school with family support, private schooling and a tutor. The appellant is currently spending a few days per week at school [post-secondary].

3. The PWD application comprised of:  the Applicant Information (self-report - “SR”) dated June 15, 2020, in which the appellant described her heart condition (“hole in the heart called Tetralogy of Fallot”) and learning disability with resulting restrictions;

 a Medical Report (“MR”) dated August 27, 2020, signed by the appellant’s general practitioner (“doctor”) who has known the appellant for 6 months and has seen the appellant 2 to 10 times in the past 12 months; and an

 Assessor Report (“AR”) dated August 27, 2020, also completed by the doctor who based the assessment on an office interview with the appellant and the patient medical chart.

4. A letter from the ministry dated September 30, 2020, with attached Denial Decision Summary advising that the appellant did not meet the criteria for PWD designation.

Summary of relevant evidence from the application: Diagnoses In the MR, the appellant was diagnosed with congenital heart disease and developmental disability (onset for both conditions 1992).

Under Section B, Health History, the doctor explained that the appellant’s congenital heart disease was “Tetralogy of Fallot” repaired when the appellant was a young child. The doctor wrote that the appellant has a growth impediment (small stature) and a developmental disability, “learning disability, mild delayed speech.”

Functional skills Self-Report The appellant described her learning disability: “I can’t read, I have hard time understanding and cannot compromise.” The appellant explained that she was in a special class in school because of her learning disability. The appellant added that when she does work, she “can’t focus and I have a hard time spelling.” The appellant wrote that she sometimes has problems reading and sometimes makes bad decisions and choices. The appellant also described difficulties with DLA [summarized under Daily living activities].

APPEAL NUMBER 2020-00265 Medical Report Under Section D - Functional Skills, the appellant can walk 1 to 2 blocks unaided on a flat surface; climb 5 or more steps unaided; lift less than 5 pounds, and remain seated for 1 to 2 hours.

The doctor checked that the appellant has no difficulties with communication. Under comments, the appellant checked other as the cause of her communication difficulties, “I didn’t start to talk until I got older.” Under Degree and Course of Impairment, the appellant wrote, “I will always have problems. My developmental delays will not heal.” [panel note, the appellant confirmed at the hearing that she filled in these comment sections. The doctor had left them blank].

When asked if there are any significant deficits with cognitive and emotional function (section D-6), the doctor checked yes and marked 1 of the 12 listed functions: Memory (comment, “subjective: slow learning uptake”). Under Part F - Additional Comments, the doctor wrote, “known for a short period but aware of her [family member’s] disability challenges.”

Assessor Report Under Section B-2, Ability to Communicate, the doctor indicated good ability for 3 of the 4 areas listed: Speaking, Writing, and Hearing. The doctor checked poor ability for Reading and left the Explain/Describe section blank.

Under section B-3, Mobility and Physical Ability, the doctor marked the appellant independent with all 6 of the areas listed: Walking indoors, Walking outdoors, Climbing stairs, Standing, Lifting, and Carrying/holding.

For section B-4, Cognitive and Emotional Functioning, the doctor provided information on impacts to functioning that are due to the appellant’s mental impairment:

 No impact in 4 of the 14 areas listed: Consciousness, Psychotic symptoms, Other neuro-psychological problems, and Other emotional or mental problems;  Minimal impact in 8 areas: Bodily functions, Emotion, Impulse control, Insight and judgment, Executive, Motivation, Motor activity, and Language;  Moderate impact in 2 areas: Attention/concentration, and Memory. Daily Living Activities Self-report The appellant states that it can be hard to look after herself. She has trouble understanding how to manage money; is unable to read, and sometimes needs to be reminded to have good hygiene,

Medical Report The doctor check marked no when asked if the appellant is prescribed medications or treatments that interfere with the ability to perform DLA.

In Section E - Daily Living Activities, the doctor checked yes, the impairment restricts the appellant’s ability to perform DLA. On the list of specific DLA, the doctor checked that 4 of the 10 DLA listed are restricted.

APPEAL NUMBER 2020-00265 The reported restrictions were:  Meal preparation - continuously restricted  Mobility outside the home - periodically restricted  Use of transportation - periodically restricted  Management of finances - continuously restricted When asked to explain the periodic restrictions the doctor wrote that the appellant “will require supervision; periodic and situational.”

The doctor indicated that 4 DLA on the list are not restricted either continuously or periodically:  Basic housework  Daily shopping  Mobility inside the home  Social Functioning The doctor did not provide any information for Personal self care or Management of Medications. Assessor Report In Section C, Daily Living Activities, the doctor marked the appellant independent with all areas for 2 (out of 8) DLA listed on the form:

 Personal Care: the appellant is independent with Dressing, Grooming, Bathing, Toileting, Feeding self, Regulating diet, Transfers (in/out of bed), and Transfers (on/off chair);  Basic housekeeping: the appellant is independent with Laundry, and Basic Housekeeping. Restricted DLA For 6 DLA: Shopping, Meals, Pay Rent and Bills, Medications, Transportation, and Social Functioning, the doctor indicated the following restrictions with check marks and did not provide any explanation or comments:

 Shopping: the appellant requires periodic assistance with all activities: Going to and from stores, Reading prices and labels, Making appropriate choices, Paying for purchases, and Carrying purchases home.

 Meals: the appellant needs continuous assistance in all areas: Meal planning, Food preparation, Cooking, and Safe storage of food.

 Pay Rent and Bills: the appellant requires periodic assistance with all activities: Banking, Budgeting, and Pay rent and bills.

 Medications: the appellant requires periodic assistance with all activities: Filling/refilling prescriptions, Taking as directed, and Safe handling and storage.

 Transportation: the appellant requires periodic assistance in all areas: Getting in and out of a vehicle, Using public transit, and Using transit schedules and arranging transportation.

 Social Functioning: the appellant is independent with 2 of the 5 areas listed: Able to develop and maintain relationships, and Interacts appropriately with others.

APPEAL NUMBER 2020-00265 -The appellant requires periodic support/supervision in 3 areas: Appropriate social decisions; Able to deal appropriately with unexpected demands; and Able to secure assistance from others.

-The doctor checked that the appellant has marginal functioning with both her immediate and extended social networks.

-The doctor did not provide a response to the question about any safety issues. Need for help Medical Report Under Health History (Part B), the doctor marked no, the appellant does not need any prostheses or aids for the impairment. In Part E - Daily Living Activities, the doctor explained the periodic assistance needed for Mobility outside the home, and Use of transportation, “patient will require supervision; periodic and situational.” The doctor was asked specifically, what assistance does your patient need with Daily Living Activities? The doctor wrote, “supervision with finances, transportation, and meal preparation.”

Assessor Report In the AR, the RN checked that the appellant lives with family. Regarding the periodic support/supervision the appellant requires for Social Functioning, the doctor wrote that the appellant needs help from family members, close friends/contacts, and a social worker to be maintained in the community. The doctor did not provide an explanation for the help needed to manage the other DLA with reported restrictions but wrote, “requires periodic supervision for transportation and financial care.”

In section D - Assistance Provided for Applicant, the doctor checked that family and friends help the appellant with DLA. The doctor left the section on Assistance provided through the use of Assistive Devices blank. For Assistance provided by Assistance Animals, the doctor checked no.

Additional information Subsequent to the reconsideration decision, the appellant filed the Notice of Appeal with an attached letter from the appellant and her advocate (family member) dated November 20, 2020. The panel accepted the letter as argument.

Neither party provided additional documents or oral evidence that require an admissibility determination under section 22(4) of the Employment and Assistance Act. The ministry relied on the reconsideration decision and both parties provided argument at the hearing. The panel considers both parties’ arguments in Part F - Reasons for panel decision.

APPEAL NUMBER 2020-00265 PART F – REASONS FOR PANEL DECISION The issue on appeal is whether the ministry’s decision that found the appellant ineligible for PWD designation was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant. The panel’s role is to determine whether the ministry was reasonable in finding that the following eligibility criteria in section 2 of the EAPWDA were not met:

• the appellant has a severe mental or physical impairment; • the appellant’s impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform DLA either continuously or periodically for extended periods; and

• as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.

The ministry based the reconsideration decision on the following legislation: EAPWDA 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) in 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) continuously, or (B) periodically 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) the significant help or supervision of another person, or

APPEAL NUMBER 2020-00265 (iii) the services of an assistance animal. (4) The minister may rescind a designation under subsection (2). EAPWDR Definitions for Act 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) prepare own meals; (ii) manage 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) in 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) For 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) registered nurse or registered psychiatric nurse, (iv) occupational therapist,

APPEAL NUMBER 2020-00265 (v) physical therapist, (vi) social worker, (vii) chiropractor, or (viii) nurse practitioner, Analysis Severe mental or physical impairment To be eligible for PWD designation, the legislation requires several criteria to be met including the minister being satisfied that the applicant has a severe mental or physical impairment. The ministry found the appellant was not eligible for PWD because not all of the criteria were met. “Severe” is not defined in the legislation but in the ministry’s view, the diagnosis of a serious medical condition does not in itself establish a severe impairment of mental or physical functioning.

Mental impairment To assess the severity of a mental impairment, the ministry considers the extent of any impact on daily functioning as evidenced by limitations/restrictions with mental functions and emotion. The ministry does not only look at the diagnosis or a medical practitioner’s comment that the condition is “severe” but considers the bigger picture including whether there are restrictions to DLA requiring mental/social functioning and whether significant help is required to manage DLA. The panel finds that an assessment of severity based on mental and social functioning and restrictions to DLA is a reasonable interpretation of the legislation.

Arguments - mental impairment Appellant In her submissions (SR, RFR and Notice of Appeal), the appellant argued a severe impairment of mental functioning because of her learning and developmental disabilities. The appellant submits that she has worked hard to overcome her challenges without being “part of the system” but there is a chance she could potentially fall if left to her own accord without financial support or help to find a job that she is capable of doing.

The appellant argued that the impairment “sometimes” restricts mental functions, especially reading and math, as well as the ability to focus and compromise, and make good choices and decisions. At the hearing, the appellant said that she thinks her learning disability is dyslexia but she has not had any psychological tests or assessments to confirm her restrictions. The appellant said she is not sure why she was never tested but a close family member also has a learning disability and dyslexia.

The appellant stated that she is currently in college two days per week and is comfortable using a computer for school. The appellant explained that she did not have her own doctor so she went to her family member’s doctor to get the PWD forms filled out. The appellant confirmed that she only saw the doctor once even though the doctor said they had seen the appellant “2 to 10 times.” The appellant explained that she is a new patient but the doctor is familiar with her family member’s disability.

APPEAL NUMBER 2020-00265 Ministry The ministry argued that the “limited information” from the doctor does not support a severe degree of mental impairment because only one significant deficit was reported for cognitive and emotional functioning in the MR (Memory), and no major impacts were reported in the AR. The ministry noted that Attention/concentration and Memory were the only functions that were moderately impacted by the appellant’s learning/developmental disability (AR) and most areas of cognitive and emotional functioning were assessed as No impact or Minimal impact.

The ministry further argued that the appellant’s poor ability with reading (AR) was not supported by the doctor’s assessments of DLA which said that the appellant was independent with activities that involve reading. The ministry acknowledged that the appellant has some difficulties with memory, learning, and reading but argued the doctor provided “very limited information” about the situational assistance the appellant requires for activities.

In response to questions at the hearing, the ministry confirmed that in PWD eligibility decisions, more weight is given to the doctor’s information than the appellant’s submissions but the decision maker assesses all of the evidence. The ministry stated that testing results could be included in the assessment. The ministry said it cannot give any medical advice but testing is recommended because “it might help explain what the disability is” and give more information on what help the appellant could benefit from.

The ministry explained that it requires detailed information about “periodic support” to gauge the severity of the impairment but in the MR and the AR the doctor just “ticked the boxes” and did not add anything “even though the instruction book says to add it.” The ministry explained that the decision maker does not give more weight to the AR versus the MR but looks at the information as a whole and cross checks the two reports for consistency.

The ministry explained that the purpose of the MR is to give an overview of the impairment and the assessor has the opportunity to add further detail in the AR. The ministry explained that they are not saying that the appellant does not have a disability but the limited information in the reports was not enough to show that the appellant’s disability significantly impacts her daily functioning resulting in a severe impairment.

Panel’s decision - mental impairment Section 2(2) of the legislation requires evidence of a severe impairment. The ministry concluded that the evidence from the doctor did not establish a severe impairment of mental functioning. The panel has considered the information in the PWD application as well as the submissions for the reconsideration and appeal. For the reasons that follow the panel finds that the ministry’s decision was reasonable.

In the MR, the appellant was diagnosed with a mental impairment: developmental disability and learning disability but the appellant’s communication ability was good in most areas (“mild” speech delay). The doctor did not indicate the speech problems reported by the appellant (unable to talk until she was older, and “verbiage can be very simplistic”).

The appellant’s reading ability was marked as poor but the doctor indicated that only periodic assistance was required with reading labels, schedules, medication containers, etc. The appellant also testified that she is comfortable using a computer for school, a task that can involve reading and following instructions.

Under Additional Information in the AR, the doctor described the family member’s disability (“mild disability challenges”) but did not comment on whether there was a hereditary component that led to the appellant’s impairment or whether the appellant’s impairment was also mild. The rest of the information on cognitive/emotional functioning suggests a mild impairment because the doctor indicated there was no significant deficit in most areas of cognitive/emotional functioning (AR).

APPEAL NUMBER 2020-00265 Further, the appellant’s impairment had only a mild impact or no impact for most cognitive and emotional functions. The appellant said that she sometimes makes bad decisions/poor choices but the doctor did not indicate any significant deficit or impact with Insight and judgment.

The doctor described the appellant’s impairment in the area of Memory as significant (MR comment, “subjective” due to “slow learning uptake”) and having a moderate impact (AR). The doctor did not add further details about the appellant’s challenges with memory and the appellant indicated that she sometimes needs reminders for only one activity (hygiene).

The evidence was that the appellant has navigated her learning and developmental disabilities without any formal testing or help from professionals other than tutors at school. The appellant said at the hearing that there was a worker who assisted the family but the person wasn’t a social worker. In her written submissions, the appellant and advocate described the appellant as “sometimes” needing help with cognitive functions such as reading, tasks involving numbers, and decision making, but most of the appellant’s submissions focused on the need for financial and employment support rather than restrictions with learning and cognition.

The panel finds that the ministry reasonably concluded that the evidence as a whole did not show a severe impairment of the appellant’s cognitive and emotional functions. Accordingly, the ministry was reasonable in applying the legislation to find that a severe mental impairment under section 2(2) of the EAPWDA was not established on the evidence.

Physical impairment To assess whether the applicant has a severe physical impairment, the ministry considers information on the degree of restrictions to physical functioning, restrictions to DLA involving movement, and whether the applicant requires significant help or any assistive devices to manage DLA. The panel finds that the assessment of severity based on daily physical functioning is a reasonable interpretation of the legislation.

Arguments - physical impairment Appellant The appellant’s focus was on her learning disability rather than the physical impairments that were noted in the MR (congenital heart disease and growth impediment). The appellant described being born with a hole in her heart and having a surgical repair when she was young. The appellant did not talk about restrictions to her physical abilities. When asked at the hearing about any physical restrictions, the appellant argued that she has restrictions with walking and outdoor mobility (maximum 1 to 2 blocks - MR) because her heart condition “makes it a little hard to do physical things…gets tired...heart pounds if I walk too far.”

Ministry The ministry argued that the appellant does not have a severe physical impairment because the information in the PWD medical reports did not indicate the need for any aids/protheses, and all physical functions were marked independent in the AR despite restrictions in the MR for walking, lifting, and remaining seated.