Ministry of Social Development and Poverty Reduction

APPEAL NUMBER 2021-0116

PART C – DECISION UNDER APPEAL

The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) reconsideration decision dated May 14, 2021, which determined that the appellant was not eligible for Persons with Disabilities (PWD) designation, as per section 2 of the Employment and Assistance for Persons with Disabilities Act and sections 2 and 2.1 of the Employment and Assistance for Persons with Disabilities Regulation.

Specifically, the ministry found: - the appellant does not have a severe mental or physical impairment; - there is no confirmation that the impairment is likely to continue for two years or more; - the impairment does not significantly restrict the appellant’s ability to perform daily living activities; and - the appellant does not require the significant help or supervision of another person to perform daily living activities restricted by the impairment.

The ministry 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. 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 and 2.1

APPEAL NUMBER 2021-0116

PART E – SUMMARY OF FACTS

Relevant Evidence Before the Minister at Reconsideration Ministry records show the appellant is over 18 years of age. Persons with Disabilities (PWD) Application (January 15, 2021)  Medical report (MR) - signed by appellant’s doctor (January 15, 2021) Specific Diagnosis – Triple X Syndrome (47 chromosome) - since birth, childhood. Diagnostic Codes marked (anxiety disorders, visually impaired, diseases of the circulatory system, scoliosis, chromosomal abnormalities).

For the question, “Is the impairment likely to continue for two or more years from today?”, the doctor did not provide a response.

Functional Skills 1. Walk unaided on a flat surface? – 4+blocks 2. Climb stairs unaided? – 5+ steps 3. Limitations in lifting? – no limitations 4. How long remain seated? – no limitation 5. Difficulties with communication? – no 6. Significant deficits with cognitive and emotional function? The doctor indicated the following were areas where deficits are evident: - executive (planning, organizing, sequencing, calculations, judgement) - language (oral, auditory, written comprehension or expression) - emotional disturbance (anxiety) Comments: as per assessment – Triple X Syndrome

Daily Living Activities “Does the impairment directly restrict the person’s ability to perform Daily Living Activities” (DLA)s? – no.

Frequency of Contact How long has the appellant been your patient? – five years. Prior to today, how often have you seen the appellant in the past 12 months? – 2-10 times.

 Assessor Report (AR) – signed by appellant’s doctor (January 15, 2021) Living Environment – The appellant lives with family. Mental or Physical Impairment Ability to communicate - speaking, reading, writing, hearing - all marked “Good”. Mobility and Physical Ability – walking indoors, walking outdoors, climbing stairs, standing, lifting, carrying and holding - all marked “Independent”.

APPEAL NUMBER 2021-0116

Mental or Physical Impairment The following indicates the degree the appellant’s mental impairment restricts or impacts her functioning. “No Impact” - Bodily functions (e.g. eating and toileting problems, poor hygiene, sleep disturbance) - Consciousness (e.g. orientation, alert/drowsy, confusion) - Impulse control (e.g. inability to stop doing something or failing to resist doing something) - Insight and judgement (e.g. poor awareness of self and health condition(s), grandiosity, unsafe behaviour) - Memory (e.g. can learn new information, names etc., and then recall that information, forgets over-learned facts) - Motivation (e.g. lack of initiative, loss of interest) - Motor activity (e.g. increased or decreased goal-oriented activity, coordination, lack of movement, agitation, ritualistic or repetitive actions, bizarre behaviours, extreme tension) - Language (e.g. expression or comprehension problems - inability to understand, extreme stuttering, mute, racing speech, disorganization of speech) - Psychotic symptoms (e.g. delusions, hallucinations, disorganized thinking) - Other neuropsychological problems (e.g. visual/spatial problems, psychomotor problems, learning disabilities) - Other emotional or mental problems (e.g. hostility) “Moderate Impact” - Attention/concentration (e.g. distractible, unable to maintain concentration, poor short-term memory) - Executive (e.g. planning, organizing, sequencing, abstract thinking, problem-solving, calculations) “Major Impact” - Emotion (e.g. excessive or inappropriate anxiety, depression) Daily Living Activities The appellant’s doctor indicated the appellant was independent with all of the following: Personal Care - dressing, grooming, bathing, toileting, feeding self, regulating diet, transfers (in/out of bed and on/off chair) Basic Housekeeping – laundry, basic housekeeping Shopping – going to and from stores, reading prices and labels, making appropriate choices, paying for purchases, carrying purchases home Meals – meal planning, food preparation, cooking, safe storage of food Pay Rent and Bills – banking, budgeting, pay rent and bills Medications – filling/refilling prescriptions, taking as directed, safe handling and storage Transportation – getting in and out of a vehicle, using public transit, using transit schedules and arranging transportation Social Functioning - appropriate social decisions, able to deal appropriately with unexpected demands, able to secure assistance from others

The appellant requires continuous support/supervision for her ability to develop and maintain relationships (anxiety – awkward).

“Describe how the mental impairment impacts the appellant’s relationship with her immediate social network.” – marginal functioning – little significant participation/communication; relationships often minimal and fluctuate in quality.

APPEAL NUMBER 2021-0116

Extended social networks – marginal functioning – little more than minimal acts to fulfill basic needs. Assistance Provided for Applicant The assistance required is provided by family.

The appellant does not have an assistance animal. Letter from the Ministry to the Appellant (February 11, 2021) - Denying the appellant PWD designation Request for Reconsideration (March 5, 2021) Letter from Appellant’s Doctor (April 29, 2021) Diagnosis of Triple X Syndrome at birth. Presence of an extra X chromosome. 1/1000 Live births. 90% asymptomatic. The phenotype associated with this disorder varies widely. Most common symptoms include: 1. Language-based learning disabilities 2. Developmental dyspraxia 3. Tall statue 4. Low muscle tone (hypotonia), clumsiness, deficient motor planning skills, developmental dyspraxia 5. Mild face abnormalities - epicanthal folds, hypertelorism, smaller than normal circumference 6. Mildly impaired non-verbal IQ and below average verbal IQ 7. Increased anxiety and ADHD – distractibility, low self-esteem, behavioural problems, social avoidance The doctor states he has been the appellant’s GP for approximately 10 years. In his opinion the appellant exhibits the higher extent of the spectrum as described above. Although she has coped well while in the care of her loving parents, the doctor has significant concerns regarding her eventual function as an independent adult. Primary concerns include employment and social relationships.

Letter from Appellant’s Parents (on behalf of the appellant) (May 4, 2021) - The information below provides details on how the appellant is restricted in performing DLAs and therefore needs assistance. The chromosome condition cannot be cured and so her daily limitations will last a lifetime. - Her slowness in processing information limits her ability to perform activities such as washing her hair, taking care of personal appearance, grooming and having a shower. - The appellant’s tactile sensitivities prevent her from cooking (she is afraid of handling meats and slimy items). - Due to her anxiety, the appellant has never gone on her own to shop. She always needs an adult with her as she is afraid of making transactions. - When going shopping she takes at least half an hour or longer to try clothes on for one or two outfits. And, she takes longer than other adults to get dressed in the morning. - The appellant needs to be prompted to eat as she opts not to eat unless she is reminded that she needs nutritious food. - The appellant does not have a driver’s license, so she relies on her parents to go places. - She has never taken the bus alone. When going on public transportation, the appellant wants to hold her parents’ hands as she gets anxious and wants to cry.

APPEAL NUMBER 2021-0116

These issues are in addition to scoliosis, heart issues, anxiety, back pain and constipation (due to lack of muscle tone).

The appellant has a severe impairment that significantly restricts her ability to perform her DLAs as she needs ongoing help from other people, and/or takes longer to complete tasks on her own - due to the Triple X Syndrome, which will last for her lifetime.

Supporting Documents provided by Appellant - Cytogenetics Report confirming Triple X Syndrome (October 16, 2000) - Letter from eye clinic - history description (July 19, 2006) - Spectacle Lens Report (October 16, 2020) - Fitbit screen shots documenting heart rate patterns (December 2020) - Psychoeducation Assessment Report (August 3, 2016) - Individual Education Plan (2017 – 18) Additional Information Appellant Notice of Appeal - summary (June 4, 2021) Reasons for Appeal 1. The ministry stated that the appellant only qualified in one of the five categories. 2. The condition is only considered to be mild to moderate. 3. Even though the ministry acknowledges the condition/impairment is likely to last/continue longer than two years, the doctor can’t confirm the impairment will as it is new to him as well. 4. There is no cure for Triple X Syndrome (47 chromosomes xxx 25 cells). This impairment is life long, starting from birth. 5. Children and adults with Downs Syndrome or Autism can also dress themselves, walk five blocks, climb stairs, communicate with others and seem to have PWD designation. 6. The appellant gets along very well with a boy diagnosed with Autism. They are both taller and leaner than other adults, or kids their own age growing up. Mentally both are slow in grasping or duplicating tasks.

The appellant was diagnosed with Triple X Syndrome prenatally. A girl born with the disorder will always have a third X chromosome - therefore this is a prolonged condition. Research into Triple X Syndrome is quite basic. Current evidence suggests that having an extra X chromosome affects the executive functioning of the brain and makes it difficult for affected girls to manage time, build social skills, or focus on tasks. The appellant needs a reconsideration on her condition and her ability to sustain work and her quality of life.

At the hearing, the appellant’s parents (on behalf of the appellant) stated they are trying to see the future for the appellant. They see how her impairment affects her life every day. When they visit a doctor, the doctor only sees the appellant for a brief time and treats the immediate problem, not the whole syndrome (an accumulation of issues). As well, there is no specialist for Triple X Syndrome, so they visit different specialists for related issues (e.g. cardiologist).

In school the appellant received extra help (e.g. not given as much homework, sat at the front of the class etc.), but an employer doesn’t haven time to provide the accommodations she needs. The

APPEAL NUMBER 2021-0116

appellant has never held a job. She had the opportunity to participate in two practicums, which didn’t turn out.

Ministry At the hearing, the ministry relied on its record and stated that the ministry doesn’t dispute that the appellant experiences difficulties every day. However, the legislation requires certain criteria to be met. For example, the information has to be supported by a medical professional. And, the intent of the psychoeducational assessment was to assess ability in an education setting, which is not the same as a work setting.

As well, the ministry acknowledged the contradictory information in the reconsideration decision, regarding whether or not the impairment would continue for two or more years. The ministry stated the incorrect “check box” was marked and clarified this criterion was not met.

The panel determined that the additional information is reasonably required for a full and fair disclosure of all matters related to the decision under appeal and therefore is admissible under section 22(4) of the Employment and Assistance Act.

APPEAL NUMBER 2021-0116

PART F – REASONS FOR PANEL DECISION

The issue on appeal is whether the ministry’s reconsideration decision, which determined that the appellant was not eligible for PWD designation, as per section 2 of the EAPWDA and sections 2 and 2.1 of the EAPWDR, was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant.

Specifically, did the ministry reasonably determine that: - the appellant does not have a severe mental or physical impairment; - there is no confirmation that the impairment is likely to continue for two years or more; - the impairment does not significantly restrict the appellant’s ability to perform daily living activities; and - the appellant does not require the significant help or supervision of another person to perform DLAs restricted by the impairment?

The ministry determined the age requirement was met. Relevant sections of the legislation can be found in the Schedule of Legislation. Appellant Argument The appellant’s parents (on behalf of the appellant) argue she was diagnosed with Triple X Syndrome, a lifelong condition, which evidence suggests affects the executive functioning of the brain making it difficult to manage time, build social skills, or focus on tasks. The appellant is restricted in performing DLAs in several ways. - Her slowness in processing information limits her ability to perform activities such as washing her hair, taking care of her personal appearance, grooming and having a shower. - Her tactile sensitivities prevent her from cooking. - Due to her anxiety, the appellant has never gone on her own to shop. She always needs an adult with her as she is afraid of making transactions. - When going shopping she takes at least half an hour or longer to try clothes on for one or two outfits. And, she takes longer than other adults to get dressed in the morning. - The appellant needs to be prompted to eat as she opts not to eat unless she is reminded that she needs nutritious food. - The appellant does not have a driver’s license, so she relies on her parents to go places. - The appellant has never taken the bus alone. When going on public transportation, she wants to hold her parents’ hands as she gets anxious and wants to cry. These issues are in addition to the appellant’s scoliosis, heart issues, anxiety, back pain and constipation.

The appellant’s parents argue further they are trying to see the future for the appellant. They see how her impairment affects her life every day. When they visit a doctor, the doctor only sees the appellant for a brief time and treats the immediate problem, not the whole syndrome (an accumulation of issues).

Ministry Argument The ministry argues the appellant is not eligible for PWD designation as section 2(2) and (3) of the EAPWDA lists five criteria that must be met in order for the ministry to grant the designation and the appellant has not met all five.

Duration: The ministry argues it has not been confirmed by a medical practitioner that the impairment resulting from the appellant’s medical condition is likely to continue for two years or more.

APPEAL NUMBER 2021-0116

Severity of the Impairment: The ministry argues that, based on the information provided, the appellant does not have a severe physical impairment. In the MR, the appellant’s doctor reports the appellant has not been prescribed any medication and/or treatment that may interfere with her ability to perform daily living activities and she does not require any prostheses or aids for her impairment. The doctor also reports the appellant can walk four or more blocks and climb five or more steps without assistance. She has no limitation to the amount she can lift, or the duration she can remain seated. In the AR, her doctor reports that the appellant can complete all assessed mobility and physical ability functions independently. The ministry also argues that while the appellant experiences back pain due to scoliosis, no information has been provided to support a severe physical impairment.

The ministry argues further that, based on the information provided, the appellant does not have a severe mental impairment. In the MR, the appellant’s doctor reports the appellant has significant deficits to her cognitive and emotion function in the areas of executive, language, and emotional disturbance due to Triple X Syndrome. In the AR, the doctor reports the appellant has a major impact to her daily functioning regarding emotion. Moderate impacts were noted in attention/concentration and executive. However, all other areas have no impact on her daily function. When these deficits and impacts are considered in conjunction with the daily living activities, the ministry argues a severe degree of impairment is not established. As well, the appellant is reported by the appellant’s doctor to be independent in all areas other than requiring support/supervision with one aspect of social functioning and independent in all activities related to making decisions about personal activities, care, and finances. The appellant’s doctor indicates the appellant does not have difficulties with communication. In the AR, the appellant was assessed to have good abilities in speaking, reading, writing, and hearing.

And in the letter (April 29, 2021), the appellant’s doctor does not identify specific deficits or impacts the appellant experiences, but rather discusses the varied phenotype of those with her medical condition. The psychoeducational assessment and Individual Educational Plan discuss the appellant’s learning abilities, and accommodations required for learning in the classroom environment, but do not speak to the appellant’s daily functioning as an adult.

Daily Living Activities: In the MR, the appellant’s doctor states the appellant’s impairment does not directly restrict her ability to perform DLAs. In the AR, the doctor reports that the appellant is independent in almost all daily living activities apart from one aspect of social functioning. However, the appellant is also reported to be independent in making appropriate social decisions, interacting appropriately with others, dealing with unexpected demands, and security assistance from others and to be able to maintain marginal functioning in immediate and extended social networks. No safety concerns were identified, and she was not reported to require support/supervision in the community.

The ministry argues that in the letter from the appellant’s parents (May 4, 2021), several examples of the appellant’s daily limitations are provided but this level of support was not identified by the appellant’s doctor, nor in the other information submitted from prescribed professionals, who either did not assess her daily living activities, or assessed her to be independent, as is the case for the PWD application submitted. The April 29, 2021 letter indicates the appellant has “coped well” in the care of her parents, but there is concern regarding her eventual function as an independent adult, primarily regarding employment and relationships. However, this information does not describe the support the appellant receives from her parents with regards to the daily living activities set out in legislation nor specific areas she may continue to require support.

Help Required with DLAs: The appellant’s doctor reports the appellant receives help from her family. However, as it has not been established that daily living activities are significantly restricted (criterion 4), it cannot be determined that significant help is required from other persons or a device.

APPEAL NUMBER 2021-0116

The ministry also argues that, it has not been demonstrated that the appellant is one of the prescribed classes of persons who may be eligible for the PWD designation on alternative grounds (as set out in EAPWDR, Section 2.1).

Analysis Section 2(2) and (3) (EAPWDA) – PWD designation Section 2 (EAPWDA) states the minister may designate a person who has reached 18 years of age as a person with disabilities if that person has a severe mental or physical impairment that in the opinion of a medical practitioner is likely to continue for at least two years, and directly and significantly restricts the person's ability to perform daily living activities either continuously, or periodically for extended periods, and as a result, the person requires help to perform those activities.

The ministry determined that the age requirement was met and did not dispute that the appellant’s doctor (who signed the MR, AR and letter – April 29, 2021) is a medical practitioner.

Severe Mental or Physical Impairment Continues for Two Years Section 2(2) (EAPWDA) states the minister must be satisfied that the person has a severe mental or physical impairment that in the opinion of a medical practitioner is likely to continue for at least

two years.

The appellant argues she was diagnosed with Triple X Syndrome, a lifelong condition. The ministry argues it has not been confirmed, by a medical practitioner, that the impairment resulting from the appellant’s medical condition is likely to continue for two years or more. The panel notes, in the MR, for the question, “Is the impairment likely to continue for two or more years from today?”, the doctor did not provide a response. The panel acknowledges that there can be confusion between having the Triple X Syndrome for life and assessing the manifestation of the symptoms at a point in time. However, as the appellant’s doctor did not indicate that the impairment is likely to continue for at least two years, and the legislation requires a medical practitioner to confirm this information, the panel finds the ministry reasonably determined this criterion was not met.

Severe Physical Impairment The ministry argues that, based on the information provided, the appellant does not have a severe physical impairment. With no medical practitioner or nurse practitioner assessment finding assessed restrictions or limitations to the appellant’s mobility and physical abilities, the ministry cannot establish a severe physical impairment. The panel notes in the MR, the doctor stated the appellant can walk unaided four or more blocks, climb five or more steps, and has no limitations in lifting or remaining seated. Therefore, the panel finds it reasonable that the ministry was not satisfied that the appellant does not have a severe physical impairment.

Severe Mental Impairment The ministry argues that based on the information provided, the appellant does not have a severe mental impairment. When her deficits and impacts are considered in conjunction with the daily living activities, a severe degree of impairment is not established. The panel notes in the AR, the doctor indicated there was no impact for bodily functions, consciousness, impulse control, insight and judgement, memory, motivation, motor activity, language, psychotic symptoms, other neuropsychological or emotional or mental problems and no difficulties with communication. Therefore, the panel finds it reasonable that the ministry was not satisfied that the appellant does not have a severe mental impairment.

APPEAL NUMBER 2021-0116

Severe Impairment Restricts Ability to perform DLAs Section 2(2) (EAPWDA) states, in order to be eligible for PWD designation, a person must have a severe mental or physical impairment that directly and significantly restricts the person's ability to perform DLAs continuously or periodically, and as a result requires help.

Section 2(1) (EAPWDR) – daily living activities Section 2(1) of the EAPWDR states DLAs, in relation to a person who has a severe physical or 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.”