Ministry of Social Development and Poverty Reduction

APPEAL NUMBER 2021-0124

PART C – DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction (the Ministry) Reconsideration Decision (RD) dated June 3, 2021, which determined that the Appellant received an overpayment of income assistance (IA), totaling $6711.58, which she is required to repay because her spouse was enrolled in full-time schooling from September 21, 2020 to February 2021.

PART D – RELEVANT LEGISLATION Employment and Assistance Act (EAA) Sections 1, 2, 11, 17(3), 27 and 28 Employment and Assistance Regulation (EAR) Sections 1, 16 and 89 Canada Student Financial Assistance Regulations Section 2(1)

The relevant legislation is provided in Appendix A

APPEAL NUMBER 2021-0124

PART E – SUMMARY OF FACTS

The evidence before the Ministry at the time of the RD included:  A Request for Reconsideration (RFR) dated May 20, 2021 and signed by the Appellant, in which the Appellant wrote that:

o She and her ex-husband have been together for 14 years and married for 3 years; o Her ex-husband has been financially, spiritually, and physically abusive throughout the relationship and wouldn't allow her to take care of anything related to their finances: he would not allow her to look for a job, he controlled all the passwords to their online accounts, and he took care of all their important documents;

o In February 2021, her ex-husband strangled her in front of her children, after which the Appellant fled to a transition house with her children and saw a doctor for her injuries from the strangulation;

o Her ex-husband always filled out the IA monthly reports (the Monthly Reports), never allowing her to look at them when he was filling them out, and he wouldn’t tell her the personal identification number (PIN) used to submit the Monthly Reports;

o She didn’t learn about the IA overpayment until after she left her ex-husband. Her ex-husband selected “yes” when asked if the Appellant was attending or enrolled in school, when in fact she was not, other than attending a “government provided English course”. She also didn’t know that her ex-husband had indicated in the Monthly Reports that he was not attending school;

o Since leaving her ex-husband in February 2021, her ex-husband has taken all of the Appellant’s important documents (immigration files, birth certificate, etc.) and has committed fraud against her multiple times by contacting different government agencies and changing her personal information and credentials, which she has reported to the police. Her ex-husband has also been charged with assault and strangulation. She and her children are the subject of a protection order (the Protection Order), the conditions of which her ex-husband has breached multiple times. She is now getting a divorce; and,

o She is a single mother and her only income is IA and child tax benefits. She is not responsible for repayment of the IA amounts because she was the victim of domestic violence and her ex-husband is responsible for incorrectly filling out the Monthly Reports and committing fraud in her name.

 A Protection Order dated February 26, 2021 between the Appellant and her ex-husband, ordering that her ex-husband “shall not have contact or communicated directly or indirectly with (the Appellant) or the children” and that her ex-husband “shall not attend at, enter or be found within 100 meters of the residence, place of employment or school of (the Appellant) or the children”;

 A worksheet printed on May 18, 2021 in the name of the Appellant (the Overpayment Chart) for the five income assistance months from October 2020 through February 2021 inclusive, with the assistance amount, the eligible amount and the overpayment amount for each assistance month,

APPEAL NUMBER 2021-0124

and showing a total assistance amount of $9,411,58, an eligible amount of $2,700, and an overpayment amount of $6,711.58; and,

 Five Monthly Reports dated October 21, 2020, November 19, 2020, December 17, 2020, January 22, 2021, and February 17, 2021. Each Monthly Report identifies the Appellant as “Applicant 1” and her ex-husband as “Applicant 2”, and in each Monthly Report boxes have been ticked to indicate that the Appellant was attending school and was not looking for work and that her ex-husband was not attending school and was looking for work. No income is reported for the family unit In any of the five Monthly Reports.

Additional Information Submitted after Reconsideration In the Appellant’s Notice of Appeal (NOA) dated June 9, 2021, the Appellant provides the same information that she included with her RFR.

The Appellant made a submission on June 24, 2021 comprising:  A one page letter dated June 22, 2021 from the Appellant’s Advocate to the Employment and Assistance Appeal Tribunal (EAAT) in which the Advocate writes that:

o The Appellant called the crisis line for the social service agency for which they work (the Agency) on February 21, 2021, following which the Agency moved the Appellant and her children into a transition house;

o Since the Appellant left her ex-husband, her ex-husband has been continuously harassing her by attempting to remove her name from many different accounts, including the Canada Revenue Agency and Immigration and Citizenship Canada. He was also able to convince the Appellant’s landlord to change the locks at their home and he has taken almost all the Appellant’s and their children’s identification documents;

o The Appellant now has full time guardianship of the children, and she works diligently to ensure the children have the appropriate supports; and

o The Appellant is eager to be financially and emotionally independent. Having to repay the IA overpayment will make it difficult for her to reach her goals.

The Advocate closes by urging the Ministry “to consider withdrawing the entire owed amount, or at least 50%, so (the Appellant) can keep supporting the kids by receiving IA”; and,

 A one page note dated June 22, 2021 from the Appellant to EAAT in which she summarizes some of the information in the RFR and writes that : o She “had the knowledge that (my ex-husband) was studying but not full time. Also, I did not know that he would receive a loan and he always denied that they had given it to him. The most important thing in this process relating to income assistance, is that he was the one who filled out the monthly report, I never knew what PIN to enter (to access my account on the Ministry’s My Self Serve platform)”; o She had reset the password, but her ex-husband tried to change it several times after it had been reset; and,

APPEAL NUMBER 2021-0124

o She wanted “to make it clear that my intention has never been to misuse or take advantage of the help that the government provides because I am in need. On the contrary, I am always grateful, especially since (I) am a single mother. I understand that you want me to pay the money because my name appears as the main provider on the account. However, we were a family and (my ex-husband) put me down (as) the main provider without my knowledge. For that reason, should you decide that I am responsible for the owed amount, please reconsider that I am only responsible for only half of the amount.”

At the hearing, the Appellant explained that she and her family had immigrated to Canada from another Country and that she is now a single mother who still requires IA. The Appellant stated that she does not agree with the Ministry’s RD because she was in an abusive relationship, her ex-husband controlled every aspect of their finances, and that he could not work because he was a full-time student. She said that she knew he was taking courses but was not aware that he was studying full-time. She explained that she was taking English language courses part-time but otherwise was not attending school.

The Appellant stated that her ex-husband had committed fraud by filling out the Monthly Reports to indicate that he was not attending school and was looking for work, and that she was at school and not looking for work, when in fact the opposite was true. The Appellant explained that her ex-husband had applied for IA with the Appellant identified as the primary applicant (Applicant 1) even though he controlled the password to the Ministry’s My Self Serve online access to IA (MYSS) and wouldn’t tell her what the password was, so she had no access to MSS or her IA file. The Appellant said that this proves that she was never able to receive or complete the Monthly Reports.

The Appellant explained that after she fled her ex-husband and went to the transition house she had to re-apply for IA as a single parent with children. When she was asked for her password on MYSS she didn’t have it, so she had to contact the Ministry to have her password re-set and a Ministry support worker could attest to the fact that she had to get the Ministry to help her change her password. She provided this as another example to prove that she was not complicit in her ex-husband’s false Monthly Reports. She stated that on February 21, 2021 she received a phone call from a Ministry investigator who told her that a repayment of IA was necessary and that her ex-husband had requested a loan. She said that she understood that prior to fleeing the relationship due to the abuse suffered at the hands of her husband “we were a family group”, and she understands that the IA must be repaid, but she thinks it is unfair to expect her to be solely responsible for repayment because she was incapable of fraud (“doing something like that”).

The Appellant explained that she is facing hard times with her children because her ex-husband has been charged with assault and has breached the conditions of the Protection Order several times. She also stated that the assault trial is coming up soon.

The Appellant also explained that her ex-husband had contacted her bank to try to change her password and applied for a credit card in her name. She stated that her ex-husband had always filed income tax returns on her behalf and had tried to change the password on her account with the Canada Revenue Agency.

The Appellant concluded by saying that she had no idea that her ex-husband had filed the false Monthly Reports and that the news of this came as a complete surprise to her. She said that, despite the fact

APPEAL NUMBER 2021-0124

that her ex-husband had identified her as the principle recipient (Applicant 1), they were a family unit and her ex-husband “should also be part of the repayment”.

In response to a question from the Panel, the Appellant stated that her ex-husband had never told her that he had lied on the Monthly Reports about being in school and that she had no idea that he had declared that he was a not a student.

At the hearing, the Ministry relied on its RD, emphasizing that a client has a duty to report any changes in their circumstances in the Monthly Reports. The Ministry also confirmed that the Appellant’s English classes have no effect on her eligibility for IA. The Ministry referred to EAA Section 27, which states that recipients who are members of the family unit during the period for which the overpayment is provided are responsible for repayment, and Section 28(4), which says that both adult recipients of IA are jointly and separately liable for an IA overpayment. The Ministry explained that the fact that one of the recipients didn’t know that the other was providing false information on the Monthly Reports “has no bearing on the legislation”.

When asked by the Appellant why it was only she who had to repay the IA, the Ministry explained that both recipients are together but separately liable for the overpayment. In response to a question from the Panel, asking for confirmation that arrangements had been made to recover the ex-husband’s 50% share of the overpayment, the Ministry said that actions had been taken to pursue recovery from the other recipient but the Ministry could not provide any information about whether any overpayments had been or were going to be recovered from the ex-husband for his portion of the overpayment. This was due to an inability on the Ministry’s part to share that information with a third party under protection of privacy legislation (the Freedom of Information and Protection of Privacy Act). The Ministry offered that, in a hypothetical situation where the other recipient was also currently receiving IA, the same arrangement for recovery through a monthly deduction from the monthly amount the other recipient was currently receiving in IA (or other allowances and supplements). The Ministry also said that the Appellant “might have other avenues to explore in an attempt to recover (the overpayment amount from her ex-husband)”. When the Appellant responded by saying that she is prohibited from contacting her ex-husband under the Protection Order, the Ministry said that there still ‘might be other avenues” without elaborating.

In response to a question from the Panel regarding the “offence overpayment provisions” of EAR Section 89 (i.e. an overpayment that was provided to a family unit resulting from an offence for which a recipient in the family unit has been convicted) and whether the Ministry would typically investigate a fraudulent act like the one allegedly committed by the ex-husband, the Ministry stated that it would depend on the severity of the fraud, but would not likely be considered in a situation like this.

The Ministry also stated that the recovery was set at $20 per month for any debt relating to a deposit paid by the Ministry on behalf of a client, such as a security deposit on rental accommodation for example, and $10 per month after the value of any deposit had been recovered and until such time that the total debt owing had been re-paid. When asked by the Panel how the Appellant could be made aware of whether she would end up being responsible for 100% of the debt, 50% of the debt, or some other amount, the Ministry said that there was no way to make that known to her, but that after a recipient has had their monthly IA reduced by the $10 or $20 per month recovery for a period of time “in many cases the debt can be forgiven”.

APPEAL NUMBER 2021-0124

The Ministry concluded by stating that the Ministry’s aim is to provide assistance to all its clients but “has to work within the legislation”.

* * * * Section 22(4) of the EAA says that a panel may consider evidence that is not part of the record that the panel considers to be reasonably required for a full and fair disclosure of all matters related to the decision under appeal. Once a panel has determined which additional evidence, if any, is admitted under EAA Section 22(4), instead of asking whether the decision under appeal was reasonable at the time it was made, a panel must determine whether the decision under appeal was reasonable based on all admissible evidence.

The Panel considered the new information contained in the Appellant’s June 24, 2021 written submission regarding the ex-husband having successfully convinced her landlord to change the locks at her apartment to be evidence that is reasonably required for a full and fair disclosure of all matters relating to the decision under appeal. The Panel also considered the verbal evidence presented at the hearing concerning her ex-husband’s request to the Ministry for a loan and his attempt to change the password at her bank and apply for a credit card in her name to be evidence that is reasonably required for a full and fair disclosure of all matters relating to the decision under appeal. Therefore, the Panel admitted the additional information in accordance with Section 22(4) of the EAA.

APPEAL NUMBER 2021-0124

PART F – REASONS FOR PANEL DECISION

The issue under appeal is whether the Ministry's RD, which found that the Appellant received an overpayment of IA totaling $6711.58, which she is required to repay because her spouse was enrolled in full-time schooling from September 21, 2020 to February 2021, was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the Appellant. Was it reasonable for the Ministry to determine that the Appellant’s family unit was not eligible for IA for the months of October 2020 through February 2021 due to the Appellant’s spouse being enrolled as a full-time student in a funded program of studies? And if so, did the Ministry reasonably determine that the Appellant’s family unit received an overpayment of IA as calculated in the Overpayment Chart, and that the Appellant and her ex-husband are jointly and separately liable for the debt?

The Appellant’s Position The Appellant’s position is that her ex-husband committed fraud by submitting false information in the Monthly Reports without her knowledge, that she had no way of knowing this or preventing it, and as a result she should not be liable for any debt owing and she should not have any amount deducted from the IA which she would otherwise receive.

The Ministry’s Position The Ministry’s position is that the Appellant’s family unit incurred a $6,711.58 overpayment of IA for the period of October 2020 to February 2021 due to false information in the Monthly Reports for those months, and that the Appellant is liable to repay the Ministry either in full or, if the Ministry is successful in recovering any amount up to half of the $6,711.58 from her ex-husband, whatever amount can’t be recovered from him.

The Majority Panel Decision The Majority Panel notes that the questions as to whether the Appellant’s spouse was enrolled as a full-time student in a funded program of studies and that the Appellant’s family unit received an overpayment of IA as determined in the Overpayment Chart are not in dispute in this appeal. Therefore, the issue in this appeal is whether the Appellant is liable for any of the debt resulting from the IA overpayment, and if so, for what portion of that overpayment is she responsible.

EAA Section 27(1) says that recipients who are members of a family unit during the period for which an overpayment is provided are liable to repay the amount of any overpayment of assistance (which includes IA) if the family unit is not eligible for it. EAA Section 1(1) defines “recipient” as the person in a family unit to whom IA for the use or benefit of someone in the family unit is paid and includes the person's spouse, if the spouse is a dependant. As IA was provided to the family unit from October 2020 through February 2021 and the Appellant and her ex-husband both met the definition of “recipient” for those months, the Majority Panel finds that the Ministry reasonably determined that the Appellant and her ex-husband are liable to repay the overpayment amount.

APPEAL NUMBER 2021-0124

EAA Section 28 says that an amount that a person is liable to repay under the EAA is a debt due to the government, that the Ministry may deduct from any subsequent IA a prescribed monthly amount, and that a person is jointly and separately liable (i.e. responsible jointly and separately with any other recipients in the family unit) for any debt incurred while that person was a recipient in the family unit. In this case, there were two recipients in the family unit (the Appellant and her ex-husband). Therefore, the Majority Panel finds that the Ministry reasonably determined that the liability for the debt was shared between the two of them, jointly and separately.

Regarding the total amount of the debt owing and the portion of that amount that is assigned to the Appellant, the Majority Panel notes that EAA Section 27(2) says that the Minister's decision about the amount a person is liable to repay is not appealable under the EAA Section 17(3), which is the section of the EAA that specifies the rights a person has in appealing the outcome of a RD to the EAAT. Therefore, the Majority Panel finds that it does not have the authority to make a finding regarding the total amount that the Appellant is liable to repay.

Regarding the monthly deduction amount, EAR Section 89 says that a person is to have $10 deducted in each benefit month for repayment of overpayments relating to IA debt, regardless of the number of overpayments, and to have $20 deducted in each benefit month for repayment of overpayments relating to any supplement provided to pay for a security deposit (defined as “deposit debt”). Assuming the Appellant was required to pay a security deposit and was ineligible for a security deposit refund when she vacated her apartment for the transition house (or if the Ministry was otherwise unable to recover the security deposit), the Majority Panel finds that the Ministry reasonably determined that $20 per month would be deducted from the Appellant’s monthly IA until the cost of the security deposit was recovered, at which time the Ministry would deduct $10 per month until the Appellant’s share of the debt is repaid (or until the debt is forgiven).

The Majority Panel carefully reviewed all of the relevant provisions of the EAA and the EAR and has reached the conclusion that there is nothing in the applicable legislation that would provide relief to the Appellant, or anything that would reduce or eliminate the portion of the overpayment for which the legislation states that she is liable.

The Majority Panel is very sympathetic to the Appellant’s circumstances. There is strong evidence that the Appellant had no idea that her ex-husband had provided false information in the Monthly Reports. However, the legislation clearly holds her “jointly and separately” responsible for the debt represented by the IA overpayment. As a result, unless some or all of the debt is forgiven, the Majority Panel must conclude that the Appellant is required to pay at least half of the debt due, even though it is clear that the Appellant was subject to circumstances that appear to be entirely beyond her control.

Dissenting Decision I am of the opinion that new information was made available at the hearing and that, in combination with the evidence already available, can be summarized as follows:

APPEAL NUMBER 2021-0124

The Appellant was in an abusive relationship with her husband. He was both controlling and physically violent towards her. Although the Appellant, who had been a doctor in her country of origin, wanted to work in Canada, her husband told her to stay at home and collect government benefits. He took sole control of the application process, putting her as primary applicant because he thought that women with children were seen more favourably by the government than men and prevented her from seeing any of the information that he provided (by controlling the password). She did not know that he had failed to declare his school attendance and did not know that the family unit was receiving more money because of it. Given his abusive behaviour, it would not have been reasonable, and would possibly have been unsafe, for her to stand up against him on this issue. Her testimony about him strangling her in front of their children in February 2021, the resulting criminal charges, combined with her testimony that he has been in breach of protection orders against him since she left with the children and went to a Transition House all support this conclusion. The Ministry may have sent an overpayment to the family unit, but it was not due to the Appellant’s actions and I cannot conclude that it was her, in fact, who received it.