Ministry of Social Development and Poverty Reduction

Appeal Number 2021-0203 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the Ministry) Reconsideration Decision (RD) dated October 20, 2021, which found that the Ministry was not permitted to provide the Appellant with disability assistance prior to October 1, 2021 because the Appellant was not designated by the Ministry as a person with disabilities (PWD) until September 16, 2021.

Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA), Sections 3 and 5 Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Section 23

The relevant legislation is provided in the Appendix.

Appeal Number 2021-0203 Part E – Summary of Facts The Appellant is designated as a PWD and is a sole recipient of disability assistance (DA). The Appellant turned 18 years of age on July 27, 2021. The evidence before the Ministry at the time of the RD included:  A timeline of related events leading up the RD as provided by the Ministry in the RD. The related events set out in the RD by the Ministry are as follows: o June 4, 2021 – A “Disabilities Designation Application – Prescribed Class” form (the Prescribed Class Application Form) was mailed to the Appellant’s mother on the Appellant’s behalf; o June 10, 2021- The Ministry noted that the Appellant’s mother was aware that Community Living BC (CLBC) “would be assisting on establishing PWD-aging out of care” (the Aging Out Process) and the Appellant’s mother told the Ministry that she and CLBC would be meeting by teleconference with representative(s) from a hospital in the Appellant’s home community (the Hospital) on June 17, 2021; o August 20, 2021 - The Ministry noted that the Appellant’s mother told the Ministry that, as the Appellant was 18 years of age, the Appellant’s mother would like to apply for a PWD designation on the Appellant’s behalf; o August 30, 2021 - The Ministry mailed an “intake package” to the Appellant’s mother on the Appellant’s behalf; o September 14, 2021 - The Ministry received a completed “Application for Assistance (Part 2)” form (the Part 2 Form) and a Prescribed Class Application Form in the Appellant’s name, and forwarded them to the Ministry’s Health Assistance Branch for adjudication; o September 16, 2021 - The Ministry sent the Appellant a letter confirming that the Appellant was approved for DA effective October 1, 2021 (the Approval Letter); and, o September 29, 2021 - The Appellant’s mother requested a reconsideration of the Ministry’s initial decision that the Appellant was not eligible for DA for the time between the date that the Appellant turned 18 (i.e., on July 27, 2021) and October 1, 2021;  The Approval Letter;  Photograph of part of a page of the Part 2 Form bearing the name of the Appellant and contact information;  Photograph of another part of a page of the Part 2 Form bearing the name of the Appellant and providing additional information about the Appellant, including level of education and assets owned;  Photograph of part of a page of an unidentified Ministry document, signed by the Appellant’s mother on behalf of the Appellant and dated September 8, 2021, including a declaration of the

Appeal Number 2021-0203 Appellant confirming that she is applying for designation as a PWD under the EAPWDA with the following boxes ticked: o “I have been determined eligible (now or in the past) to receive community living supports from CLBC”; and, o “I have been determined eligible (now or in the past) to receive benefits as a child under the Ministry of Children and Family Development’s (MCFD’s) At Home Program” (both listed benefit types, medical benefits and respite benefits, are also ticked);  Photograph of part of a page of the Prescribed Class Application Form, unsigned by the “Program Authority” and undated, indicating that the Appellant’s mother has full guardian legal authority to act for the applicant and confirming that the person noted on the form is receiving or has been determined eligible to receive benefits or supports from the following provincial government programs: CLBC (Developmentally Disabled or Personal Supports Initiative) and MCFD At Home Program medical benefits and respite benefits;  Photograph of another part of a third page of the Part 2 Form with no information on other assets or income included, signed by the Appellant’s mother, and dated September 8, 2021; and,  A Request for Reconsideration Form (RFR) signed by the Appellant’s mother on the Appellant’s behalf and dated October 5, 2021, in which the Appellant indicates that: o She contacted a named employee of the Ministry by telephone about the Appellant’s ongoing need for financial assistance in May 2021 as “knowing how difficult it is to get matters done with such a severely sick and neuro-diverse person, I started early”; o An MCFD social worker, (whose name the Appellant’s mother provides in the RD) had told her that everything had been taken care of; o The Appellant needs DA because the Healthy Kids Program and other benefits were cut, requiring that the Appellant’s medication, food, etc. would otherwise have to be paid from the DA that the Appellant’s mother receives, which, she adds, “is not right”; o The Hospital will be able to confirm that the Appellant’s mother is the only person available to provide the Appellant with the supports the Appellant requires as the Appellant’s mother is “her only 24 hours everything”; o She called the Ministry to try to confirm that the Appellant’s DA had been approved in May 2021 and October 2021, adding “Computer call-back etc. is too unfair. Please check from May 2021 with a Ministry employee (the Ministry Contact, whose name is also provided in the RD) and (the Hospital) can confirm multiple admissions, every day visits and incapacity”. She also states that she asked for the Ministry’s help when she “couldn’t get past #4 online or (the Ministry’s) website”, so she had to try to phone the Ministry but was unable to get through and had to wait for the Ministry to call her back. She also wrote that she has the names of the people she spoke with to try to ensure that everything was looked after, adding “(I called) several times … to gain services. It happened again and again. Please don’t penalize (me and the Appellant) as we are not the ones who didn’t try”. The Appellant’s mother also included the name of a contact she has at the Hospital who could provide the Ministry with the Hospital records and confirm that the Appellant has an illness “preventing normal routines”,

Appeal Number 2021-0203 the email address of a social worker at the Hospital, and the email address of a primary care nurse at the Hospital; and o She (the Appellant’s mother) is disabled, adding that the Appellant “has no help so I need your files and dates as my capacity is overmaxed for far too long. (The Appellant) needs her money. She was on another new med at $300 a month starting on October 5 (2021)”.

Additional Information Submitted after Reconsideration 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 the requirements set out in the legislation and on all admissible evidence. In the section of the Notice of Appeal (NOA) asking why the appellant disagrees with the Ministry’s RD, the Appellant’s mother has indicated that the Ministry has the wrong information, and that “according to … a social worker with MCFD …”, whom the Appellant’s mother identifies by name on the NOA, “… this was taken care of.” The Panel did not consider the Appellant’s mother’s reasons for disagreeing with the Ministry decision to contain any new information that required an admissibility determination as the Appellant’s mother had made the Ministry aware in the RFR of the MCFD social worker’s contact information and assertion that the Appellant’s application for DA was already “taken care of”.

Evidence Presented at the Hearing The Appellant’s mother and the Appellant’s sister spoke on behalf of the Appellant at the hearing. At the hearing, the Appellant’s mother covered some of the information included in the RFR, adding that the Appellant had been diagnosed with autism at the age of 4 and had been in and out of several foster homes. She said that following a stay in one of the foster homes the Appellant had to be rehabilitated so that she felt safe in her home. The Appellant’s mother also said that a disabled child needs money for food, physiotherapy, speech therapy and medications, and that in the recent past she has incurred over $10,000 in related expenses. She also said that the Appellant’s therapy services were cut off 14 months ago and she has no idea why. She explained that the MCFD social worker named in the RFR had been her contact at MCFD for issues relating to the Appellant’s needs for 10 or more years, but that she has been unable to reach that social worker recently as they were either away from the office or on holidays whenever the Appellant’s mother tried to get in touch. The Appellant’s mother also said that whenever she had spoken to anyone at MCFD she had been assured that all the arrangements for the Appellant’s continued and uninterrupted assistance beyond her 18 th birthday had been “taken care of”. She said that the Appellant “will be back in care if we don’t get supports”. In response to a question from the Panel, the Appellant’s mother provided additional detail on her communications with the Ministry and MCFD in the months leading up to the Appellant’s 18 th birthday (July 27, 2021). She said that weekly phone calls and less frequent in-person meetings occurred with MCFD and/or the Ministry Contact where the Appellant’s Aging Out Process had been on the agenda.

Appeal Number 2021-0203 These meetings started on April 6, 2021 and included a meeting with “several staff and advocates” on June 17, 2021. The meetings, including those that were conducted by phone, all had agendas and action items, and that meeting notes were taken by the government representatives at those meetings so there should be “a paper trail” on the action items. The Appellant’s mother was told following one of those meetings that the Aging Out Process “would be handled by them”. She said that she was also told by one of the CLBC representatives that the Appellant would not age out until she turned 19, which led the Appellant’s mother to think that she had more time to ensure that continuing DA would be in place. In response to another question from the Panel, the Appellant’s mother provided more detailed information on her attempts to contact the Ministry by telephone in the spring of 2021 to confirm that everything was in place for continued DA once the Appellant had aged out of care, and with questions about the Healthy Kids Program. After consulting with her phone history log, she provided the following record of outgoing calls to the Ministry’s phone line (1-866-866-0800) between March 12, 2021 and June 10, 2021 to discuss the Appellant’s DA eligibility: March 12 – 1 call March 19 – 3 calls April 9 – 1 call April 10 – 1 call April 12 – 1 call April 30 – 3 calls June 1 – 1 call June 9 – 1 call June 10 – 1 call Regarding the absence of any calls in May 2021, the Appellant’s mother said that she didn’t feel the need to call in May because she had arranged an in-person meeting with Ministry staff in May and had been told that arrangements were being made for continued assistance. She also said that, while she was occasionally unable to speak directly to a Ministry representative and had to leave a voice message for the Ministry to call back, many times in April and May she was able to speak directly to someone from the Ministry, and usually the Ministry said that they would review the Appellant’s file and arranged a date and time that the Ministry would call her back to provide information, which was usually within 2 or 3 days. She said that at least once she was away from her home at the arranged time and date of the call back because she had to take the Appellant to the Hospital due to an unexpected emergency. She also said that she made at least 4 trips to the Ministry’s local office to discuss the Appellant’s ongoing need for assistance in the April to July timeframe. At the hearing, the Ministry relied on its RD, and emphasized that the Appellant’s application forms for the PWD designation were not submitted until September 14, 2021, despite the Ministry having provided the Appellant with the Prescribed Class Application Form and notifying the appellant’s mother of the need to complete the form in June 2021. In response to a question from the Panel, the Ministry said that the Ministry has a written guideline for staff to follow in circumstances where the Aging Out Process was involved “once the applicant has contacted us”, stressing that “the client must start the application … call the Ministry and talk to the

Appeal Number 2021-0203 office”. The Ministry was unable to provide details of the guidelines at the hearing. In response to another question from the Panel, the Ministry said that Aging Out Process “happens on a regular basis” and that Ministry staff are assigned to assist with the process but could not confirm whether it was standard practice for staff at MCFD to always connect with Ministry staff. When asked by the Panel whether it was unusual for an Aging Out Process application to be approved within two business days, the Ministry said that this application would have been marked as urgent, and because the Appellant “was with CLBC” the Ministry would have been able to quickly check the information on record at MCFD and see that the legislated PWD eligibility requirements regarding severity and duration of impairment, impact on daily living activities, and need for help, had been met. Again, in response to a question from the Panel regarding the information the Ministry received on June 10, 2021 concerning the June 17, 2021 teleconference between the Appellant’s mother and representatives from CLBC and the Hospital to discuss the Aging Out Process, the Ministry said that it did not participate in that meeting but “probably would have attended if they had been asked to”.

Admissibility of New Evidence The Ministry did not object to the Panel considering any of the new evidence. The Panel considered the new verbal evidence presented at the hearing regarding the dates and times that the Appellant contacted the Ministry between March 12, 2021 and June 10, 2021 to be evidence that is reasonably required for a full and fair disclosure of all matters relating to the decision under appeal, pursuant to Section 22(4) of the EAPWDA. General principles of weighing evidence require that the evidence be considered based on its credibility and its probative value. The probative value of evidence is the degree to which the information is useful in answering the question which must be addressed. The Panel considers the new evidence regarding the dates and times that the Appellant tried to contact the Ministry in March, April and June 2021 to be of high probative value because it provides evidence of the extent to which the Appellant’s mother was in contact with the Ministry over the months immediately preceding the Appellant’s 18 th birthday. Even though the Panel has no reason to doubt that the Appellant’s mother was reading directly from the call history on her telephone for that period, the Panel assigns only a moderate amount of weight to this new evidence because no evidence was presented to confirm that successful person-to-person contact was made with the Ministry on each occasion, the details of the discussions when contact was made, or that every call was made to address the Appellant’s DA eligibility status (rather than the Appellant’s eligibility for income assistance or the Appellant’s mother’s eligibility for assistance, for example). The Panel did not admit the new evidence from the Appellant’s mother indicating that she visited the Ministry’s local office to discuss the Appellant’s ongoing need for assistance in the April to July timeframe on at least 4 occasions as the Appellant’s mother could not identify the time and date of those visits or the specific details of the information that was received.

Appeal Number 2021-0203 Part F – Reasons for Panel Decision The issue under appeal is whether the Ministry's RD, which found that the Ministry was not permitted to provide the Appellant with disability assistance prior to October 1, 2021 because the Appellant was not designated by the Ministry as a person with disabilities (PWD) until September 16, 2021, was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the Appellant. The Ministry’s Position The Ministry’s position is that Section 23(1.1) of EAPWDR does not apply because the Appellant did not apply for the PWD designation until September 14, 2021, which was after the Appellant’s 18 th birthday, and because the Appellant’s PWD application was not approved until September 16, 2021, the Appellant is not eligible for DA until October 1, 2021. The Appellant’s Position The Appellant’s position is that, beginning in early April 2021, the Appellant’s mother tried to ensure that everything was approved for the Appellant to receive continued and uninterrupted DA before the Appellant’s 18 th birthday, had been ensured by MCFD numerous times that everything was taken care of, and had been unable to get confirmation of this from the Ministry, despite numerous attempts to do so the march through June 2021 timeframe.

Panel Decision Provision for a streamlined Aging Out Process (continued assistance when a child reaches 18 years of age) is provided in EAPWDR Section 23(1.1), which says that an applicant who applies for DA when they are 17 is eligible for DA on their 18 th birthday if the Ministry has determined that the applicant will be designated as a PWD when they turn 18. Eligibility to be designated as a PWD is set out in section 2 of the EAPWDA which provides for two alternative sets of requirements. In this case, the “prescribed class” requirements apply. According to the Prescribed Class Application Form, one of four possible conditions must apply to be eligible for PWD as a “prescribed class”. In this case, two of the conditions apply; specifically: the Appellant “has been determined eligible (now or in the past) to receive community living supports from CLBC”, and the Appellant has been determined eligible (now or in the past) to receive benefits as a child under MCFD’s At Home Program. There are no provisions in the EAPWDA or the EAPWDR that allow for exceptions to these requirements in the event there is an error made by the Ministry, there have been unexpected or unreasonable delays in obtaining the information, or that there has been a misunderstanding of requirements, for whatever reason, on the part of the applicant. The Panel notes that while the Ministry has now determined that the Appellant meets the Aging Out Process eligibility requirements, the Ministry did not receive the Appellant’s completed application forms (specifically the Prescribed Class Application Form and the Part 2 Form) until September 14, 2021, which was approximately seven weeks after the Appellant’s 18 th birthday. In the RD, the Ministry said that it mailed the Appellant the “intake package” on August 30, 2021. The specific documents included in the intake package are not identified in the RD, but no completed forms other than the Prescribed Class Application Form and the Part 2 Form are specified in the RD as having been received by the

Appeal Number 2021-0203 Ministry on September 14, 2021. The Panel also notes that the Ministry approved the Appellant’s application on September 16, 2021, two days after the two specified application forms were received by the Ministry. As Section 23(1.1) requires that the applicant apply for DA “while the applicant is 17 years of age” and because it requires that the Ministry “has determined” that the applicant “will be designated as a PWD on the applicant's 18th birthday” (emphasis added), the Panel finds that the Ministry reasonably determined that Section 23(1.1) does not apply in this case. Because Section 23(1.1) does not apply, section 23(1) applies, and it says that an applicant for designation as a PWD and DA “is not eligible for DA until the first day of the month after the month in which the minister designates the applicant as a PWD”. Therefore, as the Appellant was not designated as a PWD until September 16, 2021, the Appellant is not eligible for DA until October 1, 2021, according to the applicable provisions of the EAPWDR. While the Ministry’s RD appears reasonable on the face of the relevant legislation, the Panel notes that the situation in which the Appellant finds herself is exceedingly unfortunate and finds that the facts of circumstances of this appeal result in a breach of the duty of procedural fairness. There are established common law principles creating a duty of procedural fairness in administrative decisions. The test for procedural fairness in administrative decisions takes several factors into consideration, including: the process followed in making the decision; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individuals affected; the legitimate expectations of the persons affected by the decision; and the agency’s choice of procedure. The Panel will address each of the relevant factors below. The Process Followed in Making the Decision The available evidence indicates that the Ministry mailed the Prescribed Class Application Form to the Appellant on June 4, 2021 (a Friday), which means that the Appellant would likely have received it by mid-June 2017, based on Canada Post delivery standards for items mailed within the Province of BC. No evidence was presented to suggest that any other related application forms were sent to the Appellant on June 4, 2021. The available evidence also indicates that on June 10, 2021 the Ministry was made aware that the Appellant’s mother was meeting by telephone on June 17, 2021 with representatives of CLBC and the Hospital regarding the Aging Out Process, and that the Ministry did not participate in that meeting. Assuming that the Appellant received the Prescribed Class Application Form on or before the date of the telephone meeting between the Appellant’s mother and representatives of CLBC and the Hospital (June 17), the Appellant’s mother would have to have mailed back the completed form(s) by mid-July at the latest to ensure that they were delivered back to the Ministry and urgently adjudicated before the Appellant’s 18 th birthday on July 27, 2021. At the hearing, the Ministry said that it had a guideline for processing the necessary form(s) associated with the Aging Out Process, which the Ministry said requires that the parent or guardian of the PWD initiate the Aging Out Process by contacting the Ministry. Without any evidence from the Ministry to the contrary, the Panel finds, on a balance of probabilities, that the Ministry was told by the Appellant’s mother that the Appellant was entering the Aging Out Process some time in March or April of 2021 and would therefore be entitled to DA beginning on July 27, 2021. It is not clear why the Ministry did not mail