Ministry of Social Development and Poverty Reduction

Appeal Number 2022-0018 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the ministry) Reconsideration Decision dated January 24, 2022 which found that the appellant did not meet all of the statutory requirements of section 2 of the Employment and Assistance for Persons with Disabilities Act for designation as a Person with Disabilities (PWD). The ministry found that the appellant met the age and duration requirements. However, the ministry was not satisfied that the evidence established that:

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the appellant has a severe mental and/or physical impairment; the appellant's daily living activities (DLA) are, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and

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

In addition, the ministry found that it had not been demonstrated that the appellant is one of the prescribed classes of persons who may be eligible for PWD designation on alternative grounds. As no information or argument provided for PWD designation on alternative grounds, the panel considers that matter not to be an 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 

Part E – Summary of Facts Evidence at Reconsideration

Appeal Number 2022-0018

1. The appellant’s PWD application comprised of a Medical Report (MR) and Assessor Report (AR) [dated October 26, 2021], which was completed by the appellant’s GP (the GP), who had known the appellant for 4 years and seen him 11 times or more in the past 12 months. The approach and source used to conduct the MR and AR was a phone interview with appellant and file/chart information. The PWD application also included the appellant’s Self-Report (SR) dated September 1, 2021. 2. Letter dated January 12, 2022 from the appellant’s therapist who is a social worker (SW). The letter describes the appellant’s medical history, personal history and impacts to employment. The SW indicated the following:  The appellant experiences anxiety and depression which is related to childhood trauma that can be disabling most days ranging from moderate to severe.  The appellant experiences dissociative episodes, in addition to anxiety and depression, which led to an alcohol addiction resulting in periods of withdraw, isolation, blackouts, and inability to function.  Without constant support the appellant may return to previous ways of coping.  The appellant does not need assistance with physical limitations.  The appellant needs significant support and help to manage triggers, anxiety and mood stability to reduce the risk of relapse. 3. Request for Reconsideration dated January 13, 2021, in which the appellant provides a summary of the origins of his trauma, depression, anxiety and substance use. He stated that he needs resources for trauma therapy, shelter, food preparation, financial support, group interaction and a monitored substance-use recovery program. He described being bullied, withdrawn, an introvert, suffering from low-self esteem and having debilitating fear.

Diagnoses In the MR, the GP notes that the appellant has been diagnosed with substance use disorder and Mood/Anxiety disorder, with the onset described as “years”.

Health History In the MR, the GP indicated the following about the appellant:  “Severe alcohol disorder, years of struggling with his substance use disorder”.  No medications or treatments have been prescribed that will interfere with his ability to perform his DLA. The appellant is in alcohol rehabilitation and alcoholics anonymous.  No prosthesis or aids are required for his impairment.

Degree and Course of Impairment In the MR, the GP indicated that the appellant’s impairment is likely to continue for two years or more.

Physical Impairment In the MR the GP indicated the following about the appellant:

Appeal Number 2022-0018  Can walk 4+ blocks and climb 5+ steps unaided, lift with no limitations and remain seated with no limitation. In the AR, the GP indicated the following about the appellant:  Can perform walking indoors/outdoors, climbing stairs, standing, lifting, and carrying/holding independently.

In the SR, the appellant did not speak to a physical impairment. Mental Impairment In the MR, the GP indicated the following about the appellant:  There are no difficulties with communication.  There are significant deficits with cognitive and emotional function in the areas of executive function, emotional disturbance, motivation, impulse control and attention/sustained concentration, with the comment: “when sober he can focus”.

In the AR, the GP indicated the following about the appellant:  Speaking, reading, writing, and hearing are good.  ‘No impacts’ to cognitive and emotional functioning in the area of ‘motor, language, psychotic symptoms, other neuropsychological problems, and other emotional/mental problems’. ‘Minimal impacts’ to cognitive and emotional functioning in the area of ‘insight/judgment, attention/concentration, executive, memory, and motivation’.  ‘Moderate impacts’ to cognitive and emotional functioning in the area of ‘bodily function, emotion, and impulse control’. There are no ‘major impacts’ to any of the listed cognitive and emotional functions.  All listed tasks under ‘social functioning’ require periodic assistance except ‘appropriate social decisions’ which requires continuous assistance, with the comment: “currently supported at rehabilitation care home for addiction”.  Marginal functioning with immediate and extended social networks.

In the SR, the appellant stated the following about his mental impairment:  He is lonely, impulsive, frustrated, and has long periods of depression and anxiety.  He suffers from years-long alcohol and drug dependency.  When caught-up in the addiction he cannot perform the basics such as eating, personal hygiene, and use of the washroom.  Confidence and motivation are severely diminished.  Maintaining self-care, nutrition, and hygiene is a constant struggle, as is the ability to make healthy choices.  He is powerless and needs help as he can spiral out of control.

Daily Living Activities In the AR, the GP indicated the following about the appellant:  All tasks listed under ‘personal care, basic housekeeping, shopping, meal, pay rent/bills, medications and transportation’ are performed independently. The exception was ‘using transit schedule and arranging transportation’, which was left blank.

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Appeal Number 2022-0018 All listed tasks under ‘social functioning’ require periodic assistance expect ‘appropriate social decisions’ which requires continuous assistance, with the comment: “currently supported at rehabilitation care home for addiction”. Marginal functioning with immediate and extended social networks.

In the SR, the appellant did not directly speak about restrictions to specific DLA other than his reference to DLA when in drug/alcohol induced states.

Need for Help In the MR, the GP indicated the following:  That the appellant does not require any prostheses or aids for the impairment.

In the AR, the GP indicated the following:  The appellant lives in a care facility, “rehab[ilitation] centre [for over] 18 months”.  ‘Assistance provided by other people’ was left blank.  The section ‘Assistance provided through the use of Assistive Devices’ was crossed off.  No assistance is provided by Assistance Animals.

In the SR, the appellant stated he needs a supportive environment that allows time, patience, and support to address is mental condition as described previously.

Evidence at Appeal 1. A Notice of Appeal, signed and dated January 31, 2022, was submitted and provided the following about the appellant:  A history of his relationship with the GP, and that the GP was largely uninvolved in his care and recovery for the past 24 months. As a result, the information provided by the GP is not accurate.  He dealt with depression, shakes, being sick and insomnia and was taking medication for these conditions. This was not mentioned in the PWD application.  He requires assistance with day-to-day things such as food preparation/diet, accommodations, socializing, group interaction, relationship therapy, taking daily medications, scheduling appointments and finances. 2. A letter dated January 30, 2022 from the SW which indicated the following about the appellant:  Negative thought patterns, cognitive and emotional functioning levels severely impact daily functioning.  There is a pattern of becoming overwhelmed with demands made of him, and then forgoes DLA and isolates.  There is a pattern of avoidance and freezing.  Recurring depression significantly restricts the ability to perform DLA.  Overall impression is that the appellant experiences severe and continuous limitations in the ability to engage in DLA, he has an ongoing need for support from professionals, and needs ongoing help of a significant nature.

Evidence at the Hearing

Appeal Number 2022-0018 At the hearing the appellant reiterated the information presented at the time of the reconsideration decision and NOA, and, in part, added the following:  He thinks the necessary medical was missing from the PWD application because he has not been in touch with his GP.  He was only in touch with his GP regarding administrative issues and not personal well-being.  Paper-work is a challenge for him so he did not realize that the PWD application as submitted was insufficient.  He has concerns about living independently and feels he needs supports and access to medications.  He relies on income assistance.  He tends to isolate which occurs occasionally but when he does, he is unable to function day to day.  He feels anxiety on a daily basis.  Prior to moving into the recovery home, he was not functioning and was homeless.

At the hearing the appellant’s advocate, who is the SW, in part stated the following:  There are no issues with mobility.  In the area of cognitive and emotional functioning, the appellant has major impacts to bodily function, consciousness, emotion, impulse control, insight/judgment, attention/concentration, executive, and motivation.  The appellant is restricted in his ability to perform his personal care, basic housekeeping, and shopping.  When asked the SW stated that he need daily support with encouragement, reminders and organizational help.  Currently meals, pay rent/bills, management of medication are taken care of by the recovery home.  Social function as indicated in the AR by the GP is accurate however, the appellant has very disrupted functioning with immediate and extended social networks.  The appellant does not require assistive devices or assistance from animals.  The appellant does not cope day to day on his own and currently is getting help 24 hours per day.  The appellant’s stay in the recovery home has been extended by 1-2 months over concerns of his ability to function independently outside the recovery home due to his depression, anxiety and negative headspace.  Trauma is always present which makes the work he does to improve his mental health a longer process.  When asked, the advocate was unable to articulate the duration of the help needed by the appellant.

At the hearing the ministry relied on its reconsideration decision. When asked the ministry stated that the information at reconsideration did not explain what impact the medications the appellant takes cause on him, his ability to complete DLA and on his mental state. Furthermore,

Appeal Number 2022-0018 the information does not indicate if impacts from the medications are periodic for extended periods or continuous.

Appeal Number 2022-0018 Part F – Reasons for Panel Decision The issue on appeal is whether the ministry's reconsideration decision, which found that the appellant is not eligible for designation as a PWD, was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. The ministry found that the evidence does not establish that the appellant has a severe mental or physical impairment, and that his DLA are, in the opinion of a prescribed professional, directly, and significantly restricted either continuously or periodically for extended periods. Also, as a result of those restrictions, it could not be determined that the appellant requires the significant help or supervision of another person.

Panel Decision Severe Impairment In the reconsideration decision, the ministry was not satisfied that the information provided establishes a severe physical or mental impairment. Determining a severe physical or mental impairment requires weighing the evidence provided against the nature of the impairment and its reported functional skill limitations. A diagnosis of a serious medical condition does not in itself determine PWD eligibility or establish a severe impairment. An “impairment” is a medical condition that results in restrictions to a person’s ability to function independently or effectively. To assess the severity of an impairment, the ministry must consider the nature of the impairment and the extent of its impact on daily functioning.

The panel finds that employability is not a consideration for eligibility for PWD designation because employability is not a criterion in section 2(2) of the EAPWDA nor is it listed among the prescribed daily living activities in section 2 of the EAPWDR.

Physical Impairment The appellant did not argue that he has a physical impairment. At the hearing, the SW stated that the appellant does not have mobility issues.

The ministry argued that, based on the information provided in the PWD application, a severe impairment of the appellant’s physical functioning has not been established.

In its reconsideration decision, the ministry noted that, in the PWD application, the GP indicated that the appellant can walk 4+ blocks and climb 5+ steps unaided and lift and stand without limitations. The GP also indicated that the appellant is independent with all listed areas of mobility and physical ability and did not diagnose the appellant with a physical impairment. The ministry noted that the SW did not speak to the appellant’s physical ability.

The panel finds that the ministry reasonably concluded that the information provided by the GP regarding the appellant’s physical functioning does not support a finding of a severe physical impairment. That is, there is no diagnosis of a physical impairment, functional skills are confirmed as good, mobility and physical ability is indicated as independent. Furthermore, the appellant does not argue that he has a physical impairment and the appellant stated that here are no mobility issues.

Appeal Number 2022-0018

Given the overall assessments of the appellant’s functional ability, and mobility and physical ability in the PWD application and the lack of any additional information provided at appeal from a prescribed professional, the panel finds that the ministry was reasonable in its determination that the evidence does not support a finding that the appellant suffers from a severe physical impairment and that the legislative criteria outlined in Section 2(2) of the EAPWDA have not been met.

Mental Impairment The appellant argued that he suffers from trauma, lack of motivation, anxiety and depression, which restrict his ability to function day to day.

The ministry’s position is that based on the assessments provided in the PWD application, a severe impairment of mental functioning has not been established.

In its reconsideration decision, the ministry noted the GP’s narrative regarding the appellant’s substance use disorder. The ministry noted that in the PWD application the GP indicated that the appellant has no difficulties with communication, and significant deficits with cognitive and emotional functioning in the areas of ‘executive, emotional disturbance, motivation, impulse control, and attention/sustained concentration. The ministry noted that in the AR, the GP indicated moderate impacts to ‘emotion and impulse control’ and minimal impacts to ‘executive, attention/concentration and motivation’. The panel notes that this inconsistency makes it difficulty to determine the level of disturbance the appellant experiences in these areas.

The ministry noted that the GP indicated that the appellant has good ability with reading, writing, speaking and hearing. In terms of cognitive and emotional functioning, the GP indicated moderate impacts to three of the listed areas, minimal impacts to five of the listed areas, and no impacts to the other five of the listed areas. The ministry argued that the cumulative impacts to cognitive and emotional functioning is indictive of a minimal to moderate level of impairment to mental functioning.

The ministry noted that the GP indicated that the appellant needs either periodic or continuous assistance with all listed aspects of social functioning, had marginal functioning with immediate and extended social networks and no indication of safety issues with social functioning. The ministry noted that the GP did not describe the frequency or duration of the periodic assistance required for social functioning and did not describe the level of the appellant’s social functioning outside of the recovery home environment. The panel notes that without information regarding the frequency and duration of the periodic assistance required, it is difficulty to determine if assistance is required periodically for extended periods as required by the legislation.

The ministry noted the narrative the SW provided in her two letters of support regarding the appellant’s depression, anxiety and ability to function. The ministry noted that the SW does not

Appeal Number 2022-0018 describe the areas of cognitive and emotional functioning impacted by the appellant’s debilitating symptoms.

At the hearing, the appellant was represented by the prescribed professional (the SW) who provided the two letters of support. At the hearing the SW stated that had she completed the AR, she would have provided current and accurate information regarding the appellant’s mental functioning. The SW indicated that, in terms of cognitive and emotional functioning, the appellant has major impacts in the areas of bodily function, consciousness, emotion, impulse control, insight/judgment, attention/concentration, executive, and motivation. The panel finds that this information mirrors the information the GP provided in the MR. The panel also considered the fact that the appellant currently resides in a recovery home, at which his stay has been extended, and find that the ministry failed to take this into consideration when making its decision.

The appellant argued that the GP has not been involved directly and frequently with his health care for the past 24 months and therefore, the GP did not provide an accurate assessment of his current conditions. The SW, who has worked closely with he appellant, was able to bring further clarity to the appellant current condition and clarify the information provided in both of her letters of support. Due to the difference in level of involvement of the GP and the SW, who is a prescribed professional, during the past two years, the panel determined that the information provided by the SW was a more credible description of the current status of the appellant than the information provided by the GP in the AR.

The panel finds that the additional evidence provided by the SW would reasonably establish a severe mental impairment. Therefore, the panel finds that the ministry was unreasonable in its determination that the evidence does not support a finding that the appellant suffers from a severe mental impairment and that the legislative criteria outlined in Section 2(2) of the EAPWDA have not been met.

Restrictions in the ability to perform DLA Section 2(2)(b)(i) of the EAPWDA requires that the minister be satisfied that, in the opinion of a prescribed professional, a severe mental or physical impairment directly and significantly restricts the appellant’s ability to perform DLA either continuously or periodically for extended periods. While other evidence may be considered for clarification or support, the ministry’s determination as to whether or not it is satisfied that the legislative criteria are met, is dependent upon the evidence from prescribed professionals. The term “directly” means that there must be a causal link between the severe impairment and the restriction. The direct restriction must also be significant. Finally, there is a component related to time or duration – the direct and significant restriction may be either continuous or periodic. If periodic, it must be for extended periods. Any analysis of periodicity must also include consideration of how frequently the activity is restricted. All other things being equal, a restriction that only arises once a year is less likely to be significant than one that occurs several times a week. Accordingly, in circumstances where the evidence indicates that a restriction arises periodically, it is appropriate for the ministry to require evidence of the duration and frequency of the restriction in order to be “satisfied” that this legislative criterion is met.

Appeal Number 2022-0018 DLA are defined in section 2(1) of the EAPWDR and are listed in both the MR and the AR sections of the PWD application with the opportunity for the prescribed professional to check marked boxes and provide additional narrative. DLA, as defined in the legislation, do not include the ability to work.

The ministry argued that it is not satisfied that the information provided establishes that the impairment directly and significantly restrict DLA continuously or periodically for extended periods.

The ministry noted that the GP indicated that the appellant is not prescribed any medication or treatments that would interfere with the ability to perform DLA. The ministry noted that the GP indicated that all listed areas of DLA are performed independently except social functioning. However, the frequency or duration of the assistance required with social functioning is not indicated. The panel finds that without this information determining if social functioning requires periodic assistance for extended periods is difficult. The ministry noted that the SW indicated that there are anticipated financial and employment impacts without the support of the recovery home. However, this does not establish that the appellant has significant restrictions to DLA.

The panel notes that in the letters of support, the SW indicated that the appellant forgoes his DLA during episodes of dissociation caused by depression and anxiety but did not provide any information about which DLA are not completed, how often and for how long.

At the hearing, the SW indicated that the appellant’s mental impairment has a major impact on the ability to make decisions about personal activities, care or finances and he needs daily assistance in breaking tasks, or even his day, into manageable bits; otherwise, he sees it all as an icy mountain and becomes overwhelmed and unable to function. This is related to his impaired executive functioning. The legislation indicates that for those with a severe mental impairment the tasks of decision-making is a DLA. For the panel, this indicates that the appellant needs continuous assistance with the daily living activity of decision making, and it is significantly and directly restricted.

The panel notes that the SW and the GP indicated that the appellant requires either periodically or continuously assistance with all aspects of social functioning. The legislation states that for those with a severe mental impairment, social function is also included as a DLA. However, neither prescribed professional indicated the type, frequency and duration of the assistance required with social functioning or how a restriction in this area manifests in the appellant’s life. The panel finds that without this information a direct and significant restriction to this DLA cannot be determined.

At the hearing, the SW also indicated that the appellant’s lack of motivation impacts his ability to independently perform ‘personal care, basic housekeeping, and shopping’. The panel finds that the ability to make decisions about these tasks and the ability to actually perform these tasks independently are two separate functions. The SW indicated that to complete these tasks of daily living, the appellant needs reminders, encouragement and assistance with organization on a daily basis. When pressed, however, the SW could not articulate the duration of the assistance required to perform these activities or how, other than motivation, the appellant is restricted in these tasks. The panel has already found that the appellant is restricted in his