Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

Appeal Number 2022-0070

The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated March 28, 2022, where the ministry found the appellant was not eligible for designation as a Person with Disabilities (“PWD”) under section 2 of the Employment and Assistance for Persons with Disabilities (“EAPWDA”). The ministry found that the appellant met the age requirement, but was not satisfied that:

• the appellant has a severe mental or physical impairment; • a medical practitioner had confirmed the appellant’s impairment is likely to continue for two years or more; • the appellant’s impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform daily living activities (“DLA”) either continuously or periodically for extended periods; and • as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.

The ministry also found that the appellant was not one of the prescribed classes of persons who may be eligible for PWD designation on the alternative ground set out in section 2.1 of the EAPWDR. As there is no information or argument provided for PWD designation on alternative grounds, the panel considers that matter not to be at issue in this appeal.

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Part D – Relevant Legislation

Appeal Number 2022-0070

Employment and Assistance for Persons with Disabilities Act, SBC 2002 (“EAPWDA”), c.41, section 2.

Employment and Assistance for Persons with Disabilities Regulation (“EAPWDR”), B.C. Reg. 265/2002, section 2.

The full text of these sections of legislation are reproduced in the schedule of legislation attached to this decision.

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Part E – Summary of Facts

Appeal Number 2022-0070

Information before the ministry at reconsideration The evidence and documentation before the minister at reconsideration consisted of: • The appellant’s PWD application, comprised of: • A self-report completed by the appellant on October 14, 2021; • A Medical Report, dated November 21, 2021, completed by the appellant’s general practitioner (“GP”) for the last 10 years who saw the appellant 2 – 10 times in the preceding twelve months; • An Assessor Report, dated November 23, 2021, completed by the appellant’s general practitioner for the last 10 years who saw the appellant 2-10 times in the preceding twelve months;

• A letter from the ministry, dated March 4, 2022, with an attached decision summary advising that the appellant did not meet all the criteria for PWD designation.

• The appellant’s Request for Reconsideration, dated March 10, 2022, with which the appellant included a copy of the appellant’s PWD application annotated in red by the appellant’s parents/caregivers with updated information regarding the appellant’s present medical situation and abilities.

Information provided on appeal and admissibility The appellant provided the following additional evidence on appeal: • A copy of a Canada Revenue Agency Disability Tax Credit Certificate form (“Disability Certificate”) pertaining to the appellant with the medical practitioner’s section completed on April 8, 2022 by the GP.

• The appellant’s parents provided updated information about the appellant’s physical limitations and the care he needs to complete daily living activities.

The ministry did not raise any objections to the appellant’s additional documents or the testimony of the appellant’s parents but provided argument to say the additional information does not establish eligibility for PWD designation when assessed with the information in the medical report and assessor’s report.

The panel admits the testimony of the appellant’s parents and the additional document submitted by the appellant under section 22(4) of the Employment and Assistance Act. The panel finds the additional information admissible because it provides further details about the appellant’s functional limitations and restrictions to DLA, updates the information set out in the PWD application, and is endorsed by the appellant’s doctor. The additional information is therefore reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

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Appeal Number 2022-0070

The panel considers both parties’ arguments in Part F – Reasons for panel decision. Summary of relevant evidence Diagnoses and Health History In the Medical Report, the GP diagnoses breathing difficulties, anemia, leg ulcers, depression and anxiety and states that the appellant was previously 185 lbs and now weighs 140 lbs. The GP states that the appellant’s medical conditions are moderate to severe. The GP did not complete the section of the application that speaks to the expected duration of the appellant’s impairment.

The appellant was unable to speak at the hearing. However, his parents provided testimony at the hearing that the appellant’s medical condition had significantly deteriorated since the GP completed the Medical Report and Assessor Report in November 2021. They stated that this is why the appellant provided an annotated PWD application when requesting reconsideration of the ministry’s decision. In the annotated medical report, the appellant’s parents state that since applying for PWD designation, the appellant has been diagnosed with the following:

• Tracheal stenosis; • Anemia; • Hypothyroid; • Fused eyelids; • Skin lesions on lower legs; • Cardiovascular issues requiring echocardiogram; and • Sleep apnea.

In the more recent Disability Certificate, the GP provides an updated diagnoses and states that the appellant:

• is blind in both eyes (symblepharon); • had a permanent tracheostomy on March 18, 2022; • has moderate impaired balance; • has moderate impaired coordination; • has moderate to severe impaired dexterity; and • has depression related to other diagnoses.

While the GP did not specify an expected duration for the appellant’s impairment in the Medical Report or Assessor Report, in the Disability Certificate the GP stated the following with respect to duration:

• Vision – the GP checked “yes” to the question “Has the patient’s impairment in vision lasted, or is expected to last, for a continuous period of at least 12 months?” The GP checked “no” and “unsure” to the question “Has the patient’s impairment improved or is likely to improve to such an extent that they would no longer be impaired.” The “yes” box

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Appeal Number 2022-0070 was left unchecked in answer to this quest ion.

• Speaking – the GP checked “yes” to the question “Has the patient’s impairment in speaking lasted, or is it expected to last, for a continuous period of at least 12 months?” The GP checked “”no” to the question “Has the patient’s impairment in speaking improved or is it likely to improve to such an extent that they would no longer be impaired?” The “yes” and “unsure” boxes were left unchecked in answer to this question.

• Walking - the GP checked “yes” to the question “Has the patient’s impairment in walking lasted, or is it expected to last, for a continuous period of at least 12 months?” The GP checked “no” and “unsure” to the question “Has the patient’s impairment in walking improved or is it likely to improve to such an extent that they would no longer be impaired?” The “yes” box was left unchecked in answer to this question.

• Feeding – the GP checked “yes” to the question “Has the patient’s impairment in feeding themselves lasted, or is it expected to last, for a continuous period of at least 12 months?” The GP checked “no” and “unsure” to the question “Has the patient’s impairment in feeding themselves improved or is it likely to improve to such an extent that they would no longer be impaired?” The “yes” box was left unchecked in answer to this question.

• Mental Functions – the GP checked “yes” to the question “Has the patient’s impairment in performing mental functions necessary for everyday life lasted, or is it expected to last, for a continuous period of at least 12 months?” The GP checked “unsure” to the question “Has the patient’s impairment in performing mental functions necessary for everyday life improved or is it likely to improve to such an extent that they would no longer be impaired? The “yes” and “no” box was left unchecked in answer to this question.

Physical Impairment In the Medical Report and Assessor Report the GP states that the appellant’s diagnoses impact him as follows:

• Can walk 2 to 4 blocks unaided. • Can lift 2 to 7 kgs. • Has no limitation for remaining seated. • Has no difficulties with communication. • Has depression and anxiety. • Has difficulty managing his daily living activities like shopping, preparing food and laundry. • Communication is satisfactory in all areas except speaking, which is described as poor. • Mobility is managed independently and does not take significantly longer than typical.

The GP checked the boxes provided on the Medical Report and Assessor Report. However, the GP left most areas of the forms blank where asked for comment or further detail.

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Appeal Number 2022-0070

In the self-report, the appellant states that he has been unable to work and has had to move in with his parents and relies on them for shelter, care and food. The appellant reports regular visits to healthcare practitioners for treatment of leg ulcers and restricted vision making him unable to drive a vehicle.

At the hearing, the appellant’s parents stated that the appellant requires 24 hours post-operative care, assistance with all shopping, cooking, feeding, laundry, and mobility both inside and outside the home.

In the Disability Certificate the GP provides the following updated information about how the appellant’s diagnoses impact him:

• is unable to speak or takes an inordinate amount of time to speak so as to be understood; • is unable to see; • always requires assistance from another person to walk due to inability to see and impaired balance and coordination; • takes an inordinate amount of time to walk (at least three times longer than someone of a similar age without an impairment); • Requires assistance from another person to feed themselves due to impaired coordination and dexterity; • Takes an inordinate amount of time to feed themselves (at least three times longer than someone of a similar age without an impairment);

Mental Impairment In the Medical Report and Assessor Report the GP stated that the appellant had depression and anxiety.

In the Disability Certificate the GP provided the following further details about the appellant’s mental functioning:

• Has impaired capacity with the following adaptive functioning: o expressing basic needs o going out in the community o initiating common, simple transactions o performing necessary everyday tasks o recognizing danger and risks to safety • No impact to memory • Has moderate to severe difficulty with judgment, problem-solving, and goal-setting and has impaired capacity in the following areas: o Complying with prescribed treatments;

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Appeal Number 2022-0070 o Making and carrying out simple day -to-day plans; o Reacting appropriately in unfamiliar situations.

Daily Living Activities In the Assessor Report the GP summarizes the appellant’s ability to complete daily living activities as follows:

• Personal Care – independent with dressing, grooming, bathing, toileting, feeding self, regulating diet and requiring periodic assistance from another person with transfers in/out of bed and on/of a chair. • Basic Housekeeping – requires periodic assistance from another person with laundry and basic housekeeping. • Shopping – requires continuous assistance from another person or unable with going to and from stores and carrying purchases home. Independent with respect to reading prices and labels, making appropriate choices, and paying for purchases. • Meals – requires periodic assistance from another person with meal planning, food preparation, cooking, and safe storage of food. • Pay Rent and Bills – independent with banking, budgeting, and paying rent and bills. • Medications – independent with filling/refilling prescriptions, taking as directed, and safe handling and storage. • Transportation – requires periodic assistance from another person with getting in and out of a vehicle, using public transit, and using transit schedules and arranging transportation. • Social Functioning – independent with developing and maintaining relationships, interacting appropriately with others, and securing assistance from others. Requires periodic support with appropriate social decisions and unexpected demands. o Relationship with immediate social network – marginal functioning with little significant participation. o Relationship with extended social networks – marginal functioning with little more than minimal acts to fulfill basic needs.

The annotated PWD application provided by the appellant and his parents disagreed with the GP’s assessment with respect to daily living activities and indicated that in many areas continuous assistance of another individual was required or the appellant was unable to complete the daily living activity at all.

In the Disability Certificate the GP states that the appellant has difficulty speaking, cannot see, requires assistance of another person for walking, feeding, and meal preparation. The GP further states that the appellant has impaired adaptive functioning as well as difficulty with complying with prescribed treatments and making and carrying out simple day to day plans.

Need for Help In the Medical Report and Assessor Report the GP did not complete the section asking what assistance the appellant needs with daily living activities.

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Appeal Number 2022-0070

The annotated PWD application from the appellant and his parents reports that the appellant needs help from his family continuously in all areas of his life.

In the Disability Certificate the GP indicates that the appellant requires the following assistance: • Electro-larynx and assistive technology • Cane • Ready-made meals and assistance from another individual with meal preparation and feeding • Support from family members

At the hearing, the appellant’s parents testified that the appellant requires 24 hour a day care and needs assistance with bathing, mobility, communication, healthcare, and feeding. The parents testified that both have left their jobs in order to provide the appellant with his required level of care.

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PART F – Reasons for Panel Decision

Appeal Number 2022-0070

Issue on Appeal The issue on appeal is whether the ministry’s decision that the appellant was ineligible for PWD designation was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant. That is, was the ministry reasonable when determining that the requirements of section 2(2) of the EAPWDA were not met because:

• a severe mental or physical impairment was not established; • a medical practitioner had not confirmed the appellant’s impairment was likely to continue for two years or more;

• the appellant’s DLA are not, in the opinion of a prescribed professional, directly and significantly restricted either continuously or periodically for extended periods; and

• as a result of those restrictions, in the opinion of a prescribed professional, the appellant does not require an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform DLA.

Panel Decision Duration The appellant’s position is that he has a permanent physical impairment that will last longer than two years. In their submissions, the appellant’s representatives indicated that the Disability Certificate completed by the GP supports this assertion.

The ministry’s position is that section 2(2)(a) of the EAPWDA states that the opinion that an impairment is likely to continue for at least two years must be in the opinion of a medical or nurse practitioner. The ministry submits that the updated information provided in the annotated PWD application was not confirmed by the appellant’s GP or another medical or nurse practitioner and therefore this criterion is not met. When questioned about whether the new evidence provided by the GP on the Disability Certificate provided the necessary proof of a likely duration of two years or longer, the ministry stated that they did not think so as the form was not the same as the PWD application form and the GP had checked both “no” and “unsure” in answer to several of the questions about duration of impairment.

The panel finds that section 2(2)(a) of the EAPWDA requires an opinion on the likely duration of an impairment to be made by a medical or nurse practitioner. The panel notes that the GP did not complete the section of the Medical Report or Assessor Report pertaining to the likely duration and did not otherwise provide an opinion as to the likely duration of the appellant’s impairment in the PWD application forms. The panel finds that the only information about the likely duration of the appellant’s impairment before the ministry at reconsideration was from the appellant’s parents. Accordingly, the panel finds that the ministry was reasonable in its decision that the duration criterion was not satisfied at the time the reconsideration decision was made.

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Appeal Number 2022-0070

However, section 22(4) of the Employment and Assistance Act permits the panel to consider new evidence if the additional information is reasonably required for a full and fair disclosure of all matters related to the decision under appeal. The Disability Certificate submitted by the appellant as further evidence in this appeal is such evidence as the GP provides a direct opinion about the likely duration of the appellant’s impairment.

In the Disability Certificate the GP stated that the appellant had an impairment that was expected to last for a continuous period of at least 12 months with respect to vision, speaking, walking, feeding, and mental function. Further, when asked if these impairments were likely to improve to such an extent that the appellant would no longer be impaired, the GP stated “no” to speaking, “no” and “unsure” to vision, walking, and feeding, and “unsure” to mental function. Notably, the panel finds that the GP had the option of stating “yes” in answer to this second question for each impairment and did not select that box for any of the impairments.

The panel finds that, taken together, the GP’s statements that impairments are likely to last at least 12 months and are not likely to improve to the point that the GP is able to state a conclusive “yes” to the question about whether impairment is expected to improve to the point that the appellant would no longer be considered impaired are, in effect, an opinion from the GP that the appellant is likely to be impaired for a period of at least two years. Accordingly, the panel finds that the ministry’s decision that duration was not met is unreasonable considering the new evidence submitted on appeal.

Physical and Mental Impairment The appellant’s position is that at the time of applying for PWD designation he had a severe physical impairment having been diagnosed with anemia, leg ulcers, anxiety and depression. At the hearing, his representatives submitted that his condition has significantly deteriorated since submitting the PWD application and that the updated annotated PWD application provided to the ministry showed that the appellant has a severe physical impairment having since lost his ability to speak with a permanent tracheostomy and having lost the ability to see due to symblepharon (fused eyelids).

The appellant’s representatives state that the Disability Certificate completed by the GP in early April 2022 shows the appellant’s significant increase in physical impairment and that while the appellant feels he ought to have been successful when he initially submitted his application for PWD designation the deterioration in the appellant’s condition leaves little doubt that he has a severe physical impairment now as the appellant cannot see or speak and requires 24 hour assistance in almost all aspects of his life.

The ministry’s position is that the information submitted by the GP in the Medical Report and Assessor Report does not indicate that the appellant has a severe impairment. The ministry acknowledges that the updated information provided in the annotated PWD application is indicative of a more severe impairment but that at the time of reconsideration the vast difference between what the GP reported and what the appellant and his parents reported was difficult to reconcile, especially when the GP reported that the appellant was largely able to function independently. The ministry submitted that it reasonably determined that the appellant did not

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Appeal Number 2022-0070 have a severe impairment given the differences in the information from the GP and the information provided by the appellant and his parents. However, the ministry acknowledged that the new information from the GP set out in the Disability Certificate was indicative of a severe physical impairment and that the explanation by the appellant’s parents that the appellant’s medical condition had drastically deteriorated between when the GP completed the Medical Report and Assessor Report and when the GP recently completed the Disability Certificate explained the difference in the GP’s diagnoses and prognosis.

Section 2 of the EAPWDA requires that the minister “is satisfied” that a person has a severe physical or mental impairment, giving the minister discretion when making the determination. When exercising this discretion, the legislation’s requirement for information from a medical or nurse practitioner (and other prescribed professionals) makes it clear that the fundamental basis for assessing PWD eligibility is information from one or more prescribed professionals.

The panel finds that the diagnoses set out by the GP in the initial Medical Report and Assessor Report is substantially different from the updated information provided by the appellant’s parents that was before the ministry at reconsideration. Given the scarcity of detail by the GP in the Medical Report and Assessor Report and the findings of the GP that the appellant was largely independent and only required assistance of another person in limited circumstances, the panel finds that the ministry’s decision that the appellant did not have a severe impairment at the time of reconsideration was reasonable.

At the hearing of this appeal the appellant’s parents testified as to why the difference existed between what the GP stated in the initial PWD application and what was provided by the appellant and his parents in the updated annotated PWD application, stating that the appellant’s condition had rapidly deteriorated since the PWD application forms were completed by the GP. The panel finds this explanation logical and credible and agrees with the ministry that the new evidence set out by the GP in the Disability Certificate illustrates that the appellant has a severe physical impairment. The appellant is unable to see, unable to speak without assistive technology, unable to walk without assistance of another individual, and unable to feed himself – all of which has contributed to poor mental functioning with depression and anxiety diagnosed by the GP. The panel finds that the evidence before the tribunal clearly demonstrates that the appellant has a severe physical impairment. Considering this new evidence, the panel finds that the ministry’s determination that the appellant did not have a severe physical or mental impairment was unreasonable.