Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0001 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated December 28, 2022, in which the ministry found that the appellant was not eligible for disability assistance (“DA”) for October and November 2015 because they had unearned income from a student living allowance that was not exempt under section 1 and Schedule B of the Employment and Assistance for Persons with Disabilities Regulation (“EAPWDR”). The ministry determined that the appellant received an overpayment of $1,812.42 DA that must be repaid pursuant to sections 18 and 19 of the Employment and Assistance for Persons with Disabilities Act (“EAPWDA”).

The ministry also determined that it is unable to conduct a reconsideration of the decision to deduct the living allowance from the appellant’s DA for August and September 2015 and December 2015-December 2019 (excluding April 2016) because there was no decision to deny, discontinue, or reduce the appellant’s DA as required under section 16 of the EAPWDA.

Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act – EAPWDA – sections 16, 18 and 19

Employment and Assistance for Persons with Disabilities Regulation – EAPWDR – sections sections 1, 9, 24, and 29, and Schedules A and B

The full text of the legislation is available in the Schedule after the decision.

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Appeal Number 2023-0001 Part E – Summary of Facts The evidence and documentation before the minister at the reconsideration consisted of:

1. Information from the ministry’s record of decision indicating the following:  the appellant is a sole recipient of disability assistance (“DA”);  on August 6, 2015, the appellant advised the ministry that they were starting post-secondary school in September 2015 and will receive funds from their First Nation. The ministry advised the appellant to report any monies received on the monthly report (“stub”) and provide supporting documents.  on March 10, 2016, the appellant submitted a confirmation of enrollment for September 8-December 7, 2015, and January 4-February 25, 2016, indicating that they withdrew before the end of the term. The appellant provided bank statements confirming that they received funds from the First Nation: $985 per month for August 2015-February 2016, excluding November 2015 for which the appellant received $1,085.  on March 22, 2016, the ministry determined that the funding was a living allowance that was not exempt under the legislation. The ministry determined that the appellant was not eligible for April 2016 assistance and created a service request to determine if an overpayment had occurred because the appellant did not report the previous month’s income;  on January 17, 2017, the ministry initiated a review of the appellant’s file and on November 20, 2017, received a letter from the First Nation indicating that the appellant received a monthly living allowance for August-December 2015; January-March 2015; August-December 2016; January-March 2017; and August-October 2017. The letter included a breakdown of the amount of that was issued for each month.  on December 21, 2017, the ministry determined the appellant had received an overpayment of DA of $16,438.78 for the period August 2015-December 2017 because of the living allowance received between August 2015 and October 2017 (the “Initial Overpayment Amount”). A debt was added to the appellant’s file;  in April and June 2018, the ministry sent the appellant a letter requesting information about the funding they received for the school year starting in August/September 2018. The ministry asked for details including the amount of funding approved and what the funding was for (tuition, books, living allowance, etc.).  on June 6, 2018, the appellant submitted confirmation of their acceptance into a post-secondary program as well as a course schedule, student record, and applications for sponsorship/sponsor funding by the post-secondary school and the First Nation. The appellant submitted a memo from the First Nation confirming the

EAAT (26/10/22)

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Appeal Number 2023-0001 living allowance of $960 per month while attending school from September 2017-April 2018 (the appellant would not be in school from May-August inclusive);  on July 11, 2018, the ministry reviewed the appellant’s file and determined that the funds the appellant received from the First Nation had been exempt since December 1, 2015. A service request was created to determine if the appellant had an underpayment for DA because of the ministry error;  on November 8, 2018, the ministry reviewed the appellant’s file for a possible underpayment arising out of deductions from the appellant’s DA from March 2018 to May 2018. The worker noted that the appellant was attending post-secondary school and received funds from the First Nation. The ministry explained that these funds were deducted from DA in error because ministry policy states that effective December 1, 2015, student funding is exempt for disability clients. The ministry determined that the October and November 2015 overpayment was valid, but the months between December 2015 and December 2017 will need to be removed from the total debt. The ministry’s financial branch will be notified to adjust the Initial Overpayment Amount ($16,438.78) to $1,812.84 (the “Adjusted Overpayment Amount”);  on April 17, 2019, the ministry received a letter from the First Nation confirming the living allowance for August-December 2015; January-March 2015; August-December 2016; January-March 2017; and August-October 2017. The letter included a breakdown of the amount issued for each month. The appellant also submitted a letter from the post-secondary school, confirming enrollment from September 2, 2015-present (letter dated August 15, 2017). The letter confirmed that the appellant was not a student from January 2000-September 2015 [sic, August 2015];  on May 2, 2019, the ministry approved the adjustment of the Initial Overpayment Amount and issued the appellant a credit of $215. The manager approved an additional cheque, 3,855 for the January-May 2018 underpayment (the “Underpayment Amount”).  on May 6, 2019, the ministry issued a cheque for the Underpayment Amount ($3,855), indicating that this amount had been deducted from the appellant’s January-May 2018 DA towards repayment of the Original Overpayment Amount ($16,438.78 - calculated on December 21, 2017) which was incorrect. The ministry determined the appellant was not eligible for DA for October and November 2015 but as of December 1, 2015, the living allowance should not have been deducted from the appellant’s DA.  on May 7, 2019, the ministry’s financial branch confirmed that the Original Overpayment Amount ($16,438.78) on file had been reduced by $14,625.94. The overpayment was therefore reduced from $16,438.78 to $1,812.84 ($906.42 per month DA for October and November 2015).   

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Appeal Number 2023-0001  on February 23, 2022, the appellant contacted the ministry about the status of the underpayment which had been requested by the appellant. The ministry communicated the decision notes from 2019 and the results of that review. The appellant advised that the underpayment amount is incorrect, and the ministry “owes [them] thousands of dollars more;”   on April 6, 2022, the appellant asked the ministry to review the file for money owed to them between 2015 and 2019 while they were attending school.   on May 13, 2022, the ministry advised that the appellant was not eligible for additional backdated DA for the period September 2015-2019 because the ministry determined that a further underpayment did not occur. The ministry explained that it had already corrected its mistake by reducing the Initial Overpayment Amount ($16,438.78) to the Adjusted Overpayment Amount ($1,812.84) and issuing a cheque in May 2019 for the Underpayment Amount ($3,855).   on November 1, 2022, the appellant attended the ministry office to inquire into the status of the file review. The appellant advised that between September 2015 and 2019, they had income deducted while going to school despite having the disability designation. The appellant requested a reimbursement of the money that was deducted, stating that it should not have been deducted from their DA.   on November 2, 2022, the ministry sent the appellant a message advising of the ministry’s previous decision from May 2019 where the worker found that the Initial Overpayment Amount was incorrect and was reduced to the Adjusted Overpayment Amount ($1812.84). The ministry explained that there was still an overpayment of DA (2 months X $906.42) for October and November 2015 because prior to December 1, 2015, the living allowance was not exempt;   on November 2, 2022, the appellant replied to the message from the ministry indicating that they would like a reconsideration.   on December 8, 2022, the appellant submitted a Request for Reconsideration (“RFR”);   on December 28, 2022, the ministry completed a review of the RFR and found that the appellant was eligible for backdated DA ($906.42) for April 2016 but was not eligible for DA for October and November 2015;   the ministry states that its records confirm that the appellant received DA for every month from October 2015-December 2019 except for April 2016 when no assistance was issued;  the ministry states that DA for January, March, April, and May 2018 was reduced by the amount of the living allowance the appellant declared. Although the ministry initially determined an overpayment for some of these months, the debt (other than $1,812.84 for October and November 2015) was cancelled. The ministry states that it provided backdated DA of $3,855 on May 7, 2019, to reimburse the appellant for

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Appeal Number 2023-0001 the Underpayment Amount that had been incorrectly deducted from DA between January and May 2018.  The ministry notes that the appellant received DA for August and September 2015, and from June 2018-December 2019 without any deductions for the living allowance they received.

2. An RFR signed by the appellant on December 8, 2022, with a typed submission setting out their argument. In addition to argument, the RFR submission contains the following information:  the appellant reports being “cut off of my disability benefit completely” the first year they attended post-secondary school;  they had to live on “$960 a month scholarship funding” from the First Nation. The appellant states that their rent was $450 per month and the rest of the funding was used for meals.  the appellant says that the ministry investigator in charge of the file, cut off the benefit completely in December 2015. The appellant reports not being allowed any DA until the school year was over in April 2016. The appellant says they received DA for only 4 months in 2015/16 when they were not in school. The same thing happened during the 2016/17 school year; they received DA only during the summer months. The appellant explains that they were then cut off for an entire 8-month school year when they moved to be closer to the post-secondary school. The appellant says that once again, they only received DA for 4 months in the summer. The appellant says that this pattern continued for the entire time they were in school. The appellant says they were then charged an overpayment of approximately $17,000 for all the summers in which they received DA.  the appellant filed a service request in 2019 for a reconsideration of all the funds that had been denied. The appellant confirms that they were paid back approximately $3,700 and the $17,000 overpayment was cancelled;  the appellant explains that due to the Covid-19 pandemic, they suspected that they were being paid back in smaller increments (for 4 months of DA at a time) and that it could take another 4-5 years to receive the full amount owed for the 20 or more months of DA that had been denied while they received funding for school from the First Nation.  the appellant notes that they received a letter from the ministry that said the ministry had reversed the decision and changed the policy so that people receiving funding from the First Nation were no longer penalized for going to school. Although the appellant could collect DA and receive the scholarship money at the same time when the ministry changed the policy, the appellant says that they were “not paid back at least 15 months worth of the benefit that was deducted when [the ministry] reversed their decision.”         EAAT (26/10/22) 6

Appeal Number 2023-0001  the appellant explains that they faced extreme financial strain that has led to a significant amount of debt and hardship. The appellant is requesting payment for the 15 months or so of DA that was deducted and not paid back. The appellant states that they completed the studies and would like to move forward and pay off all their bills. The appellant explains that the extremely difficult financial situation started in 2015 and they cannot understand the ministry’s delay (other than the Covid-19 pandemic) in paying the remaining 15 months worth of benefits that were denied.

3. A letter from the ministry dated April 18, 2018, stating that the appellant’s DA cheque will be held until the appellant provides confirmation of funding from the First Nation including the amounts approved, and details of what the funding is for (books, tuition, living allowance, travel). The letter states that a decision on eligibility for assistance will be made once all documentation is reviewed.

4. Documents from the post-secondary school (undated but received by the ministry on June 6, 2018) including confirmation of enrollment in a program; the appellant’s course schedule; a sponsor application, and a sponsorship funding application.

5. A letter from the First Nation dated February 22, 2018, stating that the appellant receives a living allowance of $960 per month while attending school from September 2017-April 2018. The letter confirms that the appellant will not receive any financial support from the First Nation for the months they are not in school: May, June, July, and August 2019 [sic, 2018]. The letter says that the appellant will graduate from the program in May 2020.

6. An application for post-secondary sponsorship from the First Nation, signed by the appellant on May 10, 2018, and indicating that the appellant is in the third year of a four-year program.

7. A copy of the appellant’s student record/transcript of marks.

8. A letter from the First Nation dated November 20, 2017, confirming that the appellant received a living allowance for the following years and amounts:  2015: August $985, September $985, October $985, November $1,085, December $985 (total = $5,025);  2016: January $985, February $985, March $985, August $960, September $960, October $960, November $960, December $1,060 (total = $7,866);  2017: January $960, February $960, March $960, August $960, September $960, October $960 (total = $5,760).         EAAT (26/10/22) 7

Appeal Number 2023-0001

9. A letter from the post-secondary school dated August 15, 2017, confirming that the appellant has been enrolled since September 2, 2015. The letter states that the appellant was not a student from January 2000 up to September 2015.

10. A ministry overpayment chart for assistance months August 2015-December 2017. The chart includes the following information:  2015: August and September assistance months: the chart indicates the appellant was eligible for $906.42 per month DA (less a $20 repayment). No living allowance is shown for these months and no overpayment is indicated.  2015: October, November, and December assistance months: the chart shows a living allowance of $985 (unearned income) for October and November 2015, and $1,085 for December. The chart shows an overpayment for DA: $906.42 for October and November 2015, and $941.42 for December 2015.  2016: January, February, March, and April assistance months: the chart shows a living allowance of $985 (unearned income) for each of these months. The chart shows an overpayment of DA of $906.42 per month. The chart also shows an eligibility override for April based on declared income.  2016: May, June, July, August, and September assistance months: the chart indicates the appellant was eligible for $906.42 per month DA for these months. No living allowance is shown for these months and no overpayment is indicated.  2016: October, November, and December assistance months: the chart shows a living allowance of $960 (unearned income) for each of these months. The chart shows an overpayment of $960 per month DA. The chart indicates the appellant was eligible for $23.42 DA for October and November, and $58.42 for December; [panel note: the eligible amount is calculated based on the difference between the appellant’s DA rate and the amount of the living allowance: $983.42 - $960 = $23.42 for October and November; and $1,018.42 - $960 = $58.42 for December which had a higher DA rate]  2017: January, February, March, and April assistance months: the chart shows a living allowance of $1,060 (unearned income) for January 2017, and $960 per month for February, March, and April. The chart shows an overpayment for DA as follows: - $960 for January: the appellant is eligible for $23.42 DA; - $983.42 for February: the appellant is eligible for $0 DA; - $960 for March: the appellant is eligible for $23.42 DA; - $658.42 for April: the appellant is eligible for $0 DA. The chart indicates an override for April (comment: “no shelter issued”);

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Appeal Number 2023-0001  2017: May, June, July, and August assistance months: the chart indicates the appellant was eligible for $1,033.42 per month DA for these months. No living allowance is shown for these months and no overpayment is indicated.  2017: September, October, November, and December assistance months: the chart shows a living allowance of $960 per month (unearned income) for each of these months. The chart indicates no overpayment for September (the appellant was eligible for $1,033.42 DA). The chart shows an overpayment of DA for the remaining months as follows: - $960 for October: the appellant is eligible for $193.42 DA; - $960 for November: the appellant is eligible for $173.42 DA; - $960 for December: the appellant is eligible for $208.42 DA.  The chart indicates a total overpayment amount $16,438.78. The chart indicates the appellant was eligible for $10,536.50 DA for assistance months August 2015-December 2017.

Additional evidence

With the consent of both parties the appeal was conducted as a written hearing pursuant to section 22(3)(b) of the Employment and Assistance Act (“EAA”). The ministry sent an email to the Tribunal stating that its submission on appeal will be the reconsideration summary.

In submissions that were prepared after the reconsideration decision, the appellant states their argument and provides additional information that requires an admissibility determination under section 22 of the EAA:

Received with the Notice of Appeal on January 3, 2023:

1. A letter to the Tribunal dated January 3, 2023, in which the appellant reaffirms that they received a letter from the ministry explaining that the policy had changed, and people would not be penalized or disqualified from receiving DA and a living allowance at the same time while going to school. The appellant states that the overpayment of approximately, $17,000, which the ministry reversed, was the DA that the appellant was allowed to receive during the summer months (5 summers) when not receiving any scholarship money.

The appellant states that they were disqualified from receiving DA for at least 16 months in total between 2015 and 2020: 4 months during their first year of study; 5 months the second year; 8 months the third year, plus one more year when they were cut off DA completely for another 4 months. The appellant added more details about the hardship

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Appeal Number 2023-0001 they faced, including having to rent inadequate housing and take out student loans to survive.

Received by the Tribunal on January 18, 2023

2. A letter to the Tribunal dated January 12, 2023, in which the appellant provides further argument and reaffirms that they were “completely cut off” DA.

3. A message from the ministry to the appellant dated May 6, 2019, with the title Underpayment. The ministry states that the appellant was either “not issued or under-issued assistance for support.” The ministry says that the Underpayment Amount ($3,855) has been direct deposited. The ministry indicates that this is the amount of DA that the appellant was eligible for but had not received. The ministry confirms that due to policy changes, the Initial Overpayment Amount ($16,438.78) on the appellant’s file will be reduced to the Adjusted Overpayment Amount ($1,812.84).

4. A message from the ministry to the appellant dated November 1, 2022, with the title Underpayment Info. The ministry states that a decision was made on the appellant’s previous service request regarding an underpayment. The ministry’s decision is that there was no underpayment for the years 2015-2019. The ministry explains that the appellant had a previous underpayment because of student funding paid from December 2015-December 2017. A debt for the Original Overpayment Amount ($16,438.78) was added to the appellant’s file but reduced to the Adjusted Overpayment Amount ($1,812.84) on May 6, 2019, when the ministry determined that any overpayment should only be applied to the October and November 2015 assistance months when student funding “was NOT exempt.”

5. A message from the appellant dated November 2, 2022, in reply to the ministry. The appellant explained why they would like a reconsideration and provided the following information:  they started post-secondary school in September 2015 and had the school funding deducted from DA from December through to the end of the school year (4 months). The appellant says that the same thing happened every year after that;  the appellant says the ministry investigator then decided to take away the DA for an entire school year, “I was deducted an entire 8 months of my benefit.” The appellant says that the investigator also “back charged” for every summer when the appellant was not in school (4 months each year) which resulted in an overpayment of around $17,000.

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Appeal Number 2023-0001 in total, the appellant “got back $3,700. That is all. I was deducted every year I was in school, for 4 months, 4 months, 8 months, and another 5 months – which is way more than I was paid back.” the appellant would like to know if their DA was paid to someone’s else’s file because the appellant was only paid (approximately) $3,700 in 2019 and nothing else even though “way more than that was deducted.” The appellant says that they did not receive any funds when they were “cut off every year.” The appellant would like the ministry to find out who the benefits were given to.