Appeal Number 2023-0012 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the ministry) reconsideration decision dated January 4, 2023, which determined that the appellant’s request for reconsideration exceeded the legislated time limits permitted to submit a Request for Reconsideration (RFR). The request was regarding the deduction of Employment Insurance (EI) income from their October assistance.
Specifically, the minister found the appellant failed to deliver a completed RFR to the ministry within the legislated 20 business days time-limit mandated by Section 71(2) of the Employment and Assistance for Persons with Disabilities Regulation (EAPWDR). Therefore, no reconsideration would be conducted.
Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act section 16(2) Employment and Assistance for Persons with Disabilities Regulation section 71
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Part E – Summary of Facts Summary of key dates:
Appeal Number 2023-0012
• On November 3, 2022, the appellant contacted the ministry to inquire about the deduction from their October disability assistance cheque. The worker advised the deduction was due to receiving Employment Insurance (EI), which is considered unearned income, and must be deducted. The worker offered a right to reconsideration, which the appellant accepted. • The Request for Reconsideration (RFR) form shows the date it was issued was November 3, 2022, with the date the requestor must submit the form being December 2, 2022. • The RFR form submitted by the appellant’s advocate does not include Section 4 of the form, which provides for the appellant signature and the date of signature. The reason provided (in summary) for submitting the RFR was because their EI repayment was erroneously determined to be unearned income, rather than a reimbursement from the deductions that had previously been made in error. • The Reconsideration Decision (RD) dated January 4, 2023, indicates the RFR was received by the ministry on December 13, 2022.
Additional Information
On the Notice of Appeal form (NOA) dated January 10, 2023, the appellant wrote “submitted December 2, 2022, as per indicated on recon December 2, 2022”.
On January 16, 2023, the Tribunal office received a submission from the appellant. The appellant submitted a copy of a letter from Service Canada dated November 17, 2022, which provided information regarding their Canada Pension Plan (CPP).
At the hearing, the appellant explained that they had met with their advocate several days before December 2, 2022. They recall that they had signed all necessary forms and also called the advocate on December 2, 2022 to confirm the RFR had been submitted. The appellant and the advocate reside in different communities. The advocate was in attendance at the hearing, and they explained they dropped off the completed RFR on December 2, 2022, at 1:05pm. They explained the local office is closed during the lunch break and so handed it to a ministry employee when they were opened at 1:00. The advocate stated that they had emailed an affidavit corroborating this action into the Tribunal on January 25, 2023.
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Appeal Number 2023-0012
At the hearing, the ministry stated that legislation clearly identifies that an RFR must be submitted to the ministry within 20 business days. In the appellant’s circumstance, that date was December 2, 2022, and the ministry did not receive it until December 13, 2022.
When questioned about the process for how the ministry receives documents, they explained documents can be submitted on-line or in person. If submitted in person, the documents are date-stamped and then scanned into their electronic system. When questioned whether the ministry had received Section 4 of the RFR, which includes the appellant signature and date of signing, the ministry explained they could not go into the electronic file during a hearing to review the date the RFR was received, or to see whether Section 4 was within the appellant’s case file. The ministry explained the only reference she has is what is in the Appeal Record and this information is not there.
The ministry explained it is a requirement that all information that is before the Reconsideration Officer at the time of reconsideration be included in the Appeal Record and they cannot explain why there is no RFR that includes at least their date-stamp showing the date it was received.
Hearing Adjournment
The Panel Chair contacted the Appeal Coordinator at the Tribunal, who reviewed all emails for the date the affidavit was sent in, and did not find the email the advocate had emailed in. The advocate offered to email it in right away. The panel recommended an adjournment to allow time for the affidavit to be submitted. The ministry did not object to an adjournment. The panel approved an adjournment for seven days to allow time for the submissions to be received.
The panel thought it fair that, while the panel had agreed to an adjournment for the appellant to submit additional evidence, the ministry should also be permitted to review their file to respond to the panel questions about whether there was a Section 4 of the RFR in the case file, or what confirmation was used to determine that December 13, 2022 was the date of receipt. The appellant did not object to the ministry providing additional evidence.
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Appeal Number 2023-0012 Information submitted between the hearing date and the adjourned hearing date
The appellant submitted additional information on January 31, 2023, which consists of confirmation from the Advocacy Office fax machine that an email had been sent in on January 25, 2023. However, the log indicates it was sent to the incorrect email address. Also submitted was an affidavit signed and witnessed by a Commissioner for Taking Affidavits within British Columbia. The affidavit was a testimony that the advocate’s spouse had driven her to the local ministry office where he witnessed her walk into the office with a brown envelope at 1:05 pm on December 2, 2022 and walk out without it. He further attested that she had informed him that she must drop off a document that was due that day and he needed to drive because of the snowy road conditions.
The ministry made two additional submissions after the hearing. One was a copy of a section 4 of an RFR dated October 3, 2022. The second submission was a letter dated February 8, 2023, from the ministry to EAAT, which explained that they had mistakenly sent the section 4 from a previous RFR and it was not for this appeal. The ministry went on to explain the RFR submitted by the appellant for this appeal was received, without a signature page, on December 13, 2022. The ministry added that to allow for administrative fairness to the appellant it was received and accepted without signature.
The panel reconvened on February 10, 2023. The additional documents submitted after the January 31, 2023 hearing date were acknowledged by both the appellant and the ministry. No objections were raised to the submissions. The ministry reviewed the February 8, 2023 letter, and responded to clarifying questions that were previously addressed in the January 31, 2023 hearing. There were no changes to what has been recorded above.
Admissibility of Additional Information
The panel admits the oral evidence and additional information under section 22(4) of the Employment and Assistance Act, which allows for the admission of evidence reasonably required for a full and fair disclosure of all matters related to the decision under appeal.
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Appeal Number 2023-0012 Part F – Reasons for Panel Decision The issue in this appeal is whether the ministry’s decision, that the appellant was denied a request for reconsideration as the request was past the 20 days time limit required to submit the request, is reasonably supported by the evidence or is a reasonable application of the legislation.
Appellant Position
The appellant’s position is they submitted the RFR on December 2, 2022, which was within the twenty-business day timeframe as required so they should have a right to a reconsideration.
Ministry Position
The ministry’s position is the appellant submitted the RFR on December 13, 2022, which is beyond the twenty-business day timeframe set out in legislation. Therefore, the appellant had no right to reconsideration.
Panel Decision
Section 71 of the EAPWDR sets out that a person who wishes a reconsideration must deliver an RFR to the ministry office where they receive assistance. The form must be delivered within 20 business days after they were notified of the decision. They do this by leaving it with an employee in the ministry office or being received through the mail at that office.
In the appellant’s circumstance, they live in a different community than the advocate and the advocate dropped the form off at the local ministry office in their community. The ministry explained that any paperwork dropped off would be date stamped and then put into the appellant electronic case file. The reconsideration decision does not dispute the location of office where the RFR was received, only that it was received on December 13, 2022.
The ministry states that their normal process is to date stamp all documents received and then submit to the electronic system. They acknowledge that this does not appear to have been done in this circumstance, as there is no date-stamped copy in the appeal record. The ministry was asked whether a client is contacted if part of the RFR, in particular section 4, signature page, is not received. The ministry responded that they normally do contact the client if there is paperwork missing, and the appeal record does not show that this was
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Appeal Number 2023-0012 done. The panel finds there is a lack of attention to detail by the ministry to the appellant. Because the ministry’s normal processes were not followed, there is room for doubt that the appellant’s records were recorded correctly by the ministry. The panel found no evidence in the appeal record to show how the ministry determined they were received on December 13, 2022.
The appellant has stated that they met with the advocate several days before December 2, 2022, and that all the paperwork was signed. The advocate provided an affidavit that confirms she dropped off paperwork on December 2, 2022, at 1:00pm. Although the affidavit is not conclusive that it was the appellant’s paperwork that was being dropped off, it does support the appellant and the advocate’s statements.
The panel finds that something was missed between when the paperwork was dropped off and when it was received by the ministry. Errors were made by both the appellant (by not submitting the signed RFR which would have shown the date of signature) and the ministry (by not following usual procedures of date stamping). The panel finds that the proof of date of receipt is critical for this type of appeal. To allow for fair process and because correct procedures were not followed by the ministry, in particular the lack of evidence to confirm both the date of receipt and notification to the appellant that the section 4 was missing from the submitted documents, the panel finds the ministry was not reasonable to determine the appellant had no right to a reconsideration due to time limits not being met.
Conclusion
The panel finds the ministry’s decision not to render a reconsideration decision was not reasonably supported by the evidence and rescinds the ministry’s decision. The appellant is successful in their appeal.
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Appeal Number APPENDIX RELEVANT LEGISLATION
2023-0012
Reconsideration and appeal rights
16 (1) Subject to section 17, a person may request the minister to reconsider any of the following decisions made under this Act:
(a) a decision that results in a refusal to provide disability assistance, hardship assistance or a supplement to or for someone in the person's family unit; (b) a decision that results in a discontinuance of disability assistance or a supplement provided to or for someone in the person's family unit; (c) a decision that results in a reduction of disability assistance or a supplement provided to or for someone in the person's family unit; (d) a decision in respect of the amount of a supplement provided to or for someone in the person's family unit if that amount is less than the lesser of (i) the maximum amount of the supplement under the regulations, and (ii) the cost of the least expensive and appropriate manner of providing the supplement; (e) a decision respecting the conditions of an employment plan under section 9 [employment plan].
How a request to reconsider a decision is made
71 (1) A person who wishes the minister to reconsider a decision referred to in section 16 (1) [reconsideration and appeal rights] of the Act must deliver a request for reconsideration in the form specified by the minister to the ministry office where the person is applying for or receiving assistance.
(2) A request under subsection (1) must be delivered within 20 business days after the date the person is notified of the decision referred to in section 16 (1) of the Act and may be delivered by (a) leaving it with an employee in the ministry office, or (b) being received through the mail at that office
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Part G – Order The panel decision is: (Check one)
APPEAL NUMBER 2023-0012
☒Unanimous ☐By Majority
The Panel ☐Confirms the Ministry Decision ☒Rescinds the Ministry Decision If the ministry decision is rescinded, is the panel decision referred back to the Minister for a decision as to amount? Yes☐ No☒
Legislative Authority for the Decision: Employment and Assistance Act Section 24(1)(a)☒ or Section 24(1)(b) ☐ Section 24(2)(a)☐ or Section 24(2)(b) ☒
Part H – Signatures Print Name Janet Ward Signature of Chair
Print Name John Pickford Signature of Member
Print Name Shelly McLaughlin Signature of Member
EAAT (26/10/22)
Date (Year/Month/Day) 2023/02/14
Date (Year/Month/Day) 2023/02/14
Date (Year/Month/Day) 2023/02/14
Signature Page