Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0025 Part C – Decision Under Appeal Under appeal is the reconsideration decision of the Ministry of Social Development and Poverty Reduction (the ministry) dated January 13, 2023, that denied the appellant designation as a person with disabilities (PWD) under section 2 of the Employment and Assistance for Persons with Disabilities Act. The ministry stated that the appellant met the requirements of having reached 18 years of age and of a medical practitioner confirming the impairment is likely to continue for at least 2 years. However, the ministry was not satisfied that:  the appellant has a severe mental or physical impairment  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 is not in one of the prescribed classes of persons eligible for PWD designation under section 2.1 of the Employment and Assistance for Persons with Disabilities Regulation ("EAPWDR"). In particular, the ministry found that the appellant did not qualify for PWD designation as a person considered to be disabled under section 42(2) of the Canada Pension Plan (CPP).

Part D – Relevant Legislation

Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 2

Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), sections 2 and 2.1

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Part E – Summary of Facts

Appeal Number 2023-0025

Information before the ministry at reconsideration

 The appellant’s PWD application, comprised of: o A Medical Report (MR) and an Assessor Report (AR), both dated October 17, 2022, completed by the appellant’s general practitioner (GP) who has known the appellant for 20 years and had seen the appellant more than 11 times in the preceding 12 months. o The Self-report (SR) section of the PWD application, dated October 7, 2022.

 The appellant’s Request for Reconsideration submission, comprised of: o A 2-page letter dated December 18, 2022 from the appellant, and o A 2-page letter from the appellant’s daughter dated December 20, 2022.

Information provided on appeal and admissibility

 Notice of Appeal dated January 27, 2023, in which the appellant states that his condition is worsening daily and that he will provide confirmation of approval of CPP-Disability.

 Service Canada letter dated January 19, 2023 confirming that the appellant is receiving the CPP Post-Retirement Disability Benefit (effective date of benefit is 2022-03).

At the hearing, the appellant was assisted by his daughter, who also provided testimony. The appellant’s daughter reiterated the information in her previous letter, stating that the appellant is not the person he used to be. The appellant used to be a very active person but now spends most of the time sitting on the couch. The appellant’s daughter said that the problem is mainly physical exhaustion, but that confusion also gets in the way, as the appellant is unable to answer questions and does not remember past conversations. The appellant does the bare minimum but exhausts easily. The appellant’s daughter is concerned that the appellant was unable to convey needed information to the GP.

At the hearing, the appellant described a typical day, including that it takes all morning to get ready, and that his spouse takes care of meals. The appellant explained that he cannot sit for long because of numbness in his feet. The appellant also explained that when walking indoors he uses walls, or whatever else is available to steady himself, but that he needs a cane for walking outdoors. The appellant stated that not all information is presented by the GP because the GP doesn’t come into the home.         EAAT (26/10/22) 3

Appeal Number 2023-0025

At the hearing, the ministry stated that after seeing the Service Canada letter, it conducted another data match with Service Canada and received confirmation on February 6 th that the appellant was a recipient of CPP-Disability. The ministry stated that once the appeal process was complete, the process for approving PWD designation on this basis would be expedited. The ministry explained that it can take a couple of months for the receipt of CPP-Disability benefits to show up on the Service Canada data match.

The panel admitted the oral testimony of the appellant, his daughter, and the ministry and the Service Canada letter under section 22(4) of the Employment and Assistance Act as information reasonably required for full and fair disclosure of the matters at issue. The panel considered the information to be directly related to PWD eligibility under both section 2 of the EAPWDA and section 2.1 of the EAPWDR.

The positions of both parties are set out in Part F of this decision.

Summary of relevant evidence

Physical Functioning

In the SR, the appellant states that his main disability is cirrhosis of the liver which causes fatigue, dizziness, confusion, less strength, swollen ankles, difficulty feeling his feet, stomach pains, irritability, forgetfulness, itchy skin, random cramps, and constant nose bleeds. His strength, stamina and ability to concentrate are getting worse. He has bad nights when he cannot sleep for more than an hour or two – constant urination. The appellant also states that he needs to follow a strict diet and needs hearing aids.

In his reconsideration submission, the appellant states that he can walk short distances, not two blocks, and not without a rest. He needs a cane for balance if he gets dizzy. He can do five stairs but needs a railing for support and then a rest. He does not think he could lift 35 lbs.

In her letter, the appellant’s daughter states that she is regularly asked to help with lifting around the home, shopping, carrying in groceries, getting to appointments, and home maintenance etc. The appellant is very slow moving and takes much longer than before.

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Appeal Number 2023-0025

In the MR, the GP diagnoses the appellant with liver cirrhosis, onset March 2021.

Additional commentary from the GP includes:  Moderately severe liver cirrhosis resulting in hypertension, gastropathy, grade 1 esophageal varices causing chronic blood loss anemia, and intermittent electrolyte disturbance, including hyponatremia.  Ongoing impairment caused by chronic fatigue and poor exercise tolerance.  Progressive liver failure causing diffuse pruritis (itching).  Uses cane at times.  Generalized weakness.  Peripheral neuropathy and pain in feet.  Balance intermittently affected.  Uses hearing aids.

MR (functional skills):  Can walk 1 to 2 blocks unaided.  Can climb 2 to 5 steps unaided.  Can lift 15 to 35 lbs.  Can remain seated for less than 1 hour.

AR (mobility and physical ability):  Walking indoors and outdoors, climbing stairs, standing, lifting, and carrying and holding are managed independently.

Communication

MR and AR:

 Has sensory difficulty with hearing - “poor hearing – uses aids.”  Good speaking and reading abilities. Poor writing (frequent spelling errors) and hearing (requires hearing aids) abilities.

Mental Functioning

In his reconsideration submission, the appellant reports feeling like he is in a fog and his memory is playing tricks on him. It is hard to concentrate for long. Sometimes he remembers things that did not happen and cannot remember things that did happen. His         EAAT (26/10/22) 5

Appeal Number 2023-0025 math skills are disappearing, he is forgetful (left a stove element on), does not know how to do laundry anymore. He needs more help than reported and would need home care but for his spouse and daughter. Social functioning is limited to his wife and daughter. Too much activity or crowds are agitating.

In her letter, the appellant’s daughter states that the appellant is easily confused, his memory is gone or very weak, he does not retain anything, and his overall awareness is limited.

MR:  Altered cognition manifests as poor concentration (cannot sustain attention, focus) and inability to multitask (easily overwhelmed by multiple tasks), difficulty with memory, especially short-term, and retaining new information.  Can become confused if develops severe electrolyte imbalance.  Significant deficits with cognitive and emotional function are identified for 4 of 11 listed areas – consciousness, language, memory and attention or sustained concentration.  Cognitive improvements following June 2022 hospital admission have plateaued.

AR:  Moderate impacts on daily functioning are identified for 2 of 14 listed areas – bodily functions and attention/concentration.  Minimal impacts are identified for all other 12 listed areas - consciousness, emotion, impulse control, insight and judgement, executive, memory, motivation, motor activity, language, psychotic symptoms, and other neuropsychological problems.  “Poor concentration, poor short-term memory. Difficulty multitasking. Unable to attend to multiple details at same time.”

Daily Living Activities (DLA)

MR and AR:  The appellant has not been prescribed medications and or treatments that interfere with the ability to perform DLA.  Must pace doing activities to cope or is severely fatigued.  IADLs [instrumental activities of daily living] impacted both physically and mentally due to fatigue (reduced concentration/memory).

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Appeal Number 2023-0025  The ability to manage DLA is impacted by liver cirrhosis. Impacts strength, causing fatigue and reduced exercise tolerance. Cognitive effects include “poor concentration, reduced short-term memory, multi-tasking activities.”  For personal care, all listed tasks are managed independently (dressing, grooming, bathing, toileting, feeding self, and transfers in/out of bed and on/off chair) except regulating diet, which requires periodic assistance (“Requires help at times to ensure balanced + appropriate diet/meal plans.”)  For basic housekeeping, both laundry and basic housekeeping require periodic assistance (“Fatigues rapidly. Low energy + exercise tolerance.”)  For shopping, reading prices and labels are managed independently. Going to and from stores, making appropriate choices (“easily overwhelmed”), and carrying purchases home (“fatigue”) require periodic assistance.  For meals, all listed tasks (meal planning, food preparation, cooking, and safe storage of food) require periodic assistance (“When fatigued, concentration is poor + will require assistance.”)  For pay rent and bills, all listed tasks require continuous assistance (“Poor focus results in financial errors.”)  For medications, all listed tasks require periodic assistance (“Risk of errors when fatigued.”)  For transportation, all listed tasks require periodic assistance (“Makes errors with schedules when exhausted. Legs weakness at times + will need help in + out of vehicle.”)  For social functioning, the appellant independently manages appropriate social decisions, ability to develop and maintain relationships, and interact appropriately with others. Periodic support/supervision is required for ability to deal appropriately with unexpected demands and ability to secure assistance from others.  Good functioning with immediate and extended social networks.

In his reconsideration submission, the appellant states that he often needs help getting in and out of a car, takes 45 minutes to dress and forever to get up and out of a chair or bed (he asks for help). If anything falls on the floor, he cannot pick it up and if he gets on the floor, he will need help getting back up.

Help

The GP reports that assistance is provided by family and that a cane is used when on walks – especially longer distances when fatigues readily.

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Part F – Reasons for Panel Decision

Appeal Number 2023-0025

Issue on Appeal

The issue on appeal is whether the ministry’s decision to deny the appellant 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. That is, was the ministry reasonable when determining that the requirements of section 2(2) of the EAPWDA were not met because:  a severe physical or mental impairment was not established  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.

Also, at issue is whether the ministry was reasonable to decide that the appellant did not meet the alternative requirements under section 2.1 of the EAPWDR because the appellant was not a recipient of CPP-Disability benefits.

Panel Decision

Eligibility for PWD designation under section 2.1 of the EAPWDA Positions of the Parties The appellant’s position is that he is a recipient of CPP-Disability benefits. At reconsideration, the ministry’s position was that a data match with Service Canada showed that the appellant received CPP benefits, but not CPP-Disability. On appeal, the ministry’s position is that a new data match with Service Canada indicated that the appellant is receiving CPP-Disability benefits that qualify the appellant for PWD designation under section 2.1 of the EAPWDR.

Panel Analysis The panel finds that the Service Canada letter confirms that the appellant is receiving CPP-Disability benefits. The panel also accepts, based on the new evidence provided by the ministry at the hearing, that the CPP-Disability benefits are those provided under section 42(2) of the CPP. Accordingly, the panel finds that the ministry’s decision that the appellant

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Appeal Number 2023-0025 does not qualify for PWD designation under section 2.1 of the EAPWDR is no longer reasonably supported by the evidence.

Eligibility for PWD designation under section 2 of the EAPWDA Positions of the Parties The appellant’s position is that he is severely impaired by symptoms of liver cirrhosis, which result in cognitive and physical limitations and the need for a lot of help from his spouse and daughter.

The ministry’s position is that the GP’s assessment of physical functioning does not show a severe physical impairment. Respecting mental impairment, the ministry’s position is that the GP’s information, including that there are no areas of daily cognitive functioning with a major impact, does not show severe mental impairment. The ministry also states that the use of hearing aids, does not in itself, suggest a severe impairment. Respecting DLA, the ministry’s position is that the GP reports the need for continuous assistance with one DLA, pay rent and bills, but that not enough information is provided to show that the identified restrictions with other DLA are significant and for extended periods. Finally, the ministry states that because the DLA criterion is not met, the help criterion is also not met.

Panel Analysis 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 the opinion of a prescribed professional respecting DLA restrictions and the need for help, makes it clear that the fundamental basis for assessing PWD eligibility is information from one or more prescribed professionals. The panel also notes that the legislation does not identify employability or financial constraints as considerations when determining PWD eligibility.

The panel finds that although the appellant is diagnosed with a serious medical condition, liver cirrhosis, which results in a number of symptoms affecting both physical and mental functioning, the information from the GP was not sufficient to establish either a severe physical or mental impairment. In particular, the appellant is reported to independently manage all aspects of physical mobility and ability within functional limits reasonably considered as reflecting a moderate but not severe physical impairment. Respecting mental impairment, although the GP identifies significant deficits with cognitive and emotional functioning, and repeatedly comments that the appellant has memory problems, the GP does not assess a major impact on daily functioning for any area of         EAAT (26/10/22) 9

Appeal Number 2023-0025 cognitive and emotional functioning, only noting two moderate impacts and minimal impacts for the remaining areas, including memory. Respecting the appellant’s ability to perform DLA, as the ministry notes, the need for continuous assistance is noted only for one DLA. For other DLA, where the need for periodic assistance is indicated, the GP repeatedly states that assistance is need “when fatigued” or “at times” without explaining how often or for how long the help is required. Therefore, the panel finds that the ministry was reasonable to find that the information does not show that DLA are significantly restricted either continuously or for extended periods. Respecting the need for help, the legislation states that the help must be needed as a result of direct and significant restrictions with DLA. Therefore, because the DLA restrictions have not been shown, the ministry was reasonable to decide that the help requirement is also not met.

Conclusion The panel finds that the ministry was reasonable to decide that the eligibility requirements for PWD designation under section 2 of the EAPWDA were not met based on the available information. However, the panel also finds that the ministry’s decision that the appellant did not meet the alternative requirements for PWD designation under section 2.1 of the EAPWDR is not reasonable based on the new information provided on appeal.

The panel rescinds the ministry’s reconsideration decision. The appellant is successful on appeal.

EAAT (26/10/22)

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Appeal Number 2023-0025

Relevant Legislation EAPWDA 2 (1) In this section: "assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform;

"daily living activity" has the prescribed meaning; "prescribed professional" has the prescribed meaning. (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person has a severe mental or physical impairment that

(a) in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and

(b) in the opinion of a prescribed professional (i) directly and significantly restricts the person's ability to perform daily living activities either (A) continuously, or (B) periodically for extended periods, and (ii) as a result of those restrictions, the person requires help to perform those activities.

(3) For the purposes of subsection (2), (a) a person who has a severe mental impairment includes a person with a mental disorder, and

(b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires (i) an assistive device, (ii) the significant help or supervision of another person, or (iii) the services of an assistance animal. (4) The minister may rescind a designation under subsection (2).

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Appeal Number 2023-0025 EAPWDR Definitions for Act 2 (1) For the purposes of the Act and this regulation, "daily living activities", (a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities: (i) prepare own meals; (ii) manage personal finances; (iii) shop for personal needs; (iv) use public or personal transportation facilities; (v) perform housework to maintain the person's place of residence in acceptable sanitary condition; (vi) move about indoors and outdoors; (vii) perform personal hygiene and self-care; (viii) manage personal medication, and (b) in relation to a person who has a severe mental impairment, includes the following activities: (i) make decisions about personal activities, care or finances; (ii) relate to, communicate or interact with others effectively. (2) For the purposes of the Act, "prescribed professional" means a person who is (a) authorized under an enactment to practise the profession of (i) medical practitioner, (ii) registered psychologist, (iii) registered nurse or registered psychiatric nurse, (iv) occupational therapist, (v) physical therapist, (vi) social worker, (vii) chiropractor, or (viii) nurse practitioner, or (b) acting in the course of the person's employment as a school psychologist by (i) an authority, as that term is defined in section 1 (1) of the Independent School Act, or

EAAT (26/10/22)

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Appeal Number 2023-0025 (ii) a board or a francophone education authority, as those terms are defined in section 1 (1) of the School Act,

if qualifications in psychology are a condition of such employment. Alternative grounds for designation under section 2 of Act

2.1 The following classes of persons are prescribed for the purposes of section 2 (2) [persons with disabilities] of the Act:

(a) a person who is enrolled in Plan P (Palliative Care) under the Drug Plans Regulation, B.C. Reg. 73/2015;

(b) a person who has at any time been determined to be eligible to be the subject of payments made through the Ministry of Children and Family Development's At Home Program;

(c) a person who has at any time been determined by Community Living British Columbia to be eligible to receive community living support under the Community Living Authority Act;

(d) a person whose family has at any time been determined by Community Living British Columbia to be eligible to receive community living support under the Community Living Authority Act to assist that family in caring for the person; (e) a person who is considered to be disabled under section 42 (2) of the Canada Pension Plan (Canada).

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Part G – Order The panel decision is: (Check one)

APPEAL NUMBER 2023-0025

☒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☒