Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

Appeal Number 2023-0076

The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) reconsideration decision dated February 10, 2023, which determined the $1178.00 Employment Insurance income received in December 2022 is considered unearned income and exceeds the amount of income assistance. As a result, the appellant is not eligible for February 2023 income assistance in accordance with section 10(2) of the Employment and Assistance Regulation.

Part D – Relevant Legislation

Employment and Assistance Regulation (EAR), sections 1, 10, 28, 33 and Schedule A, sections 1, 2, and 4 and Schedule B sections 1, 6 and 7

Employment Insurance Act

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Part E – Summary of Facts

Appeal Number 2023-0076

Relevant Evidence Before the Minister at Reconsideration

Ministry records show:  The appellant is a sole recipient of income assistance. Her file has been opened since November 17, 2022. She receives $935.00 income assistance/monthly ($560.00 support allowance and $375.00 shelter allowance).

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On January 6, 2023 the appellant submitted her monthly report, declaring she had received $1178.00 Employment Insurance (EI) income and an income tax refund of $1357.74.

The ministry receives information from Service Canada through an electronic data match and upon review the ministry found the appellant had an EI claim for regular benefits which commenced May 8, 2022. Her last regular payment was received on September 2, 2022. However, due to an underpayment of benefits she received a retroactive lump sum payment on December 15, 2022.

Request for Reconsideration (January 27, 2023) The appellant stated her last deposit while still receiving EI benefits was August 24, Her EI claim finished in early September and she is not receiving EI.

2022.

The appellant stated that her EI benefits were re-assessed and it was found that she should have received more at the time. She added that this error is not her fault and she should not be paying for it now. It was an unexpected payment owed to her from her claim that finished in early September 2022. The $1178.00 should have already been in her account when she began income assistance in late November 2022. She also added that she had bills overdue because she wasn’t paid as much as she should have been, and she still has bills to pay.

The appellant also stated that she should not be punished for the government's mistake and is asking the ministry to look at her bank account and see the payments - last one from EI previously was August 24, 2022.

Monthly Report January 2023 The appellant claimed: Employment Insurance - $1,178.00 Income Tax Refund - $1,357.74

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Appeal Number 2023-0076

EI/Ministry Common Claimant Report (January 16, 2023) EI benefit amount $1,178.00

Additional Information

Appellant

Notice of Appeal (March 15, 2023) The appellant stated that her February payment was reduced to zero due to an error in the system.

At the hearing, the appellant stated she was on medical EI benefits for three months, not regular benefits. She added that there was a lot of miscommunication with the ministry. For example, she was advised she would be paid on January 18, 2023. She also stated that she filed her income assistance report a day late (on January 6, 2023) and therefore believes it shouldn’t have been applied to January 2023.

Ministry The ministry relied on its record at the hearing. The ministry added that the date of filing the report is not the key date - the date of receipt of the EI underpayment is (i.e., received in December, reported in January, affects February income assistance). The ministry also stated that the “payment on January 18 th ” message is part of an automated system. As well, the ministry added that the only exempt EI benefits are maternity benefits, and added that the income tax refund was exempt.

Admissibility The panel determined all the additional information is reasonably required for a full and fair disclosure of all matters related to the decision under appeal and therefore is admissible under section 22(4) of the Employment and Assistance Act.

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Part F – Reasons for Panel Decision

Appeal Number 2023-0076

The issue on appeal is whether the ministry’s reconsideration decision was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant. Specifically, was the ministry reasonable to decide that the $1178.00 EI income the appellant received in December 2022 is unearned income and exceeds the amount of income assistance, and as a result the appellant is not eligible for February 2023 income assistance in accordance with section 10(2) of the EAR..

Relevant sections of the legislation can be found in the Schedule of Legislation. Appellant Argument The appellant argues her last deposit while still receiving EI benefits was August 24, 2022 and she is not receiving EI. The appellant stated that her EI benefits were re-assessed and it was found that she should have received more at the time but argues that this error is not her fault and she should not be paying for it now. The $1178.00 should have already been in her account when she began income assistance in late November 2022.

The appellant also argues that she filed her income assistance report a day late (on January 6, 2023) and therefore believes it shouldn’t have been applied to January 2023.

She argues further that she had bills overdue because she wasn’t paid as much as she should have been, and she still has bills to pay.

In addition, the appellant argues that she should not be punished for the government's mistake.

Ministry Argument The ministry argues the income the appellant received is considered unearned income as set out in section 1(g) of the EAR and is not exempt from income assistance because the appellant’s EI claim is for regular benefits and is not money received for maternity, parental or caring for a critically ill child. The only permitted deduction is for taxes.

The ministry acknowledges that the appellant received this money due to an underpayment of benefits, and that her EI claim ended in September 2022, prior to her receipt of income assistance. However, the ministry argues for recipients of income assistance, regardless of the period for which the income is payable, the income one receives in a month is to be declared by the 5 th of the following month and affects income

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Appeal Number 2023-0076

assistance the following month (i.e., December income is declared by January 5 th and affects February income assistance). Legislation does not allow for discretion.

In addition, the ministry stated the rate of income assistance for a sole recipient with no dependents, under Schedule A is $560.00 for support and $375.00 for shelter, for a total of $935.00. Therefore, the ministry argues as the $1178.00 net income from December 2022 exceeds the $935.00 rate of assistance, the appellant is not eligible for February 2023 income assistance in accordance with section 10(2) of the EAR.

Analysis Section 1, EAR – definitions Section 1 defines unearned income as any income that is not earned income and includes EI under 1(g).

Sections 10 and 28, Schedules A and B, EAR – limits on income, amount of income assistance and deduction rules Section 10(2) states a family unit is not eligible for income assistance if the net income of the family unit determined under Schedule B equals or exceeds the amount of income assistance determined under Schedule A.

Section 28 states income assistance may be provided for a family, for a calendar month, in an amount that is not more than (a)the amount determined under Schedule A, minus (b)the family's net income determined under Schedule B.

Schedule A, sections 1, 2 & 4 – income assistance rates Schedule A shows the amount of income assistance for a sole recipient with no dependent children to be $560.00, and the maximum shelter allowance to be $375.00 for a total of $935.00/month. Ministry records show the appellant receives $935.00 income assistance/monthly. The panel finds the ministry reasonably calculated the appellant’s monthly income assistance as $935.00/month.

Schedule B, sections 1, 6 & 7 – net income calculation Schedule B, section 1 lists monies, which are exempt when calculating the net income of a family unit for the purposes of section 28(b). The panel finds EI benefits are not listed as an exemption under section 1, Schedule B.

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Appeal Number 2023-0076

The panel notes section 6(a), Schedule B, states deductions are permitted for any income tax deducted at source from EI benefits. However, the panel finds these deductions do not apply to the EI benefits received by the appellant.

The panel notes Schedule B, section 7(1)(g) lists, “a benefit paid under section 22, 23 or 23.2 of the Employment Insurance Act (Canada) to any person in the family unit”, as an exemption. However, the panel also notes, sections 22, 23 and 23.2 of the Employment Insurance Act pertain to pregnancy benefits, parental benefits or benefits to care for a critically ill child, respectively. Although ministry records show that information from Service Canada states that the appellant had an EI claim for regular benefits, at the hearing, the appellant stated her EI claim was for medical benefits. However, the panel notes medical EI benefits are not listed as an exemption under Schedule B, section 7 either.

Therefore, the panel finds the ministry reasonably determined the EI benefits received in December 2022 cannot be considered exempt under Schedule B of the EAR.

Section 33, EAR – monthly reporting requirement Section 33 of the EAR states, the report must be submitted by the 5 th day of each calendar month, and all income received must be reported. Evidence shows the appellant declared $1,178.00 in EI on her January 2023 monthly report. Although at the hearing, the appellant stated she did not file her report until January 6 th , the panel finds the ministry reasonably determined that the EI income received in December 2022 and reported in January (one day late) affects February income assistance benefits.

The panel finds the appellant’s income assistance of $935.00/month is less than the $1178.00 EI benefits declared in December 2022. Therefore, the panel finds the ministry reasonably determined that no income assistance benefits were payable for February 2023 as per section 10(2) of the EAR.

Conclusion The panel finds the ministry’s reconsideration decision that determined the $1178.00 EI income the appellant received in December 2022 is unearned income and exceeds the amount of income assistance, and as a result the appellant is not eligible for February 2023 income assistance in accordance with section 10(2) of the EAR, was a reasonable application of the legislation in the circumstances of the appellant.

The appellant is not successful on appeal.

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Appeal Number 2023-0076

Schedule of Legislation Employment and Assistance Regulation

Definitions 1 (1)In this regulation:

Part 1 — Interpretation

"unearned income" means any income that is not earned income, and includes, without limitation, money or value received from any of the following:…

(g)employment insurance; …

Limits on income 10 … (2)A family unit is not eligible for income assistance if the net income of the family unit determined under Schedule B equals or exceeds the amount of income assistance determined under Schedule A for a family unit matching that family unit.

Amount of income assistance 28 Income assistance may be provided to or for a family unit, for a calendar month, in an amount that is not more than (a)the amount determined under Schedule A, minus (b)the family unit's net income determined under Schedule B.

Monthly reporting requirement 33 (1)For the purposes of section 11 (1) (a) [reporting obligations] of the Act, (a)the report must be submitted by the 5th day of each calendar month, and (b)the information required is all of the following, as requested in the monthly report form specified by the minister: … (iii)all income received by the family unit and the source of that income; …

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Item

1

Appeal Number 2023-0076

Schedule A Income Assistance Rates (section 28 (a) )

Maximum amount of income assistance before deduction of net income 1 (1)Subject to this section and sections 3 and 6 to 10 of this Schedule, the amount of income assistance referred to in section 28 (a) [amount of income assistance] of this regulation is the sum of (a)the monthly support allowance under section 2 of this Schedule for a family unit matching the family unit of the applicant or recipient, plus (b)the shelter allowance calculated under sections 4 and 5 of this Schedule.…

Monthly support allowance 2 (0.1)For the purposes of this section:… (1)A monthly support allowance for the purpose of section 1 (a) is the sum of (a)the amount set out in Column 3 of the following table for a family unit described in Column 1 of an applicant or a recipient described in Column 2, plus… Column 1 Column 2 Column 3 Family unit composition Age or status of applicant or Amount of Support recipient Sole applicant/recipient and no Applicant/recipient is under 65 years $560.00 dependent children of age … 4 (1)For the purposes of this section … (2)The monthly shelter allowance for a family unit other than a family unit described in section 15.2 (1) of the Act is the greater of (a)the minimum set out in the following table for the family unit, and (b)the lesser of (i)the family unit's actual shelter costs, and (ii)the maximum set out in the following table for the family unit. Item Column 1 Column 2 Column 3 Family Unit Size Minimum Maximum 1 1 person $75 $375 …

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Appeal Number 2023-0076

Schedule B Net Income Calculation (section 28 (b) )

Deduction and exemption rules 1 When calculating the net income of a family unit for the purposes of section 28 (b) [amount of income assistance] of this regulation, (a)the following are exempt from income: (i)any income earned by a dependent child attending school on a full-time basis; … (iv)a family bonus, except the portion treated as unearned income under section 10 (1) of this Schedule; (iv.1)the Canada child benefit, except the portion treated as unearned income under section 10 (1) of this Schedule; (v)the basic child tax benefit; (vi)a goods and services tax credit under the Income Tax Act (Canada); (vii)a tax credit under section 8 [refundable sales tax credit], 8.1 [climate action tax credit] or 8.2 [BC harmonized sales tax credit] of the Income Tax Act (British Columbia); (viii)individual redress payments granted by the government of Canada to a person of Japanese ancestry; (ix)individual payments granted by the government of Canada under the Extraordinary Assistance Plan to a person infected by the human immunodeficiency virus; (x)individual payments granted by the government of British Columbia to a person infected by the human immunodeficiency virus or to the surviving spouse or dependent children of that person; (xi)individual payments granted by the government of Canada under the Extraordinary Assistance Plan to thalidomide victims; (xii)money that is (A)paid or payable to a person if the money is awarded to the person by an adjudicative panel in respect of claims of abuse at Jericho Hill School for the Deaf and drawn from a lump sum settlement paid by the government of British Columbia, or (B)paid or payable to or for a person if the payment is in accordance with the settlement agreement approved by the Supreme Court in Action No. C980463, Vancouver Registry; (xiii)the BC earned income benefit;

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Appeal Number 2023-0076 (xiv)money paid or payable under the 1986- 1990 Hepatitis C Settlement Agreement made June 15, 1999, except money paid or payable under section 4.02 or 6.01 of Schedule A or of Schedule B of that agreement; (xv)a rent subsidy provided by the provincial government, or by a council, board, society or governmental agency that administers rent subsidies from the provincial government; … (xvii)money paid or payable to a person in settlement of a claim of abuse at an Indian residential school, except money paid or payable as income replacement in the settlement; (xvii.1)money that is paid or payable to or for a person if the payment is in accordance with (A)the Sixties Scoop Settlement made November 30, 2017, or (B)the Federal Indian Day Schools Settlement made March 12, 2019, as amended May 13, 2019; (xviii)financial assistance payments provided under Part 6 of the Adoption Regulation, B.C. Reg. 291/96; (xix)a rebate of energy or fuel tax provided by the government of Canada, the government of British Columbia, or an agency of either government; … (xxi)payments granted by the government of British Columbia under section 8 [agreement with child's kin and others] of the Child, Family and Community Service Act; (xxii)payments granted by the government of British Columbia under the Ministry of Children and Family Development's At Home Program; … (xxiv)payments granted by the government of British Columbia under an agreement referred to in section 93 (1) (g) (ii) of the Child, Family and Community Service Act, for contributions to the support of a child; (xxv)a loan that is (A)not greater than the amount contemplated by the recipient's business plan, accepted by the minister under section 77.2 of this regulation, and (B)received and used for the purposes set out in the business plan; (xxvi)payments granted by the government of British Columbia under the Ministry of Children and Family Development's (A)Autism Funding: Under Age 6 Program, or (B)Autism Funding: Ages 6 — 18 Program; … (xxviii)payments made by a health authority or a contractor of a health authority to a recipient, who is a "person with a mental disorder" as defined in section 1 of the Mental Health Act, for the purpose of supporting the recipient in participating in a volunteer program or in a mental health or addictions rehabilitation program;

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Appeal Number 2023-0076 (xxix)a refund provided under Plan I as esta blished under the Drug Plans Regulation; (xxx)payments provided by Community Living BC to assist with travel expenses for a recipient in the family unit to attend a self-help skills program, or a supported work placement program, approved by Community Living BC; (xxxi)a Universal Child Care Benefit provided under the Universal Child Care Benefit Act (Canada); (xxxi.1)a rental housing benefit provided under the Rental Housing Benefit Act (Canada); (xxxi.2)a dental benefit provided under the Dental Benefit Act (Canada); (xxxii)money paid by the government of Canada, under a settlement agreement, to persons who contracted Hepatitis C by receiving blood or blood products in Canada prior to 1986 or after July 1, 1990, except money paid under that agreement as income replacement; (xxxiii)money withdrawn from a registered disability savings plan; (xxxiv)a working income tax benefit provided under the Income Tax Act (Canada); … (xxxvi)the climate action dividend under section 13.02 of the Income Tax Act; (xxxvii)money paid or payable to a person under the Criminal Injury Compensation Act as compensation for non-pecuniary loss or damage for pain, suffering mental or emotional trauma, humiliation or inconvenience that occurred when the person was under 19 years of age; (xxxvii.1)money that is paid or payable to or for a person if the payment is in accordance with the settlement under the Final Settlement Agreement and Supplementary Agreement approved by the Federal Court June 22, 2018 in Court File No. T-370-17, Todd Edward Ross et al. v. Her Majesty the Queen; (xxxvii.2)money that is paid or payable to or for a person if the payment is in accordance with the settlement under the Final Settlement Agreement approved by the Federal Court January 30, 2019 in Court File No. T-1068-14, Raymond Michael Toth v. Her Majesty the Queen; (xxxviii)money that is paid or payable to or for a person if the payment is in accordance with the settlement agreement approved by the Supreme Court in Action No. S024338, Vancouver Registry; (xxxix)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Family Support Services program; (xl)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Supported Child Development program; (xli)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Aboriginal Supported Child Development program;

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Appeal Number 2023-0076 (xlii)money paid or payable from a fund tha t is established by the government of British Columbia, the government of Canada and the City of Vancouver in relation to recommendation 3.2 of the final report of the Missing Women Commission of Inquiry; (xliii)payments granted by the government of British Columbia under the Temporary Education Support for Parents program; (xliv)a BC early childhood tax benefit; (xliv.1)a BC child opportunity benefit; (xliv.2)a BC family benefit; (xlv)child support; (xlvi)orphan's benefits under the Canada Pension Plan Act (Canada); (xlvii)gifts, other than recurring gifts; (xlviii)compensation paid or payable under Division 5 [Compensation in Relation to Death of Worker] of Part 4 [Compensation to Injured Workers and Their Dependants] or section 225 [compensation in relation to worker death before July 1, 1974] of the Workers Compensation Act to a dependant, as defined in section 1 of that Act, who is a child, as defined in section 165 (1) of that Act; (xlix)money that is paid or payable by or for Community Living BC to or for a person if the payment is in accordance with an award in a legal proceeding or with a settlement agreement in respect of a claim for injury, loss or damage caused by Community Living BC, an employee of Community Living BC or a person retained under a contract to perform services for Community Living BC; (l)money that is paid or payable by the government of British Columbia to or for a person if the payment is in accordance with an award in a legal proceeding or with a settlement agreement in respect of a claim for injury, loss or damage caused by the minister, the ministry, an employee of the ministry or a person retained under a contract to perform services for the ministry; (l.1)money that is paid or payable by the government of British Columbia to or for a person if the payment is in accordance with an award in a legal proceeding or with a settlement agreement in respect of a claim for injury, loss or damage caused by the Minister of Children and Family Development, that ministry, an employee of that ministry or a person retained under a contract to perform services for that ministry; (l.2)money that is paid or payable by the government of British Columbia to or for a person because the person was a resident of Woodlands School; (li)a disabled contributor's child's benefit paid or payable under the Canada Pension Plan; (lii)payments granted under an agreement referred to in section 94 of the Child, Family and Community Service Act; (liii)money that is paid or payable, in respect of a child, from property that comes into the control of, or is held by, the Public Guardian and Trustee;

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