Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

Appeal Number 2022-0244

The decision under appeal is the Ministry of Social Development and Poverty Reduction (the ministry) reconsideration decision dated September 28, 2022 that denied the appellant income assistance because his net income is more than his rate of assistance.

Part D – Relevant Legislation

Employment and Assistance Regulation sections 1, 10 and 28 Schedule A sections 1, 2 and 4 Schedule B sections 1, 6, 7 and 8

These sections of the legislation can be found at the end of the decision.

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Part E – Summary of Facts

Appeal Number 2022-0244

The appellant filed the Notice of Appeal on October 14, 2022. Two extensions were granted, both lengthy. The first was for 2 months, the second for 3 months. When the second adjournment was granted, the appellant was advised that no further adjournments would be approved unless extraordinary circumstances existed. The request for a further extension was denied. The Tribunal Chair found that there were no extraordinary circumstances present. The appellant had five months to prepare submissions for this appeal.

From ministry files: • The appellant is a sole recipient of income assistance. • He is 77 years old.

A letter from Service Canada to the appellant dated September 12, 2022 details his benefit amounts for August 2022: • Canada Pension Plan (CPP): $11.51, • Old Age Security Pension (OAS): $183.38, • Guaranteed Income Supplement (GIS): $1541.50 • A deduction for Overpayment (OAS): $1724.50 The panel notes that the appellant does not dispute the overpayment.

A letter from Service Canada to the appellant dated June 3, 2021 states that the appellant is approved for OAS. It also states that the approved amount will be applied to any outstanding overpayment on the appellant’s file.

The appellant also submitted bank statements of different banks and different account holders.

In his Notice of Appeal dated October 6, 2022 the appellant wrote “I am a Canadian citizen. I have the right to live in Canada. The purpose of the Charter of Rights and Freedoms is to protect the rights of Canadian citizens from the actions, policies and laws of the federal and provincial governments.”

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Part F – Reasons for Panel Decision

Appeal Number 2022-0244

The issue in this appeal is whether the ministry decision that denied the appellant income assistance because his net income is more than his rate of assistance is reasonably supported by the evidence or a reasonable application of the legislation.

Under section 1 of the Regulation, "unearned income" means any income that is not earned income, and includes, without limitation, money or value received from employment insurance, any type or class of Canada Pension Plan benefits and Federal Old Age Security and Guaranteed Income Supplement payments.

Section 10(1) states “income” includes any amount garnished, attached, seized, deducted or set off from the income of a recipient.

Section 10(2) states a family unit is not eligible for assistance if the net income of the family determined under Schedule B equals or exceeds the amount of income assistance determined under Schedule A.

Sections 2 and 4 of Schedule A outline the maximum allowable rate of support and shelter for the size of the family unit. For a sole recipient over the age of 65 the rate of support is $860, and the rate of shelter is $375, which adds up to a total of $1235.

Schedule B of the Regulation shows how to calculate net income:

Section 1 lists the types of income that are exempt from the net income calculation. It states that net income includes all earned and unearned income, except for the permitted exemptions and deductions listed under Schedule B. Deductions and exemptions for unearned income are set out in sections 1, 6, 7 and 8 of Schedule B.

Section 7 of Schedule B lists types of unearned income that is exempt for the purposes of calculating net income. OAS and GIS is not listed as an income that may be exempted. CPP is also not exempt unless it is for an orphan’s benefit or a disabled contributor's child's benefit paid or payable under the Canada Pension Plan.

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Appellant’s Position

Appeal Number 2022-0244

The appellant argues he should be eligible for disability assistance because the Charter of Rights and Freedoms protects his rights as a Canadian citizen.

Ministry’s Position

The ministry determined that as the appellant’s net income of $1736.01 exceeds the ministry’s rate of assistance of $1235. As a result, the appellant is not eligible for income assistance.

Panel Decision

The panel finds the ministry determined correctly that the appellant’s OAS/GIS and CPP income is unearned income as set out in section 1(1) of the Regulation, and that it is not among the exempted types of income listed in Schedule B. The ministry also correctly determined that according to section 10(1) of the Regulation the overpayment amount ($1724.50) cannot be subtracted from the appellant’s income.

As a result, the panel finds the ministry correctly calculated the appellant’s August 2022 net income as $1736.01 ($11.51 CPP plus $183.38 OAS plus $1541.12 GIS) which is more than the assistance rate of $1235 set out in Schedule A. Therefore, under section 10(2) of the Regulation, the appellant is not eligible for income assistance.

The panel notes that the Charter of Rights and Freedoms is outside its jurisdiction in accordance with section 19.1 of the Employment and Assistance Act which states that section 44 of the Administrative Tribunals Act applies to this Tribunal.

Conclusion

The panel finds that the Ministry’s decision that the appellant is not eligible for income assistance because his net income is more than the rate of assistance is reasonably supported by the evidence and a reasonable application of the Regulation in the circumstances of the appellant. The ministry’s decision is confirmed, and the appellant is not successful in his appeal.

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Appeal Number 2022-0244

Employment and Assistance Regulation

Definitions 1 (1)In this regulation: "unearned income" means any income that is not earned income, and includes, without limitation, money or value received from any of the following:

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(a)money, annuities, stocks, bonds, shares, and interest bearing accounts or properties; (b)cooperative associations; (c)war disability pensions, military pensions and war veterans' allowances; (d)insurance benefits, except insurance paid as compensation for a destroyed asset; (e)superannuation benefits; (f)any type or class of Canada Pension Plan benefits; (g)employment insurance; (h)union or lodge benefits; (i)financial assistance provided under the Employment and Assistance Act or provided by another province or jurisdiction; (j)workers' compensation benefits and disability payments or pensions; (k)surviving spouses' or orphans' allowances; (l)a trust or inheritance; (m)rental of tools, vehicles or equipment; (n)rental of land, self-contained suites or other property except the place of residence of an applicant or recipient; (o)interest earned on a mortgage or agreement for sale; (p)maintenance under a court order, a separation agreement or other agreement; (q)education or training allowances, grants, loans, bursaries or scholarships; (r)a lottery or a game of chance; (s)awards of compensation under the Criminal Injury Compensation Act or awards of benefits under the Crime Victim Assistance Act, other than an award paid for repair or replacement of damaged or destroyed property; (t)any other financial awards or compensation;

Appeal Number 2022-0244 (u)Federal Old Age Secu rity and Guaranteed Income Supplement payments; (v)financial contributions made by a sponsor pursuant to an undertaking given for the purposes of the Immigration and Refugee Protection Act (Canada) or the Immigration Act (Canada); (w)tax refunds; (x)gifts of money, annuities, stocks, bonds, shares, and interest bearing accounts or properties; (y)gifts in the form of payment by another person of a debt or obligation.

Limits on income 10 (1) For the purposes of the Act and this regulation, "income", in relation to a family unit, includes an amount garnished, attached, seized, deducted or set off from the income of an applicant, a recipient or a dependant. (2)A family unit is not eligible for disability assistance if the net income of the family unit determined under Schedule B equals or exceeds the amount of disability 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.

Schedule A Disability Assistance Rates

Maximum amount of disability assistance before deduction of net income 1 (1)Subject to this section and sections 3 and 6 to 9 of this Schedule, the amount of disability assistance referred to in section 24 (a) [amount of disability 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 (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

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Appeal Number 2022-0244 (b)the amount calculated in accordance with subsections (2) to (4) for each dependent child in the family unit.

3 Sole applicant/recipient and no dependent children

Applicant/recipient is 65 or more years of age

$860.00

Monthly shelter allowance 4 (2)The monthly shelter allowance for a family unit to which section 14.2 of the Act does not apply is the smaller of (a)the family unit's actual shelter costs, and (b)the maximum set out in the following table for the applicable family size:

Item

1

Column 1 Column 2 Column 3 Family Unit Size Minimum Maximum

1 person

$75

$375

Schedule B Net Income Calculation

Deduction and exemption rules 1 When calculating the net income of a family unit for the purposes of section 24 (b) [amount of disability 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; (ii)Repealed. [B.C. Reg. 96/2017, App. 2, s. 2 (a).] (iii)Repealed. [B.C. Reg. 48/2010, Sch. 1, s. 2 (c).] (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);

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Appeal Number 2022-0244 (viii)individual redr ess 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; (xii.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; (xii.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; (xiii)the BC earned income benefit; (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; (xvi)Repealed. [B.C. Reg. 197/2012, Sch. 2, s. 11 (a).] (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;

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Appeal Number 2022-0244 (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; (xx)money paid by the government of British Columbia, under a written agreement, to a person with disabilities or to a trustee for the benefit of a person with disabilities to enable the person with disabilities to live in the community instead of in an institution; (xxi)Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 7.] (xxii)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; (xxiii)payments granted by the government of British Columbia under the Ministry of Children and Family Development's At Home Program; (xxiv)Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 7.] (xxv)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; (xxvi)a loan that is (A)not greater than the amount contemplated by the recipient's business plan, accepted by the minister under section 70.1 of this regulation, and (B)received and used for the purposes set out in the business plan; (xxvii)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)Repealed. [B.C. Reg. 148/2015, App. 2, s. 1 (a).] (xxix)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

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Appeal Number 2022-0244 program or in a m ental health or addictions rehabilitation program; (xxx)a refund provided under Plan I as established under the Drug Plans Regulation; (xxxi)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; (xxxii)a Universal Child Care Benefit provided under the Universal Child Care Benefit Act (Canada); (xxxiii)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; (xxxiv)money withdrawn from a registered disability savings plan; (xxxv)a working income tax benefit provided under the Income Tax Act (Canada); (xxxvi)Repealed. [B.C. Reg. 180/2010, s. 2 (b).] (xxxvii)the climate action dividend under section 13.02 of the Income Tax Act; (xxxviii)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; (xxxix)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; (xl)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Family Support Services program; (xli)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Supported Child Development program; (xlii)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Aboriginal Supported Child Development program; (xliii)money paid or payable from a fund that 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;

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Appeal Number 2022-0244 (xliv)payments gra nted by the government of British Columbia under the Temporary Education Support for Parents program; (xlv)a BC early childhood tax benefit; (xlv.1)a BC child opportunity benefit; (xlvi)child support; (xlvii)orphan's benefits under the Canada Pension Plan Act (Canada); (xlviii)money or other value received, by will or as the result of intestacy, from the estate of a deceased person; (xlix)gifts; (l)education and training allowances, grants, bursaries or scholarships, other than student financial assistance; (li)money withdrawn from a registered education savings plan; (lii)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; (liii)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; (liv)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; (liv.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; (liv.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; (lv)a disabled contributor's child's benefit paid or payable under the Canada Pension Plan;

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Appeal Number 2022-0244 (lvi)payments gran ted under an agreement referred to in section 94 of the Child, Family and Community Service Act; (lvii)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; (lviii)money that is paid or payable from a settlement in respect of Treaty No. 8 agricultural benefits; (lviv)money that is paid or payable from a settlement under (A)the Cadboro Bay Litigation Settlement Agreement, dated for reference November 1, 2017, between the Esquimalt Nation and Canada, or (B)the settlement agreement, dated for reference October 30, 2017, between the Songhees Nation and Canada; (lx)money that is paid or payable under the Memorial Grant Program for First Responders established under the authority of the Department of Public Safety and Emergency Preparedness Act (Canada); (lxi)money, or goods or services in kind, received or to be received by a participant in the Ministry of Social Development and Poverty Reduction's Work Experience Opportunities Grant program from a grant under the program; (lxii)a rebate of all or part of a premium paid to the Insurance Corporation of British Columbia under the Insurance (Vehicle) Act and the plan operated under that Act; (lxiii)an amount that is paid or payable, as a single payment or series of payments, as follows: (A)the amount is paid or payable by a person who is or was a landlord, owner or manager, or a person who holds or held a similar position, in relation to leased, rented or licensed residential premises, whether or not the Residential Tenancy Act or the Manufactured Home Park Tenancy Act applies to that premises; (B)the amount is paid or payable to a person who is or was a tenant, lessee, licensee or occupant, or a person who has or had a similar right or permission to use the premises for residential purposes; (C)the amount is paid or payable as full or partial compensation for loss of the residential use of the premises, including for eviction, relocation, demolition, temporary displacement during repair, renovation or redevelopment, or as an inducement to cease or suspend residential use;

Appeal Number 2022-0244 (D)the amo unt is paid or payable under an enactment, a policy or a contract, or voluntarily or at the discretion of the person referred to in clause (A); (lxiv)money that is paid or is payable to or for a person from a settlement under the Williams Treaties Settlement Agreement signed August 22, 2018; (lxv)money that is paid or is payable to or for a person from a settlement under the Missanabie Cree First Nation Treaty Land Entitlement Settlement Agreement signed April 24, 2020; (lxvi)money that is paid or is payable to or for a person from a settlement under the Peepeekisis Cree Nation File Hills Colony Specific Claim Settlement Agreement signed March 23, 2021; (lxvii)money that is paid or is payable to or for a person from a settlement under an agreement to settle claims relating to the transfer of the Seabird Island Indian Reserve in 1959 by the Government of Canada to the Seabird Island Band and the distribution of shared trust funds on a per capita basis, (b)any amount garnished, attached, seized, deducted or set off from income is considered to be income, except the deductions permitted under sections 2 and 6, (c)all earned income must be included, except the deductions permitted under section 2 and any earned income exempted under sections 3 and 4, and (d)all unearned income must be included, except the deductions permitted under section 6 and any income exempted under sections 3, 7 and 8.

Deductions from unearned income 6 The only deductions permitted from unearned income are the following: (a)any income tax deducted at source from employment insurance benefits; (b)essential operating costs of renting self-contained suites.

Exemptions — unearned income 7 (1)The following unearned income is exempt: (a)the portion of interest from a mortgage on, or agreement for sale of, the family unit's previous place of residence if the interest is required for the amount owing on the purchase or rental of the family unit's current place of residence; (b)$50 of each monthly Federal Department of Veterans Affairs benefits paid to any person in the family unit;

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