Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0111 Part C – Decision Under Appeal The decision under appeal is the reconsideration decision of the Ministry of Social Development and Poverty Reduction (the ministry). The ministry decided that the appellant did not meet all of the requirements of section 2 of the Employment and Assistance for Persons with Disabilities Act (the Act) for person with disabilities designation (PWD). The ministry found that the appellant met the age and duration requirements, but did not meet the following:

• the appellant has a severe physical and/or mental impairment; • the appellant’s daily living activities are directly and significantly restricted either continuously or periodically for extended periods; and

• because of those restrictions, the appellant needs an assistive device, significant help or supervision from another person, or needs an assistance animal.

The ministry also found that the appellant is not qualified for PWD designation on other grounds, which includes: a person who is in palliative care; a person who got At Home Program payments through the Ministry of Children and Family Development; a person who gets or has ever gotten Community Living BC for community living support; and a person who is considered disabled under section 42(2) of the Canadian Pension Plan Act.

Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act (the Act), section 2

Employment and Assistance for Persons with Disabilities Regulation (the Regulation), section 2

The complete legislation is found at the end of this decision in Appendix A.

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Part E – Summary of Facts Evidence at the time of Reconsideration

Appeal Number 2023-0111

1. The appellant’s PWD application that includes: • A Medical Report [dated December 4, 2022] completed by the appellant’s doctor who has known the appellant for 10 years and had seen the appellant 11 or more times in the past 12 months of the PWD application. • An Assessor Report [dated October 6, 2022], which was done by the appellant’s social worker who knew the appellant for 2 weeks before completing the PWD application. The assessor’s report was done by an office interview with the appellant, file/chart information and an interview with friends/family/caregivers. • The PWD application also included the appellant’s Self-Report (SR) dated November 22, 2022.

2. 1-page letter from the social worker who completed the assessor’s report. This letter said the following about the appellant: • He has Crohn’s disease and iron deficiency. • He has lethargy and blood in the stool for the past 5 years. • He gets tired easily and avoids many activities. • His condition has been getting worse for the past 6 months. • His partner said that the appellant is in a downward spiral. • He cannot sleep through-out the night and wakes up every hour to go to the bathroom. Since he cannot sleep, he has less activity and this causes depression. • His motivation and concentration are low. • He was diagnosed with ADHD, but the results could not be confirmed because the appellant was using marijuana at the time. • He developed a portal toilet so he can leave the house without having an accident.

3. 2-page assessment from the Inflammatory Bowel Disease Research and Consultation Clinic. 4. 2-page hematology Report dated August 25, 2022. This report gives detailed results of the appellant’s blood examination. 5. 1-page Fecal Calprotectin Report dated September 1, 2022. This report gives detailed results of the appellant’s fecal matter examination. 6. 2 requests for reconsideration. One dated March 7, 2023 and the other dated April 4, 2023.

The panel points out that the reports from the clinic, blood exam and fecal matter exam give information about the appellant’s medical conditions. But they do not talk about how severe the appellant’s impairment is, how it impacts his ability to do his daily living activities, or how much or the kind of help he needs with is daily living activities.

Diagnoses In the medical report, the doctor diagnosed the appellant with Crohn’s disease and ADD.

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Appeal Number 2023-0111 Health History The doctor said that “for the past 5 years has had symptoms of Crohn’s disease. Persistent abdominal pain, diarrhea, weight loss, fatigue [and] malabsorption. Took many years to get diagnosed”. Height is 5’8 and weight is 165lbs.

“[Appellant lives] far from access to gastroenterologist, difficulty affording health foods”. In the assessor’s report, the social worker said that the appellant lives with his father. Degree and Course of Impairment The appellant’s impairment is likely to last 2 or more years from the date of the PWD application. “Likely to be life long – will wax and wane in severity”.

Physical Impairment In the medical report, the doctor said the following about the appellant: • He can walk 4+ blocks unaided, climb 5+ steps unaided, lifts without limitations and can sit less than 1 hour “has frequent bowel movements”.

In the assessor’s report, the social worker said the following about the appellant: • Independently walks indoor and outdoor – “fatigues easily” • Independently climbs stairs. • Independently stands – 10 minutes maximum. • Independently lifts – “Avoids. Causes pain”. • Independently carries and holds – “10lbs”.

In the self-report, the appellant said the following about his physical impairment: • Roughly 5 years ago he noticed blood in his stool. • He had stomach problems which has progressively gotten worse. • He cannot control his bowel movements. • He is constantly fatigued. • He does not have control over his body and is at the point that he will need a section of his intestine removed. • He poos blood everyday. • He is in pain and cannot afford medication. • He is constantly bleeding inside. • He cannot sleep. • He uses the washroom 30-40 times per day.

Mental Impairment In the medical report, the doctor said the following about the appellant: • The are no difficulties with communication. • There are significant deficits with cognitive and emotional function in the areas of executive function, impulse control, motor activity, and attention/sustained concentration. • “Does have fairly significant untreated Attention Deficient Disorder”

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Appeal Number 2023-0111 In the assessor’s report, the social worker said th e following about the appellant: • Speaking, reading, writing and hearing are good – “completed most of grade 11”. • With cognitive and emotional functioning, there are major impacts to bodily function, consciousness, emotion and motivation. There are moderate impacts to attention/concentration. There are minimal or no impacts to all other listed areas of cognition and emotion. • “[the appellant] describes emotional flare ups where he is irrationally triggered and becomes angry as he tries to control the situation. He is not physically abusive”.

In the self-report, the appellant said the following about his mental impairment: • He has severe ADHD. He cannot focus long enough to write a resume.

Daily Living Activities In the medical report, the doctor said the following about the appellant: • Any medications or treatments that have been prescribed do not interfere with the appellant’s ability to do his daily living activities. • Personal self-care is continuously restricted. • Use of transportation and social function are periodically restricted. • In response to ‘If periodic, please explain’, the doctor said, “avoids social situations due to abdominal pain and diarrhea”. • In response to ‘If social functioning is impacted, please explain’, the doctor did not say anything. • In response to ‘what assistance does your patient need with Daily Living Activities’; the doctor did not say anything.

In the assessor’s report, the social worker said the following about the appellant: • He independently performs all tasks listed under medications, transportation and personal care. He tries to eat a plant-based diet and avoids using public transportation – too close to strangers. • He independently does his laundry but takes twice as long to do basic housework. • He independently does all the listed shopping tasks. He takes twice as long to go to and from stores. • Under meals, he independently prepares food and stores food safely. He needs periodic assistance with meal planning and cooking – “needs to leave food unexpectedly to attend to bodily functions”. • Under pay rent and bills, the appellant can bank and pay rent and bills independently. The appellant needs periodic assistance with budgeting. • All tasks under social function are performed independently – “13-year relationship and friends for 39 years”. • He has good functioning with immediate and extended social networks.

In the self-report, the appellant said that he cannot sit in a vehicle long enough to do anything without need a bathroom.

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Appeal Number 2023-0111 Help In the medical report, the doctor said the following about the appellant: • The appellant does not need any prothesis or aids for his impairment.

In the assessor’s report, the social worker said the following about the appellant: • Assistance is provided by friends. The appellant “manages best with others’ assistance”. • In response to ‘what assistance is required’, the social worker said, “dental care at a reduced cost – help to consume food and help with self-image”.

Evidence on Appeal The appellant submitted a notice of appeal dated April 19, 2023. In the notice the appellant said that “[the appellant] was denied because he was waiting for more information and was unable to see the advocate. Also, the doctor didn’t specify how ADHD affected [the appellant’s] daily life. [The appellant] also suffers from Crohn’s”.

The panel found that the information in the notice of appeal is the appellant’s argument. The appellant submitted a picture of his mental health records. Evidence at the Hearing At the hearing, the appellant said the following: • He has a new PWD application completed with a diagnosis of substance use disorder, ADHD, bi-polar, and depression. • He could not submit this new information in time for the hearing today because he lives 1 hour out of town and it is difficult for him to travel that distance. At times, his father will go into town to submit papers for him but it is hard for his father too. • Other people are on PWD and function just fine but he cannot. • He has been impacted by Crohn’s for 8 years and he soils himself without notice. • He carries a ‘toilet’ with him everywhere he goes. He has been humiliated by soiling himself in public. • He cannot work and cannot afford his medications. • The chemicals in food caused this condition. He can fish and hunt for fresh food but store-bought foods have chemicals that harm him. • He is Aboriginal and is waiting for his status to come through. • He is entitled to some assistance so he can function. • ADHD causes him to be scattered and not focus. He was kicked out of school in grade 8 due to marijuana use. • The marijuana use of 29 years has impacted his brain and this is part of the reason he did not submit all of the information he has about his medical conditions. • He struggles day to day. So, his girlfriend does everything for him, including getting him to eat, go to the store, cleaning and cooking. She is there fulltime to help him (they live together). • His mental records (which he was unable to submit but there is a picture of them in the record), will show his mental health assessments and diagnosis of bi-polar, depression and suicidal ideation. • His doctor did not know him well when she did the first PWD application.

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Appeal Number 2023-0111 • Walking is uncomfortable, he gets bloated when he climbs stairs. • He was self-employed but then was audited. He eventually declared bankruptcy. The stress of the audit and process of bankruptcy brought on his medical condition. He has had no income since 2012 and relies on family and friends for help.

At the hearing, the ministry relied on its reconsideration decision. The ministry advised that the appellant ought to apply for Persons with Persistent Multiple Barriers as well.

Admission of Additional Information A panel may consider evidence that is not part of the record as the panel considers is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

In this case the additional information includes: • A picture of the unsubmitted mental health records package. • A diagnosis of bi-polar, depression, suicide ideation, substance use disorder and ADHD.

In this case, the panel determined that additional information submitted before the hearing is information that allows for a full and fair disclosure of all matters related to the decision under appeal and has admitted this information as evidence in accordance with s. 22(4) of the Employment and Assistance Act. The panel notes that a picture of a mental health package does not give the panel any information. The panel notes that the appellant’s social worker mentioned that the appellant feels depressed, has ADHD and was hospitalized for suicidal thoughts in 2009 and 2013. However, the additional diagnosis of bi-polar, depression, suicide ideation, substance use disorder and ADHD have not been confirmed by a medical practitioner or nurse practitioner. Therefore, the panel places little weight on this information.

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Appeal Number 2023-0111 Part F – Reasons for Panel Decision The issue on appeal is whether the ministry's reconsideration decision, which found that the appellant is not eligible for designation as a PWD, was reasonably supported by the evidence or was a reasonable application of the legislation.

Panel Decision Severe Impairment In the reconsideration decision, the ministry was not satisfied that the information showed that the appellant has a severe physical or mental impairment. To show that an impairment is severe, the information has to be weighed against the nature of the impairment and how it impacts functioning either physically or mentally. Having a diagnosis of an impairment does not mean that the condition is severe or that the person is qualified for PWD. The information has to show that the impairment is a medical condition that restricts a person’s ability to function on their own or effectively. The ministry has to look at the impairment and see if it impacts daily functioning. The ministry depends on the information in the PWD application and any other information that is given.

The panel also notes that the ability to work is not a consideration for PWD eligibility because the ability work is not a requirement of section 2(2) of the Act and is not listed as a daily living activity.

Physical Impairment The appellant said that his Crohn’s disease leaves unable to function on a day-to-day basis. He struggles with everything.

The ministry said that based on the information provided in the PWD application, it is unable to conclude that a medical condition is causing a severe physical impairment in the appellant’s ability to function independently or effectively.

In the reconsideration decision, the ministry pointed out what the doctor and social worker said about the appellant’s functional skills and daily living activities. The ministry also pointed out what the appellant said in his self-report.

The ministry said that the appellant has significant limits with remaining seated and travelling longer distances due to frequent bowel movements. However, the doctor said that here are no other impairments in physical functional skills or DLA’s other than saying there is persistent abdominal pain, diarrhea, fatigue, and restrictions with personal self-care and transportation, with no report of any restrictions with other DLA’s. This describes at most a mild to moderate physical impairment in the ability to function independently or effectively.

Both the appellant and social worker said that he tires easily and the social worker said there are significant limits with walking, lifting, carrying and holding, and that the appellant takes twice as long with basic housekeeping and going to/from stores. However, it is unclear to the panel why this level of functional skill impairment was not reported by the doctor who has known the

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Appeal Number 2023-0111 appellant much longer and saw him 11 or more tim es in the past year. As the doctor only indicates significant limits with remaining seated and reports no restrictions with most of the DLA’s, which significantly differs from that from the appellant and the social worker.

The ministry said that it must make an evidence-based decision based on the medical evidence. The evidence given does not support a severe overall physical impairment in the ability to function independently or effectively, for a reasonable duration.

The panel finds that the information given by the doctor and social worker is insufficient because it does not show that the appellant has a severe impairment. For an impairment to be severe it must impact the ability to function in a significant way. The appellant said that it is uncomfortable to walk and he gets bloated when he climbs stairs. He is easily tired and avoids activities such as lifting to minimize his pain. But his doctor and social worker said that he can function physically without any significant impacts. The doctor said that the appellant can only remain seated for less than an hour because he frequently has to use the washroom. But that is the only impact on physical functioning. The social worker said that the appellant can walk (indoor/outdoor), climbs stairs, stand for a maximum of 10 minutes, and carry/hold 10lbs. She also said that he can lift independently but avoids lifting due to pain. The doctor said that the appellant is restricted with personal care and social functioning but the doctor did not explain why the appellant cannot deal with his personal care if he can physically function. The doctor also did not give information about whether the restriction to social functioning is for extended periods. All of this information combined does not say that the appellant’s impairment is severe; it only says that there are some limits to what he can do.

As a result, the panel finds that the ministry was reasonable when it found that the appellant does not have a severe physical impairment as is required by Section 2(2)(a) of the Act.

Mental Impairment The appellant said that his Crohn’s and its impacts cause him to be depressed and it takes a mental toll.

The ministry said that based on the information provided in the PWD application, the ministry is unable to conclude that medical condition is causing a severe mental impairment in the appellant’s ability to function independently or effectively.

In the reconsideration decision, the ministry points out the cognitive and emotional functioning that the doctor and social worker reported. The ministry pointed out what the social worker said about the appellant’s daily living activities and what the appellant said in his self-report.

The ministry said that the information shows a moderate mental impairment and does not show a severe mental impairment in the ability to function independently or effectively. It was said that the appellant has fairly significant attention deficit disorder with major impacts on daily functioning of emotional and cognitive functioning, due in large part because of the daily struggles with the Crohn’s impacting your mental well-being. But there are some inconsistencies between what the doctor said and what the social worker said. The appellant’s mental functioning seems to only have a moderate impact on the ability to function

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Appeal Number 2023-0111 independently or effectively because he is almost fully independent with all of the daily living activities, and minimal assistance needed because of emotional or mental impairments. The appellant does not take significantly longer than typical to complete basic functioning or daily living activities because of the mental impairments. This makes it difficult to prove a severe mental impairment in functioning. The ministry recognizes that the past 5 months have been unbearable and at times the appellant has felt like giving up; but the doctor and social worker did not say that the appellant has been diagnosed with depression and the assessments given did not show a severe mental impairment in the ability to function independently or effectively. As such, the ministry is unable to conclude that the appellant has a severe mental impairment. The ministry is satisfied that a moderate mental impairment has been demonstrated

The panel finds that the information given by the doctor and social worker is insufficient because it does not show that the appellant has a severe impairment. For an impairment to be severe it must impact the ability to function in a significant way. The appellant said that he has depression, ADHD, bi-polar, substance use disorder and suicide ideation. But none of that information was confirmed by the doctor which is required by the legislation. The doctor and the social worker both said that there are impacts to the appellant’s cognitive and emotional functioning. The doctor said it was because of his untreated ADD. There is no information about how ADD would impact the appellant if he got treatment.

Also, when the panel looks at the information regarding mental functioning, neither the doctor nor the social worker gave enough information. If a person has a severe mental impairment, how they function with making decision about personal activities, care or finance, and how they communicate or interact with others must be considered. In this case, both the doctor and social worker agree that the appellant has no issues with communication, and he can make his own decisions about care and finances other than budgeting. He can manage all aspects of his medications. The doctor said that there are continuous restrictions to personal care and periodic restrictions to social functioning, but the social worker said that these activities a done independently. The appellant does not appear to avoid social situations due to a severe mental impairment. The doctor did not identify what type of help the appellant needs in social situations or how often. All of this information combined does not say that the appellant’s impairment is severe; it only says that there are some limits to what he can do.

As a result, the panel finds that the ministry was reasonable when it found that the appellant does not have a severe mental impairment as is required by Section 2(2)(a) of the Act.

Restrictions in the ability to perform Daily Living Activities Section 2(2)(b)(i) of the Act requires that the minister must be satisfied that in the opinion of a prescribed professional, a severe mental or physical impairment directly and significantly restricts the appellant’s ability to perform daily living activities either continuously or periodically for extended periods. While other evidence may be considered for clarification or support, the ministry’s decision is based on the evidence from prescribed professionals. The term “directly” means that there must be a connecting link between the severe impairment and the restriction. The direct restriction must also be significant. Finally, there is a part related to time or duration – the direct and significant restriction may be either continuous or periodic. If periodic, it must be for extended periods. Any examination of periodicity must also include of how frequently the