Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0157 Part C – Decision Under Appeal Under appeal is a decision of the Ministry of Social Development and Poverty Reduction (the “ministry”) dated May 25, 2023 (the “Reconsideration Decision”). The Reconsideration Decision was a denial of continued disability assistance to the Appellant while out of the province in her original country (“overseas”). Previously the Appellant had been granted several extensions and was seeking a further extension. The ministry determined that the Appellant did not meet any of the criteria for an extension and considered the Appellant as no longer a BC resident.

Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities (the “Regulation”): Section 15 (s.15) Interpretation Act Section 29 (definition of "medical practitioner") (See attached Appendix for text of the above)

EAAT003 (17/08/21)

2

Appeal Number 2023-0157 Part E – Summary of Facts The Appellant was a sole recipient of disability benefits (“PWD payments”) under the Employment and Assistance for Persons with Disabilities Act (the “Act”). Before the Reconsideration Decision the Appellant had previously been granted prior authorizations and several extensions to be outside the province for more than 30 days and continue to receive the PWD payments. These were granted under s.15 of the Regulation (s.15) in order to avoid undue hardship under s15(c).

The key dates and information related to the matter are as follows: The Appellant immigrated to Canada many years ago but returned to reside overseas again for 2020 and 2021. PWD payments were stopped for about a year. The Appellant returned to BC in early 2022 and requalified for PWD payments.

2022-Aug- 11:

2022-Aug- 15:

2022-Dec-01 2022-Dec- 19:

2023-Jan-04:

2023-Jan-16: 2023-Jan-18:

2023-Jan-19:

The Appellant sought ministry approval to travel back overseas to receive dental treatment which is not covered in BC. The departure was confirmed to be 2022-Sept-01 with a return 2022-Dec-01.

The ministry provided the prior authorization based on undue hardship pending confirmation of plans. The Appellant provided the exact departure and return dates (2022 Sept 1 to Dec 1) and advised that there was no change to her BC shelter.

The extension ended on this date. The Appellant advised the minister that she continued to reside overseas and sought an extension until after Christmas because her mother recently passed away. The extension (under s.15(c)) was approved to 2023-Jan-01.

The Appellant emailed the ministry to request a further extension stating that the Appellant was currently too sick to travel.

An extension (under s.15(c)) was granted to 2023-Feb-15. The Appellant asked the ministry about February PWD payments stating that if they were not received the Appellant would not have funds to fly back to Canada. Direct deposit was confirmed.

The Appellant informed the ministry that her oncologist proposed treatment that was not available in Canada, as her cancer had returned.

2023-Feb-15 The extension ended on this date. 2023-Feb-16: The ministry contacted the Appellant to advise of its awareness that the Appellant had not paid rent since departure (2022 September)

EAAT003 (17/08/21)

3

2023-Feb-21

Appeal Number 2023-0157 despite collecting shelter funds in the PWD payments across those 7 months since then.

The ministry determined that the Appellant was ineligible for disability assistance by residing out of the province and not paying rent for the claimed shelter in BC (a shelter allowance was part of that payment). The Appellant was informed of the right to seek a reconsideration.

2023-Feb-23: The Appellant provided confirmation from the overseas oncologist that the Appellant was no longer in remission and required care. An extension (under s.15(c)) was granted to 2023-Mar-31 in order to attend medical appointments for that care.

2023-Mar-31 The extension ended on this date. 2023-Apr-05: The Appellant requested a further extension until June 2023 while asking about the possibility of extension until November when the Appellant reached 65 years of age.

2023-Apr-06: The ministry advised the Appellant that in order to extend the approval the administrator required confirmation from a medical practitioner that the Appellant is unable to travel back to BC. It noted that the Appellant was requesting up to an additional 7 months of PWD payments, totaling over one year of benefits while overseas. The ministry suggested applying for financial assistance where the Appellant currently resides.

2023-Apr-13

2023-Apr-21

The ministry advised the Appellant (on or about that date) that she was ineligible for further extension of PWD payments (disability assistance) due to being resident out of the country (and thus outside of BC). She was informed of the right to seek a reconsideration.

The Appellant requested reconsideration with supporting documents that included a Discharge Summary completed 2023-Apr-19 by an overseas physician stating:

Due to advancement of the disease, possibility of distant metastases, the patient is not suitable for distant travel. She should undergo systemic and local treatment in her current place of residence.

The Appellant also clarified that the request was for an extension of benefits until at least the end of June 2023. The Appellant indicated that there was no formal request, only a question whether extension

EAAT003 (17/08/21)

4

Appeal Number 2023-0157 until November was a po ssibility given that the Appellant has no realistic intentions or any sure plans due to the uncertain health conditions.

The extension (under s.15(c)) was granted to 2023-May-23. 2023-May-23 The extension ended on this date. 2023-May 25 On 2023-May-25 the ministry issued the Reconsideration Decision. 2023-June- The Appellant appealed to the Employment and Assistance Appeal 02 Tribunal seeking a hearing by written submissions

2023-June- 29

The Appellant’s submissions were provided to the ministry.

2023-July 12 The ministry’s submissions were provided to the Appellant. The Reconsideration decision denied the Appellant’s request for continued disability assistance while overseas based upon s.15. The ministry did not find that any of the three exemptions applied discussed below.

Re s.15 “(a) permitting the recipient to participate in a formal education program”

The ministry stated, “You are not participating in a formal education program.” Re s.15 “(b) permitting the recipient to obtain medical therapy prescribed by a medical practitioner”

The ministry noted that while the overseas doctor recommended electrochemotherapy this was not “prescribed by a medical practitioner” because there was no evidence that the overseas doctor was a registrant of the College of Physicians of Surgeons of B.C. The term “medical practitioner” has a specific meaning that is found under the Interpretation Act, and that only includes those registrants.

With respect to a submitted emailed letter that was from the BC doctor the ministry said:

Although the email ... recommends you follow through with the treatment [overseas] it is unclear if this is because [the BC doctor] has prescribed the medical treatment or if it is because you cannot obtain electrochemotherapy in BC and you are currently in [your overseas country].

Re s.15 “(c) avoiding undue hardship” The ministry acknowledged that electrochemotherapy is not available in British Columbia but found no medical evidence to suggest that the Appellant was unable

EAAT003 (17/08/21)

5

Appeal Number 2023-0157 to obtain cancer treatment in BC. (Althou gh it also noted (elsewhere) that the Appellant no longer had BC MSP coverage due to non-residency.)

The final paragraph of Reconsideration Decision states: You have explained that you cannot receive benefits in [your overseas country] because you receive disability from Canada. However, the ministry finds no evidence to show that you would be unable to access [your country’s] Social Security [as a citizen of your country] if you are no longer receiving assistance from British Columbia. While you may be unable to travel to British Columbia at this time, as you could receive social security from [there], the ministry is not satisfied that you face undue hardship if you do not receive continued assistance from British Columbia.

The ministry also addressed residency in BC as a requirement. Appellant Submissions The Appellant’s submissions attached documents stating: These are medical papers stating my extreme health situation. I am determined to take the electrochemotherapy treatment as soon as it is possible.

I am not in the condition to travel. I don't have many choices to fight third-time cancer.

If the treatment helps I will be planning to return to Vancouver by October/November, for the winter months.

Therefore I need essential finances to survive the coming months. The attachments included: • Appellant’s written communications to and from physicians (BC and overseas) • overseas medical records (with translations) and medical photographs • health research

The panel also considered previous submissions in the Appeal Record that the Appellant made to the ministry, and the documents submitted as attachments to the “Reasons for Appeal” in the Appellant’s 2023-June-02 Notice of Appeal form. These included:

• an “answer to the reconsideration” addressed to the Employment and Assistance Appeal Tribunal • written communications to and from physicians (BC and overseas)

EAAT003 (17/08/21)

6

Appeal Number 2023-0157 • forms about financial support from the overseas government in which the Appellant declares an entitlement to receive funds from a foreign (to that overseas government) institution or government.

The Appellant contested any perceived expression of intent to remain overseas and not return to Canada, but instead expressed a readiness to return, possibly in October/November, that is currently blocked by a medical recommendation to not travel, environmental health concerns, and availability of chosen therapy.

The Appellant also objected to travel and choice of treatment being connected, or at least the ministry’s reference to the Appellant’s rejection of various treatments in BC stating:

I have to decide which treatment I want to take, based on my suffering and experiences. I don't need any suggestions from the Ministry about my oncology choices.

Residency and how it was determined was also contested. The Appellant disputed that the “address of living is not the only one confirming the residence” in BC and described a practice of “resigning from a place” whenever traveling (as in this case). In this instance the Appellant described having possessions and a car in storage in BC, and an inactive phone number that is retained to be reactivated upon return.

The Appellant described not understanding why the “recommendations” of the overseas doctor’s (rather than a BC physician) “shouldn’t be valid” (thus not accepted under s.15(b) as a “medical therapy prescribed by a medical practitioner”). The Appellant noted that a BC physician said, in a provided letter:

We do not have electrochemotherapy in B.C. and thus I recommend you go forward with this treatment in [your overseas country].

The Appellant also described “emotional and psychological overload and trauma” now, and previously from health concerns and previous denials of payments. The prior circumstances included “waiting 5 years for the status of disability in BC” and the loss of PWD payments while overseas in 2020 and 2021. The ministry was described as saving money on PWD payments during those times stating:

I have less than 6 months left of disability payments from the BC Ministry. Therefore, I feel I should be entitled to the continuation of my benefits, with the open situation in regard to my return.

Financial need was described including the Appellant learning about not being entitled to any benefits from her overseas country because of having never worked there and receiving benefits from a “foreign” public institution.

The Appellant also described a history of “health issues: environmental disease:” and concerns requiring travel outside BC and elsewhere. The Appellant describes being

EAAT003 (17/08/21)

7

Appeal Number 2023-0157 “terrified” of weather conditions and air qualit y in BC and the overseas country. The Appellant states in a letter to a BC physician:

I am writing to you because of a paradox: I can not fly back to Canada for the reasons I have my disability. All my physical conditions which worsened since September’ 22 got additionally affected by a new cancer.

Cutting me out of finances is equal to killing me. I was never in the worse physical condition as of today. ... Intercontinental flights are stressful enough, without even any illness and definitively, they're not for sick people, with developing cancer.

Next to all these my very personal health issues, the wildfire season is in full in Canada and it is not going to go away probably up until October.

There is no way I could put myself in any wildfire’s risky geographical zone. Elsewhere the Appellant states: I strongly believe people on disability in BC and Alberta should have full right to leave these types of places in the wildfire situation, not be forced to return.

Ministry Submissions The ministry stated that it relied upon the text of the reconsideration decision but added: • Storage of personal belongings in BC and paying storage insurance for a vehicle in BC, does not establish you as a resident of BC. In addition, you are currently ineligible for HealthCare Coverage in BC which also supports that you do not meet residency requirements.

•

•

The March 13, 2023 letter from [the BC physician] does not establish that you are required to be in [your overseas country] for medical treatment prescribed by the medical practitioner. This letter does not prescribe electrochemotherapy in [that country], it simply notes that electrochemotherapy is not available in BC and therefore recommends you go forward with the treatment in [that country]. The information does not establish nor report that this is the only or preferred treatment plan or that you could not receive appropriate treatment for the cancer in BC.

You have not provided evidence to establish you are not eligible to receive financial support in [that country] if you are ineligible for disability assistance in BC, therefore it cannot be established that continuance of disability assistance is required to avoid undue hardship.

EAAT003 (17/08/21)

8

Appeal Number 2023-0157 Admissibility of New Evidence The Appellant made statements and provided documents in both the Notice of Hearing and the submissions also copied to the ministry on June 29, 2023. The panel admits those submissions under section 22(4) of the Employment and Assistance Act as evidence that is reasonably required for a full and fair disclosure of all matters related to the decision under appeal. The ministry’s submission did not include any new evidence but was considered as argument.

EAAT003 (17/08/21)

9

Appeal Number 2023-0157 Part F – Reasons for Panel Decision The purpose of the panel in appeals, such as this, is not to make a decision as if it was the ministry, but to decide whether the decision made by the ministry is a reasonable application of the laws and reasonably supported by the evidence available, including any evidence newly submitted as part of the appeal. That is, was the ministry reasonable to decide that the appellant was not eligible for continued PWD payments because her absence from BC was not for any of the purposes, or allowed, as set out in section 15 of the Regulation?

In total the Appellant presents financial incapacity, the state of illness, availability of preferred treatment, and environmental factors as showing undue hardship and aggravating the uncertainty of return to BC. This is despite the Appellant’s expressed readiness to do so when conditions permit. She speculated a return “by October/November, for the winter months” but still dependant upon health, and financial survival.

The panel understands that the Appellant is stressed and distressed about health, treatment, finances and perceived past injustices. The panel has compassion for the Appellant’s need to travel to feel well, and to choose from treatment options. The panel is aware of the “paradox” in which the Appellant cannot fly back to BC to retain PWD payments while choosing a treatment not available in BC even if that travel was medically permitted. A similar paradox exists with the current environment in BC that the Appellant seeks to avoid.

The Appellant has suffered from substantial health matters prior to coming to Canada and since then. This includes or has been worsened by sensitivity to environmental, weather and air quality factors. In an effort to avoid those sensitivities and/or seek treatment the Appellant has spent considerable time in Ontario, BC and in the Appellant’s former overseas country. The Appellant describes “being five years on Ontario disability before moving back to BC”, and due to some of this travel and sensitivities:

I am charged by the Ministry of Ontario for traveling in the years after my first cancer to British Columbia. I was flying there to rescue my life. My system was so drained that I could not tolerate the environmental pollution of the Great Toronto Area. …

.... I am terrified to return to Canada. I have had enough of emotional, physical, and financial abuse. I am not strong enough to fight longer any institutions.

It is clear that the Appellant feels an entitlement to PWD payments due to events in Canada and a lack of funding from her overseas country. The Appellant states:

EAAT003 (17/08/21)

10

Appeal Number 2023-0157 I have never worked in [the overseas cou ntry] ... ….Therefore, I am not claiming and asking my country for financial support but only for the treatment which should be available to me. ...

.... I have not decided to move permanently to [my overseas country]. I might be considering that in the future, depending on a variety of factors and predictions of my survival as a cancer patient, and my wellbeing ....

… I feel I have a right to ask for [PWD payment] because of: 5 years on the edge of existence ... 1 year of being without support... in [my overseas country] (the entire year 2021) negligence of BC doctors Psychological abuse and harassment... Never-ending depths due to my financial situation. The panel finds that it is unnecessary to resolve whether the ministry was reasonable in its application and findings about “residency in BC”. This is because it would not change the outcome based on other findings below, but also because of the lack of citation to applicable enactments. That said, it is clear under s.15 that being outside of BC, irrespective of “residency”, is the threshold that applies in this matter.

The Appellant is not a participant in the formal education program and as such only s.15 (b) and (c) of the Regulation require consideration here.

Section 15 at subsection (b) provides that an extension may be provided based upon a “therapy prescribed by a medical practitioner”. That phrase contains the term “medical practitioner” that is defined in the Interpretation Act as a registrant of the College of Physicians and Surgeons of British Columbia. The ministry was reasonable in adhering to the Interpretation Act and the Regulation (indeed it is required to follow both) to determine whether a BC physician had issued a prescription.

The second part of that is that the BC physician must have “prescribed” a therapy. The panel finds that the term “prescribe” or “prescription” is an order, not merely a recommendation or endorsement.

In this matter the Appellant submitted the 2023-Mar-13 letter of a BC doctor, apparently to establish that a BC physician had prescribed treatment, as required by s.15(b). However, the panel finds that it does not issue an order but uses the term “recommend” that in context is a communication endorsing the Appellant's treatment choice that was not available in BC. Accordingly, the panel finds that the ministry was reasonable in finding that .15 (b) was not satisfied.

EAAT003 (17/08/21)

11

Appeal Number 2023-0157 Subsection 15(c) refers more generally to avoid ance of “undue hardship”. The Reconsideration Decision Reasons stated that there was no medical evidence to suggest that appropriate alternate treatment could not be obtained in British Columbia – despite electrochemotherapy not being available in BC. The panel finds that it is unnecessary to resolve that matter because the Appellant is unable to travel to receive that treatment. Nevertheless, the panel also finds that the inability to travel is not relevant to that treatment because the Appellant has chosen not to obtain or pursue other treatment in BC.

The Appellant apparently maintains that the weather and air quality is a health hazard in BC at present but leaving open the possibility of return in October or November for winter months. In essence the claim is that it is an undue hardship for the Appellant to be in BC. With respect to that claim, the panel finds that it is not in the spirit or intent of the applicable legislation that coming to or being in British Columbia is an undue hardship contemplated in s.15(c).

The panel also takes note of the Appellant’s undetermined plans which mean that she might not return to BC. The tenor of the submissions by the Appellant is that the Appellant perceives an entitlement to PWD payments, irrespective of current circumstances. They also suggest that they are viewed as bridge financing. The Appellant requested extension until the end of June 2023 while inquiring about extension until November when the Appellant would qualify for Canada pension benefits .

The Appellant, also, has not established an inability to receive financial support in the overseas country. The forms provided were stated by the Appellant to indicate that the Appellant was entitled to receive PWD payments from the ministry and apparently this was the basis for the lack of funding there. This decision should provide the clarity needed to correct that form and apparent disentitlement.

Considering the above, the panel finds that the Appellant did not establish that continuance of disability assistance is required to avoid undue hardship.

Aside from not maintaining a place in British Columbia that the Appellant could return to, without needing temporary housing, there is substantial indicia that the Appellant left BC without a settled date or intent to return.

The panel finds that, considering all the circumstances, there is sufficient evidence for the ministry to have determined that the Appellant is in the overseas country (i.e. outside BC) intentionally and not as matter of undue hardship, and did not establish need for an extension of the PWD payments to avoid undue hardship.