Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0181 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”) reconsideration decision dated June 15, 2023, in which the ministry found the appellant was not eligible for designation as a Person with Disabilities (“PWD”) under section 2 of the Employment and Assistance for Persons with Disabilities Act (“Act”). The ministry found that the appellant met the age requirement and the requirement for the impairment to continue for at least 2 years but was not satisfied that: • the appellant has a severe mental or physical impairment, • the impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform daily living activities either continuously or periodically for extended periods; and • as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform daily living activities.

The ministry found that the appellant is not one of the prescribed classes of persons eligible for PWD designation on the alternative grounds set out in section 2.1 of the Employment and Assistance for Persons with Disabilities Regulation (“Regulation”). As there was no information or argument on this point, the panel considers it not to be at issue in this appeal. Part D – Relevant Legislation The ministry based the reconsideration decision on the following legislation:

Employment and Assistance for Persons with Disabilities Act - sections 2, and 2.1

Employment and Assistance for Persons with Disabilities Regulation - section 2

Employment and Assistance Act - section 22(4)

The full text is available in the Schedule after the decision.

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Appeal Number 2023-0181 Part E – Summary of Facts The information the ministry had at the time of the reconsideration decision included:

1. A record of the decision indicating that the PWD application was submitted on March 7, 2023, and denied on April 18, 2023, with the Decision denial summary explaining the criteria that were not met. On June 1, 2023, the appellant submitted a Request for Reconsideration. On June 15, 2023, the ministry completed its review and found that the eligibility requirements for PWD designation were still not met.

2. The PWD application with 3 parts: • the Applicant Information (self-report) dated February 1, 2023; • a Medical Report dated February 28, 2023, signed by a Nurse Practitioner (“NP”) who has known the appellant since August 2021, and has seen her 2-10 times in the past 12 months, and • an Assessor Report dated February 28, 2023, also completed by the NP who based the assessment on an office interview with the appellant and file/chart information.

Summary of relevant evidence from the application

Diagnoses

In the Medical Report, the appellant is diagnosed with Schizophrenia/psychosis (onset, January 2018); Anxiety disorder (onset 2001), and Digestive disorders – Other – Cholelithiasis/fatty liver (onset 2021).

In Section B - Health History, the NP describes a long-standing history of mental illness including anxiety and auditory hallucinations. The appellant has been hearing voices on and off since 2018 and currently hears voices daily with some breaks.

The NP describes anxiety as “active and gets worse due to situations along with panic attacks.” The NP reports that the symptoms of psychosis and anxiety are “very frequent and moderate-severe.” The appellant has tried some medications in the past that were not tolerable due to side effects. The appellant is not receiving treatment for her symptoms. In Section F – Additional Comments, the NP describes “daily voices in [the appellant’s] head for hours at a time.”

Additional information from the appellant

In the self-report, the appellant describes suffering from anxiety and panic attacks “for around 20 years” with more frequent attacks in the past 2 years. She has also been 3

Appeal Number 2023-0181 diagnosed with non-alcoholic fatty liver disease . The appellant reports some success with vitamins and self-care for anxiety but says that her most prominent issue is hearing voices on a daily basis. The appellant reports a family history of late-onset Schizophrenia.

The appellant says she has documented hearing up to 30 voices since at least 2018. The voices repeat simple things which sometimes escalates to complex dialogue. The appellant contacted a mental health intake team in 2021, but they said she had not been experiencing symptoms long enough for a diagnosis.

The appellant was a referred to psychology, but cancelled the appointment because she was overwhelmed with medical tests/appointments for her newly diagnosed fatty liver disease. The appellant said she tried to get a new psychology appointment but was told there was a backlog and they could not fit her in unless she agreed to take medication or had an emergency.

The appellant says she has not felt depressed or suicidal in recent years, but this year when she was involved in a family conflict she heard voices say she should “kill myself.” The appellant reports that odd sights, stressful situations, and social isolation increase her anxiety and make the voices more frequent and more negative. The appellant describes some of the voices as “high level, intelligent, with ideas or reflection superior to my own feelings” while other voices are “nagging, disruptive, critical, administratively themed.”

Functional skills

Self-report The appellant reports that the voices are very disruptive. While the voices can be convincing, she does not mistake or confuse them with reality. The appellant reports “periods when the voices go quiet.” They are not as disruptive at night now that she has help from a companion animal. The appellant reports that the voices cause sleep disturbance. They affect her concentration when she is working on something or doing everyday tasks.

Medical Report In Section B-Health History, the NP says the appellant is unable to work due to hearing voices “as it’s difficult to distinguish from reality, causes insomnia and other impairments.”

In Section D - Functional Skills, the appellant is able to walk 4+ blocks unaided on a flat surface; and climb 5+ steps unaided. The appellant has no limitations with lifting or sitting. The NP check marked “no” when asked if the appellant has difficulties with communication.

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Appeal Number 2023-0181

When asked if there are any significant deficits with cognitive and emotional function, the NP checked “yes” with additional check marks for 2 of the 11 areas listed: psychotic symptoms, and emotional disturbance (comment, “currently hearing voices”).

There was no check mark for the following areas to indicate any deficits: Consciousness Executive Language Memory Perceptual psycho- motor Motivation Impulse control Motor activity Attention or sustained concentration Other

Assessor Report In Section B-1, the NP reports “loss of full cognitive/psychological function as voices in head are distracting, troubling, and impair social connections.”

In Section B-2, the NP indicates “good’ for all areas of communication: speaking, reading, writing, hearing.

In Section B-3, the NP assessed all areas of Mobility and Physical Ability as independent: Walking indoors Walking outdoors Climbing stairs Standing Lifting Carrying and holding

In section B-4, Cognitive and Emotional Functioning, the assessor is asked to indicate the impact of a mental impairment on various cognitive and emotional functions. For the 14 areas listed, the NP indicates the following impacts: • minimal impact for emotion • moderate impact for psychotic symptoms.

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Appeal Number 2023-0181 The NP checked “no impact” for the remaining functions: • Bodily functions (including sleep disturbance) • Consciousness • Impulse control • Insight and judgment • Attention/concentration • Executive • Memory • Motor activity • Language • Other neuropsychological problems • Other emotional or mental problems

Daily living activities

In the opinion of a prescribed professional, the NP provides the following information:

Medical Report In Section C-3, the NP checked “no”, the appellant has not been prescribed medications or treatments that interfere with the ability to perform daily living activities. In Section E – Daily Living Activities, the NP checked “no” when asked if the impairment directly restricts the person’s ability to perform activities.

When asked if specific activities are restricted, the NP checked “no” for all of the tasks listed:

Personal self care Meal preparation Management of medications Basic housework Daily shopping Mobility inside the home Mobility outside the home Use of transportation Management of finances Social functioning

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Assessor Report

Appeal Number 2023-0181

Restricted daily living activities

Social Functioning

In Section C, the NP indicates restrictions with most areas of Social Functioning. The appellant requires periodic support/supervision from another person with able to develop and maintain relationships; interacts appropriately with others, and able to deal appropriately with unexpected demands.

The NP assessed the remaining areas as independent: appropriate social decisions, and able to secure assistance from others. The NP checked that the appellant has “marginal functioning” with her immediate and extended social networks (comment, “no supervision needed but trouble with independently connecting with others”). Section E – Additional Information was left blank.

The NP checked “independent” for all areas of the other daily living activities listed in the Assessor Report:

Personal Care

The appellant was assessed as independent with dressing, grooming, bathing, toileting, feeding self, regulating diet, and transfers (bed and chair).

Basic Housekeeping

The NP checked “independent” for laundry, and basic housekeeping.

Shopping

The NP checked “independent” for all the activities listed: • going to and from stores • reading prices and labels • making appropriate choices • paying for purchases • carrying purchases home

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Meals

Appeal Number 2023-0181

The NP checked “independent” for all activities: • meal planning • food preparation • cooking • safe storage of food

Pay Rent and Bills

The NP checked “independent” for banking, budgeting, and pay rent and bills.

Medications

The NP checked “independent” for filling/refilling prescriptions, taking as directed, and safe handling and storage.

Transportation

The NP checked “independent” for getting in and out of a vehicle, using public transit, and using transit schedules/arranging transportation.

Need for help

Medical Report In Section B-4, the NP checked “no” when asked if the applicant requires any protheses or aids for the impairment.

Assessor Report In Section A-1, the NP checked that the appellant lives alone. In Section D-Assistance provided by other people, the NP wrote “none.” The NP left the next part of Section D blank (Assistance provided through the use of assistive devices.). The NP checked “no” the appellant does not have an assistance animal.

3. A Request for Reconsideration signed by the appellant on June 1, 2023, with a 9-page typed-submission dated May 31, 2023. In addition to argument for the reconsideration, the appellant adds the following details:

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Appeal Number 2023-0181 Symptoms and functional skills • auditory hallucinations are accompanied by disorganized thinking, sleep disturbance, difficulty with planning and focusing, and confusion about passing time. The appellant reports difficulty with meeting deadlines and determining the time of day or day of the week. • she has difficulties with communication caused by a cognitive impairment. Specifically, “trouble with the intake of information, with focus and holding my attention to a certain task or conversation so I normally have to write things down.” The appellant says that her ability to read “has lessened greatly in recent years as I lack focus and concentration in processing information.” • in addition to psychotic symptoms and emotional disturbance (as indicated in the Medical Report) the appellant reports significant deficits with executive, memory, motivation, and attention or sustained concentration. Specifically, “trouble processing and applying information, find it difficult to go from one task to another and find some environments unsustainable to be in for an extended period.” Organization is especially difficult due to auditory hallucinations. The appellant says her emotions have flattened since the psychosis started; she sometimes lacks motivation for tasks. While her memory is clear for facts, she loses track of when she last did something. • her mental impairment has a major impact on bodily functions (“sleep disturbance”), as well as emotion (“excessive or inappropriate anxiety”). Auditory hallucinations can wake her up at night and keep her awake until she manages to ignore them. The voices can be “negative, insulting, relentless, and there is a feeling of lack of control” which can cause her to over-react. • the appellant reports a major impact for attention/concentration (distractible, hard to focus due to hallucinations); executive function (“time sequencing” planning), and motivation (has difficulty getting important things done). • the appellant reports a moderate impact for motor activity. The appellant reports other emotional or mental problems that also impact her function to a moderate degree (“behaviour patterns that are autistic in nature”).

Daily living activities

The appellant reports continuous restrictions with most of the activities listed in the Medical Report and Assessor Report: • she can move about outdoors and cook but these activities “are always plagued by disorganization, negative voices in my head telling me I shouldn’t do something, distractions, and lack of motivation caused by all of the above.” • Personal self-care is continuously restricted. Unless she uses an app. on her phone, she has difficultly recalling the last time she brushed her teeth or bathed. The

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Appeal Number 2023-0181 appellant reports difficulty in setting up routines (“they get abandoned”). She says that daily auditory hallucinations are “repetitive and nagging” and may not be related to the task at hand. Meal preparation is continuously restricted because she cannot make recipes in her current state of psychosis or cope with anything that is not simple. For the most part, her cooking is limited to boiling food in a rice cooker or making a sandwich. The appellant says she used to cook and bake but can no longer do so. She relies on community meals programs as having to clean the kitchen “would cause more stress and more voices.” Basic housework is continuously restricted as she neglects deep cleaning unless she uses apps. to remind her of the last time something was cleaned. She tries to keep her home uncluttered to make things simpler. She cannot afford to hire a cleaner. She uses a timer to keep track of each load of laundry. Daily shopping is continuously restricted because she needs extra time to plan what to buy and track how much she is spending. She can’t always afford to pay for the app. that assists her with ordering groceries and having them delivered. The appellant says that without the app, she buys small quantities at a time (“but that can be exasperating”) and relies on community meal programs. When in a store, she hears voices “repeating the same things I hear when I am at home.” Decision-making at the store “takes me longer than normal.” she used to commute on transit but now finds it overwhelmingly difficult to organize travel. The appellant says she walks or uses a ride-sharing service if she needs to go somewhere.

Need for help • the appellant describes her frequent use of ipad/phone apps. and checklists to remind her to have a bath or go shopping. She relies on her companion animal to alert her to do certain tasks. The appellant states that her pet is not trained as an assistance animal. • The appellant says she doesn’t have a social worker, psychologist, or home care worker but receives support from her building managers who usually check on her daily. She also relies on community programs to assist with food preparation/meals.

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Additional submissions – written hearing

Appeal Number 2023-0181

With the consent of both parties the appeal format was a written hearing pursuant to section 22(3)(b) of the Employment and Assistance Act. Neither party submitted additional evidence requiring an admissibility decision by the panel. The appellant filed a Notice of Appeal with a hand-written statement which the panel accepts as argument. In an email to the Tribunal, the ministry said that the Record of Ministry Decision is its submission on appeal. The panel will consider the arguments in Part F-Reasons.

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Appeal Number 2023-0181 Part F – Reasons for Panel Decision The issue on appeal is whether the ministry’s decision that found the appellant ineligible for PWD designation was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant. The panel’s role is to determine whether the ministry was reasonable in finding that the following eligibility criteria in section 2 of the EAPWDA were not met: • the appellant has a severe mental or physical impairment; • the impairment, in the opinion of a prescribed professional, directly and significantly restricts the ability to perform daily living activities either continuously or periodically for extended periods; and • as a result of restrictions caused by the impairment, the appellant requires an assistive device, the significant help or supervision of another person, or the services of an assistance animal to perform daily living activities.

Analysis

PWD designation - generally

The legislation provides the Minister with the discretion to designate someone as a PWD if all the requirements are met. In the ministry’s view, PWD designation is for persons who have significant difficulty in performing regular self-care activities including social interaction and making decisions about personal activities, where a mental impairment is shown.

Some requirements must have an opinion from a professional, so it is reasonable to place significant weight on those opinions. The ministry found that 2 of the 5 requirements were met because the appellant is at least 18 years of age, and a nurse practitioner has given the opinion that the impairment is likely to continue for at least 2 years.

The application form includes a self-report, so it is appropriate to place significant weight on evidence from the appellant unless there is a legitimate reason not to do so. The panel will review the reasonableness of the ministry’s determinations and exercise of discretion.

Severe impairment

“Severe” and “impairment” are not defined in the legislation. The ministry considers the extent of any impact on daily functioning as shown by limitations with or restrictions on physical abilities and/or mental functions. The panel finds that an assessment of severity based on physical and mental functioning including any restrictions, is a reasonable

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Appeal Number 2023-0181 interpretation of the legislation. A medical prac titioner’s description of a condition as “severe” is not determinative on its own. The ministry must make this determination considering the relevant evidence and legal principles.

Restrictions to Daily living activities

A prescribed professional must provide an opinion that the applicant’s impairment restricts the ability to perform daily living activities. The BC Supreme Court decision in Hudson v. Employment and Assistance Appeal Tribunal [2009 BCSC 1461] determined that at least two daily living activities must be restricted in a way that meets the requirements of the Act, and that not all activities need to be restricted.

The restrictions to daily living activities must be significant and caused by the impairment. This means that the restriction must be to a great extent, and that not being able to do daily activities without a lot of help or support will have a large impact on the person’s life.

The restrictions also must be continuous or periodic. Continuous means the activity is generally restricted all the time. A periodic restriction must be for extended periods, meaning frequent or for longer periods of time. For example, the activity is restricted most days of the week, or for the whole day on the days that the person cannot do the activity without help or support. To figure out if a periodic restriction is for extended periods, it is reasonable to look for information on the duration or frequency of the restriction.

The requirements for restrictions to daily living activities are set out in subsection 2(2)(b)(i) of the Act. Specific activities are listed in section 2(1) of the Regulation. The Medical Report and Assessor Report also list activities, and though they do not match the daily living activities in the Regulation exactly, they generally cover the same activities.

The Medical Report and Assessor Report give the professional the opportunity to provide additional details on the applicant’s restrictions. The inability to work and financial need are not listed as daily living activities and are only relevant to the extent they impact the listed activities.

Help Required

A prescribed professional must provide an opinion that the person needs help to perform the restricted daily living activities. This requirement is set out in subsection 2(2)(b)(ii) of the Act. Under subsection 3, “help” means needing an assistive device, the significant help or supervision of another person, or an assistance animal to perform daily living activities.

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Appeal Number 2023-0181 An assistance device, defined in section 2(1) of the Act, is something designed to let the person perform the restricted daily living activities.

Arguments

Appellant – severe mental impairment

The appellant’s position is that her mental impairment is severe because she is distracted by daily auditory hallucinations (“that can last for hours”) and she also suffers from anxiety and panic attacks which have worsened in the last 2 years. The appellant argues that these conditions impact her cognitive and social functioning and she suffers from sleep disturbance as well. The appellant argues that her ability to plan and keep track of time are decreased and she lacks the motivation to do some important things.

The appellant argues that she has difficulties with communication because it is hard to hold her focus and process information. In her appeal submission the appellant says she can’t understand why the ministry fails to see that daily auditory hallucinations constitute a disability.

In her Request for Reconsideration, the appellant explains that the NP interviewed her over the phone when the appellant may have been distracted by her companion animal. The appellant feels that she may have been “too liberal in assuming the difficulties I have been experiencing would be clear, and also did not give enough careful thought to the questions about how my daily living is affected.” The appellant argues that some questions have been recorded “as having no impact on my life when I would answer differently.”

Ministry - Severe mental or physical impairment

The ministry’s position is that the information provided by the NP and the appellant does not establish a severe impairment. The ministry acknowledges the NP’s report of “full loss of cognitive/psychological function” due to auditory hallucinations but notes that the NP also indicates no impacts to the majority of cognitive and emotional functions. The ministry argues that the moderate and minimal impacts that the NP indicates for psychotic symptoms and emotion (combined with no significant restrictions to daily living activities) does not establish a severe impairment of mental functioning.