Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0124 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the Ministry) decision dated April 19, 2023 denying persons with disabilities (PWD) designation.

The Ministry found the Appellant met the age (over 18) and duration (likely to last more than two years) requirements. However, the Ministry found the Appellant did not meet the requirements for:  severe mental or physical impairment  significant restriction on the ability to perform daily living activities  needing significant help to perform daily living activities.

The Ministry found the Appellant was not one of the prescribed classes of persons eligible for PWD on alternative grounds. As there was no information or argument on this point, the Panel considers it not to be an issue in this appeal.

Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act (Act), s. 2 Employment and Assistance for Persons with Disabilities Regulation (Regulation), s. 2 Employment and Assistance Act (EAA), s. 22(4)

Full text of the Legislation is in the Schedule of Legislation at the end of the Reasons.

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Appeal Number 2023-0124 Part E – Summary of Facts Evidence Before the Ministry at Reconsideration:

The information the Ministry had at the time of the decision included:  Medical Report and Assessor Report completed by the Appellant’s Doctor  Psychiatric Assessment completed by a Psychiatrist  Appellant’s Self Report.

Medical Report: The Doctor states that they have been the Appellant’s family physician since 2006 and have seen the Appellant between 2 and 10 times in the past 12 months.

Diagnosis: The Doctor provides diagnoses of generalized anxiety disorder (GAD) and attention deficit/hyperactivity disorder (ADHD), with onset of both more than 7 years ago.

Health History: The Doctor states that the Appellant’s anxiety and ADHD are constant, and of moderate severity. They state:  “moderate +” problems with social anxiety  “moderate +” poor concentration and focus  difficulties making social relationships  mood often low  poor energy and motivation  panic attacks  interrupted sleep.

Functional Skills: The Doctor indicates that the Appellant:  can walk 4+ blocks unaided on a flat surface  can climb 5+ steps unaided  has no limitations in lifting or remaining seated. The Doctor indicates that the Appellant has significant deficits with cognitive and emotional functioning in the areas of memory, emotional disturbance, and motivation. They explain that “ADHD + GAD + episodes of panic attacks interfere with her day to day function.”

Assessor Report: Mental or Physical Impairment: The Doctor states that the Appellant’s mental or physical impairments that impact her ability to manage daily living activities are ADHD and GAD. They state that the Appellant has difficulties with social interaction, decreased energy, motivation, concentration and focus, and increased anxiety.

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Appeal Number 2023-0124 Mobility and Physical Ability: The Doctor indicates that the Appellant has satisfactory ability to speak, read, write, and hear. They Indicate that the Appellant is independent in all areas of physical mobility listed on the form.

Cognitive and Emotional Functioning: The Doctor indicates that the Appellant’s anxiety and panic attacks have both moderate and major impact on her functioning. They indicate that mental impairment has moderate impact on bodily function, emotion, attention/concentration, executive function, and memory, They indicate both moderate and minimal impact on motivation. They indicate minimal impact on impulse control.

Daily Living Activities: The Doctor indicates that the Appellant needs periodic assistance from another person in the following activities:  personal care: dressing, grooming, bathing, toileting, feeding self, regulating diet “when anxiety is high + energy/motivation is low”  basic housekeeping and laundry: “will need reminders from [parent] to do”  shopping: going to and from stores, paying for purchases, “if anxiety high, she is unable to go shopping”  meals: meal planning, food preparation, cooking, “will need reminder to complete them, will need help when anxiety is high”  pay rent and bills: banking, budgeting, pay rent and bills, “will need reminder to complete them, will need help when anxiety is high”  medications: filling/refiling prescriptions, “will need help when anxiety is high”  transportation: using public transit, using transit schedules, and arranging transportation, “will need help when anxiety is high”

Under Social Functioning, the Doctor indicates that the Appellant needs periodic support or supervision for:  making appropriate social decisions  developing and maintaining relationships  interacting appropriately with others  dealing appropriately with unexpected demands  securing assistance from others. The Doctor states that the Appellant “will periodically require help when anxiety levels high.” They indicate marginal functioning with immediate and extended social networks.

Assistance Provided for Applicant: The Doctor indicates that the Appellant’s family provides the help required for daily living activities.

Psychiatric Assessment: The Psychiatrist assessed the Appellant at the request of the Doctor in March 2022. The Psychiatrist states:

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Appeal Number 2023-0124  the Appellant reports that she worries about “everything really” and as a result she often avoids going places or has a parent drive her  she has longstanding challenges with insomnia and intermittent headaches and muscle stiffness  she has “significant anxiety about social themes and has often avoided social situation [sic]”  the Appellant reports significant food allergies and multiple environmental allergies.

The Psychiatrist diagnoses GAD and reported history of ADHD, recommending a treatment program and trials of medication.

Self Report: The Appellant states:  her disabilities have prevented her from going grocery shopping, finding a job, interacting with family, and taking transit  she has had anxiety attacks resulting in asthma attacks because she is overwhelmed by the number of people around her when she is on transit, and sometimes she ends up “spacing out to try and avoid that episode from happening”  she has a similar experience when shopping; “even with my mom with me I forget many things I really need because I’m just rushing to get out of the store”  she has had to leave work, or has lost jobs, because of anxiety and panic attacks  she used to enjoy walking in a nearby neighbourhood, but she cannot do that any more because she is afraid of having a panic attack  sometimes the thought of going out causes an anxiety attack  her anxiety has worsened because of Covid, and the effect it could have on her asthma  she is terrified to go out because she knows not everyone is as cautious about Covid as she is  when it is harder for her to breath because of her asthma, her anxiety levels increase “by at least 50-60%” because she feels her body struggling  her anxiety is easily triggered by medical problems because her grandparents died of cancer and one of her parents was diagnosed with cancer when she was a child  ADHD affects her mentally and physically on a daily basis: o she has a hard time understanding social situations o she struggles to get words out o she “spaces out” o she has trouble staying on task and forgets important things o she always feels restless or “restless or agitated out of nowhere” o she gets mad or irritated “at the smallest things” o she may have a “burst of energy out of nowhere and then feel completely drained 20-30 minutes later” o she has trouble falling asleep or waking up at the right time o she “has a hard time learning things and being able to process them” o sometimes she has impulsive thoughts o in conversation, she struggles to articulate words, and sometimes she “spaces out completely” and misses what is being said

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Appeal Number 2023-0124 o she does not always register social cues such as the right time to say something, and sometimes she does not understand other people’s emotions, or why they are angry with her o she is frustrated that she has trouble staying on task or remembering to do things o she feels restless and anxious “a lot of the time” and cannot be still or focus; when that happens, she cannot stop herself from fidgeting, shaking her legs, rubbing clothing between her fingers, biting her nails or the inside of piercings, which makes her uncomfortable in public o as a child, her ADHD was undiagnosed, and she did not receive the treatment she needed o due to anxiety, she cannot go grocery shopping; she asks her parent to shop for her o some days she cannot get out of bed to make herself food because she is emotionally drained from the day before o ADHD makes it hard for her to remember important things such as re-ordering medication or booking appointments for necessary tests o she struggles to remember to do laundry, clean up or do dishes or pay bills on time.

Additional Evidence: Appellant: At the hearing, the Appellant said:  she gets panic attacks in public, which also trigger asthma attacks  she secludes herself from the outside world because it makes her mental health worse to go out  she tried to “break out of her shell” last year by working at a family member’s beverage stand, but a police incident involving a person who approached her undid the progress she thought she was making “with the world and with strangers”  she is not comfortable going places where there are a lot of people

In answer to questions from the Panel, the Appellant stated:  she stopped walking in the nearby neighbourhood in 2016 or 2017 because she distrusted “outside and the people who may be there”  her parent either shops for her, or goes shopping with her every time  in the morning her parent gives her a list of things she needs to do, and times to do them, such as do the dishes, and eat – sometimes she forgets to feed herself  her parent goes to the shared laundry room ahead of the Appellant to check that there is no one else there, before the Appellant does her laundry; her parent also leaves her a detailed list of steps and coins to do the laundry  in the past she had not taken medication consistently because she felt unworthy of help  she has anxiety every day, and panic attacks when she goes outside the house, or if she has to go out in public, or sometimes if she is just thinking about going somewhere  panic attacks can last anywhere from 5 to 10 minutes, but if that triggers an asthma attack, she cannot do anything for a couple of hours

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Appeal Number 2023-0124  since August 1, 2023, she has had 4 panic attacks, 1 of which triggered an asthma attack  in July, she had a panic attack every second or third day because she was being asked to go many places  she cannot take transit any more; either she does not go out, or her parent takes her  she stays home most of the time, to control her anxiety.

Admissibility of Additional Evidence: The Ministry did not object to the additional oral evidence of the Appellant. The Panel finds that the additional evidence is reasonably required for the full and fair disclosure of all matters in the appeal. Therefore, the Panel finds that the additional evidence is admissible under EAA s. 22(4).

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Part F – Reasons for Panel Decision

Appeal Number 2023-0124

The issue on appeal is whether the Ministry’s decision denying the Appellant PWD designation is reasonably supported by the evidence or is a reasonable application of the legislation. The Ministry found the Appellant met the age (over 18) and duration (likely to last more than two years) requirements. However, the Ministry found the Appellant did not meet the requirements for:  severe mental or physical impairment  significant restriction on the ability to perform daily living activities  needing significant help to perform daily living activities.

Appellant’s Position: The Appellant says that she meets the criteria for PWD designation. She says that anxiety and ADHD have impaired her functioning since she was a child. She has lost jobs and been unable to continue at school, because of those conditions. She stays in her home because of her fear that she will have anxiety and panic attacks, which are triggered by being around other people she does not know, or the thought of being around others, and not being able to get away. Her anxiety has been worse because of the risk of Covid and the fear of having an asthma attack triggered by a panic attack. Her Doctor has identified many daily living activities that are affected by her medical conditions, and she needs the help of her parent to perform those activities. Therefore, she says that she meets the criteria.

Ministry Position: Physical Impairment: The Ministry maintains that the Appellant’s physical impairment is mild, rather than severe. They note that the Doctor does not mention a diagnosis of asthma, and therefore they cannot consider that condition in determining physical impairment. They acknowledge that the Doctor reports low energy, interrupted sleep, and allergies, but say that, considering the rest of the medical information, those conditions result in a mild impairment of physical functioning. They point out that the Doctor does not report any impairment of physical function or mobility.

Mental Impairment: The Ministry says that the Appellant’s mental impairment is mild to moderate, rather than severe. They note that the Doctor indicates only one area of Social Functioning where anxiety and panic attacks have between moderate and severe impact, and all other areas show moderate, mild or no impact. The Ministry says that, without further details about the frequency and duration of episodes of anxiety, it is difficult to establish that the Appellant has a severe mental impairment.

Daily Living Activities: The Ministry also says that the information provided does not indicate direct and significant restrictions in daily living activities. The Ministry acknowledges that the Doctor indicates that the Appellant needs periodic assistance with daily living activities when anxiety is high. However, the Ministry says that there is not enough detail about the frequency and duration of episodes of

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Appeal Number 2023-0124 high anxiety and panic attacks, and the amount of help required, to establish that the Appellant’s ability to perform daily living activities is significantly restricted.

Help to Perform Daily Living Activities: The Ministry argues that, although the Doctor and the Psychiatrist report that the Appellant receives periodic help, they do not report that significant help is provided or required. Further, the Ministry says that, as it has not been established that the Appellant’s ability to perform daily living activities is significantly restricted, the Ministry also cannot determine that the Appellant needs significant help with restricted activities.

Panel Decision: PWD Designation – Generally The legislation provides the Ministry with the discretion to designate someone as a PWD if the requirements are met. In the Panel’s view, PWD designation is for persons who have significant difficulty in performing regular self-care activities.

Some requirements for PWD designation must have an opinion from a professional, and it is reasonable to place significant weight on these opinions. The application form includes a Self Report. It is also appropriate to place significant weight on the Self Report and evidence from the Appellant, unless there is a legitimate reason not to do so.

The Panel will review the reasonableness of the Minister’s determinations and exercise of discretion.

Severe Mental or Physical 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 application of the legislation.

A medical practitioner’s description of a condition as “severe” is not determinative. The Minister must make this determination considering the relevant evidence and legal principles.

1. Physical Impairment: The Panel finds that the Ministry was reasonable in its determination that, based on the information in the Doctor’s reports, the Appellant’s physical impairment is mild rather than severe.

While the Appellant reports that she has asthma, the Doctor does not mention this diagnosis. The Panel finds that it is reasonable for the Ministry not to consider medical diagnoses that have not been confirmed by a medical practitioner or nurse practitioner.

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Appeal Number 2023-0124 The Doctor reports that the Appellant has low energy and interrupted sleep. The Psychiatrist’s report notes allergies. However, neither the Doctor nor the Psychiatrist report any limitations in physical functioning or mobility as a result. Therefore, the Panel finds that the Ministry was reasonable in its determination that the Appellant has a mild, rather than a severe, physical impairment.

2. Mental Impairment: The Panel finds that, considering the additional information provided by the Appellant at the hearing, the Ministry’s determination that the Appellant does not have a severe mental impairment is not reasonable. The Panel finds that the combined effect of GAD and ADHD result in a severe mental impairment for the Appellant.

The Doctor reports that the Appellant has GAD and ADHD, both of which they state are of “moderate +” severity. In considering the loss of function from GAD and ADHD, the Panel notes that the Doctor indicates both major and moderate impact for “other emotional or mental problems”, specifying anxiety and panic attacks. They indicate moderate impact in 5 other areas of cognitive and emotional functioning (bodily functions, emotion, attention/concentration, executive function, and memory), both mild and moderate impact on 1 area (motivation), and minimal impact on 1 area (impulse control). The Doctor does not indicate whether the other impacts are from GAD, ADHD, or a combination of both conditions.

The Appellant explained that she has anxiety every day and has panic attacks when she goes out among other people. She says that she lives with her parents, and stays home most of the time, to control her anxiety. She cannot go shopping unless she has her parent with her. She cannot go to the shared laundry room at her residence unless her mother checks the space for her in advance, because of her fear that she might encounter another person. She cannot take transit to go anywhere on her own. If she needs to go anywhere, her parent drives her. She described panic attacks every 2 or 3 days last month, because she was being asked to go places. The effects of panic attacks can last 5 to 10 minutes, or hours.

The Doctor indicates that the Appellant has marginal functioning with her immediate social network, defined as “little significant participation/communication; relationships often minimal and fluctuate in quality”. They indicate marginal functioning with her extended social network, defined as “little more than minimal acts to fulfill basic needs”. The Panel notes that, in order to function outside her home in an unstructured environment, such as a store, the Appellant needs a parent with her. The Appellant described the step-by-step lists and schedules that her parent frequently gives her in the morning to take her through the day, so that she remembers to do basic things like feed herself. The Doctor confirms that the Appellant needs this support when her anxiety is high.

In the reconsideration decision, the Ministry relies on the statement in the Psychiatrist’s report from March 2022, that panic attacks are “periodic and mainly situational involving conflicts”. The Panel notes that the Appellant stated that her condition has worsened in the past year, due to an incident where she was approached by another person and had to call the police. The Appellant’s Doctor has seen the Appellant more frequently and more recently than the Psychiatrist, and their reports were prepared in January 2023. The Panel places greater weight         EAAT003 (17/08/21) 10

Appeal Number 2023-0124 on the more recent Medical and Assessor Reports, and the Appellant’s evidence, to determine the severity, frequency, duration, and apparent triggers of anxiety and panic attacks.

When determining the severity of the mental impairment, it is reasonable to consider the frequency and duration of anxiety and panic attacks. The Panel finds that it is also both reasonable and important to consider the impairment resulting from the Appellant’s efforts to avoid those anxiety and panic attacks. The Appellant cannot venture out from her home alone, even to go for a walk in a nearby neighbourhood, because she is afraid of triggering a panic attack. She cannot do simple activities like go into a laundry room without knowing that she will not encounter another person. The Panel finds that the limitations in daily function due to high anxiety and panic attacks, including the need to avoid those attacks, are a severe impairment.

Therefore, the Panel finds that the Appellant has a severe mental impairment. Considering the additional evidence provided by the Appellant at the hearing, the Panel finds that the Ministry’s determination, that a severe mental impairment is not established, is not reasonably supported by the evidence.

Restrictions to Daily Living Activities (Activities): A prescribed professional must provide an opinion that the applicant’s impairment restricts the ability to perform the daily living activities (“Activities”) listed in the legislation. The Activities that are considered are listed in the Regulation. Those Activities are:  prepare own meals  manage personal finances  shop for personal needs  use public or personal transportation facilities  perform housework to maintain the person’s place of residence in acceptable sanitary condition  move about indoors and outdoors  perform personal hygiene and self care  manage personal medication.

For a person who has a severe mental impairment, Activities also include:  make decisions about personal activities, care, or finances  relate to, communicate, or interact with others effectively.

At least two Activities must be restricted in a way that meets the requirements. Not all Activities, or even the majority, need to be restricted. The inability to work and financial need are not listed as Activities and are only relevant to the extent that they impact listed Activities.