Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0226 Part C – Decision Under Appeal The decision under appeal is the reconsideration decision of the Ministry of Social Development and Poverty Reduction (Ministry) dated July 25, 2023, in which the Ministry determined that the Appellant was not eligible to receive disability assistance in July 2023 because her net income from employment insurance in May 2023 was more than the rate of disability assistance for a sole recipient.

Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Regulation (Regulation), sections 1(1)(g) and 24; Schedule A, sections 1(1), 2(1) and 4; Schedule B, sections 1 and 7

Employment and Assistance Act (EAA), s. 22(4) and 24(1) and (2)

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

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Appeal Number 2023-0226 Part E – Summary of Facts The hearing took place by teleconference. The Appellant attended with a Parent as advocate.

Evidence at Reconsideration:

The Appellant is a sole recipient of disability assistance under the Employment and Assistance for Persons with Disabilities Act. The monthly disability assistance rate for a sole recipient is $1,358.50, consisting of $983.50 for a support allowance and $375.00 for a shelter allowance.

The Appellant was forced to leave her employment in February 2023 because a supervisor had concerns about the Appellant’s mental health. They told the Appellant that she could not return until she provided a doctor’s note. The Appellant provided the note from her family doctor, but the supervisor would not accept it, and contacted the doctor to say that they should not have provided the note. The employer then required a longer form medical report, but the Appellant’s doctor would not complete it because they were leaving their position in a week.

The Appellant had to find a new doctor to complete the employer’s form, and meanwhile she applied for employment insurance (“EI”) sickness benefits. There was a delay in processing and approving her application, so in May, 2023, she received a lump sum payment for 9 weeks of EI sickness benefits, at a rate of $318.00 per week. The Appellant eventually found a doctor who could complete the longer form and returned to work.

On June 5, 2023, the Appellant reported the net EI payment of $2,667.00 in her monthly report to the Ministry, under “all other income/money received”. On June 14, 2023, the Ministry told the Appellant that she was not eligible for disability assistance in July 2023 because her unearned income from EI was more than the monthly disability assistance for a sole recipient.

Additional Evidence:

At the hearing, the Appellant’s Parent stated: • The Appellant’s employer did not contact her to talk about concerns about the Appellant’s mental health before they forced her to stop working, even though the Parent is listed with the employer as a resource and contact person because of the Appellant’s disabilities. • Due to her disabilities, the Appellant sometimes says inappropriate things. When

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Appeal Number 2023-0226 the Appellant said at work that she wish ed she could die, her supervisor forced the Appellant on an administrative leave of absence until she could provide a doctor’s note to say she was fit to return to work. • Being forced not to work increased the Appellant’s risk of self harm. The Appellant struggles to have social contacts, and work is what keeps her functioning. When she cannot go to work, the Appellant just stays in her room and becomes depressed and suicidal. • The Appellant’s doctor knew that the Appellant needed to be able to keep working, for her mental health. • After the Appellant found a new doctor, they wanted to see her a couple of times so they could get to know her before completing the long medical form. • As a former Ministry employee, the Parent knows that there are situations where a benefit is required but is not available under the legislation, but a supervisor could go to a person in a higher position, who could change the outcome for that particular person.

In answer to a question from the Ministry, the Parent stated: • The Appellant received disability assistance in the months before she received the lump sum payment of the EI benefit.

In answer to a question from the Panel, the Appellant stated that she was sent home from work on February 16 or 19, 2023, she applied for EI at the end of March 2023, and she returned to work on April 19, 2023.

Admissibility of Additional Evidence:

The Ministry did not object to the additional oral evidence of the Parent and 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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Appeal Number 2023-0226 Part F – Reasons for Panel Decision The issue on appeal is whether the Ministry was reasonable in its determination that the Appellant was not eligible for disability assistance in July 2023 because the amount she received as a lump sum EI sickness benefit was more than the amount of disability assistance for a sole recipient.

Appellant’s Position:

The Appellant acknowledges that the Ministry’s decision is correct under the legislation. However, the Parent knows from her experience working for the Ministry that the Ministry can make exceptions in individual circumstances where the result is unfair. The Appellant was forced off work unfairly, and as a result, her mental health suffered significantly. There was an inordinate delay in receiving EI benefits, which were meant to help her through the time when she was not allowed to work. The Appellant maintains that the whole process has been unfair, causing further harm to the Appellant’s mental health and resulting in her receiving half her usual income, through no fault of her own.

Further, the Appellant argues that, if EI had paid sickness benefits at $296.33 per week over the 9 weeks that the Appellant was eligible to receive them, she would have had her income topped up by disability assistance. She also argued that the legislation should be changed to make EI sickness benefits exempt unearned income.

The Appellant says that the Ministry should review the Appellant’s case and exercise discretion to waive the requirements of the legislation and override an unfair decision.

Ministry’s Position:

The Ministry says that it is bound by the legislation and does not have discretion to exempt unearned income from the calculation of net income, except as set out in the Regulation. The Ministry says that EI sickness benefits are unearned income that is not exempt under the Regulation. As the Appellant received payment from EI in May, properly reported in June, in an amount that was more than the disability assistance for a sole recipient, she was not eligible to receive disability assistance in July 2023.

Panel Decision:

The Panel finds that the Ministry’s reconsideration decision was a reasonable application of the legislation in the Appellant’s circumstances.

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Appeal Number 2023-0226 The Appellant is a sole recipient of disability as sistance. Disability assistance for a sole recipient is $1,358.50. The Appellant received EI sick benefits in May 2023 in the net amount of $2,667.00, which is more than the amount of disability assistance for a sole recipient. She properly reported receiving the lump sum EI benefit on the monthly report to the Ministry on June 5, 2023.

Under section 24 of the Regulation, the Ministry may provide disability assistance in an amount that is not more than the shelter and support allowance determined under Schedule A, minus the recipient’s net income determined under Schedule B. Some unearned income is exempt from income under Schedule B, but EI sickness benefits are not exempt. Therefore, the Ministry determined that the Appellant was not eligible for disability assistance in July 2023 because her net income, which was the lump sum EI benefit, was more than the monthly disability assistance for a sole recipient.

The Appellant agrees that, under the legislation, the Ministry’s reconsideration decision is correct. However, she argues that the Ministry should consider the Appellant’s case individually and exercise discretion to pay the July disability assistance. She points out the unfairness of the Appellant’s situation, starting when she was forced to stop working, and the negative effect it has had on her mental health. The Parent maintains that, in her experience working with the Ministry, someone in a position of authority could review the Appellant’s case and make a different decision.

Under section 24 of the EAA, the Panel must determine if the decision being appealed is either reasonably supported by the evidence, or a reasonable application of the Act and Regulation in the Appellant’s circumstances. Then the Panel can either confirm or rescind the decision. The Panel does not have jurisdiction or authority to refer cases to the Ministry to make a decision that falls outside the legislation. The legislation does not give the Ministry discretion to disregard non-exempt unearned income when calculating a recipient’s net income under Schedule B of the Regulation.

Lastly, the Appellant argued that she was unfairly penalized because the Federal Government paid the EI benefit in a lump sum, rather than periodically as the benefit accrued, with the result that the Appellant lost an entire month of disability assistance. The Panel notes that, unless unearned income is exempt under section 1 of Schedule B of the Regulation, unearned income, including non-exempt EI benefits, is deducted from the Ministry’s disability assistance dollar-for-dollar. EI sickness benefits are not exempt under section 1 of Schedule B. The lump sum payment exceeded the disability assistance rate by $1,308.50. If the amount of EI benefits had been reported in smaller increments over more than one month, those amounts would have been deducted from the Appellant’s disability allowance, and she may have received less overall. As it is, although it was an inadvertent

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Appeal Number 2023-0226 outcome, receiving the money in one lump sum has resulted in a benefit to the Appellant, as she has received more money from the combined benefits than if she had received and declared the EI income over more than one month.

Conclusion:

The Panel finds that the Ministry correctly determined that, as the Appellant received non­exempt EI benefits of $2,667.00 in May 2023, reported in June 2023, she is not eligible for disability assistance in July 2023. The Panel finds that the Ministry’s reconsideration decision is a reasonable application of the Act and Regulation in the Appellant’s circumstances. The Appellant is not successful in the appeal.

Schedule of Legislation

Employment and Assistance for Persons with Disabilities Act Employment and Assistance for Persons with Disabilities Regulation Definitions s. 1 (1) In this regulation: "unearned income" means any income that is not earned income, and includes, without limitation, money or value received from any of the following: [omit other sources listed subsections (a) to (f) and (h) to (y) that are not relevant to this appeal]

(g) employment insurance; Amount of disability assistance s. 24 Disability assistance may be provided to or for a family unit, for a calendar month, in an amount that is not more than

(a) the amount determined under Schedule A, minus (b) the family unit's net income determined under Schedule B.

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Appeal Number 2023-0226 Schedu le A Maximum amount of disability assistance before deduction of net income s. 1 (1) Subject to this section and sections 3 and 6 to 8 of this Schedule, the amount of disability assistance referred to in section 24 (a) [amount of disability assistance] of this regulation is the sum of

(a) the monthly support allowance under section 2 of this Schedule for a family unit matching the family unit of the applicant or recipient, plus

(b) the shelter allowance calculated under sections 4 and 5 of this Schedule. Monthly support allowance s. 2 (1) A monthly support allowance for the purpose of section 1 (a) is the sum of (a) the amount set out in Column 3 of the following table for a family unit described in Column 1 of an applicant or a recipient described in Column 2, plus

Item

1

(a.1) Repealed. [B.C. Reg. 193/2017, s. 9 (a).] (b) the amount calculated in accordance with subsections (2) to (4) for each dependent child in the family unit.

Column 1 Family unit composition

Column 2 Age or status of applicant or recipient

Sole applicant / recipient and no Applicant / recipient is a person with disabilities dependent children

Column 3 Amount ($)

$983.50

Monthly shelter allowance s. 4 (1) For the purposes of this section: "family unit" includes a child who is not a dependent child and who relies on the parent for the necessities of life and resides in the parent's place of residence for not less than 40% of each month;

"warrant" has the meaning of warrant in section 14.2 [consequences in relation to outstanding arrest warrants] of the Act.

(2) The monthly shelter allowance for a family unit other than a family unit described in section 14.2 (1) of the Act is the greater of

(a) the minimum set out in the following table for the family unit, and (b) the lesser of

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Appeal Number 2023-0226 (i) the family unit's actual shelter costs, and (ii) the maximum set out in the following table for the family unit.

Item Column 1 Column 2 Column 3 Family Unit Size Minimum Maximum

1

1 person

$75

$375

Schedule B Net Income Calculation (section 24 (b) ) Deduction and exemption rules s. 1 When calculating the net income of a family unit for the purposes of section 24 (b) [amount of disability assistance] of this regulation,

(a) the following are exempt from income: (i) any income earned by a dependent child attending school on a full-time basis; (ii) Repealed. [B.C. Reg. 96/2017, App. 2, s. 2 (a).] (iii) Repealed. [B.C. Reg. 48/2010, Sch. 1, s. 2 (c).] (iv) a family bonus, except the portion treated as unearned income under section 10 (1) of this Schedule;

(iv.1) the Canada child benefit, except the portion treated as unearned income under section 10 (1) of this Schedule;

(v) the basic child tax benefit; (vi) a goods and services tax credit under the Income Tax Act (Canada); (vii) a tax credit under section 8 [refundable sales tax credit], 8.1 [climate action tax credit] or 8.2 [BC harmonized sales tax credit] of the Income Tax Act (British Columbia);

(viii) individual redress payments granted by the government of Canada to a person of Japanese ancestry;

(ix) individual payments granted by the government of Canada under the Extraordinary Assistance Plan to a person infected by the human immunodeficiency virus;

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Appeal Number 2023-0226 (x) individual payments granted by the government of British Columbia to a person infected by the human immunodeficiency virus or to the surviving spouse or dependent children of that person;

(xi) individual payments granted by the government of Canada under the Extraordinary Assistance Plan to thalidomide victims;

(xii) money that is (A) paid or payable to a person if the money is awarded to the person by an adjudicative panel in respect of claims of abuse at Jericho Hill School for the Deaf and drawn from a lump sum settlement paid by the government of British Columbia, or

(B) paid or payable to or for a person if the payment is in accordance with the settlement agreement approved by the Supreme Court in Action No. C980463, Vancouver Registry;

(xii.1) money that is paid or payable to or for a person if the payment is in accordance with the settlement under the Final Settlement Agreement and Supplementary Agreement approved by the Federal Court June 22, 2018 in Court File No. T-370-17, Todd Edward Ross et al. v. Her Majesty the Queen;

(xii.2) money that is paid or payable to or for a person if the payment is in accordance with the settlement under the Final Settlement Agreement approved by the Federal Court January 30, 2019 in Court File No. T-1068-14, Raymond Michael Toth v. Her Majesty the Queen;

(xiii) the BC earned income benefit; (xiv) money paid or payable under the 1986-1990 Hepatitis C Settlement Agreement made June 15, 1999, except money paid or payable under section 4.02 or 6.01 of Schedule A or of Schedule B of that agreement;

(xv) a rent subsidy provided by the provincial government, or by a council, board, society or governmental agency that administers rent subsidies from the provincial government;

(xvi) Repealed. [B.C. Reg. 197/2012, Sch. 2, s. 11 (a).] (xvii) and (xvii.1) Repealed. [B.C. Reg. 99/2023, App. 2, s. 3 (a).] (xviii) financial assistance payments provided under Part 6 of the Adoption Regulation, B.C. Reg. 291/96;

(xix) a rebate of energy or fuel tax provided by the government of Canada, the government of British Columbia, or an agency of either government;

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Appeal Number 2023-0226 (xx) money paid by the government of British Columbia, under a written agreement, to a person with disabilities or to a trustee for the benefit of a person with disabilities to enable the person with disabilities to live in the community instead of in an institution;

(xxi) Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 7.] (xxii) payments granted by the government of British Columbia under section 8 [agreement with child's kin and others] of the Child, Family and Community Service Act;

(xxiii) payments granted by the government of British Columbia under the Ministry of Children and Family Development's At Home Program;

(xxiv) Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 7.] (xxv) payments granted by the government of British Columbia under an agreement referred to in section 93 (1) (g) (ii) of the Child, Family and Community Service Act, for contributions to the support of a child;

(xxvi) a loan that is (A) not greater than the amount contemplated by the recipient's business plan, accepted by the minister under section 70.1 of this regulation, and

(B) received and used for the purposes set out in the business plan; (xxvii) payments granted by the government of British Columbia under the Ministry of Children and Family Development's

(A) Autism Funding: Under Age 6 Program, or (B) Autism Funding: Ages 6 — 18 Program; (xxviii) Repealed. [B.C. Reg. 148/2015, App. 2, s. 1 (a).] (xxix) payments made by a health authority or a contractor of a health authority to a recipient, who is a "person with a mental disorder" as defined in section 1 of the Mental Health Act, for the purpose of supporting the recipient in participating in a volunteer program or in a mental health or addictions rehabilitation program;

(xxx) a refund provided under Plan I as established under the Drug Plans Regulation; (xxxi) payments provided by Community Living BC to assist with travel expenses for a recipient in the family unit to attend a self-help skills program, or a supported work placement program, approved by Community Living BC;

(xxxii) a Universal Child Care Benefit provided under the Universal Child Care Benefit Act (Canada);

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Appeal Number 2023-0226 (xxxii.1) a rental housing benefit provid ed under the Rental Housing Benefit Act (Canada); (xxxii.2) a dental benefit provided under the Dental Benefit Act (Canada); (xxxiii) money paid by the government of Canada, under a settlement agreement, to persons who contracted Hepatitis C by receiving blood or blood products in Canada prior to 1986 or after July 1, 1990, except money paid under that agreement as income replacement;

(xxxiv) money withdrawn from a registered disability savings plan; (xxxv) a working income tax benefit provided under the Income Tax Act (Canada); (xxxvi) Repealed. [B.C. Reg. 180/2010, s. 2 (b).] (xxxvii) the climate action dividend under section 13.02 of the Income Tax Act; (xxxviii) money paid or payable to a person under the Criminal Injury Compensation Act as compensation for non-pecuniary loss or damage for pain, suffering mental or emotional trauma, humiliation or inconvenience that occurred when the person was under 19 years of age;

(xxxix) money that is paid or payable to or for a person if the payment is in accordance with the settlement agreement approved by the Supreme Court in Action No. S024338, Vancouver Registry;

(xl) payments granted by the government of British Columbia under the Ministry of Children and Family Development's Family Support Services program;

(xli) payments granted by the government of British Columbia under the Ministry of Children and Family Development's Supported Child Development program;

(xlii) payments granted by the government of British Columbia under the Ministry of Children and Family Development's Aboriginal Supported Child Development program;

(xliii) money paid or payable from a fund that is established by the government of British Columbia, the government of Canada and the City of Vancouver in relation to recommendation 3.2 of the final report of the Missing Women Commission of Inquiry;

(xliv) payments granted by the government of British Columbia under the Temporary Education Support for Parents program;

(xlv) a BC early childhood tax benefit; (xlv.1) a BC child opportunity benefit; (xlv.2) a BC family benefit;

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Appeal Number 2023-0226 (xlvi) child support; (xlvii) orphan's benefits under the Canada Pension Plan Act (Canada); (xlviii) money or other value received, by will or as the result of intestacy, from the estate of a deceased person;

(xlix) gifts; (l) education and training allowances, grants, bursaries or scholarships, other than student financial assistance;

(li) money withdrawn from a registered education savings plan; (lii) compensation paid or payable under Division 5 [Compensation in Relation to Death of Worker] of Part 4 [Compensation to Injured Workers and Their Dependants] or section 225 [compensation in relation to worker death before July 1, 1974] of the Workers Compensation Act to a dependant, as defined in section 1 of that Act, who is a child, as defined in section 165 (1) of that Act;

(liii) money that is paid or payable by or for Community Living BC to or for a person if the payment is in accordance with an award in a legal proceeding or with a settlement agreement in respect of a claim for injury, loss or damage caused by Community Living BC, an employee of Community Living BC or a person retained under a contract to perform services for Community Living BC;