Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

Appeal Number 2023-0353

The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) reconsideration decision dated November 12, 2023, which determined the appellant was not eligible for the Persons with Disabilities designation because they did not meet the following criteria: - Impairment is likely to continue for two years or more - Severe impairment directly and significantly restricts daily living activities - Assistance is required with daily living activities as a result of significant restriction

The ministry found the appellant was not one of the prescribed classes of persons eligible for Persons with Disabilities designation 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), section 2

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

Relevant sections of the legislation can be found in the Schedule of Legislation at the end of this decision.

EAAT (26/10/22) 2

Part E – Summary of Facts

Appeal Number 2023-0353

Relevant Evidence Before the Minister at Reconsideration

Request for Reconsideration (October 27, 2023) – summary The appellant writes that they were a health care worker throughout the pandemic and saw many people pass away, which “kind of gave them post traumatic stress disorder”. Their doctor told them they had major depression disorder, extreme anxiety (including hallucinations), and extreme panic attacks. Their doctor also told them not to work while taking medication, which they have been taking for close to a year. The appellant also states they were hospitalized due to suicidal thoughts and attempted suicide prior to taking medication.

As well, the appellant states they have not left the house in eight months, except to take out the garbage. Even then, it is hard to be outside without having a panic attack. For groceries etc. their mother shops or they use online services that deliver to their door. Their doctor agrees they should be on disability assistance because of their medication and major depression.

Person with Disabilities Application (application) The appellant chose not to complete the self-report.

Medical Report (September 5, 2023) – signed by the appellant’s doctor The doctor (psychiatrist) provided the following information and responses to the questions below.

B. Diagnosis Panic disorder Social anxiety disorder Major depressive disorder Psychotic disorder unspecified

Date of onset – month/year no information provided “ “ “

C. Health History Please indicate the severity of the medical conditions related to this person's impairment.

EAAT (26/10/22) 3

Appeal Number 2023-0353

The appellant suffers from a long-standi ng severe type of panic disorder, social anxiety disorder, major depressive disorder (in the context of psychotic disorder) and alcohol use disorder. This severe mental illness has significantly interfered with their ability to perform daily living activities.

o Has the appellant been prescribed any medications and/or treatments that interfere with their ability to perform daily living activities? – yes, could cause sedation o If yes, what is the anticipated duration of the medications and/or treatments - indefinitely o Does the appellant require prostheses or aids for their impairment? – no response

D. Degree and Course of Impairment o Is the impairment likely to continue for two years or more from today? – no response

E. Functional Skills o How far can this person walk unaided on a flat surface? - 2-4 blocks o How many stairs can this person climb unaided? – 2-5 steps o What are the person’s limitations in lifting? – 2-7 kgs o How long can this person remain seated? – 1-2 hours o Are there difficulties with communication? – no o Are there any significant deficits with cognitive and emotional function? - yes The doctor checked: psychotic symptoms (delusions, hallucinations, thought disorders), emotional disturbance (e.g. depression, anxiety), motivation (loss of initiative or interest) and attention or sustained concentration.

F. Daily Living Activities Does the impairment directly restrict the person’s ability to perform Daily Living Activities? - yes

Daily Living Activities

Personal self care Meal preparation

Is activity restricted? yes no x x

If yes, the restriction is: unknown continuous periodic x x

EAAT (26/10/22) 4

Management of medications Basic housework Daily shopping Mobility inside the home Mobility outside the home

Use of transportation Management of finances Social functioning – daily decision making; interacting, relating and communication with others

x x x

x x

Appeal Number 2023-0353 x x x

x x

If social functioning is impacted, please explain: The appellant’s severe anxiety disorder has significantly negatively impacted their daily decision-making process.

H. Frequency of Contact o How long has the applicant been your patient? – 8 months o How often have you seen this applicant in the past 12 months? – 2-10 times

Assessor Report (September 22, 2023) – signed by the appellant’s doctor The doctor provided the following information and responses to the questions below.

B. Living Environment The doctor indicated the appellant lives with family, friends or caregiver.

C. Mental or Physical Impairment o What are the applicant’s mental or physical impairments that impact their ability to manage daily living activities? – no information provided

Ability to Communicate Please indicate the level of ability in the following areas speaking reading writing hearing

Good Satisfactory

x x

x

Poor

x

Unable

Explain

EAAT (26/10/22) 5

Mobility and Physical Ability Indicate the assistance required related to impairment (that directly restricts the applicant’s ability to manage in the following areas). Walking indoors Walking outdoors Climbing stairs Standing Lifting Carrying and holding

x x x x x x

Appeal Number 2023-0353

Cognitive and Emotional Functioning For each item indicate to what degree the applicant’s mental impairment restricts their functioning. If impact is episodic or varies over time, Impact on Daily Functioning please explain. No Minimal Moderate Major impact impact impact impact Bodily functions (e.g. eating problems, x toileting problems, poor hygiene, sleep disturbance Consciousness (e.g. orientation, x alert/drowsy, confusion Emotion (e.g. excessive or inappropriate x anxiety, depression etc. Impulse control (e.g. inability to stop x doing something or failing to resist doing something) Insight and judgement (e.g. poor x awareness of self and health condition (e.g. grandiosity, unsafe behavior) Attention/concentration (e.g. x distractible, unable to maintain concentration, poor short-term memory)

EAAT (26/10/22) 6 I n d e p e n d e n t P e r i o d i c a s s i s t a n c e f r o m a n o t h e r p e r s o n C o n t i n u o u s a s s i s t a n c e f r o m a n o t h e r p e r s o n o r u n a b l e U s e s a s s is t i v e d e v ic e T a k e s s i g n i f ic a n t ly l o n g e r t h a n t y p i c a l E x p l a i n a n d

s p e c i f y d e v ic e

Executive (e.g. planning, organizing, sequencing, abstract thinking, problem- solving, calculations) Memory (e.g. can learn new information, names etc., and then recall that information, forgets over-learned facts) Motivation (e.g. lack of initiative, loss of interest) Motor activity (e.g. increased or decreased goal-oriented activity, coordination, lack of movement, agitation, ritualistic or repetitive actions, bizarre behaviours, extreme tension) Language (e.g. expression or comprehension problems (e.g. inability to understand, extreme stuttering, mute, racing speech disorganization of speech) Psychotic symptoms (e.g. delusions, hallucinations, disorganized thinking) Other neuropsychological problems (e.g. visual/spatial problems, psychomotor problems, learning disabilities etc.) Other emotional or mental problems

D. Daily Living Activities Indicate the assistance required related to impairment(s) that directly restrict the applicant’s ability to manage in the following areas. Dressing Grooming Bathing Toileting Feeding self Regulating diet Transfers (in/out of bed)

x x x x x x x

Appeal Number 2023-0353 x

x

x

x

x

x

x

Explain/ Describe

EAAT (26/10/22) 7 I n d e p e n d e n t P e r i o d i c A s s i s t a n c e f r o m a n o t h e r p e r s o n C o n t i n u o u s a s s i s t a n c e f r o m a n o t h e r p e r s o n o r u n a b l e U s e s a s s i s t i v e d e v i c e T a k e s s i g n i f i c a n t l y l o n g e r t h a n t y p i c a l

Transfers (on/off chair) Basic Housekeeping Laundry Basic housekeeping Shopping Going to/from stores Reading prices and labels Making appropriate choices Paying for purchases Carrying purchase home

x

x x

x x x x

Appeal Number 2023-0353

x

Additional comments

Meals Meal planning x Food preparation x Cooking x Safe storage of food (ability, x not environmental) Pay rent and bills Banking x Budgeting x Pay rent and bills x Medications Filling/refilling prescriptions x Taking as directed x Safe handling and storage x Transportation Getting in and out of a x vehicle Using public transit Using transit schedules and arranging transportation

x x

EAAT (26/10/22) 8

Appeal Number 2023-0353 Social Functioning – only complete if applica nt has an identified mental impairment

Indicate the assistance required related to impairment(s) that directly restrict the applicant’s ability to manage in the following areas.

EAAT (26/10/22) 9 I n d e p e n d e n t P e r i o d i c s u p p o r t / s u p e r v i s i o n C o n t i n u o u s s u p p o r t / s u p e r v i s i o n E x p l a i n /

D e s c r i b e

Appropriate social decisions (including x avoiding situations dangerous to self or others, good social judgement) Able to develop and maintain relationships x Interacts appropriately with others (e.g. x understands and responds to social cues, problem solves in social context) Able to deal appropriately with unexpected x demands Able to secure assistance from others x Describe how the mental impairment impacts the applicant’s relationship with - immediate social network – marginal functioning – little significant participation/communication; relationships often minimal and fluctuate in quality - extended social networks – marginal functioning – little more than minimal acts to fulfill basic needs

E. Assistance Provided for Applicant The doctor indicates help required is provided by family.

Assistance provided through the use of devices What equipment or devices does the applicant routinely use to help compensate for their impairment? – no items were indicated.

Assistance provided by Assistance Animals Does the appellant have an assistive animal?- no

H. Frequency of Contact The doctor states they are providing ongoing psychiatric care for the applicant since January 2023.

Appeal Number 2023-0353

Additional Information received after the Reconsideration Decision

Appellant

Notice of Appeal (November 14, 2023) In the Notice of Appeal, the appellant reiterated the information he provided in the request for reconsideration.

At the hearing, the appellant stated they don’t leave the house because of their mental health issues; their depression turned into isolation. They added that they can “do things” in the house; are independent inside the house (e.g., cook). they just can’t deal with anything outside the house. For example, they received a blood work requisition from a doctor, months ago, but haven’t gone for the blood work as they can’t leave the house. They find it too hard to be around people and last worked in September 2022.

The appellant added that they were first hospitalized in 2020 because of a suicide attempt and a second time in 2021. They have monthly phone sessions with their doctor, and have now had approximately nine sessions. They added that the medication appears to be working.

When asked about the doctor’s comment that their severe anxiety has significantly, negatively impacted their daily decision-making process, the appellant stated that this related to an earlier time when they had problems with alcohol, and made some poor decisions. However, they no longer use alcohol.

Regarding the question on the application asking whether or not the impairment would continue for at least two years, the appellant stated that their doctor advised them they responded to the ministry facsimile to clarify this information.

Ministry The ministry relied on its record and stated that it had no record of a facsimile from the appellant’s doctor to clarify the two-year requirement.

Admissibility The panel determined the additional information is reasonably required for a full and fair disclosure of all matters related to the decision under appeal and therefore is admissible under section 22(4) of the Employment and Assistance Act.

EAAT (26/10/22) 10

Part F – Reasons for Panel Decision

Appeal Number 2023-0353

The issue on appeal is whether the ministry’s reconsideration decision was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant.

Did the ministry reasonably determine the appellant was not eligible for the Persons with Disabilities designation because: - their impairment is not likely to continue for two years or more; - they do not have a severe impairment that directly and significantly restricts daily living activities; and - assistance is not required with daily living activities as a result of significant restrictions?

Appellant Position The appellant argues their doctor told them they have a major depression disorder, extreme anxiety including hallucinations, and extreme panic attacks. They were hospitalized due to suicidal thoughts and attempted suicide before medication. They have not left the house in eight months except to take out the garbage and haven’t worked since September 2022.

The appellant also argues their doctor agrees they should be on disability assistance because of their medication and major depression.

Ministry Position Severe Mental Impairment The ministry is satisfied that the appellant has a severe mental impairment.

Duration The ministry argues a medical practitioner has not confirmed the appellant’s impairment is likely to continue for two years.

Severe Physical Impairment The ministry is not satisfied the appellant has a severe physical impairment as their doctor states the appellant can walk 2-4 blocks, climb 2-5 stairs, lift 5-15 pounds and remain seated for 1-2 hours. The doctor also indicates the appellant is independent with all mobility and physical ability tasks.

EAAT (26/10/22) 11

Appeal Number 2023-0353

Daily Living Activities The ministry argues there is not enough evidence to confirm the appellant has a severe impairment that in the opinion of a prescribed professional, significantly restricts their ability to perform daily living activities continuously or for extended periods.

In the medical report, although the doctor states the appellant’s severe anxiety disorder has significantly negatively impacted their daily decision-making process, in the assessor’s report, they state the appellant is independent, and does not require assistance for all daily living activities. As well, although the doctor reports the appellant maintains marginal functioning with social networks, this does not suggest a significant restriction. In addition, although the appellant reports he has been unable to leave their home for eight months, this degree of restriction was not confirmed by the doctor.

Help Required with Daily Living Activities The ministry argues that although the doctor reports the appellant receives help from their friends, as it has not been established that daily living activities are significantly restricted, it cannot be determined that significant help is required.

Panel Analysis Section 2(2) of the Act sets out the requirements that must be met for the minister to designate a person as a person with disabilities: One requirement is that the minister is satisfied that the person has a severe mental or physical impairment.

The ministry is satisfied the appellant has a severe mental impairment. This is not at issue.

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 restrictions on physical abilities. The panel finds that an assessment of severity based on physical functioning including any restrictions is a reasonable application of the legislation.

The panel notes in the medical report, the doctor states the appellant can walk unaided for 2-4 blocks, can climb 2-5 steps, can lift 2-7 kgs and can remain seated for 1-2 hours. In the assessor’s report, the doctor indicates the appellant is independent in all areas relating to mobility and physical ability. As well, there was no evidence or argument from the appellant suggesting they have a severe physical impairment.

EAAT (26/10/22) 12

Appeal Number 2023-0353

Therefore, the panel finds the ministry’s decisio n that it was not satisfied that the appellant has a severe physical impairment, reasonable.

However, the panel notes that even though severe physical impairment is not established, the severe impairment requirement under the legislation is met because of the appellant's severe mental impairment.

Impairment likely to continue for two years or more Section 2(2) of the Regulation also states that the minister must be satisfied that in the opinion of a medical or nurse practitioner the impairment is likely to continue for at least two years,

The panel notes in the medical report, when asked if the impairment is likely to continue for two years or more, the doctor did not provide a response. At the hearing, the appellant stated that they were advised by their doctor that they had responded to the ministry’s inquiry regarding the duration. However, the ministry stated it has not received this information.

Therefore, without additional information, the panel finds the ministry’s decision that it was not satisfied the impairment would continue for two years or more, reasonable.

Restrictions in Ability to Perform Daily Living Activities Section 2(2) of the Act also states the minister must be satisfied that in the opinion of a prescribed professional, a severe physical or mental impairment directly and significantly restricts the person's ability to perform daily living activities continuously, or periodically for extended periods. Daily living activities are defined in section 2(1) of the Regulation. At least two activities must be restricted in a way that meet the requirement.

To be significant, the restriction must be to a great extent, such as not being able to do the activities at all or without a lot of support. Continuous means the activity is generally restricted all the time and periodic for extended periods means frequently or for longer periods of time.

Although the ministry was satisfied that the appellant has a severe mental impairment, the ministry argues there is not enough evidence to confirm the appellant has a severe impairment that in the opinion of a prescribed professional, significantly restricts their ability to perform daily living activities continuously or for extended periods.

EAAT (26/10/22) 13

Appeal Number 2023-0353

The panel reviewed the restriction for each dai ly living activity, as shown below.

prepare own meals In the assessor’s report, the doctor states the appellant is independent with meal planning, food preparation and cooking. At the hearing, the appellant stated they are independent with indoor activities and cooks for themselves.

manage personal finances In the medical report, the doctor states the appellant’s management of finances is continuously restricted. However, in the assessor’s report, the doctor states the appellant is independent with banking, budgeting and paying rent and bills. In addition, at the hearing the appellant stated they are independent with all indoor activities. Their challenge is with outdoor activities. The panel finds with this information, the level of restriction is unclear.

shop for personal needs In the medical report the doctor states daily shopping is continuously restricted and in the assessor’s report states the appellant takes significantly longer than typical to go to and from stores. However, the doctor does not provide an explanation (e.g., how much longer, is help required). As well, although in the request for reconsideration, the appellant states it is hard to be outside without having a panic attack or to go for groceries, this information was not confirmed by their doctor. In addition, the appellant stated that they use online services (for groceries and other items) that deliver to the door.

use public or personal transportation facilities In the assessor’s report the doctor states the appellant takes significantly longer than typical when using public transit and using transit schedules and arranging transportation. However, the doctor does not provide an explanation (e.g., how much longer and is help required).

perform housework to maintain the person's place of residence in acceptable sanitary condition In the medical report the doctor states basic housework is continuously restricted. However, in the assessor’s report, the doctor states the appellant is independent with laundry and basic housekeeping and at the hearing the appellant stated they are independent inside the house. The panel finds with this information, the level of restriction is unclear.

EAAT (26/10/22) 14