Ministry of Social Development and Poverty Reduction

Appeal Number 2023-0402 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (“Ministry”) decision dated December 18 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.

EAAT003 (17/08/21) 2

Part E – Summary of Facts

Appeal Number 2023-0402

Evidence Before the Ministry at Reconsideration:

The information the Ministry had at the time of the decision included: • Medical Report completed by a Doctor • Assessor Report completed by a Social Worker • Appellant’s Self Report, including her additional statement in the Request for Reconsideration.

Medical Report:

The Doctor states that the Appellant has been their patient for “2 [years]” and they have seen the Appellant between 2 and 10 times in the past 12 months.

Diagnosis: The Doctor provides diagnoses of rheumatoid arthritis (onset December 2019), anxiety disorders (onset May 2018) and sleep apnea (onset May 2018).

Health History: The Doctor states: • The Appellant has swelling and pain in her hands and feet, not fully controlled by medication that in turn causes fatigue and brain fog. • The Appellant needs reassessment of sleep apnea that causes fatigue and daytime sleepiness. • Anxiety interferes with the Appellant’s function: o Social anxiety prevents her from socializing and going to places such as grocery stores, where there are lots of people. • Prescribed medications interfere with the Appellant’s ability to perform daily living activities, because they cause fatigue, brain fog and nausea. • The Appellant does not need any prostheses or aids for her impairment.

Functional Skills: The Doctor indicates that the Appellant can: • Walk 4+ blocks unaided on a flat surface “but takes longer” • Climb 5+ stairs unaided “but takes longer” • Lift 2 to7 kilograms • Remain seated 1 to 2 hours.

EAAT003 (17/08/21) 3

Appeal Number 2023-0402 They indicate that the Appellant has significant deficits with cognitive and emotional function in the areas of: • Executive function • Memory • Emotional disturbance • Motivation • Attention or sustained concentration.

They comment that the Appellant is able to walk and climb stairs unaided but takes about twice as long as average. They add: • “chores such as dishes and day-to-day cleaning causes fatigue and pain and also takes longer than usual” • “Unable to do planning – [decreased] concentration, memory impairment; anxiety and [decreased] mood also affects function”.

Daily Living Activities: The Doctor indicates that the Appellant’s impairment directly and continuously restricts her ability to perform the following daily living activities: • Meal preparation • Management of medications • Basic housework • Daily shopping • Mobility inside the home • Mobility outside the home • Social functioning. They state that social anxiety, focusing and attention are impaired and add that the degree of restriction is “moderate.” They state that the Appellant does not need assistance with daily living activities, as she is able to do them herself.

Additional Comments: The Doctor states that “daily living activities [are] all she is able to manage – has been off work since 2021 due to symptoms”.

Assessor Report:

The Social Worker states that they have known the Appellant for approximately one month and have seen her between 2 and 10 times in the past 12 months.

EAAT003 (17/08/21) 4

Appeal Number 2023-0402 Mental or Physical Impairment: The Social Worker states that the Appellant’s impairments are “arthritis – whole body”, anxiety, depression, and sleep apnea.

Mobility and Physical Ability: The Social Worker indicates that the Appellant: • is independent but takes significantly longer than typical for walking indoors and outdoors: “3 to 4 times longer than typical” • uses an assistive device and takes significantly longer than typical to climb stairs: “can only do maximum of 5 at a time, needs handrail” • needs continuous assistance from another person or is unable to lift, carry and hold: “can only lift a maximum of 10 pounds, need help to lift anything heavier”

Cognitive and Emotional Functioning: The Social Worker indicates that the Appellant’s mental impairment has a major impact on her functioning in the following areas: • bodily functions: eating problems, poor hygiene o when depression and anxiety are elevated, she goes long periods without eating, or eats inconsistently o some days it is difficult to be motivated to shower or tend to hygiene o when very anxious and depressed she has difficulty sleeping • emotion: anxiety, depression o without medication she is a “mess”, she shuts down and isolates • attention/concentration: distractible, unable to maintain concentration, poor short term memory o memory and concentration are getting worse o may forget questions she asked 10 minutes earlier o struggles to remember some of her nighttime medications • Motivation o struggles to find motivation to complete basic tasks o needs to break tasks into smaller chunks as the whole task is overwhelming o ability to complete tasks depends on her mood and how much pain she is in They indicate moderate impact on her functioning in the following areas: • impulse control: inability to stop doing something o on days when she is anxious and depressed, she cannot do daily living activities, cancels plans and isolates • memory: learning new information, names, etc. and then recalling that information. They indicate minimal impact on executive function.

EAAT003 (17/08/21) 5

Appeal Number 2023-0402 Daily Living Activities: The Social Worker indicates that the Appellant is independent in all listed aspects of Personal Care, but when in pain, takes significantly longer than typical (3 to 4 times longer) to dress, transfer in/out of bed and transfer on/off chair. They indicate that she needs periodic assistance from another person to go to and from stores, and takes significantly longer than typical, commenting that, “due to anxiety, [the Appellant] can only do shopping during slow times: panic attacks”. They state that the Appellant is independent with her personal care needs and basic housekeeping, but “on days when she is in pain, it may take her 3-4 x longer than typical.”

They indicate that the Appellant is independent in all listed aspects of Meals but takes significantly longer than typical (“when in pain, 3-4 x longer”) for food preparation and cooking. They indicate that the Appellant needs periodic assistance from another person to take medication as directed, stating that “at times, [the Appellant] struggles to remember to take her medications”. They state that, while the Appellant is independent with meal preparation now, her condition may change over time, and she may require more assistance.

With respect to Social Functioning, the Social Worker indicates that the Appellant is independent, but her ability to develop and maintain relationships is “at times impacted due to [the Appellant’s] tendency to isolate herself.” As a result, the Social Worker indicates the Appellant has marginal functioning with her immediate social network.

Assistance Provided for Applicant: The Social Worker indicates that the Appellant receives help for daily living activities from family and friends, in the form of emotional support.

Additional Information: The Social Worker states that the Appellant “is often in a severe amount of pain and lacks energy so basic tasks are exhausting and take longer than typical.”

Self Report: The Appellant states: • She was diagnosed with rheumatoid arthritis on December 18, 2019. • She has swollen joints and severe pain. • She has limited use of her arms and legs. • She has lost muscle mass and she is not as strong as she used to be. • She has no strength in her wrists and arms. • It is difficult to walk up stairs or lift things that weigh more than ten pounds.

EAAT003 (17/08/21) 6

Appeal Number 2023-0402 • She struggles with household chores on a daily basis, and chores take longer than they used to take. • She can dress herself and cook for herself. • She has side effects from the medication she takes for the arthritis. • She feels fatigued, with constant exhaustion and lack of energy. • She also suffers from anxiety and depression. • She has brain fog; sometimes she has a conversation and has no recollection of it, ten minutes later. • It is sometimes difficult to remember appointments, or to take her medication.

In her Request for Reconsideration, the Appellant adds: • She manages daily living herself. • “Some days I just have to stay in bed”. • She cannot work and finds it very hard to live on the amount she receives as income assistance.

Additional Evidence:

Appellant: At the hearing, the Appellant said: • Her condition is getting worse, and there are things she could do a month ago that she cannot do as easily now. • She cannot get out of bed some days, and on the days she can get up, she struggles. • She has a lot of anxiety going out in public. • It is difficult for her to walk around the block now. • If she has to walk up more than five steps, she has to hold the handrail. • In an average week, she is “okay” for about three days of the week, it “takes a bit” to get out of bed, but she can get up. The rest of the time she is in pain, every joint is swollen, she is exhausted and just lays in bed. • On the days she is in pain, it takes her 3 to 4 times longer to do the activities as indicated by the Social Worker in the Assessor Report. • Family and friends provide moral support.

The Ministry did not provide additional evidence.

EAAT003 (17/08/21) 7

Admissibility of Additional Evidence:

Appeal Number 2023-0402

The Ministry did not object to the additional oral evidence of the Appellant. The Panel finds that the additional evidence about the Appellant’s ability to function 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 the Act, s. 22(4).

EAAT003 (17/08/21) 8

Part F – Reasons for Panel Decision

Appeal Number 2023-0402

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 maintains that she meets the criteria for PWD designation.

Mental and Physical Impairment: The Appellant says that rheumatoid arthritis causes pain and swelling in her joints, and her condition is getting worse. Side effects of medication cause fatigue and brain fog, compounded by the effects of sleep apnea, depression, and anxiety. Therefore, the Appellant says that she has severe mental and physical impairments. She also argues that the Ministry’s decision was not reasonable because it did not adequately consider the effects of anxiety and depression, which cause her to isolate at home and avoid going out in public.

Daily Living Activities: The Appellant says that she is significantly restricted in performing daily living activities because it takes her significantly longer than typical to do many activities, and more than half the time, she cannot get out of bed because of pain.

Help to Perform Daily Living Activities: The Appellant says that she needs significant help to perform daily living activities because she uses a handrail to climb stairs and her family and friends provide emotional support.

Ministry Position:

Physical Impairment: The Ministry acknowledges that the Appellant has limitations to her physical functioning due to rheumatoid arthritis, but maintains that the Appellant’s physical impairment is

EAAT003 (17/08/21) 9

Appeal Number 2023-0402 moderate, rather than severe. The Ministry say s that employability is not a factor when determining PWD designation.

Mental Impairment: The Ministry says that the information provided does not establish that the Appellant has a severe mental impairment. They argue that the Appellant is independent in daily living activities that the Ministry maintains “would typically be difficult for someone who experiences significant restrictions to their mental functioning, such as making decisions about personal activities, care, or finances, as well as relating to, communicating, or interacting with other effectively.”

Daily Living Activities: The Ministry also says that the information provided does not indicate direct and significant restrictions in daily living activities. The Ministry notes that, while the Doctor indicates that the Appellant is continuously restricted in her ability to perform a number of daily living activities, they also state that the Appellant’s restriction is moderate, and that she does not need assistance from another person, equipment, or assistance animal. While the Social Worker says that the Appellant takes 3 to 4 times longer to perform daily living activities when she is in pain, they do not indicate how often pain restricts her ability to manage those activities. Therefore, the Ministry says that it cannot determine that there is “a significant restriction to [the Appellant’s] overall level of functioning.”

Help with Daily Living Activities: The Ministry says that, as it has not been established that daily living activities are significantly restricted either continuously or periodically for extended periods, it cannot be determined that the Appellant requires help to perform those activities.

Consideration of Additional Evidence Provided at the Hearing: At the hearing, the Ministry said that their role was to explain the reconsideration decision, and they could not comment on the Appellant’s additional oral evidence. However, they said that, in order to consider that evidence, the Ministry would need a health practitioner to verify the Appellant’s statements about how often she is in severe pain.

EAAT003 (17/08/21) 10

Panel Decision:

Appeal Number 2023-0402

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. If the inability to work is the major reason for applying for PWD designation, the Panel encourages the applicant to speak to the Ministry about other potential programs such as Persons with Persistent Multiple Barriers to Employment (PPMB) or explore federal government programs such as Canada Pension Plan disability benefits.

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 not reasonable in its determination that the Appellant’s physical impairment is moderate rather than severe.

In its analysis, the Ministry places significant weight on the Doctor’s indication that the Appellant can walk 4+ blocks and climb 5+ steps unaided, and the Social Worker’s

EAAT003 (17/08/21) 11

Appeal Number 2023-0402 indication that the Appellant is independent wa lking indoors and outdoors and climbing stairs. While the Ministry notes that both the Doctor and the Social Worker indicate that the Appellant takes longer than typical to do those activities – the Doctor indicating twice as long, the Social Worker indicating 3 to 4 times as long – the Ministry appears to place greater weight on the fact that the Appellant can perform the action.

However, the Panel finds that the Ministry failed to give reasonable weight to the evidence of the Appellant’s severe pain level, which severely limits her ability to function more than half the time and impairs her functional ability to walk and climb stairs. The Social Worker states that the Appellant “is often in a severe amount of pain and lacks energy so basic tasks are exhausting and take longer than typical.” The Appellant describes being in severe pain and exhausted four days out of seven. The Doctor confirms that the Appellant has pain, although they do not give much further description. The Panel places significant weight on the more detailed explanation of the Appellant’s pain level provided by the Social Worker, the Appellant’s Self Report, and the Appellant’s evidence at the hearing.

The Panel also finds that the Ministry failed to give reasonable weight to the Doctor’s statements that the Appellant is continuously restricted in almost all activities of daily living listed in the Medical Report. The Panel notes the Doctor’s evidence that performing daily living activities causes the Appellant pain and fatigue, which will impair her physical functioning overall. While the Doctor comments that the Appellant’s restrictions are “moderate”, the Panel finds that, as stated above, the medical practitioner’s description of restrictions as “moderate” is not determinative of the degree of impairment. While restrictions in a few daily living activities might be seen as a moderate impairment, the Panel finds that continuous restrictions in almost all daily living activities, combined with severe pain levels that mean she struggles to get out of bed four days out of seven, are a severe physical impairment.

2. Mental Impairment:

The Panel finds that the Ministry was reasonable in its determination that the evidence does not establish a severe mental impairment.

The Appellant tends to isolate due to anxiety, which the Social Worker says impacts her ability to develop and maintain relationships “at times” and avoids situations where there will be many people, as those situations may provoke panic attacks. At the same time, they indicate that the Appellant is independently able to manage her finances, and all aspects of social functioning listed on the Assessor Report. They say that the Appellant sometimes struggles to remember to take medications. She has good functioning with her extended

EAAT003 (17/08/21) 12

Appeal Number 2023-0402 social networks. The Doctor states that anxiety and depressed mood affect the Appellant’s functioning but provides little detail of those effects. At the same time, they state that the Appellant does not need assistance with daily living activities. According to the Social Worker’s comments, she encounters difficulty if she does not take her medication, but it appears that her current medication is reasonably effective to manage symptoms of depression. The Panel recognizes that the Appellant has symptoms due to depression and anxiety, affecting her memory, planning, motivation, and attention. However, the Panel finds that the Ministry was reasonable in its determination that the Appellant’s level of independence and her ability to function in the community do not indicate a severe mental impairment.

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.

The restrictions to 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 the Activities without a lot of help or support will have a large impact on the person’s life.

EAAT003 (17/08/21) 13

Appeal Number 2023-0402 The restrictions also must be continuous or pe riodic. 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 Medical Report and Assessor Report also have activities that are listed, and though they do not match the list in the Regulation exactly, they generally cover the same activities. The Medical Report and Assessor Report provide the professional with an opportunity to provide additional details on the applicant’s restrictions.