Appeal Number 2024 - 0006 Part C – Decision Under Appeal The decision under appeal is the reconsideration decision of the Ministry of Social Development and Poverty Reduction (“Ministry”) dated December 28, 2023, in which the Ministry denied the Appellant designation as a Person With Disabilities (PWD) under the Employment and Assistance for Persons with Disabilities Act. The Ministry held the Appellant met only four of the five criteria for designation as a PWD. The missing requirement is the impairment “in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years”.
Part D – Relevant Legislation Employment and Assistance for Persons with Disability Act, section 2 (“Act”).
Employment and Assistance for Persons with Disabilities Regulation, section 2 and 2.1 (“Regulation”).
See Appendix for full text of relevant legislation.
EAAT003 (17/08/21) 2
Part E – Summary of Facts
Appeal Number 2024 - 0006
Background
• On September 27, 2023, the Ministry received an application for designation as a PWD from the Appellant. The Appellant’s issues were primarily related to mental rather than physical impairment.
• On October 26, 2023, the Ministry denied the Appellant’s request. Section 2(2) and (3) of the Act lists five criteria that must be met. The Ministry held that although the Appellant met the requirement of being over 18 years old, the remaining four requirements for designation as PWD were not met. Specifically, the Appellant did not meet these requirements: o Duration of more than two years; o A severe mental or physical impairment; o Directly and significantly restricted daily living activities; o Assistance required with daily living activities as a result of significant restrictions.
• On November 23, 2023, the Ministry received the Appellant’s Request for Reconsideration. The Appellant was approved for an extension to December 21, 2023. No additional information from a medical practitioner or nurse practitioner or prescribed professional was provided.
• On December 28, 2023, the Ministry completed its review of the Appellant’s Request for Reconsideration. The Ministry determined the Appellant is not eligible for PWD designation. However, on reconsideration the Ministry held the Appellant meets four of the five criteria for PWD designation. The missing requirement is duration of the impairment for more than two years in the opinion of a medical or nurse practitioner.
The Appellant completed a self-report as part of her PWD application. The Appellant notes:
In 2018, I had a trauma (as I got injured) from that time onward, my mental health suffered severely. It took (a) long time for my injury to heal and so I had to stay at home for a long time without work which made me dependent on my sister for financial and mental support. This severely affected my mental health leading to depression as I thought a lot of time got wasted which I could have used for progress in my career and
EAAT003 (17/08/21) 3
Appeal Number 2024 - 0006 life. I started getting negative thoughts, so my doctor put me on antidepressant medication. The negative thoughts I experience every day for a number of times that has made me to do things in routine life tough. I feel nervous while going out. Mental health condition has made me think that I have wasted so much time. I have indecisiveness (emphasis supplied) in most situations. Even for the smallest tasks in daily life I prepare myself a thousand times. I can't work hard like I used to do so I feel I'm not normal like other people.
The Appellant’s doctor completed the Medical and Assessor Reports of the PWD Application on September 26, 2023. The doctor indicates the Appellant has been a patient in their practice since 2018. They have seen the Appellant on 11 additional occasions prior to the date the application was completed.
In Section 2 – C of the Medical Report regarding Health History, the doctor identifies the diagnoses giving rise to the Appellant’s impairment as: • Moderate Depressive Disorder with Somatoform Disorder (onset 2018). • Anxious avoidant personality traits (onset 2021).
The doctor says the Appellant is taking Sertraline daily which causes drowsiness and Ativan for panic attacks. Regarding the Appellant’s condition the doctor writes “Moderate – She lacks motivation to do anything. She experiences panic attacks, SOB (likely shortness of breath), chest pain with severe anxiety. She has a history of claustrophobia and germaphobia.”
With regard to the question of anticipated duration of the medications/treatments, the doctor states the treatments “can have exacerbation off and on”.
With regard to the question “Is the impairment likely to continue for two years or more from today?” the doctor indicated no. In response to the question: ”What is the estimated duration of the impairment and are there remedial treatments that may resolve or minimize the impairment? Please explain:” the doctor wrote “Should improve if persistent with medications and life-style measures.”
With regard to providing any additional information that the doctor considers relevant to understanding the significance of the person’s impairment, the doctor refers the reader to the Mental Health Substance Use Report, however, a copy of this is not included.
EAAT003 (17/08/21) 4
Submission by the Appellant
Appeal Number 2024 - 0006
In addition to the Appeal application, the Appellant submitted a letter from her doctor dated January 22, 2024. The letter states:
The appellant has a long history of anxiety and depression since 2018. Recently she has developed symptoms of obsessive-compulsive disorder. Her symptoms of anxiety and depression have been recurrent, partly due to noncompliance with medications in the past. She has been treated with various anxiolytics and antidepressant medications and has been under the care of various psychiatrists in (another country) and Canada. Recently she is under the care of two psychiatrists. At present the Appellant is taking her medications regularly and her symptoms have improved to some extent. She still continues to struggle with activities of daily living. She is still not fit to hold a job at present. Her prognosis to hold a job in the future is undetermined at present.
At the hearing the Appellant provided the following information:
• In the original application, the Ministry focused on physical impairment, which she does not have. The Ministry did not consider mental impairment, when the mind doesn’t work, and one feels pressure and a cloud on one’s head. She noted that in the reconsideration decision the Ministry’s assessment was better, recognizing her impairments were mental health related. The only part that was missing was the duration of impairment.
• Regarding daily living activities, the Appellant is obsessive compulsive, for example with washing her hands. She has germophobia. If something (she is planning to eat) touched something else, she won’t eat it. The last year she was working she avoided the lunchroom as it was not hygienic. She does not use a common washroom. She has difficulty concentrating and can’t focus on things for a long time. She ignored this earlier. Now the issues are chronic.
• She noted her medication has side effects that make her lethargic. She said the medication makes her gain weight. She said it puts your mind in a relaxed mode which helps with recovery.
• Initially, she was in a state of denial. She did not tell everything to her doctor. She thought she would improve. As a qualified professional herself, she feels her condition is embarrassing. Eventually, she came to be alright about getting help from people. This was easier for people around her. She said she has little support
EAAT003 (17/08/21) 5
Appeal Number 2024 - 0006 as she does not have a husband and (the condition) is chronic. She relies on her sister and brother to tell her what to do.
• At her sister’s prompting, she went to the doctor. It was hard to discuss severity of symptoms with the doctor before, so the doctor was not aware how they were affecting her. The doctor sent her to the psychiatrist. Regarding duration of impairment, her doctor told the Appellant they could not provide an idea of the duration of the impairment. The doctor said this is in contrast to a physical impairment where it is easier to predict duration. The psychiatrist told the Appellant they could not provide an idea of duration in her case.
• The Appellant applied for PWD designation reluctantly. She is a professional and wants to go on with her career. She says this is in denial of the stigma (associated with the impairment). She knows that if she wants to recover, she has first has to accept something is wrong and stop hiding. She has started working on herself, for example, going outside. As her condition is chronic it will take time, and recovery is slow.
In response to questions from the Panel the Appellant provided the following information:
• Regarding the doctor’s comment that she should improve with taking medication and lifestyle measures, the Appellant noted she doesn’t like the medication. She said she puts on weight and it makes her lethargic. She has trouble waking up in the morning, not getting up until between 11 – 12 noon. She notes she is trying to become more regular (about when she gets up). She also expressed concern that she will not be able to focus on her job. Her brain won’t work in a normal way. She said initially side effects are more and slowly the body gets used to it. She also needs lifestyle changes like going out etc.
• Regarding whether the Appellant stopped taking medication, she answered in 2018 and 2019 she took it then in 2020 she stopped and the situation got worse. She started feeling better then the impairment came back again. She said she just wanted to be working. She did not want to be taking medications. When asked the Appellant said last year in February she started taking the medication again. She is trying to get in the zone. She gets up early and tries to be in the mind space to go for a walk. Eventually she wants to be off the medications.
• When asked regarding the doctor’s letter saying symptoms have improved, the Appellant said she is eating at least one good meal a day. She started with
EAAT003 (17/08/21) 6
Appeal Number 2024 - 0006 household activities. Even a small activit y she needs to prepare for it. If she has some negative thoughts, she stops in the middle. She notes she does not discuss this with her doctor. She struggles with grooming. Last April, she spent money to go to the recreation centre, but this has expired. She has worked a lot on herself to make herself better.
• When asked regarding seeing a psychiatrist who would see more of her type of case, she said she is not able to go to the psychiatrist regularly. They only see you once. You don’t have regular appointments.
Submission by the Ministry
The Ministry relied on its reconsideration decision which held the Appellant meets only four of five legislated criteria for PWD designation. In its decision, the Ministry also noted the Appellant is not in one of the prescribed classes of people who may be eligible for PWD designation on the alternative grounds set out in section 2.1 of the Employment and Assistance for Person with Disabilities Regulation (see the Appendix).
At the hearing the Ministry representative commented on the doctor’s letter of January 22, 2023. The letter notes a long history (of impairment), however, the doctor does not answer the question of duration in the letter. The letter notes that at present the symptoms have lessened to some extent. The doctor said the prognosis for the Appellant holding a job is unknown. The representative emphasized that ability to hold a job is not part of the criteria.
In commenting on the Ministry’s submission, the Appellant said her doctor said in the case of physical impairment they can estimate duration, but for mental impairment they can’t say what the recovery time will be. It can go beyond two years. Her doctor says they cannot say, they are not a psychiatrist.
When asked the Ministry representative said that an alternative to support through designation as a PWD, some people are able to qualify as Person with Persistent Multiple Barriers.
Admissibility of Additional Evidence:
The Ministry did not submit any new evidence in response to the appeal.
EAAT003 (17/08/21) 7
Appeal Number 2024 - 0006 In addition to the doctor’s letter, at the hearing , the Appellant discussed content found in her application, but also noted her challenges with giving a full picture of her condition to her doctor and the fact that she did not have ongoing access to a psychiatrist.
Neither party objected to new evidence provided by the other party. The Panel finds that the additional evidence is reasonably necessary for the full and fair disclosure of all matters relating to the decision under appeal, and therefore is admissible under Section 22(4) of the Employment and Assistance Act.
EAAT003 (17/08/21) 8
Appeal Number 2024 - 0006 Part F – Reasons for Panel Decision The issue on appeal is whether the Ministry’s reconsideration decision, in which the Ministry found the Appellant to be ineligible for PWD designation under the Act, was reasonably supported by the evidence or was a reasonable application of the legislation in the Appellant’s circumstances.
Position of the Appellant
The Appellant sees her condition as chronic and it is a slow process to recover. Her understanding is there is no specific timeline that can be expected. She believes if she had initially advised her doctor of her ongoing issues in more depth the doctor may have been able to provide a more specific timeline regarding duration of her impairment. She also notes that her lack of ongoing access to a psychiatrist, who could provide a better estimate of duration of her impairment, is problematic. Had she been more forthright with her doctor and had proper access to a psychiatrist, she may have had the necessary statement of duration from a medical practitioner. The Appellant is concerned about her ongoing income if she does not get the PWD designation.
Position of the Ministry
The Ministry notes the legislation requires the applicant for PWD designation to meet all five of the criteria specified in the legislation. The Ministry held that the Appellant met four of the five criteria, as stated above. However, the Ministry did not find the Appellant met the requirement of duration. That is, the impairment “in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years.”
The Panel agreed with the Ministry’s reconsideration decision that the Appellant has a severe mental impairment which significantly impacts her activities of daily living. However, the Ministry’s determination about the four legislated criteria that were met is not in question. Instead, the Panel must determine whether the Ministry was reasonable in its application of the legislation regarding the requirement of two years duration. In this case, in the application the doctor’s opinion was “Should improve if persistent with medications and lifestyle measures.” Given the ambiguous nature of the comment, the Panel does not find this meets the legislated criteria of more than two years in the opinion of a medical practitioner. Nor is there any evidence in the doctor’s letter of January 22, 2024 which expressly indicates the Appellant’s impairment is likely to continue for more than two years. Accordingly, the Panel finds the Ministry was reasonable in finding that the Appellant does not meet this requirement of the legislation.
EAAT003 (17/08/21) 9
Appeal Number 2024 - 0006 The Panel is sympathetic to the situation of the Appellant and notes her concerns about ongoing support. The Panel notes that the Appellant may wish to consider applying for support as a Person with Persistent Multiple Barriers.
Conclusion
The Panel finds the Ministry was reasonable in deciding the Appellant did not meet all five criteria for designation as PWD. There is no information saying in the opinion of a medical or nurse practitioner, the Appellant’s impairment is likely to continue for more than two years. The Panel therefore confirms the Ministry’s decision. The Appellant is unsuccessful on appeal.
EAAT003 (17/08/21) 10
Appeal Number 2024 - 0006 EMPLOYMENT AND ASSISTANCE FOR PERSONS WITH DISABILITIES ACT [SBC 2002] CHAPTER 41
Persons with disabilities 2 (1)In this section:
"assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform;
"daily living activity" has the prescribed meaning; "prescribed professional" has the prescribed meaning. (2)The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person is in a prescribed class of persons or that the person has a severe mental or physical impairment that (a)in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and (b)in the opinion of a prescribed professional (i)directly and significantly restricts the person's ability to perform daily living activities either (A)continuously, or (B)periodically for extended periods, and (ii)as a result of those restrictions, the person requires help to perform those activities. (3)For the purposes of subsection (2), (a)a person who has a severe mental impairment includes a person with a mental disorder, and (b)a person requires help in relation to a daily living activity if, in order to perform it, the person requires (i)an assistive device, (ii)the significant help or supervision of another person, or (iii)the services of an assistance animal. (4)The minister may rescind a designation under subsection (2).
EAAT003 (17/08/21) 11
Appeal Number 2024 - 0006
Employment and Assistance for Persons with Disabilities Act EMPLOYMENT AND ASSISTANCE FOR PERSONS WITH DISABILITIES REGULATION
[Last amended August 1, 2023 by B.C. Reg. 161/2023]
Definitions for Act 2 (1)For the purposes of the Act and this regulation, "daily living activities", (a)in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities: (i)prepare own meals; (ii)manage personal finances; (iii)shop for personal needs; (iv)use public or personal transportation facilities; (v)perform housework to maintain the person's place of residence in acceptable sanitary condition; (vi)move about indoors and outdoors; (vii)perform personal hygiene and self care; (viii)manage personal medication, and (b)in relation to a person who has a severe mental impairment, includes the following activities: (i)make decisions about personal activities, care or finances; (ii)relate to, communicate or interact with others effectively. (2)For the purposes of the Act, "prescribed professional" means a person who is (a)authorized under an enactment to practise the profession of (i)medical practitioner, (ii)registered psychologist, (iii)registered nurse or registered psychiatric nurse, (iv)occupational therapist, (v)physical therapist, (vi)social worker, (vii)chiropractor, or (viii)nurse practitioner, or
EAAT003 (17/08/21) 12
Appeal Number 2024 - 0006 (b)acting in the course of the person's employment as a school psychologist by (i)an authority, as that term is defined in section 1 (1) of the Independent School Act, or (ii)a board or a francophone education authority, as those terms are defined in section 1 (1) of the School Act, if qualifications in psychology are a condition of such employment. (3)The definition of "parent" in section 1 (1) applies for the purposes of the definition of "dependent child" in section 1 (1) of the Act.
[am. B.C. Regs. 196/2007; 197/2012, Sch. 2, s. 2; 70/2013.
Alternative grounds for designation under section 2 of Act 2.1 The following classes of persons are prescribed for the purposes of section 2 (2) [persons with disabilities] of the Act: (a)a person who is enrolled in Plan P (Palliative Care) under the Drug Plans Regulation, B.C. Reg. 73/2015; (b)a person who has at any time been determined to be eligible to be the subject of payments made through the Ministry of Children and Family Development's At Home Program; (c)a person who has at any time been determined by Community Living British Columbia to be eligible to receive community living support under the Community Living Authority Act; (d)a person whose family has at any time been determined by Community Living British Columbia to be eligible to receive community living support under the Community Living Authority Act to assist that family in caring for the person; (e)a person who is considered to be disabled under section 42 (2) of the Canada Pension Plan (Canada).
[en. B.C. Reg. 165/2016, Sch.]
EAAT003 (17/08/21) 13
Part G – Order The panel decision is: (Check one)
APPEAL NUMBER 2024 - 0006
☒Unanimous ☐By Majority
The Panel ☒Confirms the Ministry Decision ☐Rescinds the Ministry Decision If the ministry decision is rescinded, is the panel decision referred back to the Minister for a decision as to amount? Yes☐ No☐ Legislative Authority for the Decision: Employment and Assistance Act Section 24(1)(a)☐ or Section 24(1)(b) ☒ Section 24(2)(a)☒ or Section 24(2)(b) ☐
Part H – Signatures
Print Name Corrie Campbell
Signature of Chair
Date (Year/Month/Day) 2024/02/03
Print Name Ken Smith
Signature of Member
Date (Year/Month/Day) 2024/02/03
Print Name Joe Rodgers
Signature of Member
EAAT003 (17/08/21)
Date (Year/Month/Day) 2024/02/04
Signature Page