Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

2024-0036

The decision under appeal is the reconsideration decision, dated January 15, 2024 (the “Reconsideration Decision”) of the Ministry of Social Development and Poverty Reduction (the “Ministry”). The Ministry determined that the Appellant was not eligible for disability assistance for the month of January, 2024 because the Appellant’s Canada Pension Plan (“CPP”) disability benefits in November 2023 exceeded the the Appellant’s rate of assistance under Schedule A to the Employment and Assistance for Persons with Disabilities Regulation (the “Regulation”).

Part D – Relevant Legislation

Employment and Assistance for Persons with Disabilities Regulation- sections 1, 9, 24, and 29, Schedule A- sections 1, 2, and 4, and Schedule B- section 7

A full text of the above-noted legislation appears at the end of Part F of this decision.

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Part E – Summary of Facts

2024-0036

The Appellant is a sole recipient of disability assistance, and receives $1,483.50 per month in assistance ($983.50 as a support allowance and $500.00 for a shelter allowance).

The information before the Ministry at the time of the Reconsideration Decision included the following:

• a letter to the Appellant from Service Canada, dated October 28, 2023, indicating that the Appellant was eligible for a monthly amount of disability assistance of $731.05 and a retroactive payment of $1,462.10 in respect of CPP disability payments; and • the Appellant’s Request for Reconsideration, dated December 22, 2023.

With the Appellant’s Notice of Appeal, dated January 23, 2024, the Appellant included a handwritten letter in which he stated the following:

• the Appellant did not understand how CPP disability cheques for September and October 2023 could be called income for November 2023 because of the delay in them being sent to him; • the Appellant believed that if he had gotten the cheques a week earlier, on October 31, 2023, the amount of the cheques would not have been counted as income for November; • the Appellant believed that the Ministry should have been “topping off the cheques for September and October”, ; • the Appellant had been part of a call with a Ministry representative and a CPP representative to get the Appellant’s consent to release information to each other; • the Appellant was not aware until the last week of October that his CPP disability payment was going to be $731.05 per month; • the Appellant was advised by a representative that he needed to apply for disability assistance with the Ministry to “top up”” his CPP disability; • the Appellant met with a worker from the Ministry at a local church, to help him complete forms for applying for disability assistance; • the Appellant initially had only applied for CPP disability benefits and not disability assistance through the Ministry and did not realize that he needed to apply for both; • the Appellant would have received $4,450.50 for the months of September 2023 through November 2023 had he applied for disability assistance through the Ministry only and not CPP disability;

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2024-0036 • the Appellant was told that, if he lost h is appeal, he would need to repay $4,535.50 to the Ministry but was subsequently told that the amount could be repaid at a rate of $20.00 per month, which the Appellant later discovered was not correct as his disability assistance would be ending when the Appellant turned 65 and his debt to the Ministry would be transferred to Canada Revenue Agency who were not bound to collect just $20.00 per month; • the effect of the Ministry’s decision was that the Appellant was not even entitled to the CPP disability assistance that he received for September and October 2023 as it was included in his November income and served to reduce his disability assistance for January 2024 to nothing; • the Appellant would have received $7,417.50 had he applied for disability assistance from the Ministry at the outset and received it from September 2023 through January 2024; • the actual amount that the Appellant received for those months was $4,796.65; • the Appellant only received $1,120.00 for October and November 2023 from the Ministry but should have received $1,504.90, being the difference between the disability assistance in the amount of $1,483.50 and the CPP disability benefits in the amount of $731.05 for each of October and November 2023;

The Hearing

The Appellant

The Appellant did not attend the hearing and, after determining that the Appellant had been provided with notice of the date and time of the appeal, the hearing of the appeal proceeded in the Appellant’s absence as permitted by section 86(b) of the Employment and Assistance Regulation,

The Ministry

At the hearing of the appeal, the Ministry reiterated its position that CPP disability benefits are deductible, dollar for dollar, from disability assistance, in accordance with the Regulation. Pursuant to section 11 of Schedule B of the Regulation, this includes retroactive payments of CPP.

The Ministry noted that the Appellant declared having received $2,193.15 in CPP disability benefits in November 2023. This amount is deductible from the disability assistance for which the Appellant is eligible in the month of January 2024. As the amount of disability assistance for which the Appellant was eligible in January 2024 of $1,483.50 was less than

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2024-0036 $2,193.15, the Appellant was deemed not elig ible for any disability assistance in January 2024.

The Ministry noted that the Appellant had received the full amount of disability assistance for which he was eligible in December 2023 and the full amount of regular income assistance for which he was eligible in November 2023. The Appellant’s file with the Ministry was not opened until October 27, 2023, and therefore the Appellant was not eligible for any assistance prior to November. The Ministry noted that, because the Appellant had received a lump sum in November 2023 that was far in excess of the amount of the Appellant’s eligibility for disability assistance in January 2024, the amount of disability assistance that was deductible was less than the amount that would have been deductible had the Appellant received CPP disability benefits in September, October, and November, instead of a lump sum for September through November in November 2023.

The Ministry confirmed that it did have outreach workers who worked with various community groups and that that Appellant’s statement about having met with a Ministry worker outside of a Ministry office was consistent with that program.

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Part F – Reasons for Panel Decision

2024-0036

Issue on Appeal

The issue in this appeal is whether the Ministry was reasonable in its determination that the Appellant was not eligible for disability assistance for the month of January 2024 because the CPP disability payment to the Appellant in November 2023 exceeded the Appellant’s rate of assistance under Schedule A to the Regulation.

Panel Decision

Schedule A to the Regulation sets out the maximum monthly amounts of support and shelter allowance to which recipients of disability assistance are entitled. In the case of the Appellant, a sole recipient, that amount is $1,483.50 per month, comprised of a support allowance ($983.50), shelter allowance ($500.00).

Section 9 of the Regulation sets out that a family unit is not entitled to assistance if the family unit’s net income is more than the amount of disability assistance determined by Schedule A. Section 24 further sets out that the amount of disability assistance payable to a family unit is the amount determined by Schedule A, less the family unit’s net income determined by Schedule B.

Schedule B sets out how a family’s net income is calculated. The term net income is not a defined term in the Regulation. However, “unearned income”, which is a component of net income, is defined in section 1 of the Regulation and includes:

(f) any type or class of Canada Pension Plan benefits

The description of what types of CPP benefits must be included in the calculation of a recipient’s net income is broad and all-encompassing. For example, the definition does not exclude CPP disability benefits. In the result, the CPP disability benefits received by the Appellant in November 2023 in the total amount of $2,193.15 must be included in the calculation of the Appellant’s net income in the month that they were received (in this case, November 2023), unless they otherwise qualify under the other exemption and deduction rules set out in Schedule B.

Schedule B to the Regulation also sets out a number of items that are deductible or exempt from being included in the calculation of the Appellant’s family unit’s net income. To note,

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2024-0036 the only types of CPP benefits that are exem pt from inclusion in the calculation of net income under section 1(a) of Schedule B to the Regulation are the following:

(xivii) orphan’s benefits under the Canada Pension Plan Act (Canada); and (lv) a disabled contributor’s child’s benefit paid or payable under the Canada Pension Plan.

Neither of these are applicable to the CPP disability payments received by the Appellant and, in the result, the Appellant’s CPP disability benefits are not exempt.

Section 1(d) of Schedule B to the Regulation lists several deductions from the calculation of unearned income and exemptions from unearned income. However, none of these deductions or exemptions, which are set out in sections 3, 6, 7, and 8 of Schedule B, apply to the Appellant either.

Section 3 refers to qualifying income which is income that is earned or, in the case of benefits paid under section 191 or 192 of the Workers Compensation Act, unearned income. Again, the Appellant’s CPP disability benefits do not fall under either of these categories.

Section 6 sets out that the only deductions from unearned income are:

(a) any income tax deducted at source from employment insurance benefits; and (b) essential operating costs of renting self-contained suites.

Again, neither of these items applies to the Appellant’s CPP disability benefits.

Section 8 refers to education related income which, again, is not relevant to the Appellant’s CPP disability benefits.

Only section 7(e) of Schedule B, references CPP benefits at all; in that section, the portion of CPP benefits that is calculated by a specific formula in the section is exempt.

That formula is a function of tax credits that are deductible under the Income Tax Act. The amount that would be exempt is the portion of Canada Pension Plan Benefits that is calculated by the formula (A-B) x C, where:-

A = the gross monthly amount of Canada Pension Plan Benefits received by an applicant or recipient;

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2024-0036 B = (i) in respect of a family unit comprised of a sole applicant or a sole recipient with no dependent children, 1/12 of the amount determined under section 118 (1) (c) of the Income Tax Act (Canada) as adjusted under section 117.1 of that Act, or (ii) in respect of any other family unit, the amount under subparagraph (i), plus 1/12 of the amount resulting from the calculation under section 118 (1) (a) (ii) of the Income Tax Act (Canada) as adjusted under section 117.1 of that Act; C = the sum of the percentages of taxable amounts set out under section 117 (2) (a) of the Income Tax Act (Canada) and section 4.1 (1) (a) of the Income Tax Act;

As item B in the above equation is 1/12 of the basic personal exemption which the Appellant is entitled to claim and 1/12 of the Appellant’s basic personal exemption is greater than the amount of CPP disability benefits the Appellant receives, A-B in the formula set out in section 7(e) of Schedule B to the Regulation is $0.00 in the Appellant’s case.

While the Appellant expressed concerns about why the CPP disability benefits for the months of September through November were paid in one lump sum in November 2023, there is some merit to the Ministry’s submission that had the Appellant not received CPP disability benefits retroactively, he would have had more of his disability assistance and regular income assistance deducted overall. For example, had the Appellant received his regular CPP disability benefits of $731.05 in each of September, October, and November, the Appellant would have been required to disclose those amounts on his monthly reports for each of the months of October, November, and December where he was a recipient of disability assistance, pursuant to section 29 of the Regulation. There is an all but identical requirement to report for recipients of regular assistance, pursuant to section 33 of the Employment and Assistance Regulation.

As the Appellant did not yet have an active file open with the Ministry when he would have been required to file a monthly report for September, he did have an active file with the Ministry when the November monthly report was required to be filed and any income received in October, including any CPP disability benefits, would have been deductible from his December assistance. However, as section 11 of Schedule B expressly requires the inclusion of retroactively paid CPP benefits in the calculation of a recipient’s net income, the question appears to be a largely academic one and because all of the Appellant’s CPP disability benefits for the months of September 2023 to November 2023 were received by the Appellant in November 2023, the deduction for January 2024 was for $1,483.50 or all of the Appellant’s income assistance for January 2024, as the Appellant’s

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2024-0036 November 2023 income exceeded the amount of assistance for which he was eligible in January 2024.

While the Appellant set out in the Notice of Appeal that he felt that he did not receive the disability assistance for the months of September, October, and November 2023, that he was entitled to, this would appear to be the result of the Appellant not having had an open file with the Ministry until October 27, 2023. In short, the Appellant was not entitled to regular income assistance or disability assistance until November 2023. While it is regrettable if this delay was caused by the failure of an outreach worker to advise him to apply for disability assistance, that the Appellant did not receive $1,483.50 for each of the months of September, October, and November 2023 is not the result of his CPP benefits for those months having been paid in one lump sum in November 2023.

Conclusion

The panel notes that it is unfortunate if the Appellant was not advised to apply for disability assistance at the same time as he applied for CPP disability benefits. However, that appears to have been the result of the advice of a Ministry outreach worker and not by the operation of the Regulation.

Additionally, had deductions of CPP disability benefits been made from his income assistance in November and his disability assistance in December, as may have occurred had he received his CPP disability for September and October 2023 in those months, the Appellant might have had more monies deducted from his assistance than he did, even if he also would likely not be in an overpayment situation.

In view of the fact that the legislation requires the inclusion of all of the Appellant’s CPP disability benefits to be included in the calculation of his net income, including, expressly any backdated CPP benefits, the panel finds that the Ministry was reasonable in its determination that all of the CPP disability benefits received by the Appellant in November 2023, notwithstanding that a portion of these were retroactive payments, were in excess of his entitlement to disability assistance and, accordingly, made the Appellant ineligible for disability assistance in January 2024.

The Appellant is not successful in this appeal.

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Relevant Legislation

2024-0036

Employment and Assistance for Persons with Disabilities Regulation

section1

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:

…

(g) employment insurance; …

section 9

Limits on income 9 (1) For the purposes of the Act and this Regulation, "income", in relation to a family unit, includes an amount garnished, attached, seized, deducted or set off from the income of an applicant, a recipient or a dependant. (2) A family unit is not eligible for disability assistance if the net income of the family unit determined under Schedule B equals or exceeds the amount of disability assistance determined under Schedule A for a family unit matching that family unit.

section 24

Amount of disability assistance 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.

section 29

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2024-0036 Reporting requirement 29 For the purposes of section 11 (1) (a) [reporting obligations] of the Act, (a) the report must be submitted by the 5th day of the calendar month following the calendar month in which one or more of the following occur: (i) a change that is listed in paragraph (b) (i) to (v); (ii) a family unit receives earned income as set out in paragraph (b) (vi); (iii) a family unit receives unearned income that is compensation paid under section 191 [temporary total disability] or 192 [temporary partial disability] of the Workers Compensation Act as set out in paragraph (b) (vii), and (b) the information required is all of the following, as requested in the monthly report form specified by the minister: (i) change in the family unit's assets; (ii) change in income received by the family unit and the source of that income; (iii) change in the employment and educational circumstances of recipients in the family unit; (iv) change in family unit membership or the marital status of a recipient; (v) any warrants as described in section 14.2 (1) of the Act; (vi)the amount of earned income received by the family unit in the calendar month and the source of that income; (vii) the amount of unearned income that is compensation paid under section 191 [temporary total disability] or 192 [temporary partial disability] of the Workers Compensation Act received by the family unit in the calendar month.

Employment and Assistance for Persons with Disabilities Regulation, Schedule A

section 1

Maximum amount of disability assistance before deduction of net income

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section 2

2024-0036 1 (1) Subject to this section and s ections 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. (2) Despite subsection (1), disability assistance may not be provided in respect of a dependent child if support for that child is provided under section 8 (2) or 93 (1) (g) (ii) of the Child, Family and Community Service Act.

Monthly support allowance 2 (0.1) For the purposes of this section:

Item

"deemed dependent children", in relation to a family unit, means the persons in the family unit who are deemed to be dependent children under subsection (5);

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

(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 (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

Column 3 Amount ($)

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1

Sole applicant / recipient and no dependent children

2024-0036 Applican t / recipient is a person with disabilities

$983.50

section 4

Monthly shelter allowance 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 (i) the family unit's actual shelter costs, and (ii) the maximum set out in the following table for the family unit.

Item

1

Column 1 Column 2 Column 3 Family Unit Size Minimum Maximum

1 person

$75

$500

Employment and Assistance for Persons with Disabilities Regulation, Schedule B

section 1

Deduction and exemption rules 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:

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2024-0036 (i) any income ea rned 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; (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;

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