Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

Appeal Number 2024-0010

The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) Reconsideration Decision dated January 4, 2024, which determined the appellant was not eligible for the Persons with Disabilities designation because he did not meet two of the five criteria. The ministry was satisfied that he met the age, duration and severity criteria but not satisfied that he met the following criteria: - Severe impairment directly and significantly restricts at least two daily living activities - Assistance 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.

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Part E – Summary of Facts

Appeal Number 2024-0010

Summary of Relevant Evidence Before the Minister at Reconsideration

Psychological Evaluation and Diagnostic Report (Assessment Date May 21, 2022) – Examiner – Appellant’s Psychologist The report states the appellant self-referred to the clinic. He was diagnosed with attention deficit hyperactivity disorder in childhood and with anxiety for the past decade. However, he suspects he is also on the autism spectrum. The appellant identified several symptoms consistent with an autistic profile.

A series of tests were performed concluding that the appellant presents with behavior consistent with the diagnosis of autism.

Summary of Information provided by the Appellant (March 2023 - April 2024) (self-report (March 25, 2023, response to ministry denial letter (no date), self-report (April 22, 2024)

The appellant writes he is diagnosed with autism spectrum disorder, anxiety/depression and attention deficit hyperactivity disorder. Below he describes his experiences with his diagnoses.

The appellant states his ears don't always hear the same volume and every day he has problems understanding what people say. He adds that many times there is noise around him, making it hard to understand people, almost always leading to repetition, anger and frustration for the appellant and the other person. The appellant also states he is bad with social cues, which leads to more explanations, confusion and often anger because of his inability to have a conversation. He requires several explanations of the same conversation to understand or for the other person to understand him. He therefore is left behind in many events or activities.

He can speak, read and write, but with great difficulty. He finds himself rereading the same words several times before he realizes or remembers the meaning. Reading is very hard due to distraction/noises and memory issues so any learning that is done in that way is much harder.

Not only does he see things, in what he’s told is a very different way, but apparently makes it easy to misunderstand situations and create problems for him or someone else, which often leads to someone being hurt. From what he can tell his emotions are often in

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Appeal Number 2024-0010

disarray. He doesn’t know how to feel or what the right situation for his specific emotion is. Making choices tends to be complicated due to the constant feeling of blankness and or pressures in his mind and remembering options or choices. When he’s picturing choices he’s constantly forgetting the details that help make up the bits of information needed for decisions, taking longer to achieve the more important decisions. In many cases he doesn’t end up making the decision. He either postpones it to when he feels he can think straight or more likely forgetting it as time passes.

The appellant adds that he doesn’t realize what he’s feeling so it's hard for him to be aware of his feelings. He gets very strong sensations he calls drives, that compel him to do something or not do something. For example, he could be showering and at that moment he can freely imagine other people being in the bathroom but if he’s not in the bathroom he has a very hard time being able to think of someone even being in a bathroom. These drives rule a great part of his behavior.

Combined with anxiety, distractions and forgetting things, this makes his daily living a horribly slow and stressful experience. He then becomes anxious and starts overthinking.

Person with Disabilities Application (application) (March 25, 2023)

Medical Report (March 1, 2023) – signed by the appellant’s doctor The doctor (a general practitioner) provided the following information and responses to the questions below.

Diagnosis autism spectrum disorder anxiety attention deficit hyperactivity disorder

Date of onset – month/year September 2022

Health History The doctor states the impairment includes short-term memory, challenges with executive functioning, motivation, task completion, working memory, being easily overwhelmed and rigid thinking patterns.

The applicant has been prescribed paroxetine. There are no major side effects. The anticipated duration of the medications is said to be ongoing and the duration of the impairment is described as “it will not improve”.

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Appeal Number 2024-0010

Functional Skills No particular restrictions are noted under functional skills. The doctor only indicates there are difficulties with communication - the cause is cognitive. As well, there are significant deficits with cognitive and emotional function.

Daily Living Activities No particular restrictions are noted under daily living activities. It is noted that the Appellant is restricted in the area of social functioning (daily decision making; interacting, relating and communication with others) is continuously restricted.

The doctor has known the appellant for nine years and has seen him two to ten times.

Assessor Report (March 1, 2023) – signed by the appellant’s doctor The doctor provided the following information and responses to the questions below.

The doctor states the appellant’s mental impairment impacting his daily living activities include difficulty with executive function and communication.

Daily Living Activities The doctor completed the following chart regarding the appellant’s social functioning.

Appropriate social decisions Able to develop and maintain relationships Interacts appropriately with others Able to deal appropriately with unexpected demands Able to secure assistance from others

Periodic support/ supervision

x

x

Continuous support/supervision

x

x

x

The doctor also indicates that the appellant has marginal functioning with his immediate social network and very disruptive functioning with his extended social networks.

Assistance Provided for Applicant The doctor states assistance is provided by family and community support groups.

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Appeal Number 2024-0010

Letter from the Ministry to the Appellant (November 1, 2023) The ministry states it denied the appellant’s application for Persons with Disabilities designation and included the reasons for the denial.

Requests for Reconsideration (November 23/December 18, 2023) The appellant requested extensions to allow time to gather updated medical information.

Letter of Support from the Appellant’s Doctor (December 8, 2023) The doctor states they are writing in support of the appellant due to the significant impact that autism has on his ability to function socially. They are familiar with the challenges the appellant faces daily.

They write that autism is a complex neurological condition that affects social interactions, communication and behavior. In the appellant’s case, the limitations in social functioning are particularly pronounced making it difficult for him to navigate various aspects of daily life. He struggles with initiating and sustaining conversations, interpreting nonverbal cues and forming and maintaining relationships. These challenges significantly impact his ability to engage in activities that many of us take for granted, such as attending social events or participating in community activities. As a result, the appellant faces substantial barriers in achieving independence.

The doctor adds, autism is a lifelong condition and that while individuals may develop coping mechanisms and skills over time, the core challenges often persist. The appellant has shown resilience and determination in managing his condition, but the ongoing difficulties highlight the necessity for continued support.

Additional Information received after the Reconsideration Decision

Notice of Appeal (January 11, 2024) The appellant did not provide reasons for his appeal in the Notice of Appeal

Appellant Submission (May 25, 2024) The appellant provided another application with his submission.

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Appeal Number 2024-0010

Application for Persons with Disabilities Des ignation (April 22, 2024)

Medical Report (April 18, 2024) The appellant’s doctor provided the following information and responses to the questions below. Diagnosis Date of onset – month/year autism spectrum January 2021 anxiety January 2014 depression January 2014 attention deficit hyperactivity January 2004 disorder

Functional Skills There are difficulties with communication (cognitive) and significant deficits with cognitive and emotional function. The applicant has difficulty communicating with people; he tends to isolate and avoids voice calls. He lacks concentration as he is bothered by noise. In addition, he stresses with social communication and social expectations.

Daily Living Activities The doctor indicates that the impairment directly and continuously restricts the person’s ability to perform the daily living activity of social functioning – daily decision making; interacting, relating and communication with others. The applicant has difficulty following social cues, is easily angered and tends to isolate.

Assessor Report (April 6, 2024) – signed by the appellant’s psychologist The psychologist provided the following information and responses to the questions below.

Mental or Physical Impairment The applicant was diagnosed with autism spectrum disorder in 2022; his adaptive functioning is in the extremely low range.

Ability to Communicate The applicant’s speaking and reading ability is poor. He can speak but has a lot of anxiety due to his autism spectrum disorder. He has to re-read text multiple times to retain the information. His ability with writing and hearing is satisfactory.

The psychologist completed the following chart.

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Appeal Number 2024-0010

Cognitive and Emotional Functioning Impact on Daily Functioning Minimal Moderate Major impact impact impact Bodily functions x Consciousness x Emotion x Impulse control x Insight and judgement x Attention/concentration x Executive x Memory x Motivation x Motor activity x Language x Psychotic symptoms x Other neuropsychological x problems Other emotional or x mental problems The psychologist adds that the client’s adaption behaviors are in the extremely low range.

Daily Living Activities The psychologist completed the following chart.

Personal Care Dressing Grooming

Bathing Toileting

Feeding self Regulating diet Transfers (in/out of bed) Transfers (on/off chair)

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I n d e p e n d e n t

x

x

x

P e r i o d i c

A s s i s t a n c e f r o m

x

x

x

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

x

x

l o n g e r t h a n

t y p i c a l

Explain/ Describe

Receives constant reminders from family

Requires longer time due to obsessive compulsive disorder Does not cook, heating up takes a lot longer

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Appeal Number 2024-0010 Basic Housekeeping Laundry x Basic housekeeping x Shopping Going to/from stores x Reading prices and x Cannot comprehend labels what he is reading, needs others to list choices Making appropriate x choices Paying for purchases x Additional comments: He needs assistance (such as social/emotional/moral, on a continual basis). He is easily overwhelmed with decisions that are too complex. Carrying purchase x home Meals Meal planning x Doesn’t know how to do meal planning Food preparation x Cooking x Safe storage of food x (ability, not environmental) Pay rent and bills Banking x Needs constant reminders, support for financial planning Budgeting x Pay rent and bills x Medications Filling/refilling x Failed to follow up, prescriptions needs early reminders Taking as directed x Safe handling and x storage Transportation Getting in and out of x a vehicle Using public transit x Using transit x schedules and arranging transportation

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Appeal Number 2024-0010

The appellant’s executive functioning is relative ly low due to lack of planning and organizing. He often needs reminders from others to do these things and has difficulty comprehending instructions.

Daily Living Activities (continued) - Social Functioning Periodic Continuous Explain/ support/ support/supervision Describe supervision

Appropriate social decisions (avoiding situations dangerous to self or others, good social judgement) Able to develop and maintain relationships Interacts appropriately with others (e.g. understands and responds to social cues, problem solves in social context) Able to deal appropriately with unexpected demands Able to secure assistance from others

x

x

x

x

x

Significant difficulty in social situations. He does not read social cues well and may come across lacking social empathy due to misreading social situations.

Difficulty communicating effectively with other people

Transition is always challenging

Assistance The psychologist states assistance is provided by family, friends, health authority professionals and community service agencies. The appellant will need support from different adults and professionals (e.g., psychiatrist for medication and therapist for social emotional support). The appellant does not have an assistance animal.

They add that autism spectrum disorder impacts the appellant’s social skills, abstract information processing, communication, sensory issues, and his daily living functioning overall, requiring much longer to process information.

Frequency of Contact The psychologist states they have known the applicant since 2022 and have seen him two to ten times.

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Testimony at the Hearing

Appeal Number 2024-0010

Appellant At the hearing, the appellant reiterated the information he provided, in the ministry record as well as in his submission. He added that he is not physically disabled. He just needs someone who can talk to him as he misunderstands many things. He also stated he needs reminders with prescriptions or he will forget to take his medication or fill the prescription.

Regarding grooming, the appellant’s mother, his representative, stated that the appellant will wear the same clothes day and night, week after week. She has to remind him to change his clothes.

Ministry At the hearing, the ministry stated in addition to its finding that the appellant met the requirement for the daily living activity of social functioning, it believes if it had had the evidence in the appellant’s submission, it would have made a different decision. The ministry states it finds the new evidence demonstrates that a prescribed professional confirmed that the daily living activities of personal care, shopping, meals, paying rent and bills, and managing medication directly and significantly restrict the appellant's ability to perform daily living activities, as the appellant needs constant reminders.

Admissibility The ministry did not object to the additional information provided in the appellant’s submission. The panel determined the additional information (the appellant’s submission, and the information from the ministry regarding that it would have made a different decision), 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.

As the information in the appellant’s submission was provided by a doctor and a psychologist, both of whom are prescribed professionals, the panel gives the additional information full weight.

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Part F – Reasons for Panel Decision

Appeal Number 2024-0010

Issue 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.

Specifically, did the ministry reasonably determine the appellant was not eligible for the Persons with Disabilities designation, because it was not satisfied that the following criteria were met. - Severe impairment directly and significantly restricts at least two daily living activities - Assistance required with daily living activities as a result of significant restriction

Appellant Position The appellant states autism spectrum disorder, anxiety/depression and attention deficit hyperactivity disorder cause many issues with daily living. He has problems understanding people and is bad with social cues leading to repetition, confusion, anger and frustration.

Combined with anxiety, distractions and forgetting things, this makes his daily living a horribly slow and stressful experience.

Ministry Position At reconsideration, the ministry was not satisfied that the appellant has a severe physical impairment but found he has a severe mental impairment. Regarding daily living activities, at reconsideration, the ministry found that the impairment restricts social functioning, as required by the legislation. However, the ministry also stated that a prescribed professional must confirm that the appellant is restricted in at least two daily living activities as set out in legislation, and the appellant’s restricted social functioning is only one daily living activity. The doctor indicated that a few other daily living activities are restricted - but there is not enough information about the frequency and duration of those restrictions. Therefore, the criteria as set out in the legislation were not met.

At the hearing, the ministry stated with the information in the appellant’s updated medical evidence, it now believes that a prescribed professional confirmed that the appellant’s impairment directly and significantly restricts his ability to perform the daily living activities of personal care, shopping, meals, paying rent and bills, and managing medication because the appellant needs constant reminders for these daily living activities.

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Appeal Number 2024-0010

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. At reconsideration, the ministry was satisfied that the appellant has reached 18 years of age, has a severe mental impairment that in the opinion of a medical practitioner is likely to continue for at least two years and met the legislative requirement for one daily living activity.

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

As per the court’s decision (Hudson v. British Columbia (Employment and Assistance Tribunal), 2009 BCSC 1461), at least two activities must be restricted in a way that meet the requirements.

To be significant, the restriction must be to a great extent, such as not being able to do the activities 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.

The panel notes, in the application (March 2023), the doctor indicates there are difficulties with communication - the cause is cognitive. As well, relating and communicating with others is continuously restricted. In the letter of support, the doctor states the appellant struggles with initiating and sustaining conversations, interpreting nonverbal cues and forming and maintaining relationships.

The panel notes the appellant’s psychologist, indicates the appellant needs periodic assistance with grooming, bathing and feeding himself. He receives constant reminders from his family for grooming and needs periodic assistance with banking and paying rent, constant reminders and support for financial planning, and reminders for managing medications. Regarding grooming, the appellant’s mother provided further information stating that the appellant needs continuous support as he will wear the same clothes day and night, week after week. She has to remind him to change his clothes. The ministry stated it finds the new evidence submitted in April 2024 demonstrates that a prescribed professional confirmed that the daily living activities of personal care, shopping, meals, paying rent and bills, and managing medication directly and significantly restrict the

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Appeal Number 2024-0010 appellant's ability to perform those daily living activities, as the appellant needs constant reminders.

The panel finds the evidence above demonstrates that a prescribed professional has confirmed that a severe mental impairment directly and significantly restricts the appellant's ability with at least two daily living activities (relate to, communicate or interact with others effectively, personal care, shopping, meals, paying rent and bills, and managing medication) periodically for extended periods or continuously, as is required by section 2(2) of the Act. In light of the new evidence, the panel finds the ministry’s decision that this criterion was not met, unreasonable.

Help to Perform Daily Living Activities The panel notes section 2(2) of the Act also requires that as a result of these restrictions, the person requires help to perform these activities and to perform them, the person requires the significant help or supervision of another person.

The psychologist states assistance is provided by family, friends, health authority professionals and community service agencies. The appellant will need support from different adults and professionals (e.g., psychiatrist for medication and therapist for social emotional support).

As the psychologist confirmed that the appellant requires support from various sources to manage his impairment, the panel finds this criterion has been met.

The panel finds, with the additional information, the criteria for 2(2) and (3) of the Act have now been met. Therefore, the panel finds the ministry decision that it was not satisfied that the appellant has a severe impairment that directly and significantly restricts daily living activities requiring assistance, is unreasonable.

Conclusion In conclusion, the panel finds the ministry’s decision that determined the appellant was not eligible for Persons with Disabilities designation is not reasonably supported by the evidence. The panel rescinds the ministry’s decision.

The appellant is successful on appeal.

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