Ministry of Social Development and Poverty Reduction

Appeal Number 2024-0211 Part C – Decision Under Appeal The decision under appeal is the reconsideration decision of the Ministry of Social Development and Poverty Reduction (“Ministry”) dated May 13, 2024. The Ministry decided that since the Appellant is in receipt of Employment Insurance (“EI”), he is not eligible for Disability Assistance (“DA”) as per the requirements of sections 1 and 9 of 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, 7 and 9 Schedule A, sections 1, 2 and 4 Schedule B, sections 1, 6, and 7

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Appeal Number 2024-0211 Part E – Summary of Facts Evidence at Reconsideration WebAOBLink profile from Service Canada confirming that the Appellant has an active claim for regular EI benefits at a weekly rate of $668 as of March 31, 2024. $31 is deducted from the weekly payments for income tax. Also, Service Canada confirmed that on April 29, 2024 the Appellant received $2838 for EI payments for weeks ending April 7, 14 and 21.

Request for Reconsideration dated May 1, 2024. In it the Appellant argued that Section 7 of the Regulation that explains a family unit is not eligible if they have applied for income from another source unless for EI. If the applicant receives EI, they may sign a repayment agreement allowing Service Canada to repay the ministry for the amount of disability assistance provided.

Finding of Fact The Panel finds that the following have been established by the evidence: • The Appellant is in receipt of EI benefits. • The amount of the Appellant’s EI benefits is $668.00 per week. • The amount of DA the Appellant is eligible for is $1483.50 monthly, which includes support and shelter and is set in legislation (sections 2 and 4 of Schedule A). • The Appellant’s weekly EI benefits exceed his eligible DA benefits.

Evidence at Appeal Notice of Appeal dated May 15, 2024 stated that “My EI and PWD applications were done at the same time, and both the Ministry and EI were informed of the applications. The option to fill out a repayment agreement for my EI income was never brought up to me. Would have gladly signed or as I only would like my medical, dental and bus pass benefits back”.

The panel found that the Notice of Appeal is the Appellant’s argument and accepted it accordingly.

Evidence at the Hearing At the hearing, the Appellant reiterated his previous statements from the request for reconsideration and notice of appeal. He also, in part, stated the following information: • He applied for EI and PWD in the same week. • He understands the Ministry’s reasoning for not paying out the income portion of DA. He is requesting access to medical benefits, dental benefits and the reduced cost bus pass. • His EI application was fast-tracked because his boss passed away. • If his EI benefits were delayed until he received his PWD designation, this appeal would not be necessary.

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Appeal Number 2024-0211 • He was not offered the option to sign a rep ayment agreement as indicated in section 7 of the Regulation. He is willing to sign such an agreement.

At the hearing the Ministry relied on its reconsideration decision. The Ministry also added the following: • Section 7 of the Regulation would only apply if the Appellant was in receipt of DA prior to receiving EI benefits. In this case, the Appellant was in receipt of EI prior to being eligible for DA. • It is Ministry policy that one is only eligible for medical benefits, dental benefits and a reduced cost bus pass if one is in receipt of the income portion of DA. • Sections 51, 63 and 61.1 state that medical benefits, dental benefits and a reduced cost bus pass cannot be provided to an individual unless that individual is in receipt of the income portion of DA. • The Reconsideration did not address the Appellant’s request for medical and dental benefits and a reduced cost bus pass because it was not a part of the Appellant’s argument at that time. • Though the Appellant is not eligible for DA, he still retains his PWD designation. After 6 months of not receiving DA, his file will close and he will need to go through an application process to reactivate his DA.

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Appeal Number 2024-0211 Part F – Reasons for Panel Decision The issue on appeal is whether the Ministry's reconsideration decision, which found that the Appellant is not eligible for DA was reasonably supported by the evidence or was a reasonable application of the legislation.

The Appellant’s Position The Appellant argued that Section 7 of the Regulation allows recipients of EI to enter a repayment agreement and that this repayment agreement was not offered to him. He will sign this agreement to attain medical benefits, dental benefits and a reduced cost bus pass.

The Ministry’s Position The Ministry argued that the Appellant is not eligible for DA because his EI exceeds the amount of DA he is eligible for per section 9 of the Regulation. As such, he also is not eligible for medical benefits, dental benefits or a reduced cost bus pass. The Ministry argued that section 7 of the Regulation does not apply because the Appellant was receiving EI before he became eligible for DA. The Ministry states that this section would be applicable if the Appellant applied for EI while receiving DA.

Panel Decision Section 9(2) of the Regulation states that a family is not eligible for DA if the net income of the family determined under Schedule B equals or exceeds the amount of income assistance determined under Schedule A for a family unit matching that family unit.

In calculating income, section 1 of the Regulation determines that EI benefits are categorized as unearned income and section 1 of Schedule B determines that EI benefits are not exempt from being included in the calculation of eligible DA. As such, the Panel finds that the Ministry was reasonable when it found that EI benefits are unearned income and not exempt from calculating DA.

The facts of the case establish the Appellant is in receipt of EI and that amount of EI exceeds the eligible rate of DA as the appellant receives more from EI than DA would provide but would receive with DA.

The Appellant has not argued otherwise. The Appellant argued that section 7 of the Regulation allows him to sign a repayment plan and he is willing to do this to qualify for medical benefits, dental benefits, and a reduced cost bus pass. These are benefits he does not receive with EI.

Section 7 of the Regulation states that a family unit is not eligible for DA if they have applied for income from another source unless for EI. They then can sign a repayment agreement allowing Service Canada to remit EI to the ministry in the amount of disability assistance provided. The

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Appeal Number 2024-0211 Ministry argued that section 7 does not apply bec ause the Appellant was in receipt of EI prior to when eligibility for DA was determined. However, the Panel finds that section 7 of the Regulation does not stipulate that an applicant of EI can only enter into a repayment agreement if they applied for EI after being found eligible for DA or that they are no longer eligible for DA if they receive EI benefits before being found eligible for DA. It appears that Ministry policy is more restrictive than the legislation. As such the Panel finds that the Ministry was not reasonable in its determination that section 7 of the Regulation does not apply in the circumstances of the Appellant.

The Panel has found that section 7 of the Regulation does apply in the circumstances of the Appellant, as such the Panel finds that the Ministry was not reasonable in its determination that pursuant to section 9(2) of the Regulation, the Appellant is not eligible for DA.

Conclusion

The panel finds that in the Reconsideration Decision, the Ministry’s decision, which found that the Appellant was not eligible for Disability Assistance because he was receiving Employment Insurance, was not a reasonable application of the legislation. Therefore, the panel rescinds the decision. The Appellant is successful on appeal.

APPENDIX A

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Appeal Number 2024-0211

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

Effect of applicant applying for other sources of income 7 (1)In this section, "income" does not include (a)earned income described in paragraphs (a), (d) or (e) of the definition in section 1, or (b)income exempt under section 1 of Schedule B.

(2)A family unit is not eligible for disability assistance if an applicant in the family unit has applied for income from another source unless (a)the applicant enters into a repayment agreement with the minister, (b)if the source of the other income is federal employment insurance under the Employment Insurance Act (Canada), the applicant, in addition to the requirement under paragraph (a), satisfies the minister that a direction has been completed in accordance with subsection (3), and (c)if the source of the other income is a benefit under the Canada Pension Plan (Canada), the applicant, in addition to the requirement under paragraph (a), satisfies the minister that the applicant has made a Consent to Deduction and Payment form under the Canada Pension Plan (Canada) directing that (i)an amount up to the amount of disability assistance provided to or for the family unit under this section be deducted from the amount of the Canada Pension Plan benefit, and (ii)the amount deducted be paid to the minister.

(3)A direction referred to in subsection (2) (b) must be completed under the Employment Insurance Act (Canada) by the applicant who applies for the federal employment insurance and must direct that (a)an amount equal to the amount of disability assistance provided to or for the family unit under this section be deducted from the employment insurance, and (b)the amount deducted be paid to the minister.

Effect of applicant applying for other sources of income 7 (1)In this section, "income" does not include (a)earned income described in paragraphs (a), (d) or (e) of the definition in section 1, or

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Appeal Number 2024-0211 (b)income exempt under se ction 1 of Schedule B. (2)A family unit is not eligible for disability assistance if an applicant in the family unit has applied for income from another source unless (a)the applicant enters into a repayment agreement with the minister, (b)if the source of the other income is federal employment insurance under the Employment Insurance Act (Canada), the applicant, in addition to the requirement under paragraph (a), satisfies the minister that a direction has been completed in accordance with subsection (3), and (c)if the source of the other income is a benefit under the Canada Pension Plan (Canada), the applicant, in addition to the requirement under paragraph (a), satisfies the minister that the applicant has made a Consent to Deduction and Payment form under the Canada Pension Plan (Canada) directing that (i)an amount up to the amount of disability assistance provided to or for the family unit under this section be deducted from the amount of the Canada Pension Plan benefit, and (ii)the amount deducted be paid to the minister. (3)A direction referred to in subsection (2) (b) must be completed under the Employment Insurance Act (Canada) by the applicant who applies for the federal employment insurance and must direct that (a)an amount equal to the amount of disability assistance provided to or for the family unit under this section be deducted from the employment insurance, and (b)the amount deducted be paid to the minister

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.

Schedule B 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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Appeal Number 2024-0211 (i)any income earne d 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], 8.2 [BC harmonized sales tax credit] or 8.3 [renter's 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; (xii.1)money that is paid or payable to or for a person if the payment is in accordance with the settlement under the Final Settlement Agreement and Supplementary Agreement approved by the Federal Court June 22, 2018 in Court File No. T-370-17, Todd Edward Ross et al. v. Her Majesty the Queen;

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Appeal Number 2024-0211 (xii.2)money that is paid or payable to or for a person if the payment is in accordance with the settlement under the Final Settlement Agreement approved by the Federal Court January 30, 2019 in Court File No. T-1068-14, Raymond Michael Toth v. Her Majesty the Queen; (xiii)the BC earned income benefit; (xiv)money paid or payable under the 1986-1990 Hepatitis C Settlement Agreement made June 15, 1999, except money paid or payable under section 4.02 or 6.01 of Schedule A or of Schedule B of that agreement; (xv)a rent subsidy provided by the provincial government, or by a council, board, society or governmental agency that administers rent subsidies from the provincial government; (xvi)Repealed. [B.C. Reg. 197/2012, Sch. 2, s. 11 (a).] (xvii) and (xvii.1)Repealed. [B.C. Reg. 99/2023, App. 2, s. 3 (a).] (xviii)financial assistance payments provided under Part 6 of the Adoption Regulation, B.C. Reg. 291/96; (xix)a rebate of energy or fuel tax provided by the government of Canada, the government of British Columbia, or an agency of either government; (xx)money paid by the government of British Columbia, under a written agreement, to a person with disabilities or to a trustee for the benefit of a person with disabilities to enable the person with disabilities to live in the community instead of in an institution; (xxi)Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 7.] (xxii)payments granted by the government of British Columbia under section 8 [agreement with child's kin and others] of the Child, Family and Community Service Act; (xxiii)payments granted by the government of British Columbia under the Ministry of Children and Family Development's At Home Program; (xxiv)Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 7.] (xxv)payments granted by the government of British Columbia under an agreement referred to in section 93 (1) (g) (ii) of the Child, Family and Community Service Act, for contributions to the support of a child; (xxvi)a loan that is (A)not greater than the amount contemplated by the recipient's business plan, accepted by the minister under section 70.1 of this regulation, and

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Appeal Number 2024-0211 (B)received and used for the purposes set out in the business plan; (xxvii)payments granted by the government of British Columbia under the Ministry of Children and Family Development's (A)Autism Funding: Under Age 6 Program, or (B)Autism Funding: Ages 6 — 18 Program; (xxviii)Repealed. [B.C. Reg. 148/2015, App. 2, s. 1 (a).] (xxix)payments made by a health authority or a contractor of a health authority to a recipient, who is a "person with a mental disorder" as defined in section 1 of the Mental Health Act, for the purpose of supporting the recipient in participating in a volunteer program or in a mental health or addictions rehabilitation program; (xxx)a refund provided under Plan I as established under the Drug Plans Regulation; (xxxi)payments provided by Community Living BC to assist with travel expenses for a recipient in the family unit to attend a self-help skills program, or a supported work placement program, approved by Community Living BC; (xxxii)a Universal Child Care Benefit provided under the Universal Child Care Benefit Act (Canada); (xxxii.1)a rental housing benefit provided under the Rental Housing Benefit Act (Canada); (xxxii.2)a dental benefit provided under the Dental Benefit Act (Canada); (xxxiii)money paid by the government of Canada, under a settlement agreement, to persons who contracted Hepatitis C by receiving blood or blood products in Canada prior to 1986 or after July 1, 1990, except money paid under that agreement as income replacement; (xxxiv)money withdrawn from a registered disability savings plan; (xxxv)a working income tax benefit provided under the Income Tax Act (Canada); (xxxvi)Repealed. [B.C. Reg. 180/2010, s. 2 (b).] (xxxvii)the climate action dividend under section 13.02 of the Income Tax Act; (xxxviii)money paid or payable to a person under the Criminal Injury Compensation Act as compensation for non-pecuniary loss or damage for

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Appeal Number 2024-0211 pain, suffering ment al or emotional trauma, humiliation or inconvenience that occurred when the person was under 19 years of age; (xxxix)money that is 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. S024338, Vancouver Registry; (xl)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Family Support Services program; (xli)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Supported Child Development program; (xlii)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Aboriginal Supported Child Development program; (xliii)money paid or payable from a fund that is established by the government of British Columbia, the government of Canada and the City of Vancouver in relation to recommendation 3.2 of the final report of the Missing Women Commission of Inquiry; (xliv)payments granted by the government of British Columbia under the Temporary Education Support for Parents program; (xlv)a BC early childhood tax benefit; (xlv.1)a BC child opportunity benefit; (xlv.2)a BC family benefit; (xlvi)child support; (xlvii)orphan's benefits under the Canada Pension Plan Act (Canada); (xlviii)money or other value received, by will or as the result of intestacy, from the estate of a deceased person; (xlix)gifts; (l)education and training allowances, grants, bursaries or scholarships, other than student financial assistance; (li)money withdrawn from a registered education savings plan; (lii)compensation paid or payable under Division 5 [Compensation in Relation to Death of Worker] of Part 4 [Compensation to Injured Workers and Their Dependants] or section 225 [compensation in relation to worker death before July 1, 1974] of the Workers Compensation Act to a

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Appeal Number 2024-0211 dependant, as define d in section 1 of that Act, who is a child, as defined in section 165 (1) of that Act; (liii)money that is paid or payable by or for Community Living BC to or for a person if the payment is in accordance with an award in a legal proceeding or with a settlement agreement in respect of a claim for injury, loss or damage caused by Community Living BC, an employee of Community Living BC or a person retained under a contract to perform services for Community Living BC; (liv)money that is paid or payable by the government of British Columbia to or for a person if the payment is in accordance with an award in a legal proceeding or with a settlement agreement in respect of a claim for injury, loss or damage caused by the minister, the ministry, an employee of the ministry or a person retained under a contract to perform services for the ministry; (liv.1)money that is paid or payable by the government of British Columbia to or for a person if the payment is in accordance with an award in a legal proceeding or with a settlement agreement in respect of a claim for injury, loss or damage caused by the Minister of Children and Family Development, that ministry, an employee of that ministry or a person retained under a contract to perform services for that ministry; (liv.2)money that is paid or payable by the government of British Columbia to or for a person because the person was a resident of Woodlands School; (lv)a disabled contributor's child's benefit paid or payable under the Canada Pension Plan; (lvi)payments granted under an agreement referred to in section 94 of the Child, Family and Community Service Act; (lvii)money that is paid or payable, in respect of a child, from property that comes into the control of, or is held by, the Public Guardian and Trustee; (lviii) and (lviv)Repealed. [B.C. Reg. 99/2023, App. 2, s. 3 (a).] (lx)money that is paid or payable under the Memorial Grant Program for First Responders established under the authority of the Department of Public Safety and Emergency Preparedness Act (Canada); (lxi)money, or goods or services in kind, received or to be received by a participant in the Ministry of Social Development and Poverty