Ministry of Social Development and Poverty Reduction

2024-0185 Part C – Decision Under Appeal The decision under appeal is the Reconsideration Decision of the Ministry of Social Development and Poverty Reduction (the “Ministry”), dated April 3, 2024 (the “Reconsideration Decision”), in which the Ministry denied the Appellant’s request for select power wheelchair components/features. More specifically, the Ministry found that the Appellant did not meet the eligibility requirements as set out in Schedule C, sections 3(1)(b)(iii) and/or 3.2(2) of the Employment and Assistance for Persons with Disabilities Regulation.

Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Regulation (the “Regulation”), section 62, and Schedule C sections 3, and 3.2.

Full text of the legislation is provided in the Schedule of Legislation at the end of the decision.

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2024-0185 Part E – Summary of Facts (a) The Reconsideration Decision The evidence before the Ministry at the Reconsideration Decision consisted of: The Appellant has been designated as a person with disabilities (“PWD”) and is in receipt of disability assistance.

On August 29, 2023, the Ministry received the Appellant’s request for a power wheelchair with power features (the “Application”). The Application was accompanied by:

• an assessment written by the Appellant’s occupation therapist (the “OT”) dated August 9, 2023 (the “Assessment”) which provides:

“… RE: replacement power wheelchair with back rest / head rest / tilt / recline / power elevating and articulating leg rests / custom foot platform / transfer bars ****open wounds back side****

… History of: Cerebral Palsy… … Client is able to self transfer with difficulty…. He relies on multiple hand holds for all transfers… MSD will not support any more repairs on his current power w/c and MSD has directed him to determine and submit for a new power wheelchair (and associated seating) system…

… He has been seen by… seating clinic related to a whole new power wheelchair system with associated seating… provided extensive recommendations to enable getting in / out of the wheelchair and support while in the wheelchair and position as best as possible…

… He requires the same power features as he currently has. His condition has not improved, if anything, over the years he has become more weak with more wounds…

… Due to his many power features – needs switches for some of his features for quick access…”

• a quote prepared by a power wheelchair vendor (the “Vendor”) dated August 23, 2023 which provides estimates for the requested power wheelchair, power features, and seating (the “Quote”); and

• a Medical Equipment Request and Justification Form which states that the Appellant requires a replacement power wheelchair with power tilt/recline, power legs and seating.

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2024-0185 At the Ministry’s request, the Vendor provided it with three (3) revised Quotes (on December 4 and 11, 2023 and January 23, 2024) with certain requested power wheelchair features removed.

On January 23, 2024, the Ministry approved the Appellant’s request for a power wheelchair with the following features: power tilt, power recline, power elevating leg rests, a custom foot platform, and seating. The Ministry denied funding for pneumatic casters, a LED light package, a R-net color display joystick with Bluetooth, power seat elevation, a keypad toggle switch, a USB charger, and removable transfer handles. The Ministry noted a power elevating footboard could be funded; however, a cost for it was not listed in the final Quote provided by the Vendor. It is noted that the Ministry communicated with the Vendor when the Quote was drafted and revised. The reasons for the Ministry’s denial were as follows:

• the pneumatic casters were not medically essential for basic mobility; • the LED light package was not medically essential for basic mobility nor was it the least expensive appropriate medical equipment or device;

• the R-net color display joystick with Bluetooth was not medically essential for basic mobility;

• the power seat elevation was not medically essential for basic mobility; • the keypad toggle switch was not medically essential for basic mobility; • the USB charger was not medically essential for basic mobility; and • the removable transfer handles were not required as the Appellant’s transfer handles from his current power wheelchair could be transferred to his new power wheelchair.

On March 18, 2024, the Ministry received the Appellant’s Request for Reconsideration wherein his advocate wrote:

“… [the Appellant’s] health has changed… I would request that a reassessment be completed… [the Appellant] recently had emergency surgery to remove his gallbladder and kidney stones. He is now unable to self-transfer without a caregivers assistance…

… [the Appellant] at no time agreed that the submitted quote agreed upon by the adjudicator and vendor was acceptable as advised by the adjudicator to [the Appellant]…

… [the Appellant] is being seen by a new O/T on… March 18 th I would encourage the Ministry to contact this O/T afterwards to get the most current status of [the Appellant’s] condition and to determine if a further assessment is needed… before any decision can be made on his new Power wheelchair

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2024-0185 request… If no further action by the new O/T or GF Strong is required then I formally request a tribunal appeal… ”.

On April 3, 2024, the Ministry issued the Reconsideration Decision wherein it denied the Reconsideration Request. In doing so, the Ministry noted: “…The ministry acknowledges your reconsideration statement indicates following surgery you are unable to self-transfer without assistance and you are being seen by a new Occupational Therapist. It is noted you have not provided a new assessment or additional information from your Occupational Therapist… … You are not eligible for select power wheelchair components/features as outlined below. The ministry finds your request does not meet the eligibility requirement set out in the EAPWD Regulation, Schedule C, subsection 3.2(2), which sets out the ministry must be satisfied the item is medically essential to achieve or maintain basic mobility. The ministry also finds your request does not meet the eligibility requirement set out in Schedule C, subsection 3(1)(b)(iii), which sets out the requested item must be the least expensive appropriate medical equipment or device… Pneumatic Casters 9" x 3" · … The ministry has not received information indicating the included pneumatic casters cannot meet your needs. Therefore, the larger 9” x 3” pneumatic casters are not considered medically essential to achieve or maintain basic mobility or the least expensive appropriate medical equipment required. LED Light Package · It is noted LED lights are not mentioned in the assessment of OT… other low cost visibility options are available. Therefore, the LED light package is not considered medically essential to achieve or maintain basic mobility or the least expensive appropriate medical equipment required. R-net Color display Joystick with Bluetooth · It is noted the ministry confirmed with the wheelchair manufacturer that the no-cost joystick included with your… power wheelchair will operate all included and added components/features. Therefore, the requested r-net Color display joystick, at additional cost, is not considered medically essential to achieve or maintain basic mobility or the least expensive appropriate medical equipment required.

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2024-0185 Keypad with Toggle Switches · It is noted the ministry confirmed with OT.. that you are capable of using a regular joystick and all power features are accessible through the regular joystick. Therefore, the requested keypad with toggle switches is not considered medically essential to achieve or maintain basic mobility or the least expensive appropriate medical equipment required. USB charger with R-net · The ministry notes a USB charger is not medically essential for you to achieve or maintain basic mobility. Removable transfer handles · The ministry confirmed with the wheelchair supplier that the transfer handles of your current wheelchair would be transferred to the requested… power wheelchair. Therefore, new transfer handles are not considered medically essential to achieve or maintain basic mobility or the least expensive appropriate medical equipment required. … The Ministry of Social Development and Poverty Reduction has approved funding for power elevation for a power wheelchair. However, the ministry finds your request for additional select wheelchair components/features (see above) does not meet the eligibility requirements set out in the EAPWD Regulation, Schedule C, subsections 3.2(2) and 3(1)(b)(iii), and is denied.” (b) The Appeal On May 11, 2024, the Appellant filed a Notice of Appeal. In his reasons for the Appeal, the Appellant’s advocate wrote:

"… Some of the reasons for this appeal include the following with more to come in the coming days.

1. The appeal decision was not mailed to [the Appellant], but he was asked to come to the local office to get it, this is not required under the legislation.

2. NO GF Strong assessment report was ever provided to [the Appellant] only a brief few sentences from the community therapist…

3. Only the first page of the decision was provided after he waited 1 hour for it and was not given correct information by staff telling him he could no longer appeal the decision. Again, incorrect information under the legislation.

4. The Ministry has not communicated on a regular basis with [the Appellant] or requested extra time under the terms of the legislation as required.

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2024-0185 5. The adjudicator called [the Appellant] personally to discuss his appeal and was surprised he was appealing when she was told that the community therapist had said there was no appeal required as he had agreed to the approval as is. This state is completely false and the community therapist is currently on leave and unable to answer as to why this statement was made without his permission or authorization. Further investigation is required.

6. The overall length this whole process has taken has put undue stress and anxiety on [the Appellant] causing him to have health issue and require surgery which he is currently recovering from.

7. Based on that surgery his condition has changed and a reassessment is recommended before the new chair is supplied as the parameters that were originally thought to have changed…

… We are asking the tribunal to request an immediate reassessment by the GF Strong Seating clinic without delay and the approval of his request for his power wheelchair and other equipment without question or further delay".

In support of his ppeal, the Appellant submitted 52 pages of correspondence and reports generated between August 9, 2023 and February 17, 2024 arising from or pertaining to the OT’s Assessments and recommendations.

(c) Oral Submissions The Appellant’s hearing was held on June 4, 2024. The Appellant was joined by an advocate during the Appeal hearing.

Briefly, the Appellant restated much of the information found in the Application, the Request for Reconsideration, and the Notice of Appeal. During his/his advocate’s submissions, the Appellant took issue with the length of time (11 months) it took the Ministry to consider his power wheelchair request and the fact that the Ministry did not communicate with him directly. The Appellant submitted that the OT’s conduct during the Ministry’s consideration of his power wheelchair request has caused him stress which has caused for his overall health to decline; as a result, he now requires further evaluation for his power wheelchair.

The Appellant explained that he required a new power wheelchair as his current power wheelchair was discontinued; as a result, parts could not be sourced for its repair. Though approved for a new power wheelchair, the Appellant continues to use his current power wheelchair until the issue of the requested features is addressed by this Appeal.

In addressing the Ministry’s concerns regarding eligibility for the power wheelchair features, the Appellant referred the Panel to the OT’s Assessment wherein they wrote, “… He requires the same power features as he current has. His condition has not improved, if

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2024-0185 anything, over the years he has become more weak with more wounds… Due to his many power features – he needs switches (sic) for some of his features for quick access…”

Of note, the Appellant advised that the Ministry recently, and unilaterally, approved his request for a power flip board.

As it relates to the Appellant’s request for pneumatic casters, the Appellant explained that the Ministry misunderstood his request. The Appellant does request pneumatic casters which are akin to air filled tires that can be found on bicycles or cars. Rather, he seeks “run flat” tires which, according to him, will eliminate the risks arising from tire deflation. To that end, the Appellant does not take issue with the Ministry’s findings regarding the pneumatic casters as he does not want them.

As it relates to the Appellant’s request for a LED light package, the Appellant explained that it would help him see and navigate his power wheelchair at night. When asked about his current power wheelchair’s lighting system, the Appellant was unsure if it was approved or installed by the Ministry.

As it relates to the Appellant’s request for a R-net colour display joystick with Bluetooth and keypad with toggle switches, the Appellant explained that the requested components would allow him to use his new power wheelchair in a more simplistic way given his cerebral palsy.

As it relates to the Appellant’s request for a USB charger, the Appellant explained that it would allow him to charge his diabetic monitor given that he suffers from Type 1 Diabetes. When asked about his current power wheelchair’s USB charger, the Appellant was unsure if it was approved or installed by the Ministry.

As it relates to the Appellant’s request for transfer handles, the Appellant explained that the transfer handles attached to his current power wheelchair are permanently welded; as a result, he suspects that they cannot be transferred to his new power wheelchair as the Ministry believes. Alternatively, he believes that transferring the transfer handles may be cost prohibitive. Upon questioning, both the Appellant and his advocate agreed that their submissions were based on their beliefs, not verifiable information.

In response, the Ministry referred to and relied upon the Appeal Record which largely consisted of the Reconsideration Decision. Effectively, the Ministry argued that the Appellant did not meet the eligibility requirements set out in the Regulation which sets out the Ministry must be satisfied the requested power wheelchair features are medically essential to achieve or maintain basic mobility, and are the least expensive appropriate medical equipment or devices.

(d) Additional Evidence The Ministry had no objection to the Appellant’s oral submissions and 52 pages of documents which contained additional evidence. The Panel determined that the Appellant’s

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2024-0185 submissions were admissible as additional evidence pursuant to section 22(4) of the Employment and Assistance Act as it was reasonably required for a full and fair disclosure of all matters related to the decision under Appeal. More specifically, the additional evidence contributed to the Panel’s understanding of the circumstances surrounding the Appeal.

The Ministry did not submit any additional documentation on Appeal.

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2024-0185 Part F – Reasons for Panel Decision The issue under appeal is the reasonableness of the Ministry’s Reconsideration Decision in which the Ministry found the Appellant not eligible to receive select power wheelchair components/features. as provided for by Schedule C, sections 3(1)(b)(iii) and/or 3.2(2) of the Regulation.

(a) Appellant’s Position The Appellant argues he should be eligible for the requested power wheelchair components/features given the aforementioned reasons.

(b) Ministry’s Position The Ministry maintains that the Appellant does not qualify for the requested power wheelchair components/features as provided for by Schedule C, sections 3(1)(b)(iii) and/or 3.2(2) of the Regulation for the same reasons as stated in the Reconsideration Decision.

(c) Panel Decision Section 62 of the Regulation permits the Ministry to provide medical equipment and devices as set out in Schedule C to a family unit in receipt of disability or hardship assistance.

Schedule C, section 3(1)(b)(iii) of the Regulation permits the Ministry to provide medical equipment and devices if the medical equipment or device is the least expensive appropriate medical equipment or device.

Schedule C, section 3(2)(b)of the Regulation provides that a person requesting medical equipment and devices must provide the Ministry with an assessment by an occupational therapist or physical therapist confirming the medical need for the medical equipment or device.

Schedule C, section 3.2(2) of the Regulation provides that, if the Minister is satisfied that an item is medically essential to achieve or maintain basic mobility, it may provide a wheelchair, an upgraded component of a wheelchair or an accessory attached to a wheelchair. Briefly, “medically essential to achieve or maintain basic mobility” refers to a person’s need for equipment due to a mobility impairment which is necessary to perform their day-to-day activities in their home and/or community. If the factors suggest that the equipment is

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2024-0185 medically essential to achieve or maintain basic mobility, and all other eligibility requirements have been met, the client is eligible for the requested equipment.

(i) Section 62 of the Regulation – Disability Assistance As the Appellant is a recipient of disability assistance, the Panel finds that the Ministry reasonably determined that the Appellant was eligible to receive medical equipment and devices as set out under Schedule C, section 3 of the Regulation.

(ii) Schedule C, sections 3 and 3.2 Regulation – Other Eligibility Criteria For the reasons that follow, the Panel finds that the Ministry’s decision to deny the Appellant medical equipment and devices as provided for by section 62 and Schedule C, sections 3(1)(b)(iii) and 3.2(2) of the Regulation, was a reasonable application of the legislation in the circumstance of the Appellant. a. Pneumatic Casters

According to the Appellant, he does not take issue with the Ministry’s Reconsideration Decision regarding the pneumatic casters given that he did not request them. Again, pneumatic casters are air filled tires like those normally found on cars and bicycles. The Appellant prefers to have “run flat” tires installed on his power wheelchair to guard against risks that may arise from tire deflation.

On review of the Appeal Record and the Appellant’s new evidence, it does not appear that the Ministry ever reviewed the Appellant’s request for “run flat” tires. Further, it appears that the OT did not recommend “run flat” tires as the Appellant requests. Moreover, it is not entirely clear from the information before the Panel if the requested “run flat” tires are medically essential for the Appellant to achieve or maintain basic mobility or if they are the least expensive appropriate medical equipment or device in the circumstances.

Given the circumstances, the Panel is unable to opine on the Appellant’s request for “run flat” tires as the Ministry has not yet had an opportunity to consider them.

b. LED Light Package According to the Appellant, he requests a LED light package for his power wheelchair as it will help him see and navigate his power wheelchair at night when sunlight will be more limited. While a light of some kind may be medically essential to help the Appellant achieve or maintain basic mobility at night, the Panel notes that the OT did not confirm the Appellant’s need for a LED light package in the Assessment.

Further, and even if the OT did confirm the Appellant’s need for a LED light package, it is unclear from the information before the Panel that a LED light package would be the least expensive appropriate medical equipment or device in the circumstances. According to the Ministry, there are other low-cost visibility options available to the Appellant that could assist him with night time visibility. For example, the Appellant could wear a fluorescent vest

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2024-0185 to alert others to his presence or, alternatively, the Appellant could use a less expensive bicycle light to illuminate his power wheelchair. In short, there are other options that could address the Appellant’s stated need for lighting.

As a result of the foregoing, the Panel finds that it cannot be said that the Appellant’s requested LED light package is medically essential to achieve or maintain basic mobility or the least expensive appropriate medical equipment required.

c. R-net Colour Display Joystick with Bluetooth / Keypad With Toggle Switches

According to the Appellant, he requests a R-net colour display joystick with Bluetooth and/or a keypad with toggle switches, as these devices would allow him to use his new power wheelchair in a more simplistic nature given his cerebral palsy. Pursuant to the Assessment, the OT advises that the Appellant requires these requested components for “quick access”.

Further, the Appeal Record before the Panel provides the Appellant can use a standard joystick. Put differently, the OT does not advise that either feature is medically essential for the Appellant to achieve or maintain basic mobility; rather, the requested components would provide the Appellant with more convenient access which the Panel finds is something more than what is required to achieve or maintain basic mobility. Also, as the standard joystick comes stock with the new power wheelchair, it cannot be said that the Appellant’s request for a R-net colour display joystick with Bluetooth and/or a keypad with toggle switches is the least expensive appropriate medical equipment in the circumstances.

As a result of the foregoing, the Panel finds that it cannot be said that the Appellant’s requested a R-net colour display joystick with Bluetooth and/or a keypad with toggle switches are medically essential to achieve or maintain basic mobility or the least expensive appropriate medical equipment required.

d. USB Charger According to the Appellant, he requests a USB charger so that he can charge his diabetic monitor given that suffers from Type 1 Diabetes. While the Appellant’s treatment of Diabetes is important, it cannot be said that a USB charger is medically essential for the Appellant to achieve or maintain basic mobility; indeed, the OT did not confirm the need such a charger in their Assessment. The Panel notes that the Appellant was unable to advise how a USB charger would assist him achieve or maintain basic mobility other than to say that it would help him charge his diabetic monitor when its power is low.

Further, and even if the OT did confirm the Appellant’s need for a USB charger, it is unclear from the information before the Panel that such a charger would be the least expensive appropriate medical equipment or device in the circumstances.

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