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B.C. Disability Legislation
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editor
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Posts: 297

PostPosted: Tue Nov 11, 2003 11:36 pm    Post subject: B.C. Disability Legislation Reply with quote

WELCOME!
B.C. Disability Legislation
:

Quote:
See also Benefits Questions, Answers and Comments.

Add your comments to B.C.'s disability appeal system - Is it working? Is it even constitutional?

View the B.C. Auditor General's shocking report on gov't efforts to cut disability benefits.



Employment and Assistance Appeal Tribunal of the Province of British Columbia:

Quote:
There is a chill wind blowing at http://www.gov.bc.ca/eaat/default.htm, the website of B.C.'s Employment and Assistance Appeal Tribunal, which operates under the auspices of the Ministry of Human Resources at http://www.gov.bc.ca/bvprd/bc/channel.do?action=ministry&channelID=-8388&navId=NAV_ID_province. Go to http://www.mhr.gov.bc.ca/research/keyfacts.htm to check out recent caseload stats. We'd love to know how those people are living.

The site provides links to relevant legislation at http://www.gov.bc.ca/eaat/popt/legislation.htm as well as a cursory nod to the appeal process and a long list of everything that can't be appealed, but that's about it.

For information about the 23-page disability benefit application forms, please go to the Disability Protocols Sticky under The local picture at http://www.bcdisabilities.com/bcdisforum/viewtopic.php?t=44&sid=612432c76cbe7729e87787abb7a7a7f6.

Despite numerous claims under Service Plan 2002-2005 at http://www.mhr.gov.bc.ca/PUBLICAT/sp/MHR2002-03_SP.pdf of the importance of transparency (three hits at our search Dec. 3/03), tribunal decisions are not publicly available, although we presume panelists sitting in judgment have full access, which is disturbing, to say the least. The only information the Ministry makes available in this regard are the Time Series Reports at http://www.mhr.gov.bc.ca/research/, a mess of unintelligible statistical charts that disclose neither the challenges brought before the tribunal nor their outcome. In short, the public has no way of assessing this legislative scheme.

The rationale for this approach may be inferred from a very concise report issued Feb. 5/02, just a few months prior to the enactment of the new legislation. Search the term, "advocacy' in Restructuring Administrative Justice Agencies, Core Service Review, at http://www.gov.bc.ca/ajp/down/restructure_aj_agencies.pdf. Scroll down to p. 8 of 47, where the paper discusses what it calls shortcomings of the previous appeal system, under which 400 of the 6,000 annual challenges went to the B.C Benefits Appeal Board:

Quote:
- The current appeal system includes three internal ministry reviews and two external reviews. Multiple levels of appeal create a barrrier to timely decision-making and result in ongoing uncertainty for clients and their families. They also dilute accountability within the ministry and undermine confidence in the benefits system.

- The method for making appointments to the tribunal pits ministry and client nominees against one another, making the process adversarial and creating the potential for bias and advocacy in decision-making. (emphasis added).


We're puzzled and somewhat alarmed by these statements, particularly those regarding advocacy. When a decision to deny a certain benefit to an applicant will have serious and sometimes potentially fatal consequences, isn't it reasonable and proper to assume the applicant will fight?

Tipping the scales in this manner seems particularly unfair to appellants, who are already disadvantaged by disability when they come to the tribunal seeking what look to us to be fairly nominal benefits - a diet allowance of between $10 and $50 per month, nutritional supplements available only in limited circumstances to a maximum of $225 per month. For more information on benefits and how to access them, click on http://www.bccpd.bc.ca/commalert/helpsheets/3cklistw.pdf, Helpsheet #3 Persons With Disabilities (PWB) Benefit Checklist prepared by the B.C. Coalition for People With Disabilities.

Appellants may wish to obtain legal advice regarding any losses suffered as a result of judgments rendered in the absence of such disclosure, which could have been provided without names and addresses to protect privacy. Please check here and at our listings under B.C. Advocacy Services and Class Action Lawsuits at this forum for more information on this issue. We are very interested to know how the disabled are faring at these tribunals. Please write to us at editor@bcdisabilities.com or directly to this forum.

We're puzzled by the government's adversarial stance toward the disabled, especially in view of Canada's aging population and the recommendations of the recent Romanow Commission at http://www.hc-sc.gc.ca/english/care/romanow/ based on those statistics. What mischief is this legislation intended to address, we wonder?

After noting the Prevention, Compliance and Enforcement material at http://www.mhr.gov.bc.ca/PUBLICAT/ft/pce.htm, we decided to search the terms 'social assistance and disability and fraud' at the B.C. Superior Court's Search JDB database. Of the 18 hits listed from 1996 to the present, only four cases involved social assistance fraud, and of those four, two involved the same litigants. Search the same terms at http://www.courts.gov.bc.ca/ to view our hits.

We'll examine this site and disability case law more closely at this forum very soon. In the meantime, advocates and appellants seeking guidance may want to have a look at John Chesko's excellent B.C. Benefits Appeal Board: Decisions and Summaries of Selected Decisions of the B.C. Benefits Appeal Board under previous disability legislation. A bound text form of the summaries is available for reference only on the third floor of the Vancouver Public Library. Here's the catalog listing for it: http://tinyurl.com/72834. Here it is at the Courthouse Library: http://tinyurl.com/42pcd.

Unfortunately, the URL no longer provides the decisions and no paper copy exists apart from the Chesko summaries. The only place they are still available is Quicklaw, an excellent easy-to-use but prohibitively expensive legal database. Again, we'll keep you posted on the availability of these decisions. Please check back for updates.

The BC Courthouse Library also has a listing for An Advocate's Guide to GAIN by W. Robert Arnold, which sounds as if it might provide a good overview of the issues involved in income assistance appeals, though we haven't had a chance to look at it yet. We'll provide a review if we think it might assist.


Quote:
Editor's Note: My, my but the provincial disability benefits portfolio gets around. There was still no way at all for the public to track the ministry's performance in providing support to B.C.'s most vulnerable - no way of knowing how many appeals are requested and accepted or denied or what people are fighting for without having to fill out a time-consuming Freedom of Information request. Not surprisingly, perhaps, few if any have done so. All we found Aug. 6/09 was a 28-page document entitled, Budget 2009, Ministry of Housing and Social Development Service Plan 2009/10 - 2011-2012, which contained at p. 11 the following unenforceable and less than lofty ambition:

Objective 1.3 Fair and timely dispute resolution, reconsideration and appeal process.

... Clients of the B.C. Employment and Assistance Program can request reconsideration of a Ministry decision to refuse, reduce or discontinue assistance of supplement. If dissatisfied with an outcome at reconsideration, clients can appeal to the Employment and Assistance Appeal Tribunal. Again, no easy way of knowing whether or how the ministry is or is not fulfilling its mission!


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http://www.bcdisabilities.com/bcdisforum/viewtopic.php?p=31#31


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PostPosted: Wed Nov 26, 2003 3:11 pm    Post subject: Reply with quote

Six New Appeal Guides from the B.C. Coalition of People With Disabilities

Quote:
We were pleased to find six new appeal guides this month from Advocacy Access at the B.C. Coalition for People With Disabilities on appealing the denial of disability benefits and health supplements. These include:

Persons with Disabilities (PWD) Part One: The Request for Reconsideration;
Persons with Disabilities (PWD) Part Two: The Appeal Tribunal;
Persons with Persistent and Multiple Barriers to Employment Part One: The Request for Reconsideration;
Persons with Persistent and Multiple Barriers to Employment Part Two: The Appeal Tribunal;
Monthly Nutritional Supplement: Applications and Appeals; and
Health Benefits (Schedule C).

Click on http://www.bccpd.bc.ca/current/appealgds.html for more information.


Our e-mail to Advocacy Access:

Quote:
From: <editor>
To: <feedback>
Cc: <editor>
Sent: Wednesday, November 26, 2003 2:40 PM
Subject: November Appeal Guides


Dear Advocacy Access,

We're a new disability consumer/advocacy website at http://www.bcdisabilities.com in Vancouver and we're absolutely bowled over by your heroic collective efforts on behalf of the disabled, particularly in response to this puzzling new legislation.

We've been having a heck of a time trying to find judicial decisions and interpretations that might assist at disability appeals. Does the Ministry send you results from the tribunals? Even the older decisions from previsous legislation are unavailable publicly, and this concerns us deeply.

How do you determine a defence for appellants? The kind of information required would be quite specialized, in our view. Law and medicine would help, but an effective disability advocate would have to know something about assistive devices and so on. On what authorities do you rely?

Do you provide training programs for those of us who badly need to learn more about our system?

We look forward to hearing from you. In the meantime, thanks very much for all your excellent work.

Editor@bcdisabilities.com


Quote:
Editor's Note: Update Aug. 6/09 - BCCPD Advocacy Advocacy still provides state-of-the-art, regularly updated Help Sheets for people with disabilities seeking B.C.'s ever narrower public supports. We still advise applicants to vet their facts with the coalition before submission to the ministry. Coalition advocates often advise physicians and attorneys on application procedures.


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PostPosted: Thu Dec 04, 2003 12:18 pm    Post subject: Reply with quote

U.S. Authorities:

Medical Ethics
Analysis of the Issues Raised by the Codes, Opinions, and Statements
Hardcover
Edited by Baruch A. Brody, Mark A. Rothstein, Laurence B. McCullough, Mary Anne Bobinski




Casenote Legal Briefs: Health Care Law
Curran Hall Bobinski & Orentlicher
Aspen Publishers, Curran, Orentlicher

Looseleaf




Quote:
Note: Although both of these books deal with US law and practice, there may be considerations relevant to other jurisdictions, including Canada. In addition, Mary Anne Bobinski was recently named dean of UBC's law faculty. We'll try to have a look at the books and report our findings. In the meantime, here's her faculty bio: http://www.law.ubc.ca/faculty/bobinski/index.html.


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PostPosted: Thu Aug 05, 2004 11:12 am    Post subject: Reply with quote

B.C.'s Employment and Assistance Appeal Process - Is it constitutional?

At least one visitor doesn't think so. Here are several e-mails we've received, challenging the legality of a procedure that appears prima facie to favor the government and not appellants despite their status as a protected class of persons under the Charter of Rights and Freedoms:

To eaat@gems2.gov.bc.ca (Message sent by clicking on Feeback the tribunal website. It was then copied by the author and sent to us).

Quote:
Dear Sir or Madam:

Considering the devastating effect of this tribunal's decisions, I am frankly appalled at this site. Where is the equivalent Reasons for Judgment database of tribunal appeal decisions that ought to be available as a matter of public record? It would be entirely possible for the government to black out the names and addresses of appellants as it did for the production of an advocacy manual several years by John Chesko, which interestingly enough is no longer available online.

Without a database of current tribunal decisions, how are appellants to know how to conduct themselves at their appeals or if they even have the basis for such action? How are their advocates able to advise them? How is the public able to determine whether the new legislation and appeal process is effective? How many cases of fraud among the disabled have been prosecuted or prevented since its enactment, I wonder?

To withhold this information from appellants while the other side has full access to it is a breach of the most fundamental principals of justice within a free and democratic society. If this information is not forthcoming as a matter of public record in a timely manner, the government may be in serious legal peril, to say the least. I trust you will take immediate steps to rectify this glaring oversight. I anxiously await your response.

L.M. Murray


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PostPosted: Thu Aug 05, 2004 11:20 am    Post subject: Reply with quote

The ministry replies:

Quote:
From: Shout, Linda EAAT:EX [mailto:Linda.Shout@gems3.gov.bc.ca]
Sent: Tuesday, October 21, 2003 12:40 PM
To: 'a3c73426@telus.net'
Subject: Your opinion of the Tribunal site


Dear L. M. Murray:

Thank you for your comments on the Employment and Assistance Tribunal's website. Our website became active and available to the public in March of this year. Since that time, we have been adding more information that we hope will be of use to people who participate in the Tribunal process.

In fact, we are planning to add Tribunal decisions to the website in the future, with identifying information blacked out, as you suggest. Due to the large volume of appeal decisions (over 900 since the Tribunal began operating in September 2002), we do not have the resources to prepare all the decisions for publication on the website immediately. I agree that providing Tribunal decisions will supply appellants, advocates and the public with key information on the progress of the new legislation and appeal process. (emphasis added)

Practical information for appellants and advocates is currently available on our website, and can be found on the "Basis for Appeal," "Preparation for an Appeal" and Practices and Procedures" page. Tribunal staff are happy to speak with appellants, advocates and members of the public about the work of the Tribunal. Individuals can phone the Tribunal toll free - the number appears on brochures and posters that have been distributed to Ministry of Human Resources offices, advocacy groups and community organizations throughout the province.

I hope this addresses your concerns. Thank you for bringing them to our attention.

Linda Shout
Appeal Panel Assistant
BC Employment and Assistance Appeal Tribunal
Tel: (250) 356-1379
Fax: (250) 356-9687


Quote:
Note: When we visited the ministry's website Aug. 1/08 - known today as - we found the ministry STILL does not publish tribunal decisions. There is virtually NO assistance for applicants seeking information for an appeal of a benefit denied. What we did find was a public relations exercise called The Ministry of Employment and Income Assistance 2007/08 Annual Service Plan Report, which revealed the following statistic:

Since June 2001, the number of Persons with Disabilities receiving assistance has increased by 54 per cent. With rate increases and earnings exemptions, a single disability assistance client had the opportunity to receive a monthly income of approximately $1,400 in 2007/08. (-- p. 7 of 34)

Good luck finding rental accommodation anywhere on the Lower Mainland for $1,400!

Yes, and according to now Minister Claude Richmond, "Thanks in large part to the success of our employment programs, the Ministry’s caseload has changed dramatically for the good. The caseload consisted primarily of employable clients in June 2001 — 87,329 cases. Today, there are less than 21,500 employable cases." What's the definition of 'employable' here, one wonders and where are all the so-called success stories?


Questions and comments are ALWAYS welcome at this site! Please send them along to editor@bcdisabilities.com. No registration or jacket required.

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PostPosted: Thu Aug 05, 2004 11:32 am    Post subject: Reply with quote

L.M. counters:

Quote:
From: LM Murray [mailto:a3c73426@telus.net]
Sent: Tuesday, October 21, 2003 4:04 PM
To: Shout, Linda EAAT:EX
Subject: Employment and Assistance Tribunal Decisions -- online soon


Dear Linda Shout,

Many thanks for your prompt response to my query regarding public access to tribunal decisions. I look forward to reading them online when that database is available. In the meantime, the provincial government's decision to pass legislation without providing the proper basis for a fair review process nevertheless leaves it wide open to attack, to say the least. It looks very much to me like anyone who has had a tribunal decision against him or her in the absence of proper access to appeal precedents very likely has a basis for complaint.

While I appreciate that tribunal staff are available with supplementary information by phone, I find cold comfort in the appeal how-tos on the website. Has there ever been a statute, I wonder, that provided anyone with enough information to reasonably predict an outcome on his or her facts?

Without precendents, the tribunal process is like preparing for litigation without knowing the Rules of Court or any case law, a problem that becomes even more problematic in view of the fact that these decisions may have profound health consequences.

As if that's not enough, the relevant procedures manual is an intimidating mess of amendments three inches thick only tribunal panelists dealing with it on a daily basis might be able to disseminate over time. It frankly boggles me to learn that so many members of the disabled community have somehow mustered the courage to use this process.

I will also very soon have something to say about the limitation periods in this troubling statute.

Until then, I am encouraging various disability advocacy groups to seek legal counsel on these matters.

Thank you again for your speedy response. If there is anything I or members of the public can do to speed the welcome provision of an online database of appeal decisions, please let me know.

L.M. Murray


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PostPosted: Thu Aug 05, 2004 11:35 am    Post subject: Reply with quote

The ministry replies a second time:

Quote:
[From: Shout, Linda EAAT:EX [mailto:Linda.Shout@gems3.gov.bc.ca]
Sent: Thursday, October 23, 2003 2:47 PM
To: 'a3c73426@telus.net'
Subject: Employment and Assistance Tribunal Decisions -- online soon


Dear L. M. Murray:

Thank you again for contacting the Tribunal. Please feel free to write, e-mail or call anytime with comments and suggestions.

Regards,

Linda Shout


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PostPosted: Thu Aug 05, 2004 11:45 am    Post subject: Reply with quote

L.M. Murray, after waiting several months, again inquires, this time about the meaning of caseload stats listed at the website:

Quote:
From: l murray
Sent: Wednesday, July 21, 2004 3:55 PM
To: MHR Web Manager MHR:EX
Subject: BCEA Caseload Stats - May 2004


I'm not sure how to read these stats. It looks as if there have been more than 52,000 disability assistance "cases". What does that mean exactly? The number of people receiving benefits? The number of pending appeals?

I find this method of quantification to be puzzling at best, particularly in view of the fact that appeal decisions are taken in secret. Can such a thing be legal, one wonders? I would greatly appreciate it if you would at least elucidate on these figures for me.

L. M. Murray


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PostPosted: Thu Aug 05, 2004 11:50 am    Post subject: Reply with quote

The ministry replies:

Quote:
"MHR Correspondence Unit MHR:EX" <MHR> wrote:

Dear L.M. Murray:

Your e-mail of July 21, 2004, regarding monthly caseload statistics, has been forwarded to the Ministry of Human Resources Correspondence Branch for response.

Thank you for your enquiry. A "case" is a family unit (i.e., applicant, spouse and dependents) who have received support and shelter assistance fromthe ministry. The 52,502 cases to which you refer are the number of families who receive support and shelter assistance under the PWD designation. This number is not related to pending appeals.

Thank you for writing.

Correspondence Branch
Ministry of Human Resources
www.mhr.gov.bc.ca


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PostPosted: Thu Aug 05, 2004 11:52 am    Post subject: Reply with quote

L.M. Murray counters:

Quote:
From: l murray [mailto:lmm789@yahoo.ca]
Sent: Monday, July 26, 2004 7:52 PM
To: MHR Correspondence Unit MHR:EX
Subject: Ref: 74726


Most illuminating. Thanks very much. I look forward to hearing from the ministry.

lm


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PostPosted: Thu Aug 05, 2004 11:54 am    Post subject: Reply with quote

Quote:
"MHR Correspondence Unit MHR:EX" <MHR> wrote:

Dear L.M. Murray:

Your questions of July 21, 2004 regarding caseload statistics, have been answered by the Ministry of Human Resources' Correspondence Branch, Ref: 74726.

Thank you for writing.

Correspondence Branch
Ministry of Human Resources
www.mhr.gov.bc.ca


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PostPosted: Thu Aug 05, 2004 11:56 am    Post subject: Reply with quote

Quote:
From: l murray [mailto:lmm789@yahoo.ca]
Sent: Wednesday, July 28, 2004 1:33 PM
To: MHR Correspondence Unit MHR:EX
Subject: Ref: 74726


You're quite wrong. The correspondence unit explained merely what a case is. The bigger question I have is a matter of great legal significance. I think taxpayers have a right to know how it is that the ministry's disability tribunals arrive at decisions with potentially tortious consequences when appellants have no access either to previous decisions or to the medical/scientific/policy rationale behind the current distribution of benefits. Surely the tribunal panelists have full access to both. I can't understand how stacking the odds in this manner, particularly against a protected class under the Charter of Rights and Freedoms, is legally permissible. Is there some provision in the Constitution Act or administrative law that allows the province to suspend the principles of fundamental justice?

lm


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PostPosted: Thu Aug 05, 2004 12:00 pm    Post subject: Reply with quote

Quote:
"MHR Correspondence Unit MHR:EX" <MHR> wrote:

Dear L.M. Murray:

The Employment and Assistance Appeal Tribunal operates independently of the Ministry of Human Resources. As your questions pertain to the legality of their processes, I encourage you to contact them directly by accessing their website: http://www.gov.bc.ca/eaat/.

Thank you again for writing.

Correspondence Branch
Ministry of Human Resources
www.mhr.gov.bc.ca


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PostPosted: Thu Aug 05, 2004 12:02 pm    Post subject: Reply with quote

Back to lm:

Quote:
l murray <lmm789> wrote:
Date: Thu, 29 Jul 2004 11:45:27 -0400 (EDT)
From: l murray
Subject: RE: Ref: 74726
To: "MHR Correspondence Unit MHR:EX"


Hello Correspondence Unit,

Thank you again for your speed and attention. Once again, I am in awe of the fascinating inter- and intra- ministry divisions and subdivisions created by the Campbell gov't. However, rather than trouble again the poor souls at the tribunals charged with the relentless task of updating their 5"-thick procedures manual, I think I will take the matter up with the Attorney General.

In the meantime, I would be very interested to learn how the ministry developed its current benefits scheme. What exactly are your sources of medical/scientific/social information? Finding authoritative information in this vein has extremely challenging to me personally, particularly in the absence of precedents.

Also, I'm wondering about the material contained in these now infamous 23-page application forms. What sources were used to develop the forms and how will this information be used? The ministry has said the information in that database would not be used in future programming but the minister indicated in the House not long ago that it would. Its usefulness, in my view, is undisputed. My interest is merely to ensure that the information, especially if it forms the basis of future programs, is made available as a matter of public record.

Thanks again.

lm


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PostPosted: Sun Aug 22, 2004 3:16 pm    Post subject: Reply with quote

Reply expected:

Quote:
From: "MHR Correspondence Unit MHR:EX"
To: "'lmm789@yahoo.ca'"
Subject: MHR response - 74805i
Date: Wed, 18 Aug 2004 14:37:13 -0700


Dear L.M. Murray:

Your e-mail of July 29, 2004 to the Ministry of Human Resources, regarding BC Employment and Assistance for Persons with Disabilities, has been forwarded for response. As your request will require research, ministry staff have been asked to compile the information necessary to provide a thorough and comprehensive response. A reply will be sent to you within the next three weeks.

Thank you for your patience while this review is in progress.

Correspondence Branch
Ministry of Human Resources
www.mhr.gov.bc.ca


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