Governing Legislation and Resources for Welfare (21:II)
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 26th, 2024. |
A. Governing Legislation
The following statutes and regulations govern welfare law in BC and are available at www.bclaws.ca:
Employment and Assistance Act, SBC 2002, c 40 [EAA];
Employment and Assistance Regulation, BC Reg 263/2002 [EAR];
Employment and Assistance for Persons with Disabilities Act, SBC 2002, c 41 [EAPWDA]; and
Employment and Assistance for Persons with Disabilities Regulation, BC Reg 265/2002 [EAPWDR].
See also the Child in the Home of a Relative Transition Regulation, BC Reg 48/2010.
Please keep in mind the following important points when dealing with a welfare law issue.
- Be current. The statutes and especially the regulations governing welfare in BC can change often. Therefore, it is very important to check the BC Laws website and confirm that one is dealing with the most current legislation.
- Be comprehensive. Be sure to read the relevant section of the appropriate act or regulation in its entirety and to scan the legislation for other relevant sections. The legislation is complex and often a number of provisions work together to govern a particular program or benefit.
- Be alert to mandatory versus discretionary wording. Welfare legislation contains a mix of mandatory provisions (requiring the government to do or provide something) and discretionary provisions (which permit, but do not require, the government to act in a particular way). Consider whether the legislative provisions relevant to the client’s case are mandatory or discretionary.
C. Referrals to Other Organizations
See Chapter 23: Referrals for additional referrals.
Community Legal Assistance Society (CLAS)
- May help clients with judicial reviews of decisions of the Employment and Assistance Appeal Tribunal.
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Disability Alliance of BC
- Offers one-on-one assistance to individuals applying for benefits or appealing the denial of benefits. Particularly experienced in appeals about eligibility for the Persons with Disabilities ("PWD") designation from MSDPR needed to qualify for welfare disability assistance. Disability Alliance of BC also hosts a disability law clinic that may assist with general welfare issues and judicial reviews.
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- Disability Alliance of BC has also created a library of useful help sheets about disability assistance from the Ministry, and guides to applications and appeals: [1]
First United Church
- Serves the Downtown Eastside, providing advocacy and assistance for welfare, housing, and other poverty law issues. Drop-in intake hours are Mondays, Wednesdays, and Fridays from 9:30 am – 11:30 am, and Tuesdays and Thursdays from 1 pm to 3 pm.
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Kettle Friendship Society Advocacy Centre
- Advocacy focused on welfare, debt, housing, and child protection problems for clients with mental health issues. Also has a weekly Pro Bono Legal Clinic (please call ahead if you wish to refer a client).
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Downtown Eastside Women's Centre
- Focuses on providing legal and non-legal support and advocacy for women with mental health issues.
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ATIRA Women's Resource Society
- Focuses on providing support for abused women and women on the downtown eastside. Their legal advocate program can provide advice, advocacy, and support with appealing welfare issues, and other poverty law issues.
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Ribbon Community
- Can provide case management services and possible short-term financial assistance to persons living with HIV/AIDS.
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Povnet: Find an Advocate
- A service for finding other advocates and organization that can help with welfare issues in all parts of BC.
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D. Useful Publications and Outside Agencies
In addition to this LSLAP manual chapter, other useful publications include:
- BC Disability Benefits Help Sheets. Disability Alliance BC publishes 20 guides available at https://disabilityalliancebc.org/publications/publications-bc-disability-benefits-help-sheets/ which over many areas relating to applying for benefits and appealing decisions. Many are also available in Arabic, Person, Punjabi, and Spanish.
- How to Apply for welfare, Welfare Benefits and When You're on Welfare: plain language guides published by Legal Aid BC for welfare applicants are available at the following links.
- How to Apply for Welfare: https://legalaid.bc.ca/publications/pub/your-welfare-rights-how-apply-welfare
- Applying for Welfare Online: https://legalaid.bc.ca/publications/pub/your-welfare-rights-applying-welfare-online
- Welfare Benefits: https://legalaid.bc.ca/publications/pub/your-welfare-rights-welfare-benefits
- When You're on Welfare: https://lss.bc.ca/publications/pub/your-welfare-rights-when-youre-welfare
NOTE: These four pamphlets from Legal Aid BC are not up to data and are expected to be discontinued later in 2024, when welfare law content will be moved over to People’s Law School. Check https://www.peopleslawschool.ca/ to see if new publications are available.
E. Notable Changes to BC Welfare Law
1. Agreements Respecting the Declaration on the Rights of Indigenous Peoples Act
Effective March 14, 2024, Part 3.1 of the EAA and Part 3.1 of the EAPWDA were introduced. These sections gives the Ministry the power to enter into decision making agreements, or power or duty agreements, negotiated and entered into under sections 6 and 7 of the Declaration on the Rights of Indigenous Peoples Act.
S 26.2 of the EAA and s. 17.2 of the EAPWDA now provide that the EAA and EAPWDA must be interpreted and administered in accordance with the principle that Indigenous peoples have inherent rights of self-government and self-determination that are recognized and affirmed by section 35 of the Constitution Act, 1982 and the United Nations Declaration on the Rights of Indigenous Peoples.
2. Change to time limit for request to reconsider a decision
Section 79 of the EAR states that a request for the Ministry to reconsider a decision must be delivered within 20 business days after notice. Effective May 13, 2024, the Ministry may extend this time limit if satisfied that special circumstances exist. See Section XI: E. Appeal Level 1: Reconsideration for more details.
3. Change to the time limit to appeal a Reconsideration Decision
On May 13, 2024, the deadline for appealing a Ministry Reconsideration Decision to the Employment and Assistance Appeal Tribunal increased. Now, an appeal to the EAAT must be filed within 20 business days after the date that a person is notified of a Reconsideration Decision. In addition, the Chair of the EAAT now has the discretion to extend that appeal deadline, if satisfied that special circumstances exist. See section 84 of the EAR.
4. Leaving British Columbia and welfare eligibility
Prior to June 1, 2024, welfare recipients who left British Columbia for more than 30 days in a calendar year usually ceased to be eligible for benefits (EAR, s 17 and EAPWDR, s 15). This was amended by Order in Council 244/2024 on June 1, 2024. Welfare recipients will now not have their benefits jeopardized for leaving BC unless they have been outside British Columbia for more than 30 consecutive days. See Section V: K. Leaving the Province for More Than 30 Days for details.
5. Increase in earnings exemptionss
Effective January 1, 2024, the earnings exemption for people receiving income assistance, PPMB and PWD benefits increased. This change was made by Order in Council 402/2023. See Section III: D. 3. Earnings Exemptions on earnings exemptions for more details.
6. New exemption for money paid in relation to an injury
Effective August 1, 2024, money that is paid to an injured person in relation to the injury is now exempt as income and an asset, if the money is paid to cover expenses that are necessary only because of the injury OR the Ministry is satisfied that the money will in fact be used to cover expenses that are necessary only because of the injury. This new exemption is found in EAR Schedule B, section (1(b)(lxvi) (income exemption) and section 11(1)(a)(ppp) (asset exemption); and EAPWDR, Schedule B, section 1(a)(lxx)(income exemption); and section 10(1) (ooo) (asset exemption).
7. All income earned by dependent children now exempt
This change took effect August 1, 2024. Prior to that date, only income earned by dependent children who were attending school full-time was exempt as income, and their earnings were not exempted as an asset. Now, it does not matter whether the dependent child is in school full-time, part time, or at all: any money they earn is exempt income. Because their income is also now exempt as an asset, it means dependent children can save up their earnings, without their savings being counted toward the family unit’s general asset exemption level.
8. Federal benefit exemption
Beginning on December 19th, 2022, new sections were added to the EAR and EAPWDR which exempt the new federal Rental Housing Benefit and Dental Benefit (Canadian Dental Care Plan) as income and assets for all forms of welfare. Receiving benefits under these new programs should not affect a person’s welfare eligibility or the amount of assistance they are entitled to receive. This change was made through Order in Council 681/2022. The Canadian Dental Care Plan (CPCP) is available to Canadian residents who do not have dental benefits and who have a net household income of less than $90,000 per year. Currently, children under 18, seniors aged 65 and above, and persons with a valid Disability Tax Credit certificate can apply for this program. All remaining eligible Canadian residents are expected to be able to apply in 2025. See Section X: E. Dental Carefor more details.
F. Anticipated September 1, 2024 Changes to BC Welfare Law
The following changes set out in the Social Development and Poverty Reduction Statutes Amendment Act, 2024 and OIC 455 will come into force on September 1, 2024.
1. Changes to employment plans and new Client Needs Assessment
Currently, s 9 of the EAA requires some applicants, recipients, or dependant youth in family units on income assistance or hardship assistance to enter an employment plan and comply with its conditions at the request of the Ministry. As of September 1, 2024, employment plans will be known as “Employability Plans” and will be created based on a “client needs assessment” (CAN).
2. Changes with respect to dependent youth
As of September 1, 2024, dependent youth (who are defined as dependent children aged 16 to 18) will no longer be required to enter into an employability plan. They can request a CNA and employability plan if they want, but this is purely optional. If a dependent youth chooses to have an employability plan but does not comply with it, the Ministry can no longer impose any consequences on the dependent youth or their family unit. Also effective September 1, 2024, a dependent youth can no longer be convicted of a statutory offence of supplying false or misleading information to the Ministry under the EAA, section 31(2). See Section III: K. Ongoing Employment Obligationsfor more detail.
3. Change in Ministry information and verification powers
Currently, s 10 of the EAA and s 10 of the EAPWDA give the Ministry power to request information and the verification of information from applicants and recipients when assessing the eligibility of family units for income and hardship assistance. As of September 1, 2024, the Ministry will no longer have authority to direct dependant youth to provide or verify information for the purposes of assessing employability or compliance with an employability plan. See Section III. B. Obligation to Provide Information to the Ministry for more details.
4. Elimination of sanctions for inaccurate or incomplete information
Currently, the Ministry has the power to impose financial sanctions if a family unit receives welfare benefits it was not entitled to, due to inaccurate or incomplete information it provided to the Ministry. Currently, welfare benefits can be reduced by $25 per month for up to 12 months, depending on the situation.
Effective September 1, 2024, the Ministry will no longer have the legal power to impose a sanction of this sort for providing inaccurate or incomplete information.
Effective September 1, 2024, applicants for welfare no longer have employment-related obligations (only some recipients do so). There are no longer any penalties for welfare applicants who leave a job without just cause or are fired without just cause or who refuse a suitable job in the 60 days prior to applying for welfare, or while on welfare, unless that is a specific condition of their Employability Plan (EP). See Section III. K. Ongoing Employment Obligations for more detail. Also See Section V: B. Failure to Meet Employment Obligations.
6. Mandibular advancement devices available
Before September 1, 2024, Schedule C of the EAR and EAPWDR only made CPAP machines available for treatment of moderate to severe sleep apnea (subject to meeting all other criteria for it). As of September 1, 2024, if the Ministry is satisfied that a patient is intolerant to a CPAP machine, the Ministry can provide them with a mandibular advancement device. See Section X: I. Medical Equipment and Devicesfor more detail.
7. Cough assist devices, supplies and accessories
As of September 1, 2024, a cough assist device, and required accessories and supplies, can be covered as breathing devices under section 3.9(1) of Schedule C to the EAR and EAPWDR, if the ministry is satisfied that the item is medically essential for clearing respiratory airways, and all other criteria for it are met. See Section X: I. Medical Equipment and Devicesfor more detail.
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