Welfare Appeals (21:XI)

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LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
21. Welfare Law
 · I. Introduction

 · II. Governing Legislation & Resources
 · III. Eligibility
 · IV. Special Situations
 · V. Eligibility Factors
 · VI. Hardship Assistance
 · VII. Overpayments & Fraud
 · VIII. Rates & Payment Issues
 · IX. Additional Allowances & Benefits
 · X. Health Supplements

 · XI. Appeals
v • d • e



A. What Can Be Appealed

It is possible to appeal most MSDSI decisions that deny, reduce, or discontinue welfare benefits of any kind, including supplements. See s 17 of the EAA and s 16 of the EAPWDA.

The legislation list certain supplements for which decisions can not be appealed to the Employment and Assistance Appeal Tribunal: see EAR, s 81, and EAPWDA, s 73. Note however that a person may still apply for reconsideration of decisions related to those supplements. In addition, one cannot appeal decisions regarding the terms of employment plans to the Tribunal, but they can be reconsidered (see s 9 and 17(1)(e) of the EAA).

NOTE: If a client would like a review of a decision that is not open to reconsideration and/or appeal, they may still request an internal administrative review by registering a complaint with the supervisor at a local MSDSI office. This may be particularly useful for service quality issues. This is entirely separate from the appeal process.

B. Two-Level Appeal Process

There is a two-level appeal process for reviewing decisions by MSDSI. The levels are:

  • reconsideration (which is an administrative review done within the MSDSI) and
  • appeal to the Employment and Assistance Appeal Tribunal or “EAAT” (an independent tribunal).

To seek reconsideration, a person must obtain and complete a “Request for Reconsideration” form and return it to MSDSI within 20 business days of being notified of a decision, along with relevant documents, to request a reconsideration of a MSDSI decision.

“Request for Reconsideration” forms can be picked up at MSDSI offices.

To appeal a reconsideration decision to the EAAT, a person must submit a Notice of Appeal form within seven business days of being notified of the reconsideration decision.

C. Reconsideration and Appeal Supplements (Benefits While an Appeal is Pending)

If a recipient is seeking reconsideration or appeal of a decision to discontinue or reduce a benefit or supplement, he or she may continue to receive the benefit or supplement while awaiting the outcome of the reconsideration or appeal. This is called a “reconsideration supplement” or “appeal supplement”.

Before paying a reconsideration or appeal supplement, MSDSI requires people to sign an agreement saying they will repay the benefit if the appeal fails. See s 54 of EAR and s 52 of EAPWDR.

D. Commonly Appealed Decisions

Some decisions for which people commonly seek reconsideration and appeal are:

  • A decision denying someone PWD status under s 2 of the EAPWDA;
  • A decision denying someone a special supplement for which he or she has applied;
  • A decision that a person is in a “dependent” relationship with someone he or she lives with (e.g.a spousal relationship), and that they must therefore be treated as being in the same family unit; and
  • A decision that a person has received a welfare overpayment that he or she must repay.

There are many other types of decisions that can be appealed.

NOTE: Whenever a client asks about appealing a decision, begin by checking s 17 of the EAA, s 16 of the EAPWDA, s 81 of the EAR, and s 73 of the EAPWDR to ensure the decision is appealable. Then, review the legislation to understand the law affecting the decision.

E. APPEAL LEVEL 1: Reconsideration

Reconsideration is a “paper review” by MSDSI with no hearing. To request reconsideration, the client needs to fill in Request for Reconsideration form. He or she may need to ask for this form, although often it will come with the MSDSI decision.

The client must get the completed request for reconsideration in to MSDSI within 20 business days from the day the client was informed of the decision.

A client should submit the following with a request for reconsideration:

  • Evidence: any relevant documentary evidence can be submitted with the request for reconsideration. It is essential to provide complete evidence at this stage, and cover all possible evidentiary issues, as only limited evidence is allowed at next appeal stage and
  • Argument: it is also good to provide a one-page written summary of outlining why the client is eligible for the benefit.

If a client is not able to submit all relevant evidence and argument to MSDSI within the 20 business day deadline, they can request (in writing) an extension to do so of up to 10 business days. They must still submit the completed Request for Reconsideration form to MSDSI within the initial 20 business day deadline, but can indicate on that form that they require an extension of time to provide supporting evidence and argument.

Once a completed Request for Reconsideration form is submitted to MSDSI, MSDSI must provide a written response to the reconsideration request within 10 business days. Section 80(b) of the EAR, and s 72(b) of the EAPWDR provide that, with the agreement of both parties, MSDSI may have up to an additional 10 business days to make its decision. These are the sections that are relied upon when requesting an extension of time to provide additional evidence and argument in support of a client’s completed Request for Reconsideration form.

NOTE: While going through this process, it is also well worth contacting the Supervisor at the client’s MSDSI office to try and negotiate a solution, particularly if the decision appears to be obviously unfair and out of line with the legislation.

F. APPEAL LEVEL 2: Appeal to the EAAT

The EAAT is an independent tribunal. See its website at http://www.gov.bc.ca/eaat. Its website has many useful materials including a set of practices and procedures, guidelines, forms, and a member code of conduct.

The EAAT holds oral and written hearings. Oral hearings may be done in person or by teleconference. An oral, in-person hearing should always available if the client requests one, although it may lead to a delay in scheduling.

To request an appeal, file a Notice of Appeal with the EAAT or deliver it to a local MSDSI office. The EAAT or MSDSI must receive the notice of appeal within 7 business days from the day the client gets the reconsideration decision.

One does not need to file evidence or argument at the same time as filing the Notice of Appeal, although one could do so.

The EAAT will hold the hearing within 15 business days of the notice of appeal, unless the client consents to having it later.

If an applicant needs more time once he or she has filed the notice of appeal, the Tribunal has an adjournment request form online. Ideally the applicant should get MSDSI to consent to the adjournment and send the form in at least 24 hours before the hearing. Applicants can also ask for an adjournment on the day if there is good reason.

The following are some notes about the EAAT process:

  • Appeal panels typically have 3 members, but sometimes have 2 or even 1 member;
  • The EAAT applies the income assistance legislation and common law;
  • It cannot apply the Charter or Human Rights Code (see the Administrative Tribunals Act);
  • While an EAAT hearing is formal, it is less formal than court. Rules of evidence are not strictly applied;
  • MSDSI sends a representative to advocate for its point of view at most EAAT hearings; and
  • Appellants before the EAAT may be represented by an advocate or legal counsel. LSLAP students may act in this capacity for clients.

The EAAT hearing must be held within 15 business days of delivery of the appeal notice. The hearing can be postponed if both parties and the chairperson agree to a later date. Applicants can request an adjournment if there is good reason to do so, using an “Appeal Adjournment Request Form”. See also s 85 of the EAR.

Evidence can be given at an EAAT hearing in the following forms:

  • Documentary evidence, which should be set it in to EAAT in advance if possible, but it is acceptable to bring it to the hearing, with enough copies for the three panel members and the MSDSI representative) and
  • Oral evidence from client or supporters.

Completely new evidence is not supposed to be allowed before the EAAT, whereas evidence “supporting” what was put forward at reconsideration is allowed. There can sometimes be a fine line between new evidence and supporting evidence. The EAAT has a useful guideline on this issue, at http://www.gov.bc.ca/eaat/popt/additional_evidence.html

The EAAT must decide whether MSDSI’s reconsideration decision:

  • Is reasonably supported by evidence OR
  • Is a reasonable application of the legislation to the circumstances of the person appealing the decision (s 24 of the EAA).

If so, the panel must uphold MSDSI’s decision, and if not, the panel must rescind the Ministry’s decision. If the decision of the tribunal cannot be implemented without some further determination, then the tribunal must refer the further determination back to MSDSI.

The EAAT panel must render its decision within five business days of the conclusion of the hearing. The EAAT chair then has five business days to mail a copy of it to all parties.

NOTE: If a client failed to submit key pieces of evidence with his or her request for reconsideration, it may not be worthwhile to appeal the decision to EAAT, since appellants are not permitted to present completely new information on appeal to EAAT. Therefore, it may be in the client’s best interest to re-apply for the benefit and provide proper documentation on the new application.

What can be appealed to the EAAT

  • A denial of PPMB or PWD status;
  • A denial of a monthly benefit or supplement;
  • A reduction of the amount of money received for monthly benefits or for a supplement;
  • The existence of an alleged overpayment; OR
  • A cancellation of a monthly benefit or supplement.

What cannot be appealed to the EAAT:

  • Whether someone has to sign an employment plan or have certain conditions in the employment plan;
  • Refusing to change or cancel an employment plan once signed;
  • How much of an overpayment is owed to the Ministry;
  • Refusing to take part in a program set up under the welfare laws;
  • Refusing certain benefits while the case is under reconsideration or appeal; OR
  • Not giving a person a supplement related to their employment plan or to a confirmed job.

G. Judicial Review (if the Appeal to the EAAT is Unsuccessful)

If the EAAT decision is unfavourable, the appellant has 2 options:

OPTION 1: Where the appellant has applied for a benefit and been denied, and where it is important for her to get the benefit right away, she can re-apply. If there is new evidence on which to base a new application that should be submitted; otherwise she can still reapply although her appeal rights on the new application will be limited.

OPTION 2: Where the decision is very seriously problematic (see below) and there is some benefit to having a court overturn the original decision, students can advise the client to seek judicial review. A judicial review may be possible where the Tribunal decision has very serious problems with it, such as: issues of procedural fairness; errors of law; or glaring errors of fact that a judge would be able to see just by reading the decision and looking at the documentary evidence. Note there is a 60 day time limit for bringing judicial reviews. H.Tips for the LSLA P Student Representative •Representatives should read Part 6 of the EAR carefully to offer advice on the appeal process. •The representative should determine what the issues are and read all of the relevant sections of the EAA or the EAPWDA and the associated Regulations. •A representative should have the client fill out an “Authorization for Advocate and Confidentiality” form authorizing the representative to examine the client’s MSDSI file. Also, if the case is at the EAAT level, a “Release of Information” form from the EAAT website should be completed. These forms are needed to communicate with the MSDSI and the EAAT about the client’s case. •If a client has received a decision from MSDSI but has not yet taken any appeal steps, the representative should advise him or her to obtain a “Request for Reconsideration” form from the MSDSI office and to complete and return it to his or her local MSDSI office. This must be done within 20 business days of getting the decision. If there is enough time, it is very helpful if you can help the client to fill in the Request for Reconsideration. •If an applicant has already received a reconsideration decision, and the matter is appealable (see above) advise him or her to complete a Notice of Appeal form and to send it to the EAAT within seven business days of getting the reconsideration decision. •With the law as set out by the Act and regulation in mind, the representative should get copies of all relevant documents and review the details of the client’s case. It is vital to have a clear, comprehensive account of the facts as your client understands them. •If the applicant submits additional documentation as evidence, such as medical reports, affidavits, or receipts, make enough copies for MSDSI’s representatives and the tribunal members. Because there is no registry for administrative support for the tribunal system, advocates must assume responsibility for seeing that all documentation is well-organized. •At all levels of appeal, it is best to have a written statement of one’s presentation of the facts in case there is a judicial review. Hearings at the EAAT are not otherwise recorded. •See above for specific tips on each level of appeal.

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