Welfare Appeals (21:XI): Difference between revisions
Jump to navigation
Jump to search
no edit summary
No edit summary |
|||
| Line 1: | Line 1: | ||
{{REVIEWED LSLAP | date= August | {{REVIEWED LSLAP | date= August 26th 2024}} | ||
{{LSLAP Manual TOC|expanded = welfare}} | {{LSLAP Manual TOC|expanded = welfare}} | ||
| Line 16: | Line 16: | ||
*appeal to the Employment and Assistance Appeal Tribunal or “EAAT” (an independent tribunal). | *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 the Ministry '''within 20 business days of notification of a decision''', along with relevant documents | To seek reconsideration, a person must obtain and complete a “Request for Reconsideration” form and return it to the Ministry '''within 20 business days of notification of a decision''', along with relevant documents. Applicants can pick up "Request for Reconsideration" forms at Ministry Offices or phone the Ministry to ask that they be mailed, or request a reconsideration through the Ministry’s MySelfServe portal (if they use that) The Ministry may extend the 20 business day deadline for reconsideration, if satisfied that special circumstances exist | ||
To appeal a reconsideration decision to the EAAT, | To appeal a reconsideration decision to the EAAT, the EAAT must receive a Notice of Appeal form within 20 business days after a person is notified of a Reconsideration Decision. If someone misses their appeal deadline, the Tribunal Chair may extend the appeal deadline, if satisfied that special circumstances exist. | ||
== C. Reconsideration and Appeal Supplements (Benefits While an Appeal is Pending) == | == C. Reconsideration and Appeal Supplements (Benefits While an Appeal is Pending) == | ||
| Line 31: | Line 31: | ||
*A decision denying someone PWD status under [https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/bc-laws/employment-and-assistance-for-persons-with-disabilities-act#section2 s 2 of the EAPWDA]; | *A decision denying someone PWD status under [https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/bc-laws/employment-and-assistance-for-persons-with-disabilities-act#section2 s 2 of the EAPWDA]; | ||
*A decision denying someone a special supplement for which they have applied; | *A decision denying someone a special supplement for which they have applied; | ||
*A decision that a person is in a | *A decision that a person is in a “dependant” relationship with someone they live with (e.g. a spousal relationship), and the Ministry must treat them as being in the same family unit; and | ||
*A decision that a person has received a welfare overpayment that they must repay. | *A decision that a person has received a welfare overpayment that they must repay. | ||
| Line 40: | Line 40: | ||
== E. Appeal Level 1: Reconsideration == | == E. Appeal Level 1: Reconsideration == | ||
Reconsideration is a “paper review” by the Ministry with no hearing. To request reconsideration, the client needs to fill in Request for Reconsideration form. They may need to ask for this form, although often it will come with the Ministry decision. | Reconsideration is a “paper review” by the Ministry with no hearing. To request reconsideration, the client needs to fill in a Request for Reconsideration form. They may need to ask for this form, although often it will come with the Ministry decision. | ||
The client '''must''' submit the completed request for reconsideration to the Ministry '''within 20-business days from the day the client was informed of the decision.''' | The client '''must''' submit the completed request for reconsideration to the Ministry '''within 20-business days from the day the client was informed of the decision.''' If the Ministry is satisfied that special circumstances exist, it may accept a request for reconsideration that is filed after the usual 20 business day deadline. | ||
A client should submit the following with a request for reconsideration: | A client should submit the following with a request for reconsideration: | ||
| Line 48: | Line 48: | ||
#'''Argument:''' it is also good to provide a written summary outlining why the client is eligible for the benefit. | #'''Argument:''' it is also good to provide a written summary outlining why the client is eligible for the benefit. | ||
If a client is not able to submit all relevant evidence and argument to the Ministry 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 the Ministry 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. | If a client is not able to submit all relevant evidence and argument to the Ministry 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 the Ministry within the initial 20 business day deadline (or longer time if the Ministry was satisfied that special circumstances existed and granted an extension of that period), but can indicate on that form that they require an extension of time to provide supporting evidence and argument. | ||
Once a client submits a complete Request for Reconsideration form to the Ministry, the Ministry must provide a written response to the reconsideration request within 10 business days. [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/263_2002#section80 Section 80(b) of the EAR], and [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/265_2002#section72 s 72(b) of the EAPWDR] provide that, with the agreement of both parties, the Ministry 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. | Once a client submits a complete Request for Reconsideration form to the Ministry, the Ministry must provide a written response to the reconsideration request within 10 business days. [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/263_2002#section80 Section 80(b) of the EAR], and [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/265_2002#section72 s 72(b) of the EAPWDR] provide that, with the agreement of both parties, the Ministry 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. If a client has requested and received an extension of up to 10 business days to provide evidence, the Ministry can extend its own deadline make a decision by one business day if need be, to allow a Reconsideration Decision to be made after additional evidence and/or argument is submitted. | ||
'''NOTE:''' While going through this process, it is also well worth contacting the Supervisor at the client’s Ministry 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 == | == F. Appeal Level 2: Appeal to the EAAT == | ||
| Line 60: | Line 60: | ||
The EAAT holds oral and written hearings. Oral hearings may be in person or by teleconference. An oral hearing should always be available if the client requests one. Oral in-person hearings may be important in circumstances where there are issues as to credibility (e.g. the seriousness of a disability). | The EAAT holds oral and written hearings. Oral hearings may be in person or by teleconference. An oral hearing should always be available if the client requests one. Oral in-person hearings may be important in circumstances where there are issues as to credibility (e.g. the seriousness of a disability). | ||
To request an appeal, file a Notice of Appeal with the EAAT or deliver it to a local Ministry office. The EAAT or the Ministry must receive the notice of appeal within | To request an appeal, file a Notice of Appeal with the EAAT or deliver it to a local Ministry office. | ||
The EAAT or the Ministry must receive the notice of appeal within '''20 business days''' after the day the client gets the reconsideration decision. If the chairperson of the EAAT is satisfied that special circumstances exist in a specific case, they may extend the 20-business day deadline. 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 it is adjourned. | The EAAT will hold the hearing within 15 business days of the notice of appeal, unless it is adjourned. | ||
| Line 67: | Line 68: | ||
The following are some notes about the EAAT process: | 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; | ||
* | *the EAAT 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 do not strictly apply; | ||
* | *the Ministry sends a representative to advocate for its point of view at most EAAT hearings; and | ||
* | *an advocate or legal counsel may represent appellants before the EAAT. LSLAP students may act in this capacity for clients. | ||
Parties can give evidence at an EAAT hearing in the following forms: | Parties can give evidence at an EAAT hearing in the following forms: | ||
| Line 85: | Line 86: | ||
The EAAT must decide whether the Ministry's reconsideration decision: | The EAAT must decide whether the Ministry'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 ([https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/bc-laws/bc-employment-and-assistance-act-263-2002#section24 s 24 of the EAA] ). | ||
If so, the panel must uphold the Ministry’s decision, and if not, the panel must rescind the Ministry’s decision. If the Ministry cannot implement a decision of the tribunal without some further determination, then the tribunal must refer the further determination back to the Ministry. | If so, the panel must uphold the Ministry’s decision, and if not, the panel must rescind the Ministry’s decision. If the Ministry cannot implement a decision of the tribunal without some further determination, then the tribunal must refer the further determination back to the Ministry. | ||
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. | 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. | ||
What applicants can appeal to the EAAT: | What applicants can appeal 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 applicants cannot appeal to the EAAT: | What applicants cannot appeal to the EAAT: | ||
* | *whether someone must 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 a client owes 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) == | == G. Judicial Review (if the Appeal to the EAAT is Unsuccessful) == | ||
| Line 116: | Line 117: | ||
A judicial review may be possible where the Tribunal decision has very serious problems with it, such as: | 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. LSLAP should refer clients interested in applying for judicial review of an EAAT decision to the Community Legal Assistance Society’s Community Law Program to have their case assessed for merit. LSLAP is not able to assist clients with judicial review. | Note there is a '''60-day time limit''' for bringing judicial reviews. LSLAP should refer clients interested in applying for judicial review of an EAAT decision to the Community Legal Assistance Society’s Community Law Program to have their case assessed for merit. LSLAP is not able to assist clients with judicial review. | ||
== H. Tips for the LSLAP Student Representative == | == H. Tips for the LSLAP Student Representative == | ||
| Line 128: | Line 129: | ||
*A representative should have the client fill out a “Consent to Disclosure of Information- Service Authorization” (HR3189A) form authorizing the representative to examine the client’s Ministry file and to make service requests on behalf of the client (i.e. requests for reconsideration or appeal). The “Consent to Disclosure” (H3189) form authorizes only the release of information and does not authorize representatives to make service requests on the client’s behalf, so LSLAP students will generally want to use the former. These forms can be found here: https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/master-lists/forms-and-letters-master-list. | *A representative should have the client fill out a “Consent to Disclosure of Information- Service Authorization” (HR3189A) form authorizing the representative to examine the client’s Ministry file and to make service requests on behalf of the client (i.e. requests for reconsideration or appeal). The “Consent to Disclosure” (H3189) form authorizes only the release of information and does not authorize representatives to make service requests on the client’s behalf, so LSLAP students will generally want to use the former. These forms can be found here: https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/master-lists/forms-and-letters-master-list. | ||
*Also, if the case is at the EAAT level, applicants should complete a “Release of Information” form from the EAAT website. These forms are necessary for communicating with the Ministry and the EAAT about the client’s case. | *Also, if the case is at the EAAT level, applicants should complete a “Release of Information” form from the EAAT website. These forms are necessary for communicating with the Ministry and the EAAT about the client’s case. | ||
*If a client has received a decision from the Ministry but has not yet taken any appeal steps, the representative should advise him or her to obtain a “Request for Reconsideration” form from the Ministry and complete and return it to the Ministry. This must be done within 20 business days of getting the decision and can be done online or in person. It is very helpful if you can help the client to fill in the Request for Reconsideration. Remember you can request an extension of time to submit further evidence and argument in support of a reconsideration. | *If a client has received a decision from the Ministry but has not yet taken any appeal steps, the representative should advise him or her to obtain a “Request for Reconsideration” form from the Ministry and complete and return it to the Ministry. This must be done within '''20 business days''' of getting the decision and can be done online or in person. It is very helpful if you can help the client to fill in the Request for Reconsideration. Remember you can request an extension of time to submit further evidence and argument in support of a reconsideration. (See [[Welfare Appeals (21:XI)|Section XI. E: Appeal Level 1: Reconsideration]]). | ||
*If an applicant has already received a reconsideration decision, and the matter is appealable (see above) advise them to complete a Notice of Appeal form and to submit it to the EAAT within | *If an applicant has already received a reconsideration decision, and the matter is appealable (see above) advise them to complete a Notice of Appeal form and to submit it to the EAAT within twenty business days after the client received the reconsideration decision. If a client has already missed a deadline to appeal to the EAAT, a notice of appeal can still be filed with a request for an extension, as the EAAT chair can extend the appeal deadline if the chair is satisfied that special circumstances exist. | ||
*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. | *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, statutory declarations, or receipts, make enough copies for the Ministry’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. | *If the applicant submits additional documentation as evidence, such as medical reports, statutory declarations, or receipts, make enough copies for the Ministry’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. | ||