Welfare Appeals (21:XI)

From Clicklaw Wikibooks
Jump to navigation Jump to search
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 1st 2023.

A. What Applicants Can Appeal

It is possible to appeal most Ministry decisions that deny, reduce, or discontinue welfare benefits of any kind, including supplements. Refusals of the PPMB of PWD designation can also be appealed. See s 17 of the EAA and s 16 of the EAPWDA.

The legislation list certain supplements for which applicants cannot appeal decisions to the Employment and Assistance Appeal Tribunal: see EAR, s 81, and EAPWDRA, 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 the Ministry can reconsider them (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 Ministry 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 the Ministry. The levels are:

  • reconsideration (which is an administrative review done within the Ministry) 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 the Ministry within 20 business days of notification of a decision, along with relevant documents, to request a reconsideration of a Ministry decision. Applicants can pick up "Request for Reconsideration" forms at Ministry Offices.

To appeal a reconsideration decision to the EAAT, a person must submit a Notice of Appeal form within seven business days of notification 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, they may continue to receive the benefit or supplement while awaiting the outcome of the reconsideration or appeal. This is a “reconsideration supplement” or “appeal supplement”.

Before paying a reconsideration or appeal supplement, the Ministry 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 they have applied;
  • A decision that a person is in a “dependent” 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.

There are many other types of decisions that applicants can appeal.

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 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.

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.

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

  1. Evidence: clients should submit any relevant documentary evidence with the request for reconsideration. It is essential to provide complete evidence at this stage, and cover all possible evidentiary issues, as the Ministry allows only limited evidence at the next appeal stage; AND
  2. 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.

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. Section 80(b) of the EAR, and 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.

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

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 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 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 it is adjourned.

If an applicant needs more time once they have filed the notice of appeal, the Tribunal has an adjournment request form online. Ideally the applicant should get the Ministry 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. See section 85 of the EAR.

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 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:

  • Documentary evidence, which parties should send to EAAT at least three business days before the hearing, if possible. AND
  • Oral evidence from client or witnesses.

Previously, the EAAT was not supposed to admit completely new evidence, but only evidence “supporting” what parties put forward at reconsideration. As of January 1, 2020, the EAAT can consider such “evidence that is not part of the record as the panel considers is reasonably required for a full and fair disclosure of all matters related to the decision under appeal”. See section 22(4) of the EAA. Generally speaking, new evidence will be admissible if it is related to the issue on appeal. The EAAT has a guideline on this issue, at http://eaat.ca/guidelines-for-members/

Further, this broadening of what evidence can be considered at the EAAT is supported by section 19.1(d.1) of the EAA which makes section 40 of the Administrative Tribunals Act applicable to the EAAT. s.40(1) of the Administrative Tribunals Act states that “the tribunal may receive and accept information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law”.

It may be acceptable to submit written evidence on the day of a hearing if there are enough copies for the three panel members and the Ministry representative, and it is not too voluminous. If evidence is submitted at the last minute, the EAAT may consider an adjournment to allow time for the Ministry to review the evidence before proceeding. There is a guideline on this issue at http://www.eaat.ca/members/guidelines-for-members

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 (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.

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:

  • 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:

  • 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)

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

OPTION 1 - RE-APPLICATION: Where the Ministry denies an application, and where it is important for them to get the benefit right away, they may be able to re-apply. If there is new evidence on which to base a new application, applicants must submit that. If a re-application is made without any new evidence, the appeal rights on the new application will be limited if they cannot show that there has been a change in the client’s circumstances relevant to the appeal since they last appealed to the EAAT (see section 17 of the EAPWDA and section 18 of the EAA).

OPTION 2 - JUDICIAL REVIEW: 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 in the BC Supreme Court.

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.

H. Tips for the LSLAP 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 the relevant sections of the EAA or the EAPWDA and the associated Regulations.
  • 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.
  • 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 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 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, 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.
  • 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. The EAAT does not otherwise record hearings.
  • See above for specific tips on each level of appeal.

© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.