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Difference between revisions of "Welfare Appeals (21:XI)"
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{{LSLAP Manual TOC|expanded = welfare}} | {{LSLAP Manual TOC|expanded = welfare}} | ||
== A. What Can | == 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. | 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 [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#section17 s 17 of the EAA] and [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#section16 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). | The legislation list certain supplements for which applicants cannot appeal decisions to the Employment and Assistance Appeal Tribunal: see [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/263_2002#section81 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 [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#section9 s 9] and [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#section17 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. | '''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. | ||
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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 called a “reconsideration supplement” or “appeal supplement”. | 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 called 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. | 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 [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/263_2002#section54 s 54 of EAR] and [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/265_2002#section52 s 52 of EAPWDR]. | ||
== D. Commonly Appealed Decisions == | == D. Commonly Appealed Decisions == | ||
Some decisions for which people commonly seek reconsideration and appeal are: | 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 PWD status under [ 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 “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 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 | ||
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There are many other types of decisions that applicants can appeal. | 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. | '''NOTE:''' Whenever a client asks about appealing a decision, begin by checking [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#section17 s 17 of the EAA], [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#section16 s 16 of the EAPWDA], [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/263_2002#section81 s 81 of the EAR], and [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/265_2002#section73 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 == | == E. APPEAL LEVEL 1: Reconsideration == | ||
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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, 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. | 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. | ||
'''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. | '''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. | ||
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*An advocate or legal counsel may represent appellants before the EAAT. LSLAP students may act in this capacity for clients. | *An advocate or legal counsel may represent appellants before the EAAT. LSLAP students may act in this capacity for clients. | ||
The Ministry requires EAAT hearings within 15 business days of delivery of the appeal notice. If both parties and the chairperson agree to a later date, the Ministry allows postponing of a hearing. 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. | The Ministry requires EAAT hearings within 15 business days of delivery of the appeal notice. If both parties and the chairperson agree to a later date, the Ministry allows postponing of a hearing. Applicants can request an adjournment if there is good reason to do so, using an “Appeal Adjournment Request Form”. See also [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/263_2002#section85 s 85 of the EAR]. | ||
Parties can give evidence at an EAAT hearing in the following forms: | Parties can give evidence at an EAAT hearing in the following forms: | ||
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*'''Oral evidence''' from client or witnesses. | *'''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/view.asp?ccid=608 | 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 [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#section22 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/view.asp?ccid=608 | ||
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”. | Further, this broadening of what evidence can be considered at the EAAT is supported by [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#section19.1 section 19.1(d.1) of the EAA] which makes [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/04045_01 section 40 of the Administrative Tribunals Act] applicable to the EAAT. [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/04045_01#section40 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 | 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 | ||
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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 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). | *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. | ||
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If the EAAT decision is unfavourable, the appellant has 2 options: | 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 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 [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#section17 section 17 of the EAPWDA] and [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#section18 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. | '''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. | ||
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== H. Tips for the LSLAP Student Representative == | == H. Tips for the LSLAP Student Representative == | ||
*Representatives should read Part 6 of the EAR carefully to offer advice on the appeal process. | *Representatives should read [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/263_2002#part6 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. | *The representative should determine what the issues are and read all of the relevant sections of the [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 EAA] or the [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 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. | *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. | ||
