Factors That May Affect Welfare Eligibility (21:V)

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

 · XI. Appeals
v • d • e



A. Family Units, Dependency, and Spousal Relationships

Under the welfare legislation, assistance is paid not to individuals, but rather to “family units”. Family units are deemed under the legislation to include a welfare applicant or recipient, his or her “dependent children” and his or her “spouse.” Note that “spouse” and “dependent child” are defined in the legislation.

If two or more people are considered to be part of the same family unit, their combined assets and monthly income will be used to determine their ongoing eligibility for assistance and their monthly benefit amount will be calculated as a lump sum for a family unit of that size.

See the definitions of “applicant”, “dependent”, “dependent child” “family unit”, and “recipient” in s 1 of the EAA and the definition of “spouse” in s 1.1. The same definitions exist in the corresponding sections of the EAPWDA.

A "family unit" includes a person who is applying for or getting welfare as well as that person's dependants. A "dependant" can be a spouse or partner living with the applicant and can also be a child. Note: other relatives, such as parents or adult children, are not considered dependants, even if they live with and rely upon the applicant.

To be considered a "dependent child", a child must:

  • Be under 19 years old (unless the child is 18 and getting PWD benefits);
  • Rely on the applicant for food, shelter, and clothing; AND
  • Live with the applicant for more than half of each month.

If roommates do not want to be considered a family unit, they must be able to show that they do not fit the definition of “spouse” in s 1.1 of the EAA and EAPWDA. In determining whether roommates fit the definition in s 1.1, MSDSI may look at common-sense indicia of a spousal relationship such as:

  • whether the parties have separate bedrooms;
  • whether they have separate bank accounts, divide bills, etc.;
  • whether have they acknowledged a common law or sexual relationship as existing between them, either socially or for any other purpose;
  • whether they share household responsibilities on a consistent basis, i.e. childcare, meal preparation, laundry, shopping, house cleaning, etc.; and
  • whether either party has an ongoing sexual relationship with another person.

B. Failure to Meet Employment-Related Obligations

Under EAA s 13, EAPWDA, s 12, EAR s 29 and EAPWDR s 25, MSDSI may reduce assistance (for households that include dependent children) or declare a household ineligible for a period set by regulation (for households with no dependent children) if a recipient or adult dependant who has employment-related obligations:

  • a. fails to accept suitable employment;
  • b. voluntarily leaves employment without just cause;
  • c. is dismissed from employment for just cause; or
  • d. fails to demonstrate reasonable efforts to search for suitable employment.

“Suitable employment” is not defined in the income assistance legislation, but a past MSDSI operational directive defined suitable employment as “available employment which the person is able to perform, that pays at least the minimum wage, and which will maximize the person’s independence from assistance”.

“Just cause” for leaving employment is not defined in the legislation, but the MSDSI Policy and Procedure Manual states that just cause for leaving employment includes:

  • a. a physical or mental condition which precludes maintaining employment;
  • b. sexual or other harassment;
  • c. discrimination;
  • d. dangerous working conditions;
  • e. following a spouse to new employment;
  • f. leaving an abusive or violent domestic situation;
  • g. having to care for a child or other immediate family member who has a mental or physical condition which requires the person to care for them; or h.reasonable assurance of another job.

If the Ministry decides that the person was fired for just cause or quit a job without just cause, penalties may apply, including:

  • If the person does not have dependent children, the Ministry may not allow the person to apply for income assistance or hardship assistance for two calendar months.
  • If the person does have dependent children, the Ministry can allow them to apply for income assistance or hardship assistance, but the benefits will be reduced by $100 for two months.

NOTE: The details of the sanctions that MSDSI may apply under EAA s 13, EAPWDA s 12, EAR s 29, and EAPWDR s 25 are summarized in the Ministry's Policy and Procedures Manual in a table under "reasons for sanctions".

The above employment-related sanctions do not apply to recipients listed in EAR s 29(4).

C. Failing to Accept or Pursue Income or Assets or Disposing of Property

Section 14 of the EAA (s 13 of the EAPWDA) and s 31 of the EAR (s 27 of the EAPWDR) outline the sanctions that MSDSI may apply to applicants who fail to pursue income or assets or who dispose of property for inadequate consideration.

NOTE: The details of the sanctions that MSDSI may apply under EAA s 14 (s 13 of the EAPWDA) and EAR s 31 (s 27 of the EAPWDR) are summarized in the Online Resource in the table as above, indexed under "Reasons for Sanctions".

D. Conviction or Civil Judgment for Welfare Fraud

As of Sept 1, 2015, a person is no longer ineligible for income assistance, PPMB assistance or disability assistance ONLY because of either:

  • a conviction under the Criminal Code in relation to obtaining welfare benefits by fraud or false or misleading representation (i.e. lifetime ban repealed);
  • a conviction of a statutory offence under the EAA or EAPWDA (or prior welfare legislation); OR
  • a declaration of ineligibility by MSDSI following MSDSI obtaining a civil judgment against them for a welfare overpayment.

People convicted of such offences either before or after September 1, 2015, or with declarations of ineligibility related to a civil judgment, can now qualify for regular income assistance, PPMB or disability assistance, if they meet all other eligibility requirements.

These family units are liable to repay the government, under section 27 of the EAA (s 18 of the EAPWDA), the amount or value of the overpayment that was the subject of the Criminal Code conviction and/or conviction under the EAA/EAPWDA and/or civil judgment. This amount is known as an “offence overpayment.”

Section 89 and 89.1 of the EAR (74 and 74.1 of the EAPWDA) detail a minimum monthly welfare benefit deduction and repayment structure that applies to an “offence overpayment,” as well as the exemptions from those deductions. The basic rule is a reduction of $100 per month reduction in welfare benefits for each person in a family unit who has an “offence overpayment.” Where a person was convicted under the Criminal Code, that deduction continues until the amount of the overpayment is repaid in full. Where a person was convicted of a statutory offence under the EAA or EAPDA, that deduction continues for:

  1. 12 months for a first conviction (unless the overpayment is repaid in less than 12 months)
  2. 24 months for second conviction, (unless the overpayment is repaid in less than 24 months); and
  3. For a third or subsequent conviction, until the amount of the third or subsequent overpayment is repaid.

There is some degree of ministerial discretion to waive the minimum $100 repayment requirements in a given benefit month. The minister may waive the repayment for the following reasons:

  • The minister is satisfied that the family unit is homeless or at risk of becoming homeless
  • The minister is satisfied that a deduction would result in danger to the health of a person in the family unit; OR
  • A recipient in the family unit is liable for an offence overpayment but the person convicted of the criminal code offence or Act offence that resulted in the offence overpayment is not a member of the family unit for the benefit month.

Clinicians should consult these sections to see what specific repayment structure matches the client’s current family unit and welfare benefit status, and what exemptions they might be entitled to.

E. Providing Inaccurate or Incomplete Information to MSDSI

If a household provides inaccurate or incomplete information regarding eligibility (under s 10 or 11 of the EAA or EAPWDA), and as a result receives assistance for which it was not eligible, MSDSI may apply sanctions under s 15.1 of the EAA (s 14.1 of the EAPWDA) and ss 32-34 of the EAR (ss 28-30 of the EAPWDR).

NOTE: The details of the sanctions that MSDSI may apply under s 15.1 of the EAA (s 14.1 of the EAPWDA) and ss 32-34 of the EAR (ss 28-30 of the EAPWDR) are summarized in the Ministry's Policy an Procedures Manual at http://wwwon the Online Resource in a table as above: http://www.gov.bc.ca/gov/content/governments/policies-ffor-government/bcea-policy-and-procedure-manual/eligibility/sanctions

F. Outstanding Warrants

Effective 1 June 2010, the legislation (EAA, s.\ 15.2 and EAPWDA, s 14.2) provides that where there is an outstanding warrant for a person under the Immigration and Refugee Protection Act or any other enactment of Canada in relation to an indictable offence, that person will be ineligible to receive income assistance, disability assistance, or hardship assistance. Exceptions to these rules include people under 18, pregnant women, and people in the end stage of a terminal illness (see the EAR, s 38.1 and EAPWDR, s 34.1 for details).

If MSDSI cuts off a person’s assistance due to an outstanding warrant, the person may appeal the decision by requesting reconsideration by MSDSI. If the reconsideration is unsuccessful, a further appeal may be filed to the Employment and Assistance Appeal Tribunal (EAAT). While the appeal is in progress, the person should be able to collect a repayable appeal supplement.

If a person is ineligible to collect assistance due to an outstanding warrant, he or she may be able to collect two other forms of financial help:

  • A repayable monthly supplement may be paid if a person can show that without financial help, undue hardship will be experienced. Normally, this form of assistance can only be paid for three consecutive months, unless MSDSI authorizes payment for up to three additional months or
  • A repayable transportation supplement may be available to those whose warrants were issued in a jurisdiction other than the one in which they live and who are not able to cover the expense of traveling to that jurisdiction to deal with the warrant. The amount of this supplement is limited to the cost of the least expensive mode of travel.

If MSDSI denies a person’s application for these two supplements, a request for reconsideration may be filed, but if that fails, no appeal may be made to the EAAT.

If a person has a warrant that makes them ineligible for welfare, other people in their family unit can still get welfare.

For more information about how an outstanding warrant may affect a person’s eligibility for income assistance, the Community Legal Assistance Society of BC has a published a detailed fact sheet at: http://d3n8a8pro7vhmx.cloudfront.net/clastest/pages/79/attachments/original/1401252000/Outstanding_warrants_fact_sheet_FINAL.pdf?1401252000

G. Labour Disputes

Applicants are not eligible for income assistance, PPMB assistance, or disability assistance if they or their adult dependant is on strike or locked out (EAR, s 14 and EAPWDR, s 13). An applicant in this situation may, however, qualify for hardship assistance under s 45 of the EAR or s 40 of the EAPWDR. If a person is not on strike themselves but cannot go to work because their union is honouring another union's picket line, they can apply for income assistance.

H. Being in Prison or “Other Lawful Place of Confinement”

A person in a “lawful place of confinement” or on temporary leave from such a place is not eligible for assistance: s 15 of EAR and s 14 of EAPWDR. However, pre-release prisoners are eligible to apply for welfare on an expedited basis, based on an immediate needs assessment (see MSDSI’s policy). This is intended to ensure that they can receive welfare immediately upon their release. The John Howard Society provides pre-release planning assistance for prisoners, including help with welfare applications.

I. Being a Full-Time Student

Full-time students who are eligible for student loan funding are not eligible for income assistance or PPMB assistance during the school term (EAR, s 16). The dependent children of income assistance and PPMB recipients are not affected by this limitation.

Section 1 of the EAR defines the term “full-time student,” and s 16(2) of the EAR sets out the period during which a full-time student is ineligible for income assistance or PPMB.

Full-time students who are no longer eligible for student loan funding because they have used up their allowable loans, bursaries, or grants may be eligible for income assistance during summer break if they cannot find work.

Recipients of disability assistance, and their dependants, are not restricted from being full-time students.

Students who are enrolled in unfunded programs (where student loans are not available)—such as high school completion and adult basic education or students whose post-secondary education is sponsored under a federal or provincial government plan—may remain eligible for income assistance if they have received prior approval from the minister. See EAR s 16(1)(b).

Single parents approved for the Single Parent Employment Initiative may also remain eligible for income assistance or PPMB benefits while they attend a funded program of studies (providing those studies are required in their Employment Plan). See EAR s 16(1.2)

Part-time students remain eligible for income assistance provided other eligibility requirements, including employment obligations, are met.

J. Student funding and income exemptions

For students who receive disability assistance, education and training allowances, scholarships, grants, bursaries and money from an RESP are all exempted as income. However, student loans advanced to recipients of disability assistance are only exempt as income up to the amount of the person’s “education costs” and “daycare costs.” Both those terms are defined in section 8 of Schedule B to the EAPDWR Regulation.

Certain students who receive income assistance or PPMB benefits can have funds from training allowances, student loans, grants, bursaries, scholarships, or RESPs exempted by MSDSI as their “income” up to the amount of their “education costs” and “childcare costs.” Both those terms are defined in section 8 of Schedule B to the EAR. This applies if:

  • The student is the dependent child (under 19) of a recipient of income assistance or PPBM benefits;
  • The person is a part-time student in a program that is not eligible for student loan funding;
  • The person has received prior permission from MSDSI to enroll as a full-time student in a program that is not eligible for student loan funding;
  • The student has been excused by MSDSI from having employment-related obligations under s 29(4) of the EAR, and is enrolled part-time in a program that is eligible for student loan funding;
  • The student is a part time student in a program that is eligible for student loans (note that students in this situation cannot have grants, bursaries or scholarships from Canada Student Loans exempted as income);OR
  • The student is in Ministry’s Single Parent Employment Initiative and in a program that is eligible for student loans (note that students in this situation cannot have grants, bursaries or scholarships from Canada Student Loans exempted as income).

K. Leaving the Province for More Than 30 Days

Recipients who leave British Columbia for more than a total of 30 days in a calendar year usually cease to be eligible for income assistance (EAR, s 17 and EAPWDR, s 15).

If a recipient wishes to leave the province for more than 30 days in a calendar year, he or she should try to obtain prior authorization for continued assistance. The minister has discretion to authorize absences required to avoid undue hardship, to allow participation in a formal education program, or to obtain medical therapy that has been prescribed by a medical practitioner.

L. 24-Month Time Limit on Welfare Removed

Prior to October 1, 2012, recipients classified as employable were only eligible for benefits for a total period of 24 months out of every 60 months (see former section 27 of the EAR). Now, there is no longer a time limit and after 24 months there will be no reduction in benefits.

M. If the EAW Denies Welfare

If a person is denied welfare due to ineligibility, ensure that they receive this in writing, as they may want to challenge this decision. They may also still be eligible for hardship assistance.

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