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→F. APPEAL LEVEL 2: Appeal to the EAAT
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 *Is reasonably supported by evidence OR ·Is *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 *A denial of PPMB or PWD status; •A *A denial of a monthly benefit or supplement; •A *A reduction of the amount of money received for monthly benefits or for a supplement; •The *The existence of an alleged overpayment; OR •A *A cancellation of a monthly benefit or supplement. What cannot be appealed to the EAAT: •Whether *Whether someone has to sign an employment plan or have certain conditions in the employment plan; •Refusing *Refusing to change or cancel an employment plan once signed; •How *How much of an overpayment is owed to the Ministry; •Refusing *Refusing to take part in a program set up under the welfare laws; •Refusing *Refusing certain benefits while the case is under reconsideration or appeal; OR •Not *Not giving a person a supplement related to their employment plan or to a confirmed job. == G.Judicial Review (if the A ppeal Appeal to the EA A T 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.