Other Canada Pension Plan (CPP)

Reasons and decision

Introduction

[1] The Appellant is a pensioner receiving the Old Age Security (OAS) pension and Canada Pension Plan (CPP). This appeal pertains to the Appellant’s Guaranteed Income Supplement (GIS). She continued to receive the GIS at the single rate after she became married. Once the Respondent learned of this, it informed the Appellant that she was overpaid the GIS in the amount of $1,817.71 for the period of September 2013 to June 2014, and planned to recover the alleged overpayment (initial decision of August 15, 2014). On August 22, 2014 the Appellant disputed this decision, alleging administrative error and erroneous advice on the part of the Respondent. The Appellant also said repaying the alleged overpayment would cause financial hardship. On August 28, 2014 the Respondent advised that it had not yet begun deducting the alleged GIS overpayment from the Appellant’s monthly pension; this would be suspended pending a final decision. On October 3, 2014 the Respondent maintained its initial decision that the Appellant was overpaid the GIS, which had to be repaid. The Respondent found there was insufficient evidence regarding the administrative error/erroneous advice allegation. The Respondent also denied her financial hardship claim. The Respondent advised that it would be recovering the alleged overpayment by reducing the Appellant’s OAS and CPP effective November 2014. On October 23, 2014, the Appellant appealed this decision to the Tribunal’s General Division.

[2] The within decision is made on the basis of the documents and submissions filed, for the reasons expressed in the Tribunal’s letter dated February 16, 2015 (the Notice):

• The complexity of the issue(s) under appeal;
• The cost-effectiveness and expediency of the hearing choice; and,
• The requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

[3] The Notice contained deadlines for the parties to file and respond to any additional documents or submissions. Those deadlines have passed.

The law

[4] The OAS Act (OASA) treats single pensioners and pensioners with spouses differently when it comes to the GIS amount. Section 12 of the OASA reads:

12. (1) The amount of the supplement that may be paid to a pensioner for any month in the payment quarter commencing on April 1, 2005 is,

1. (a) in the case of a person other than a person described in paragraph (b), five hundred and sixty-two dollars and ninety-three cents, and
2. (b) in the case of a person who, on the day immediately before that payment quarter, had a spouse or common-law partner to whom a pension may be paid for any month in that payment quarter,
3. (i) in respect of any month in that payment quarter before the first month for which a pension may be paid to the spouse or common-law partner, five hundred and sixty-two dollars and ninety-three cents, and
4. (ii) in respect of any month in that payment quarter commencing with the first month for which a pension may be paid to the spouse or common-law partner, three hundred and sixty-six dollars and sixty-seven cents, minus one dollar for each full two dollars of the pensioner’s monthly base income.

[5] Subsection 15(9) obligates GIS recipients to immediately notify the Respondent of a change in marital status. The provision reads:

(9) Every applicant shall inform the Minister without delay if they separate from, or cease to have, a spouse or common-law partner, or if they had a spouse or common-law partner at the beginning of a month, not having had a spouse or common-law partner at the beginning of the previous month.

[6] Section 2 of the OASA defines “Minister” as the Respondent:

“Minister” means the Minister of Employment and Social Development

[7] Section 37 of the OASA and section 27 of the OAS Regulations authorize the recovery of benefits to which an individual is not entitled. These provisions stipulate:

37. (1) A person who has received or obtained by cheque or otherwise a benefit payment to which the person is not entitled, or a benefit payment in excess of the amount of the benefit payment to which the person is entitled, shall forthwith return the cheque or the amount of the benefit payment, or the excess amount, as the case may be.

Recovery of amount of payment

(2) If a person has received or obtained a benefit payment to which the person is not entitled, or a benefit payment in excess of the amount of the benefit payment to which the person is entitled, the amount of the benefit payment or the excess amount, as the case may be, constitutes a debt due to Her Majesty and is recoverable at any time in the Federal Court or any other court of competent jurisdiction or in any other manner provided by this Act.

27. For the purpose of subsection 37(2.1) of the Act, an amount of indebtedness that is owing may be deducted and retained out of the whole or any portion of a benefit that is payable to the person or the person’s estate or succession, under this Act or any other Act or program administered by the Minister, that will recover the overpayment in a single payment or in instalments, in any amount that does not cause undue hardship to the person or the person’s estate or succession.

[8] Any financial hardship caused by an overpayment is a matter to be dealt with by the Respondent, not the Tribunal. Subsection 37(4) of the OASA provides:

(4) Notwithstanding subsections (1), (2) and (3), where a person has received or obtained a benefit payment to which that person is not entitled or a benefit payment in excess of the amount of the benefit payment to which that person is entitled and the Minister is satisfied that

1. (a) the amount or excess of the benefit payment cannot be collected within the reasonably foreseeable future,
2. (b) the administrative costs of collecting the amount or excess of the benefit payment are likely to equal or exceed the amount to be collected,
3. (c) repayment of the amount or excess of the benefit payment would cause undue hardship to the debtor, or
4. (d) the amount or excess of the benefit payment is the result of erroneous advice or administrative error in the administration of this Act,

the Minister may, unless that person has been convicted of an offence under any provision of this Act or of the Criminal Code in connection with the obtaining of the benefit payment, remit all or any portion of the amount or excess of the benefit payment.

[9] When it comes to alleged administrative errors or erroneous advice by the Respondent, the Tribunal does not have jurisdiction to intervene. Section 32 of the OASA states:

32. Where the Minister is satisfied that, as a result of erroneous advice or administrative error in the administration of this Act, any person has been denied a benefit, or a portion of a benefit, to which that person would have been entitled under this Act, the Minister shall take such remedial action as the Minister considers appropriate to place the person in the position that the person would be in under this Act had the erroneous advice not been given or the administrative error not been made.

[10] Finally, the Tribunal does not have jurisdiction over income amount. Such issues are to be referred to the Tax Court of Canada (TCC) pursuant to subsection 28(2) of the OASA, which provides:

(2) If, on an appeal to the Social Security Tribunal, it is a ground of the appeal that the decision made by the Minister as to the income or income from a particular source or sources of an applicant or beneficiary or of the spouse or common-law partner of the applicant or beneficiary was incorrectly made, the appeal on that ground must, in accordance with the regulations, be referred for decision to the Tax Court of Canada, whose decision, subject only to variation by that Court in accordance with any decision on an appeal under the Tax Court of Canada Act relevant to the appeal to the Social Security Tribunal, is final and binding for all purposes of the appeal to the Social Security Tribunal except in accordance with the Federal Courts Act.

Issue

[11] The Tribunal must decide if the Appellant was overpaid GIS benefits for the period of September 2013 to June 2014. If so, whether the overpayment is recoverable by the Respondent.

Evidence

[12] The Appellant applied for the GIS for the 2009-2010 payment year. Her GIS was automatically renewed based on her income tax returns to the Canada Revenue Agency (CRA).

[13] The Appellant was paid the GIS at the single rate for September 2013 to June 2014.

[14] The Appellant was married on August 31, 2013. The parties dispute when the Appellant notified the Respondent of her marital status change.

[15] On July 4, 2014 the Appellant applied to renew her GIS for the 2014-2015 payment year. In her application she advised she was married August 31, 2013 and reported her income and that of her spouse. (GD2-36)

Submissions

[16] The Appellant submitted that she informed the Respondent of her upcoming marital status change in July 2013. At that time, the government official allegedly advised that the Appellant did not need to take any action regarding her GIS because matters would be taken care of at their end. In so doing, it was the Respondent’s administrative error that caused any GIS overpayment following her marriage. The Appellant also argued that repaying any GIS overpayment would cause her financial hardship. (GD2-4, 8, 9)

[17] The Respondent submitted that the Appellant did not qualify for the GIS as of September 2013, and that an overpayment for September 2013 to June 2014 is recoverable by the Respondent. In particular::

1. The Appellant was paid at the higher single pensioner rate, when she was not single (she was married);
2. Recovering the overpayment for that period would not cause the Appellant financial hardship;
3. There was insufficient evidence to find that any administrative error or erroneous advice occurred in this matter.

Analysis

[18] The Appellant must prove on a balance of probabilities that she is entitled to benefits (De Carolis v. Canada (Attorney General), 2013 FC 366).

[19] In the present appeal, the Appellant was paid GIS at the single rate for the period of September 2013 to June 2014. It is unclear whether she immediately informed the Respondent of her marital status change following her marriage on August 31, 2013 pursuant to subsection 15(9) of the OASA. Advising the CRA or another government department of any marital status change is not the same as advising the Respondent, which is what subsection 15(9) requires.

[20] Section 12 of the OASA makes it clear that single pensioners are paid differently than pensioners with spouses. As the Appellant was not single for the period of September 2013 to June 2014, she should not have been paid GIS benefits at the higher single pensioner rate. The Respondent considered the combined income of the Appellant and her spouse, and concluded that it had overpaid the Appellant $1,817.71, being the sum of the total GIS benefits paid to the Appellant at the single rate for September 2013 to June 2014. The Tribunal has no authority to adjudicate the income calculation done by the Respondent even if it were in issue here, which is not the case (see: subsection 28(2) of the OASA). However, the Tribunal can find that as a married pensioner, one is not entitled to the GIS at the higher single pensioner rate. This was the case for the Appellant for September 2013 to June 2014. As such, the amount paid to the Appellant at the single pensioner rate is an overpayment recoverable by the Respondent pursuant to section 37 of the OASA and section 27 of the OAS Regulations.

[21] The Tribunal cannot consider the question of financial hardship, as this is the Respondent’s domain pursuant to subsection 37(4) of the OASA.

[22] The Tribunal also cannot consider the issue of administrative error and erroneous advice pursuant to section 32 of the OASA.

Conclusion

[23] The Tribunal finds that the Appellant was overpaid GIS benefits from September 2013 to June 2014. Such overpayment is recoverable by the Respondent. The Respondent assessed the overpayment at $1,817.71. The Tribunal has no reason or authority to dispute the assessed amount.

[24] The appeal is dismissed.