Other Canada Pension Plan (CPP)

Reasons and decision

Persons in attendance

Appellant’s Representative: D. H.

Introduction

[1] In late 2011, the Appellant’s representative submitted five applications for the Guaranteed Income Supplement (GIS or Supplement) on behalf of the Appellant. The applications covered the payment periods from 2007/2008 to 2011/2012. The Respondent awarded payment on the two applications that were received within 11 months of the respective payment periods and denied the three applications that were received more than 11 months after the respective payment periods. The Appellant’s representative requested that the applications be reconsidered. Following reconsideration, the Respondent decided to maintain its original decision. The Appellant’s representative appealed the reconsideration decision to the Office of the Commissioner of Review Tribunals (OCRT) and this appeal was transferred to the Social Security Tribunal (SST or Tribunal) in April 2013.

[2] The hearing of this appeal was by Teleconference for the following reasons:

1. There were gaps in the information in the file and/or a need for clarification; and
2. The form of hearing respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

Preliminary matters

[3] D. H. is the Appellant’s son. He participated in the hearing in his capacity as the Appellant’s representative. As such, he was not sworn in as a witness in this appeal. The information he provided to the Tribunal is summarized under the submissions section of this decision.

[4] One of the issues discussed during the hearing was the absence of medical evidence filed in support of the incapacity argument. The Appellant’s representative explained that he had interpreted the Respondent’s June 20, 2012 reconsideration decision to mean that the issue of the Appellant’s incapacity was not in dispute in that the Respondent acknowledged that the Appellant “was incapacitated and could not look after her own affairs”. After the de novo nature of the appeals process was explained to the Appellant’s representative, he requested the opportunity to file medical evidence in support of the incapacity argument. The Tribunal Member granted the Appellant’s representative 30 days to submit medical evidence and explained to him that the medical evidence filed in support of an incapacity argument typically includes a Declaration of Incapacity, a form available through the Respondent and which sets out the legal test for incapacity so that the health care practitioner completing the form is aware of the test he or she is commenting upon.

[5] Following the hearing, the Appellant’s representative submitted evidence consisting of a Certificate of Incapability completed by Dr. Eugene J. Cahill on June 5, 2015 and a letter, dated June 20, 2015, from E. M. This evidence was then shared with the Respondent under cover of letter dated July 13, 2015 and the Respondent was given a deadline of August 13, 2015 to respond to the evidence, if it so chose. The Tribunal did not receive any submissions from the Respondent.

The law

[6] Section 257 of the Jobs, Growth and Long-Term Prosperity Act of 2012 states that appeals filed with the OCRT before April 1, 2013 and not heard by the OCRT are deemed to have been filed with the General Division of the Tribunal.

[7] Subsection 11(2) of the Old Age Security Act (OAS Act) states that, unless the Minister has waived the requirement for an application, no supplement may be paid to a pensioner for a month in any payment period unless an application for payment of a supplement has been made by the pensioner and payment of the supplement for months in that year has been approved.

[8] Paragraph 11(7)(a) of the OAS Act states that no supplement may be paid to a pensioner for any month that is more than 11 months before the month in which the application is received or is deemed to have been made or in which the requirement for an application has been waived, as the case may be.

[9] Subsection 28.1(1) of the OAS Act states that where an application for a benefit is made on behalf of a person and the Minister is satisfied, on the basis of evidence provided by or on behalf of that person, that the person was incapable of forming or expressing an intention to make an application on the person’s own behalf on the day on which the application was actually made, the Minister may deem the application to have been made in the month preceding the first month in which the relevant benefit could have commenced to be paid or in the month that the Minister considers the person’s last relevant period of incapacity to have commenced, whichever is the later.

Issue

[10] The Tribunal must decide if the Appellant is entitled to further retroactivity of the GIS than what has been awarded by the Respondent.

Evidence

[11] The Appellant was born in June 1927. She applied for an OAS pension in March 1992 and her application was approved with an effective payment date of July 1992.

[12] On November 16, 2004, the Respondent wrote to the Appellant’s representative (i.e. the Appellant’s son) and explained that the Respondent was unable to locate the Appellant. The Appellant’s representative was asked to contact the Respondent to let them know how to contact the Appellant or alternatively to have the Appellant contact the Respondent directly.

[13] Included in evidence are notes prepared by the Respondent which indicate as follows: (1) on April 27, 2004, the Appellant’s OAS benefits were suspended because the Respondent was unable to locate the Appellant; (2) on November 16, 2004 the Respondent sent a letter to the Appellant’s son asking for his assistance in locating the Appellant; (3) on December 6, 2004, the Appellant’s son called the Respondent and advised he held Power of Attorney (POA) and that he would be sending the Respondent the POA document; (4) on March 7, 2005, the Respondent left a message for the Appellant’s son saying that the POA document had not yet been received; (5) on August 3, 2005, the Respondent suspended the Appellant’s CPP pension because the Respondent had not been able to locate the Appellant and had made several unsuccessful attempts to reach the Appellant’s son; (6) on July 29, 2011, the Appellant’s son submitted the POA document along with a legal name change for himself and advised the Respondent that his mother (i.e. the Appellant) lives in a private family care home in Alberta; (7) on either October 20 or 21, 2011, the Appellant’s son called the Respondent to find out the status of his mother’s benefits. During this call he advised the Respondent of the Appellant’s address; (8) on October 26, 2011, the Appellant’s son dropped off five GIS applications; and (9) on October 31, 2011, the Respondent contacted the Family Care Home in Alberta to confirm that the Appellant lived there.

[14] By letter dated August 20, 2011, the Appellant’s representative wrote to the Respondent and indicated that it had recently come to his attention that his mother had not been receiving her OAS or CPP benefits since 2004. He explained that his mother had lost her capacity to deal with administrative and monetary issues and had moved into a family care home. He provided his mother’s new contact information and asked that any written correspondence be sent to him directly as he was authorized to act on his mother’s behalf, having POA.

[15] Included in the evidence is a brief “to whom it may concern” note, dated October 24, 2011, prepared by E. M., Home Operator. The note is not signed and is not on formal letterhead. It indicates that the Appellant has been in the care of Family Care Home since June 30, 2003, under contract with Alberta Health Services, Seniors Health.

[16] On November 2, 2011, the Respondent stamped as received five GIS applications submitted by D. H., on behalf of the Appellant. The applications covered the payment periods of 2007/2008 to 2011/2012.

[17] On December 8, 2011, the Respondent wrote to the Appellant in care of D. H. and advised that her OAS pension had been reinstated effective April 2004 and that, as a result, the Respondent owed her $45,510.37 for the period of time from April 2004 to October 2011. With respect to the GIS, the Respondent explained that it had received 5 applications for the income years 2006 to 2010. The GIS applications for the latter two income years (i.e. 2009 and 2010) were approved with an effective date of payment of October 2010, being 11 months prior to the date the applications were received. The GIS applications for the first three income years (i.e. 2006 to 2008) were denied because the payment periods to which they applied were more than 11 months prior to the receipt of the applications.

[18] By letter dated January 6, 2012, a reconsideration was requested of the Respondent’s decision dated December 8, 2011. The letter (i.e. the January 6, 2012 letter) was presumably written by D. H.; however, this letter in the appeal file is not signed and does not specify the author. The letter explains that the appeal is in respect of the decision to deny the GIS for the income years 2006 to 2008 due to what appeared to be an oversight in that the Respondent’s decision appeared not to consider the fact that the Appellant had not been competent since 2003. Mr. D. H. explained that the Appellant had been unable to know that her payments had been suspended. With respect to the GIS application forms, Mr. D. H. stated that the necessary forms were not made available to him for the time periods prior to the 2007/2008 payment period and, as a result, no forms for the period from April 2004 to June 2006 could be submitted. He submitted that the Appellant is owed the GIS since April 2004.

[19] On June 20, 2012, the Respondent wrote to the Appellant in care of D. H. and explained that, after reconsidering its decision to deny the Appellant’s 2006, 2007 and 2008 applications for the GIS, it had decided to maintain the original decision because the applications were received too late. By way of background, the Respondent explained as follows: (1) it had suspended the Appellant’s OAS pension on March 27, 2004 because the Respondent was unable to locate the Appellant; (2) the Respondent had sent a letter to D. H. on November 16, 2004 advising that it was unable to locate the Appellant and requesting Mr. D. H.’s assistance in locating her; (3) during a telephone conversation of December 6, 2005 [sic], Mr. D. H. advised the Respondent that he was the Appellant’s Enduring Power of Attorney (EPOA) and that he would send the documents to the Respondent so that the Respondent could update the Appellant’s file; however, the Respondent did not receive the EPOA documents from Mr. D. H. and, despite the Respondent’s efforts, it was unsuccessful in contacting Mr. D. H. after that conversation; (4) Mr. D. H. contacted the Respondent and provided the EPOA documents on July 29, 2011; (5) the Respondent wrote to Mr. D. H. on December 8, 2011 and advised it had reinstated his mother’s OAS pension from April 2004 to October 2011, it had processed the GIS applications from October 2010 to December 2011, and had denied the GIS applications for 2006, 2007, and 2008 because they were received too late. With respect to the incapacity argument, the Respondent wrote that it understood that the Appellant was incapacitated and could not look after her own affairs but that Mr. D. H.’s claim of incapacity did not apply in this situation because his mother’s incapacity was no longer relevant as a result of him being appointed as the POA over her affairs. The Respondent stated that, as the EPOA for his mother, it was Mr. D. H.’s responsibility to look after his mother’s welfare.

[20] On June 5, 2015, Dr. Eugene J. Cahill, General Practitioner, completed a Certificate of Incapability form in which he indicated as follows: (1) he has known the Appellant since July 3, 2003; (2) he does not consider the Appellant capable of managing her own affairs and improvement is not expected in this regard; (3) the Appellant has been diagnosed with dementia and this impairment started at least by January 10, 2002; (4) the Appellant’s condition had declined since at least January 2002; and (5) the Appellant’s condition resulted in an inability to cope unsupervised since January 2002. The Certificate of Incapability form asks 5 questions with corresponding yes or no answers. Dr. Cahill’s responses to these questions indicate that (1) the Appellant did not have a good general knowledge of what was happening to her money or investments; (2) the Appellant did not have sufficient understanding of the concept of time, in order to pay bills promptly; (3) the Appellant did not have sufficient memory to keep track of financial transactions and decisions; (4) the Appellant did not have the ability to balance accounts and bills; and (5) the Appellant had significant impairment of judgement due to altered intellectual function.

[21] On June 20, 2015, E. M., Home Operator, wrote that the Appellant had been under the care of Family Care Home since June 30, 2003, under contract with Alberta Health Services, Seniors Health. Ms. E. M. explained that she was a registered nurse before she began operating the Family Care Home, after which she allowed her registration to lapse in 2002 and retired from the College and Association of Registered Nurses of Alberta. She explained that throughout the period of time the Appellant had been under her care, she had needed assistance in order to manage her affairs, due to her inability to prepare meals and organize her administrative and financial affairs. Ms. E. M. explained that the Appellant: (1) forgot to take her medication without assistance and prompting; (2) was not capable of paying bills reliably on her own; (3) was not aware of her overall financial situation; (4) has had an unreliable memory and requires reminders every 5 to 15 minutes for such things as why she is getting ready to leave the house, the need to wear suitable clothing for the weather, and when and how she will be returning home. Ms. E. M. went on to state that she did not have confidence that the Appellant would have been competent to reliably manage her finances, pay bills, maintain records of transactions, or make important decisions without assistance. She said she regularly screens the Appellant’s mail to protect her and to ensure she does not make inappropriate financial decisions, due to her impaired judgement.

Submissions

[22] The Appellant’s representative submitted that the GIS should be paid retroactive to 2004 because:

1. After he received the November 16, 2004 letter from the Respondent, he called the contact person identified in that letter and provided her with the Appellant’s updated contact information. Although he mentioned during this conversation that he had a POA and undertook to send the document to the Respondent if he could find it, he believed that, as a result of the Respondent having the Appellant’s updated contact information, the Respondent had everything it needed to reinstate payments to the Appellant.
2. The Appellant’s representative did not provide the POA earlier than July 2011 because:
   1. he could not find the document, which may have been attributed to the fact that he did not receive a copy after it had been commissioned or, if he had received a copy, it may have been stored in a box, as he had moved several times prior to November 2004. With respect to the possibility of accessing the document from an alternate source, the Appellant’s representative stated that a copy of the POA was not filed with the Family Care Home upon the Appellant’s admittance in 2003 and he did not believe the Appellant’s bank had a copy of the document.
   2. he did not receive follow up telephone messages from the Respondent. He may have received discreet voice messages for a “D.” D. H. but he would not have returned any of these calls as he believed they were not meant for him. (The Appellant’s representative pointed to pages GT1-55 and GT1-57 as evidence of the Respondent incorrectly identifying him as “D” rather than “D. H.”);
   3. he did not receive any follow up letters after the November 16, 2004 letter;
   4. it was the Appellant who eventually located the POA document. She found it in a pocket of some clothing she had not worn in quite some time. She had been looking for the document because the Family Care Home was being audited and it had been realized that the Appellant’s POA document was not on file.
3. Between the November 2004 telephone conversation with the Respondent and July 2011, when the Respondent received the POA, the Appellant’s representative was not aware that the Appellant’s benefits had not been reinstated. He spoke with the Appellant in early-to-mid 2011 and learned that she had been taken to her bank and had discovered much less funds than would have been expected.
4. He submitted five applications for the GIS in late 2011 for the payment periods 2007/2008 to 2011/2012.
5. GIS applications for the payment periods before 2007/2008 were not submitted because these forms were not available to him.
6. The Appellant has been incapacitated since June 30, 2003, being the date she moved into the Family Care Home, as evidenced by the October 24, 2011 letter from E. M. This particular care home is specific to individuals who have or who are expected to have Alzheimer’s.
7. He believed that the Respondent had investigated the Appellant’s incapacity with the Family Care Home because he was aware that the Respondent had contacted the home directly.

[23] The Respondent did not provide submissions in support of its position in this appeal. Nonetheless, its correspondence on file indicates that the Appellant is not entitled to further retroactive GIS payments because:

1. Of the five GIS applications that were received in 2011, the Respondent could only approve two of the applications because three of them were received too late (i.e. more than 11 months after the respective payment periods).
2. No GIS applications were received for payment periods earlier than 2007/2008.
3. The incapacity provision is not applicable because the Appellant’s son has POA over the Appellant’s affairs and, as such, it was his responsibility to look after his mother’s welfare.

Analysis

Applications Required

[24] The Appellant’s representative stated in his letter of January 6, 2012 that the Appellant is owed the GIS retroactive to April 2004. The earliest payment period, however, for which an application has been submitted is the period of July 2007 to June 2008. Without applications for the payment periods before 2007/2008, the Tribunal is without jurisdiction to consider the Appellant’s eligibility for the GIS for that time period (i.e. 2004 to June 2007). To put it another way, the Tribunal only has jurisdiction to make findings in respect of an application that has been appealed to the Tribunal after that application has been reconsidered by the Respondent. In this instance, the applications that have been appealed are the 2011 applications. The fact that an incapacity argument has been raised in this appeal does not change the Tribunal’s jurisdiction, as section 28.1 of the OAS Act clearly requires an application to have been made before a finding of incapacity can be made in respect of that application.

[25] The Tribunal is mindful of the Appellant’s representative’s argument that the necessary forms were not made available to him for the time periods prior to the 2007/2008 payment period. Nonetheless, the Tribunal does not have the authority to waive the statutory requirement that an application be submitted. The Tribunal would add that it was not provided with any evidence of any requests the Appellant’s representative may have made to the Respondent in an effort to obtain the necessary forms or of any attempts the Appellant’s representative may have made to provide the Respondent with the information necessary to renew the GIS for the payment periods prior to 2007/2008.

[26] In light of the above, the Tribunal’s jurisdiction is limited to the time period beginning July 2007 (i.e. the beginning of the first payment period for which an application was submitted).

Retroactive Payments Awarded by Respondent

[27] Although the five GIS applications are stamped as received in November 2011, the Respondent’s notes indicate that the Appellant’s representative dropped off the applications in person on October 26, 2011. The Respondent’s decision letter dated December 8, 2011 indicates that the Appellant’s GIS was reinstated effective October 2010, being 11 months before the date of the GIS applications. If the applications were received in October 2011 then 11 months prior to that date is November 2010 and not October 2010. As a result, the Appellant’s GIS should have been reinstated effective November 2010, in accordance with paragraph 11(7)(a) of the OAS Act.

Incapacity Argument

[28] The incapacity provision is set out in section 28.1 of the OAS Act and it is an exception to the maximum retroactivity rules respecting payment of a benefit under the OAS Act. This provision allows an application to be deemed to have been made earlier than when it was actually made provided it can be shown that the person to whom the application relates was incapable of forming or expressing an intention to apply for the benefit.

[29] The Respondent has submitted that the incapacity provision is not applicable in this case because the Appellant had appointed a POA. The Tribunal does not accept this argument. Section 28.1 of the OAS Act does not expressly exclude from its application individuals who have appointed a POA. Moreover, the language of section 28.1 is such that it contemplates applications being made on behalf of a person to whom the incapacity relates. Surely, the individuals making applications on behalf of an incapacitated person include POAs.

[30] Turning now to the merits of the incapacity argument, the Tribunal finds it has insufficient evidence to establish, on a balance of probabilities, that the test for incapacity has been met. The only medical evidence that was filed in support of the incapacity argument is the Certificate of Incapability that was completed by Dr. Cahill. Unfortunately, it appears that the Appellant’s representative may have asked Dr. Cahill to complete the wrong form. The form relevant to an incapacity argument under section 28.1 of the OAS Act is the Declaration of Incapacity, and not a Certificate of Incapability. The Declaration of Incapacity form is helpful to a decision maker because it expressly states the legal test that a practitioner is asked to comment upon (i.e. whether the person was incapable of forming or expressing an intention to make an application) and it requests the practitioner to provide a copy of the relevant clinical findings that confirm the incapacity. Having said this, the absence of a Declaration of Incapacity form in and of itself does not preclude a finding of incapacity. It may however, make the decision making process more difficult particularly if the medical evidence that has been provided does not specifically speak to the person’s capacity to form or express an intention to make a timely application.

[31] The information provided by Dr. Cahill is set out in a two-page form and does not include any objective medical findings such as tests or results from examinations. The information provided in the report is specific to the question of whether the Appellant was considered incapable of managing her own affairs. The issue of whether a person is incapable of managing her own affairs is not the same as whether a person is incapable of forming or expressing an intention to make an application. The two are no doubt related, but they are not the same. The ability to manage one’s affairs is more encompassing than the ability to form or express an intention to make an application. It is conceivable that a person can be found to be incapable of managing her own affairs but nonetheless found capable of forming or expressing an intention to make an application. Pared down to its most simplistic form, the test for incapacity under section 28.1 is concerned with whether an appellant can decide in her own mind, either on her own initiative or in response to a choice presented to her, that she would like to apply for a benefit. It matters not that an appellant may lack knowledge about her eligibility for a benefit (Tatsiopoulos v. MSD (December 17, 2004), CP 21976 (PAB)) or that she may lack the capacity to make, prepare, process or complete an application (Canada (Attorney General) v. Danielson, 2008 FCA 78) or that she may be incapable of dealing with the consequences of an application (Canada (Attorney General) v. Poon, 2009 FC 654).

[32] The Tribunal does not have medical evidence indicating that the Appellant meets the test for incapacity as that term is understood in section 28.1 of the OAS Act. In other words, the medical evidence that has been submitted to the Tribunal does not address the question of whether the Appellant was incapable of forming or expressing an intention to make an application. Moreover, the Tribunal notes that there is some suggestion in the evidence that the Appellant has exercised some cognitive functioning during the period of time in dispute. For example, the Appellant’s representative indicated that it was the Appellant who found the POA document, presumably as a result of the Family Care Home needing it for their files. A copy of the document was then sent to the Appellant’s representative, demonstrating some understanding of the nature of the document and the need for the Appellant’s son to have a copy. Also, and perhaps more importantly, the Appellant’s representative indicated that the POA was not filed with the Family Care Home when the Appellant was admitted in June 2003, suggesting that the Family Care Home did not consider it necessary to have the Appellant’s POA make decisions on her behalf, such as decisions relating to consent to medical treatments / examinations or decisions of a financial nature. Finally, the fact that the Appellant’s representative was not aware until sometime in early-to-mid 2011that the Appellant’s benefits had not been reinstated is indicative of the Appellant not relying on her POA to manage her financial affairs.

[33] The Tribunal reviewed the June 20, 2015 letter prepared by E. M., but gave this letter little weight. First, while Ms. E. M. may have a medical background, she is not the Appellant’s treating practitioner. Second, the letter does not speak to the Appellant’s capacity to form or express an intention to make an application. Third, the letter indicates that, in an effort to protect the Appellant and to ensure the Appellant does not make inappropriate financial decisions, Ms. E. M. regularly screens the Appellant’s mail. This statement suggests that the Appellant is still exercising some control over her finances and is not relying on her POA to make these decisions for her.

[34] For the reasons set out above, the Tribunal finds that the Appellant is not entitled to more retroactive payment on the GIS than what has already been awarded by the Respondent.

Conclusion

[35] The appeal is dismissed.