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Reasons and decision
Introduction
[1] The Appellant’s application for Canada Pension Plan (CPP) Disabled Contributor’s Child Benefits (DCCB) in relation to S. J. and R. J. was date stamped by the Respondent on February 22, 2016. The application was approved with an effective date of March 2015, which is the full allowable retroactivity pursuant to s. 74(2)(b) of the CPP.
[2] The Appellant requested a reconsideration of the effective start date claiming that the effective date of payment should be January 2011 when the children first came under his custody and control. The Respondent denied the Appellant’s reconsideration request and the Appellant appealed to the Social Security Tribunal (Tribunal) on July 15, 2016.
Issue
[3] The Tribunal must decide whether the appeal should be summarily dismissed.
The law
[4] Subsection 53(1) of the Department of Employment and Social Development Act (DESD Act) states that the General Division must summarily dismiss an appeal if satisfied that it has no reasonable chance of success.
[5] Section 22 of the Social Security Tribunal Regulations (SST Regulations) states that before summarily dismissing an appeal, the General Division must give notice in writing to the Appellant and allow the Appellant a reasonable period of time to make submissions.
[6] S. 74(2)(b) of the CPP provides that the disabled contributor’s child benefit shall be payable the later of month commencing with which a disability pension is payable to the contributor and the month next following the month in which the child was born or otherwise became the child of the contributor but in no case shall the benefit be payable earlier than the twelfth month preceding the month following the month in which the application was received. (emphasis added).
[7] The one exception in the CPP to the maximum retroactivity rule is found under subsections 60(8) to 60(11): being incapable of forming or expressing an intention to make an application on your own behalf prior to the date the application was actually made.
[8] Subsection 20(1)(a) of the SST Regulations provides that if the constitutional validity, applicability, or operability of any provision of the CPP is to be put at issue before the Tribunal, the party raising the issue must file a notice with the Tribunal that sets out the provision that is at issue, and contains any submissions in support of the issue that is raised.
Potential charter challenge
[9] In his statutory declaration in support of his submissions filed on January 11, 2017 (GD9- 2, paragraph 9) the Appellant made the following submissions which raised a potential constitutional challenge.
Therefore, this decision by the Minister to deny any part of retroactive benefits to the appellant’s children is a violation under Canada Pension Plan, Canadian Charter of Rights and Freedoms and Canadian Human Rights Act.
[10] On March 1, 2017 the Tribunal notified the Appellant that if he wishes to pursue a constitutional challenge before the Tribunal, he must file a notice in accordance with subsection 20(1)(a) of the SST Regulations no later than April 5, 2017. A copy of this provision (see paragraph 8, supra) was set out in the notice.
[11] The notice also advised the Appellant that if he did not file the required notice by that date, the appeal will proceed as a regular appeal and he will not be given the opportunity to raise any constitutional issues during the appeal process.
[12] This notice was set out in the same letter that notified the Appellant that the Tribunal Member is considering summarily dismissing the appeal.
[13] Although the Appellant filed a response to the notice of intent to summarily dismiss on March 31, 2017, he did not file the requisite notice under s. 20(1)(a) of the Tribunal Regulations.
[14] On April 10, 2017 the Respondent filed submissions with the Tribunal requesting that this appeal be treated as a regular appeal and the Appellant be precluded from raising a constitutional challenge. The Respondent submitted that the Appellant’s response does not raise any constitutional issues and does not set out any provision of the CPP that is being challenged.
[15] After carefully reviewing the Appellant’s response (GD-13) to the notice of intent to summarily dismiss, the Tribunal agrees with the Respondent’s submissions that the Appellant has not complied with the requirements under s. 20(1)(a) of the Tribunal Regulations.
[16] The Tribunal has determined that there are no constitutional issues that are properly before the Tribunal and that the Appellant is precluded from raising a constitutional challenge on this appeal.
[17] Accordingly, the appeal is proceeding as a regular appeal.
Context
[18] The Appellant claims that the effective date of payment should be January 2011 when the children came under his custody and control. He relies on the incapacity provisions set out in subsections 60(8) and (9) of the CPP and states that because of his medical issues he lacked the capacity to make the claim on behalf of the children before February 2016. He filed a declaration of incapacity [GD4-2] signed by Dr. Hamlet on October 14, 2016 indicating that his incapacity to form or express the intention to make an application commenced in January 2014 and that it was still ongoing. The declaration indicates that major depression was the medical condition that was causing the Appellant’s incapacity. The Appellant also filed medical reports which he claims establish his incapacity.
Submissions
[19] The Appellant’s submissions.
- In his notice of appeal (GD1-4) the Appellant submitted that his health condition was the main reason that prevented him from applying for the children’s benefits in due time;
- In his response to the notice of intent to summarily dismiss the Appellant enumerated 64 matters. Many of the matters raised by the Appellant are repetitive; however, the main focus of his submissions is his own incapacity to apply earlier because of his medical condition and the children’s incapacity to apply because they were only four and three years old on January 31, 2011;
- He submitted that if there is a legislative gap that allows his incapacity to prejudice his children’s right to a benefit, the Tribunal should fill the gap and allow retroactivity to January 2011 when the children first started to live with him;
- He further submitted that this matter is unique and one of a kind and that the Tribunal should not summarily dismiss the appeal.
[20] The Respondent’s submissions:
- The CPP legislation allows a maximum of eleven months retroactivity for a DCCB benefit from the date of receipt of the application for the benefit;
- There is no provision in the Canada Pension Plan legislation that allows the Minister to grant a longer period of retroactivity than what is set out in the legislation;
- The Incapacity Provision of the Canada Pension Plan states that the applicant must be incapable of forming or expressing an intention to make an application on their own behalf earlier than the day on which the application was actually made. It does not extend the provision to the application of that person's children. Therefore, the determination of incapacity as it pertains to the Appellant is irrelevant as there is no statutory authority to deem the DCCB application to have been received at an earlier date.
Analysis
[21] In compliance with section 22 of the SST Regulations, the Appellant was given notice in writing of the intent to summarily dismiss the appeal and was allowed a reasonable period of time to make submissions. The Appellant responded to the notice on March 31, 2107. [GD-13]
[22] The application was received in February 2016 subsection 74(2)(b) of the CPP expressly provides that in no case shall the DCCB benefit be payable earlier than the twelfth month preceding the month following the month the application was received. The Respondent correctly found that the earliest effective date for payment is March 2015.
[23] The Appellant has raised the issue of incapacity and submitted that he lacked the capacity to make the application on behalf of the children before February 2016.
[24] However, the incapacity referred to in subsections 60(8) and (9) of the CPP only applies to the person on whose behalf the application is made and not to the person making the application. This application is being made on behalf of the children and the incapacity contemplated is a medical incapacity and not a legal incapacity: (Statton 2006 FCA 370); MSD v Statton (April 21, 2005) CP22564 (PAB); DesRosiers v MSD (January 4, 2006) CP22965 (PAB); and MHRSD v H.H (May 21, 2010) CP25537 (PAB).
[25] The Tribunal agrees with the Respondent that the determination of incapacity as it pertains to the Appellant is irrelevant as there is no statutory authority to deem the DCCB application to have been received at an earlier date. Even if the Appellant can establish his own incapacity, this would not extend the retroactivity period for the DCCB.
[26] Although it may seem harsh and unreasonable that children are being penalized by the failure of a parent to make an earlier application, the Tribunal (subject to a successful constitutional challenge to the applicable provisions) is bound by the CPP provisions. It is not empowered to exercise any form of equitable power in respect of the appeals coming before it. It is a statutory decision-maker and is required to interpret and apply the provisions as they are set out in the CPP: MSD v Kendall (June 7, 2004), CP 21690 (PAB). The Tribunal has no authority to make exceptions to the provisions of the CPP nor can it render decisions on the basis of fairness, compassion or extenuating circumstances.
[27] Accordingly, the Tribunal finds that the appeal has no reasonable chance of success.
Conclusion
[28] The appeal is summarily dismissed.