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Reasons and decision
Decision
Leave to appeal is granted.
Introduction
[1] The Applicant’s son and representative (Representative) seeks leave to appeal the decision of the General Division of the Social Security Tribunal dated August 25, 2015. The General Division had earlier conducted a hearing by teleconference and determined that the Applicant was not entitled to receive retroactive Guaranteed Income Supplement (GIS) payments beyond those already paid by the Respondent.
[2] On November 27, 2015, within the specified time limitation, the Representative submitted to the Appeal Division an application requesting leave to appeal detailing alleged grounds for appeal. For this application to succeed, I must be satisfied that the appeal has a reasonable chance of success.
Overview
[3] The Applicant was born in June 1927. Her application for an Old Age Security (OAS) pension was approved effective July 1992, and she was subsequently also approved for the GIS. On April 27, 2004, the Respondent suspended the Applicant’s OAS and related benefits because it was unable to locate her. On November 16, 2004, the Respondent sent a letter to the Representative asking for his assistance in locating his mother. On December 6, 2004, the Representative advised the Respondent by telephone that he held power of attorney (POA) over his mother’s affairs and he would be forwarding documentation shortly. However, he did not provide a POA until July 29, 2011, at which time he advised the Respondent that his mother had lost her capacity to deal with administrative and monetary issues and was living in a private care home in Alberta. On October 26, 2011, the Representative submitted five GIS applications covering the payment periods from 2007-08 to 2011-12.
[4] On December 8, 2011, the Respondent wrote to the Representative and advised him that his mother’s OAS pension had been reinstated effective April 2004 and, as a result, she would be receiving missed payments retroactive to that date. It also advised the Representative that his GIS applications for the latter two income years (i.e. 2010-11 and 2011-12) 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. 2007-08, 2008-09 and 2009-10) were denied because the payment periods to which they applied were more than 11 months prior to the receipt of the applications.
[5] In a letter dated January 6, 2012, the Representative asked the Respondent for reconsideration. On June 20, 2012, the Respondent maintained its decision, explaining that, while it understood the Applicant could not look after her own affairs, her incapacity was no longer relevant as a result of her son having POA. It was his responsibility to manage his mother’s benefits on her behalf.
[6] On October 9, 2012, the Representative appealed this decision to the General Division, arguing that his mother had lacked capacity since 2003, and was unable to know that her OAS- GIS payments had been suspended.
[7] In its decision of August 25, 2015, the General Division dismissed the appeal, finding that the Respondent correctly reinstated the Applicant’s GIS as of November 2010, in accordance with paragraph 11(7)(a) of the Old Age Security Act (OASA). The General Division also found insufficient evidence to establish, on a balance of probabilities, that the test for incapacity was met.
The law
OASA
[8] Subsection 11(2) of the OASA 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.
[9] Once a person meets the eligibility requirements for the OAS pension and GIS, there are rules governing payment of the benefits. According to subsection 8(2) of the OASA, and paragraph 5(2)(a) of the OAS Regulations, the maximum retroactivity of OAS pension payments is 11 months before the month the Respondent received the OAS pension application. According to paragraph 11(7)(a) of the OASA, the maximum retroactivity of GIS payments is 11 months before the month the Respondent received the GIS application. According to paragraph 11(7)(b) of the OASA, no GIS may be paid to a pensioner for any month for which no OAS pension was payable to the pensioner.
[10] Section 28.1 of the OASA provides an exception to the maximum retroactivity rules respecting payment of benefits under the OASA. 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. Subsections 28.1(1) to (3) set out the requirements for incapacity:
(1) 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 had been 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[…]
(3) For the purposes of subsections (1) and (2), a period of incapacity must be a continuous period except as otherwise prescribed.
DESDA
[11] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), an appeal to the Appeal Division may be brought only if leave to appeal is granted and the Appeal Division must either grant or refuse leave to appeal.
[12] Subsection 58(2) of the DESDA provides that leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.
[13] According to subsection 58(1) of the DESDA the only grounds of appeal are the following:
- (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) The General Division based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.
[14] Some arguable ground upon which the proposed appeal might succeed is needed for leave to be granted: Kerth v. Canada.Footnote 1 The Federal Court of Appeal has determined that an arguable case at law is akin to determining whether legally an appeal has a reasonable chance of success: Fancy v. Canada.Footnote 2
[15] A leave to appeal proceeding is a preliminary step to a hearing on the merits. It is a first hurdle for an applicant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave stage, the applicant does not have to prove the case.
Issue
[16] Does the appeal have a reasonable chance of success?
Submissions
[17] In his application requesting leave to appeal, the Representative alleged that the General Division erred in rendering its decision as follows:
Erroneous Findings of Fact
(a) The Declaration of Incapacity from the Applicant’s medical practitioner directly addressed the General Division’s concerns about her capacity to form or express an intention to make a timely GIS benefit application, as mentioned in paragraphs 30-33 of the decision.
(b) In paragraph 32 of its decision, the General Division wrote:
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, presumable 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.
The Representative maintains that this does not accurately reflect what he described “in a general way” during the hearing. In fact, it was not the Applicant alone, but the Applicant and family care worker searching together at the Representative’s request, who located the POA document. The audit requirement did not occur until later, in August 2013. The document’s retrieval did not demonstrate cognitive functioning as inferred by the General Division. Furthermore, once retrieved, the Applicant did not send the document to the Representative, as she was incapable of such an activity.
(c) Paragraph 32 does not reflect the real world operation of the Applicant’s care home:
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 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.
The procedures and policies of the care home did in fact require the POA document to be held on file. The reason it was not initially demanded on admittance was simply due to an oversight on the part of the operator and was only discovered later by an audit by Alberta Health. The operator at that time was not experienced in some of the formal documentation requirements of the program, but corrected the deficiency shortly after it was identified in 2013.
(d) Paragraph 32 does not accurately reflect how the Applicant’s financial matters have been managed:
Finally, the fact that the Appellant’s representative was not aware until sometime in early-to-mid 2011 that the Appellant’s benefits had not been reinstated is indicative of the Appellant not relying on her POA to manage her financial affairs.
The Representative contends that the Applicant’s financial affairs are, in reality, straightforward, with regular automatic deposits and bill payments. Exceptions to this pattern were handled with the support of local family members, trusted friends and the registered care workers. That her POA may not have been involved does not indicate a higher level of the Applicant’s cognitive function as implied by the General Division comments; rather it demonstrates the consistently high level of trustworthy support and attention to detail from those helping her.
Error in Law
(e) Following an extensive investigation, the Respondent conceded the Applicant’s incapacity, a fact that was acknowledged by the General Division at paragraph 19 of its decision. This is also consistent with the evidence, including the Declaration of Incapacity that the Applicant could not have formed or expressed an intention to make an application. As neither side is contesting this issue, it should not be used to justify denying the Applicant her benefits.
Failure of Natural Justice
(f) The Representative submits that this is a case of repeated failures of various government entities over more than a decade, resulting in the denial of the GIS to his mother, who through no fault of her own had lost capacity and was incapable of forming or expressing intent to claim her benefits. When the Representative tried to reason with officials at the X OAS office, both tried to justify the denial of payment by blaming the Representative, claiming that it was his responsibility to look after his mother’s welfare. In doing so, they refused to accept responsibility for failing to contact the Applicant, despite having all necessary information to do so, and to acknowledge errors in record-keeping that led them to not follow up with the Representative. Although the General Division explicitly rejected the Respondent’s reasoning on this issue (in paragraph 29), it dismissed the appeal primarily because an obsolete form was supplied by Service Canada (in paragraph 30). This occurred despite the Representative’s reasonable diligence—when he expressed concern that the form was not what he requested, Service Canada nevertheless assured him that it was the correct form to use.
Analysis
Declaration of Incapacity
[18] The Representative’s grounds of appeal revolve around two forms that originated with the Respondent and which were both completed by Dr. Eugene Cahill, a general practitioner who assessed the Applicant: A Certificate of Incapability dated June 15, 2015, and a Declaration of Incapacity dated November 13, 2015. As indicated in its decision, the General Division expressed concern about the absence of medical reports in support of the incapacity argument at the oral hearing of May 28, 2015 and provided the Representative with an opportunity to solicit further evidence, specifically suggesting that he obtain a Declaration of Incapacity. Within 30 days, the Representative submitted a Certificate of Incapability and the General Division proceeded to render its decision, which dismissed the appeal in part because the “wrong” form was used. After the General Division’s decision was issued, the Representative made twin applications—one to the General Division to rescind or amend its decision based on new facts and the other to the Appeal Division to request leave to appeal.
[19] My authority as a member of the Appeal Division permits me to determine only whether any of the Applicant’s reasons for appealing fall within the specified grounds of subsection 58(1) and whether any of them have a reasonable chance of success. While the Representative submits that the Declaration of Incapacity directly addressed the General Division’s concerns about his mother’s capacity “to form or express an intention” to make a GIS application, it is nevertheless a fact that it was not prepared and submitted until after the decision was issued. The General Division cannot be faulted for having failed to consider evidence that was not before it because it did not yet exist.
[20] That said, I see at least an arguable case that the General Division may have breached a principle of natural justice in advising the Representative to seek specific post-evidence hearing evidence.
[21] As the Representative explained at the hearing, he was led to believe by the Respondent’s letter of June 20, 2012 that it conceded his mother was incapacitated, so he did not feel it necessary to solicit medical evidence. The General Division acknowledged this point but rejected the Respondent’s argument that, because it was the Representative’s duty as her attorney to manage her affairs, it owed the Applicant no additional retroactive GIS. The General Division found that the Applicant’s actual capacity, irrespective of whether she had given POA, was the real issue and gave the Representative an opportunity to supplement the record. However, it also indicated that it had a very specific notion of what constituted evidence of incapacity for the purpose of section 28.1:
[4] … 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.
[30] … 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.
[22] While the General Division was careful to note that an “absence of a Declaration of Incapacity form in and of itself does not preclude a finding of incapacity,” it is clear from its decision that the Representative’s failure to submit the “correct” form heavily prejudiced his mother’s case:
[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.
[23] Here, the General Division appeared to be suggesting that any medical evidence that did not mirror the wording of section 28.1 would be worthy of little or no weight. A trier of fact is entitled to assess evidence as it sees fit, but an argument can be made that once the General Division let it be known it was expecting to see a specific form, it held itself to a higher duty of fairness. When it received the “wrong” form, should it have asked the Representative for an explanation or even given him more time to get the “right” form? I see an arguable case that it should have, particularly since the Respondent has created two forms that have very similar titles with what appears to be similar purposes. As well, there is an indication that the Representative, who likely does not have a sophisticated understanding of the various tests for incapacity, may have been misdirected by the Respondent’s staff.
Search for POA
[24] The General Division also based its decision, in part, on findings that the Applicant exhibited some cognitive functioning during the relevant period. It noted that the Applicant managed for several years without her POA and also conducted a successful search for it when it was needed. The Representative alleged that the General Division mischaracterized what had actually occurred at the care home and what he said at the hearing.
[25] I have not yet listened to the audio recording of the hearing but, in my view, the Representative has a reasonable chance of success on this ground should it indicate that the General Division’s decision misrepresented his submissions about the Applicant’s incapacity.
Conclusion
[26] Leave to appeal is allowed. I invite the parties to provide submissions on whether a further hearing is required and, if so, what type of hearing is appropriate.
[27] In his request for leave, the Representative alleged that the Respondent did not forward him the correct form and later assured him it was appropriate for his mother’s appeal despite his expressed concern that it did not appear to be. I would be interested in hearing submissions from the parties on the following questions:
- What is the purpose of the Certificate of Incapability? Is it still in use?
- From what source did the Representative obtain the Certificate of Incapability? Did he download it from Service Canada’s website or did its staff forward him a hard copy by mail?
- What, if any, guidance was given to the Representative about the purpose and use of the Certificate of Incapability? Was he advised of the existence of the Declaration of Incapacity? If so, what was he told about it?
[28] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.