Decision Content
Reasons and decision
Introduction
[1] The Respondent denied the Appellant’s entitlement to the Guaranteed Income Supplement (“GIS”) at the initial level, and denied her entitlement at the reconsideration level on November 1, 2016 (the “Reconsideration Decision”). The Appellant appealed that decision to the Social Security Tribunal (“Tribunal”) on March 21, 2019.
Issue
[2] I must decide whether the appeal was brought to the Tribunal in time.
The law
[3] Under subsection 52(2) of the Department of Employment and Social Development Act (“DESD Act”), an appeal cannot be brought to the General Division of the Tribunal more than one year after the day on which the Respondent’s reconsideration decision was communicated to the Appellant.
Appellant’s submissions/evidence
[4] In her Notice of Appeal, the Appellant said she received the Reconsideration Decision on January 30, 2019. As she filed her appeal on March 21, 2019, she appears to believe that her appeal was not lateFootnote 1.
[5] The Reconsideration Decision said the Appellant was considered to have been in a common-law union since September 2010. However, her GIS from September 2011 until June 2016 had been calculated and paid as if she were a single person. As a result, her GIS had been overpaid by nearly $13,000.00. She would have to repay this amount, and it would be deducted from her future Old Age Security (“OAS”) payments according to a predetermined scheduleFootnote 2.
[6] The Reconsideration Decision acknowledged that the repayment schedule might cause financial hardship for the Appellant. Accordingly, the Reconsideration Decision included a blank “Statement of Income and Expenses” that the Appellant could complete and file. The Respondent would then review that statement to see if the repayment schedule should be adjusted. The Appellant and her common-law spouse completed and signed the Statement of Income and Expenses on November 27, 2016. She then filed it with the Respondent on November 28, 2016Footnote 3.
[7] The Appellant also wrote a letter to the Respondent on November 30, 2016. In that letter, the Appellant said that she had “decided not to fight this anymore and will accept [that] you take $143.25 per month”Footnote 4. In a letter dated December 7, 2016, the Respondent said it had considered the Statement of Income and Expenses but confirmed that the rate of repayment could not be reduced. As a result, the Respondent would continue to apply the original repayment schedule to the Appellant’s monthly OAS benefits until the overpayment was repaidFootnote 5.
[8] There is no record of any further activity until January 25, 2019, when the Appellant called the Respondent to dispute the nature of her relationship with the person previously identified as her common-law spouseFootnote 6.
Analysis
[9] I find that the Reconsideration Decision was communicated to the Appellant on November 11, 2016. The reasons for this are set out in the following two paragraphs.
[10] While the Appellant said she did not receive the Reconsideration Decision until January 30, 2019, this appears to apply to the resending of the Reconsideration Decision in January 2019Footnote 7. However, the evidence shows that she originally received the Reconsideration Decision in November 2016. As noted above, she filed the Statement of Income and Expenses on November 28, 2016. Along with her November 30, 2016, letter stating that she “did not want to fight this anymore”, the Statement of Income and Expenses was clearly prepared and delivered in response to the Reconsideration Decision. Furthermore, her November 30, 2016, letter mentions filing “the information you requested” when she attended a Service Canada Centre on November 28, 2016Footnote 8.
[11] It is unclear when exactly the Appellant received the Reconsideration Decision in November 2016, although she must have received it sometime between November 1 and November 27. However, I take judicial notice of the fact that regular mail within Canada is usually received within 10 days of being sent. As the Reconsideration Decision would have been sent around November 1, 2016, I find that the Appellant received it on November 11, 2016. She therefore had until November 11, 2017, to file an appeal with the Tribunal.
Finding on lateness
[12] I find that the Appellant brought her appeal to the Tribunal more than one year after the Reconsideration Decision was communicated to her. Although the one-year appeal period expired on November 11, 2017, the Appellant did not file her appeal until March 21, 2019. I must apply subsection 52(2) of the DESD Act: this clearly states that an appeal cannot be brought more than one year after the reconsideration decision was communicated to the claimant. The Appellant’s appeal was therefore filed too late.
[13] In making this decision, I considered whether paragraph 3(1)(b) of the Social Security Tribunal Regulations (the “Regulations”) might assist the Appellant. That provision allows the Tribunal to dispense a party from compliance with any provision of the Regulations, if there are “special circumstances”. While that provision might assist a claimant who files an incomplete appeal with the Tribunal prior to the end of the one-year appeal period, it does not help the Appellant in this case.
[14] Simply put, the Appellant did not file any kind of appeal with the Tribunal until March 21, 2019. If that appeal had been incomplete, and if I were satisfied that there were “special circumstances”, I could have used paragraph 3(1)(b) of the Regulations to waive full compliance with the Regulations and preserve March 21, 2019, as the appeal dateFootnote 9. However, the Appellant cannot establish an earlier date on which she appealed to the Tribunal. She took no steps at all towards an appeal until her January 25, 2019, phone call to the Respondent, and the Tribunal was not contacted for roughly another eight weeks after that. Indeed, until January 25, 2019, she appeared to have accepted the Reconsideration Decision that was made more than two years before. I also note that paragraph 3(1)(b) of the Regulations cannot help the Appellant if the non-compliance is with another statute. In this case, her non-compliance was with the DESD Act, because she did not file any kind of appeal before March 21, 2019.
[15] Finally, while I also acknowledge the Appellant’s request to have an appearance before the TribunalFootnote 10, there is no entitlement for a claimant to have a hearing on the issue of the timeliness of her appeal. If her appeal had been filed on time, or an extension had been granted, a hearing might have been appropriate before making a decision on the merits of her appeal. However, her appeal never reached that point.
Conclusion
[16] The appeal to the Tribunal was not brought in time, and therefore will not proceed.