Old Age Security (OAS) and Guaranteed Income Supplement (GIS)

Decision

[1] I am allowing the Claimant’s appeal. This is because the Minister does not have the authority to change the initial decisions under the Old Age Security Act (OAS Act) and the Old Age Security Regulations (OASR). The decisions related to this appeal awarded a 14/40s pension effective September 2006 and Guaranteed Income Supplement (GIS) benefits approved for September 2006 and each year after until May 2011. The Minister did not have the power to revisit and change those decisions.

Overview

[2] The Minister approved the Claimant’s application and awarded a partial OAS pension of 14/40s as of September 2006. The Minister also approved GIS payments beginning September 2006 and for each year after. In June 2011, the Minister suspended both payments. On March 12, 2018, the Minister informed the Claimant of the changes and the resulting debt or overpayment of over $48000. The Minister demanded the Claimant repay the amount identified as an overpayment or the Minister would withhold 100% of all pension payments under the OAS Act and Canada Pension Plan (CPP) until the Claimant repaid the debt.^{Footnote 1}

[3] The Claimant requested the Minister reconsider the March 12, 2018 decision. The Minister confirmed the decision and overpayment on reconsideration. The Claimant appealed the reconsideration decision to the Social Security Tribunal.

Preliminary matters

[4] In September 2020, the Minister requested I delay the appeal. The delay would allow the Minister to finish a different appeal at the General Division (GD) that involved similar issues. I did not agree to the delay. The Minister later requested that I establish a dispute resolution process and assist the parties in discussions about potential settlement. I did not allow that request. I will explain why I did not allow the Minister’s requests.

[5] A brief summary of the steps in this appeal will help explain my preliminary decisions.

[6] The Claimant is self-represented and lives in Greece. He requested the appeal proceed by way of questions and answers. The Minister agreed the appeal could proceed in writing^{Footnote 2}.

[7] I confirmed the form of hearing and sent my questions to the parties. I sent a copy of a recent Appeal Division (AD) decision I will call BR^{Footnote 3}. BR is about whether the law allows the Minister to revisit and change initial decisions about a claimant’s entitlement to benefits. I informed the parties I thought BR might apply to the appeal and requested they make submissions on that issue.

Why I did not delay the appeal

[8] I refused the Minister’s request to delay the appeal to wait for the outcome of another appeal at the GD. This was because it was not reasonable or in the interests of justice to delay the appeal.

[9] A Tribunal Member is not required to follow other GD decisions or decide appeals in the same way as other Tribunal Members. There are numerous GD and AD decisions on the issue of the Minister’s authority to revisit and change decisions under the OAS Act and OASR. There are also several other ongoing appeals involving this same issue. The Minister did not explain why it was important to obtain a decision in a specific appeal before concluding this one. It was not reasonable to delay the appeal because a future GD decision, even one that deals with the same question, is not binding on my decision.

[10] The Minister filed written submissions on October 1, 2019; October 7, 2020; and December 9, 2020. The Minister filed evidence and argument about the question of the Minister’s authority to revisit and change previous decisions.

[11] The Claimant was not able to meet the first filing deadline because of Covid19 restrictions. On October 26, 2020, he responded to the questions and explained his position on the facts of the appeal^{Footnote 4}. He said he was not able to make submissions about the law. He did not address the Minister’s authority to change the initial decisions on his eligibility.

Why I did not agree to set up a dispute resolution process or settlement conference

[12] On November 22, 2020, the Claimant sent a letter to the Tribunal that was addressed to the Minister’s representative. It appeared the Minister might have written to the Claimant about a new or different decision related to his Canada Pension Plan (CPP) benefit and possibly his OAS pension. Because the Minister is a party to the appeal, the Tribunal sent a copy of the letter to the Minister. That is the usual practice.

[13] On December 11, 2020, the Minister asked me to set up a formal dispute resolution process and assist the parties as they discuss the Claimant’s November 22, 2020 letter.

[14] The law allows me to request the parties to participate in a dispute resolution process^{Footnote 5}. I may also hold a settlement conference with the parties^{Footnote 6}. However, I am not required to establish a dispute resolution process or hold a settlement conference even if a party requests it. The purpose of both processes is to encourage or assist the parties to resolve an appeal or some part of it. They are valuable steps in an appeal that can be very effective. They can promote the interests of justice. I do not refuse the Minister’s request lightly. However, considering the issues and the parties in this appeal, another delay to encourage settlement discussion would not serve the interests of justice.

[15] I am not satisfied the Claimant could fully participate in discussions about any offer the Minister may make. This is partly because he is self-represented and he has clearly stated in his submissions that he cannot discuss or judge the law that applies to his appeal.^{Footnote 7}

[16] As well, the Claimant said he prefers to participate in writing. This is the Claimant’s choice. It would take weeks, if not more, to contact him to encourage him to participate in a conference about a potential settlement. I do not know all of the factors that contributed to the Claimant’s choice about the form of hearing. I cannot predict if he is even capable of participating in a teleconference or videoconference. This could cause significant delay and, as I said previously I do not consider it to be in the interests of justice to delay the appeal further.

[17] Finally, I sent written question on August 13, 2020 with a deadline of October 7, 2020.^{Footnote 8} The Claimant and the Minister filed submissions and evidence over the following months. I considered the responses and was ready to issue my decision when I received the Minister’s request to delay the appeal and establish a dispute resolution process. As the Tribunal Member assigned to the hear the appeal, once a hearing takes place I must issue my decision without delay. I had already weighed the facts and considered the submissions of the parties when I received the Minister’s request for a settlement conference. Had the Minister made the request earlier in the appeal process before I had reviewed and considered all of the submissions and evidence, I might have proceeded differently. Instead, in the interest of fairness and natural justice I have decided to proceed without further delay.

Issue

[18] Did the Minister have the authority to re-assess the Claimant’s eligibility to an OAS partial pension of 14/40s and to a GIS benefit for September 2006 to May 2011?

[19] If the Minister has the authority to reassess eligibility, I would also have to decide if the Minister’s reconsideration decision, confirming the March 12, 2018 decision was correct. The Minister’s submissions included significant information about the Claimant’s personal circumstances and the facts that led to the Minister’s decision to revisit and change the earlier decisions. Given my decision on the first issue, it is not necessary for me to review the Minister’s reasons for changing the decisions.

I may consider issues not raised by the parties

[20] Neither party raised the issue of the Minister’s authority to revisit and change a previous decision. As I noted above I raised the question when I sent the Notice of Hearing.^{Footnote 9} The Minister made detailed submissions on the issue and the Claimant said he is not able to judge the law. The Minister argued that raising the question of the Minister’s authority was contrary to the principles of natural justice and I risked prejudicing the parties.

[21] I identified the issue and invited submissions because there are have been several recent decisions addressing the Minister’s authority to revisit and change previous decisions. BR was the first and not all subsequent decisions agree completely with the analysis in BR. I felt the issues in BR were similar to this appeal and the decision could apply.

[22] The GD is not required to question the validity of the Minister’s powers in all appeals, particularly when no party raised any issues with those powers. While I may not be obliged to raise this question in every appeal, it does not mean I should not raise it when I question it. The question of the Minister’s powers in appeals under the OAS Act is important. The question of the Minister’s jurisdiction to reopen previous decisions has already been analyzed in appeals under the OAS Act and OASR. The Tribunal has discretion to raise such issues^{Footnote 10} “when failing to do so would risk an injustice.”^{Footnote 11}

[23] In this appeal, it would be an injustice not to raise this as an issue. Since the principle of law discussed in BR could affect the outcome of this appeal, I must give the parties a full opportunity to address it. Parties may not have ready access to decisions especially new or unpublished decisions from the Tribunal. To ensure fairness I advised both parties that I am aware of BR and may apply similar principles to this appeal. I gave the parties full opportunity to make written or oral submissions.

[24] I recognize that the Tribunal should not build a party’s case, but if there is a fundamental question such as jurisdiction, the parties should be informed and have the opportunity to address the question. Following the directions of the Federal Court, I gave notice to the parties and the opportunity to respond.^{Footnote 12}

Analysis

[20] The Minister assessed the Claimant’s entitlement to an OAS Pension and GIS and paid him benefits beginning September 2006. For the reasons that follow, I find the Minister may not change the decisions and recover benefits paid for that period.

I. According to the Minister:

a) The Minister submits there is legal authority to reassess earlier decisions.

[21] The Minister acknowledged a Tribunal Member is not bound to follow other Tribunal decisions but should try to follow them unless they are flawed^{Footnote 13}. The Minister submits there is a GD decision that I should follow. I will refer to it as RS^{Footnote 14}. The Minister also submits I should not follow BR because it is flawed. In RS, the GD concluded the claimant was not entitled to benefits when the Minister made the first decision. Therefore, the later reassessment was necessary to achieve the purpose of the legislation because only eligible claimants may receive benefits.

[22] Briefly, RS concluded that the Minister could, after approving a benefit application, reassess eligibility later. Payments to an ineligible recipient could be stopped, and an overpayment could be established. There was no need to prove fraud or misleading statements. RS said these powers existed even if newly discovered facts were discoverable at the time of the initial eligibility decision.

[23] In contrast to BR, RS suggests powers under the OASR are “necessary” as they balance the need to avoid undue delay in processing applications with the need to protect the public purse and deny payments to unentitled applicants. RS suggests that exhaustive scrutiny of each application (if they could not be reassessed later) would be unconscionable because it would cause significant delays for pensioners.^{Footnote 15}

[24] I do not agree with RS that being more meticulous at the initial assessment stage would be considered “unconscionable”. It would seem that the majority of OAS applications would be from pensioners whose residence history is not realistically in question. For those few applications (such as the one before me in this appeal) where the residence history is complex, I think it would be considered “reasonable” (rather than “unconscionable”) for the Minister to take some time to investigate further. As BR found and I agree, it appears to be more unconscionable to pay a monthly pension for years before suddenly suspending payment and ultimately determining that a senior citizen must reimburse hundreds of thousands of dollars. This would be particularly unconscionable in the case of low-income seniors.

[25] I also do not think the description in RS of the decision in BR is entirely accurate. Contrary to what appears in the RS analysis^{Footnote 16}, BR does not say that eligibility can never be reassessed once it has been granted. BR acknowledges that ongoing eligibility may be reassessed.^{Footnote 17} BR further suggests that the Minister could essentially reassess initial eligibility and compel repayment in the case of fraud, by levying an administrative penalty or prosecuting the recipient for a summary conviction offence.^{Footnote 18} BR also does not rule out the possibility that the Minister could suspend payment and recover any amounts paid in error, on the basis that the recipient failed to comply with their statutory obligations.^{Footnote 19} These inaccuracies in RS are important, because they undermine the purported urgency to uphold a long-established practice the Minister uses and one that I find the law does not permit.

[26] RS goes on to suggest that ordering repayment of benefits is ultimately not problematic because the Minister has discretionary power to remit some or the entire overpayment amount. This power can be exercised in a number of listed situations, but the only relevant ones in this context would be: (1) repayment would cause undue hardship to the debtor; and (2) the amount or excess of the benefit payment is the result of erroneous advice or administrative error by the Minister.^{Footnote 20}

[27] I do not agree with this argument. It suggests pensioners should not be distressed by an overpayment, because the Minister might ultimately decide not to pursue repayment. This is, at best, faint comfort to a recipient. The Claimant for example is in the process of repaying more than $48000. I cannot agree that the potential availability of a discretionary remedy (to reduce the overpayment) compensates for the lack of authority to impose the overpayment requirement in the first place.

b) Expert opinion describes the purpose of the OAS Act and Regulations. The Expert supports the Minister’s authority to revisit previous decisions. She submits the ability to revisit earlier decisions is necessary to allow the Minister to process applications for benefits quickly.

[28] The Minister filed a report called “Expert Report on Section 23 of the Old Age Security Regulations”^{Footnote 21} prepared by Elizabeth Charron, Senior legislation Officer, Old Age Security Policy and Legislation, Employment and Social Development Canada. The Minister requested Ms. Charron be qualified as an expert on the history and evolution of the OAS Act and OASR. She is a senior employee of the Ministry who interprets and analyses legislation^{Footnote 22}. I find Ms. Charron’s experience makes her qualified to give expert testimony on the history and evolution of the OAS Act and OASR. However, I do not find her experience and education make her an expert in the law including legislative interpretation. Therefore, when Ms. Charron draws conclusions about how to interpret the law and whether the Minister has certain authority under the law I will consider her comments the same as the Minister’s submission or argument and not expert opinion on legal interpretation.^{Footnote 23}

[29] Ms. Charron wrote the Minister uses a “risk-based” approach when processing applications for benefits. She said that approach is based on the premise the Minister will be able to go back later to revisit and confirm eligibility. She also refers to a rule that no pension is payable unless an applicant is eligible. I take her explanation to submit the Minister can choose to process claims without first determining eligibility because the Minister believes the eligibility can be reassessed at any time. This explanation attempts to justify the Minister’s processes but does not describe clear legislative authority to create and follow the process to revisit and change eligibility decisions in all cases.^{Footnote 24} Moreover, it is inconsistent with the submission that the Minister may not pay benefits to people who are not eligible.

[30] Ms. Charron discusses the provision that no pension is payable to any person who is not eligible^{Footnote 25}. To determine eligibility the Minister often requires additional information and has the authority to request additional information and investigate whether a beneficiary is eligible. She suggests there must be a balance between paying benefits in a timely manner and investigating eligibility. She says the Minister’s authority to investigate and suspend benefits is necessary to ensure only those who are eligible receive benefits. She then says debt is “simply a by-product of the decision” and the Minister has the authority to recover debt.^{Footnote 26}

[31] Ms. Charron does not refer to evidence or law that would persuade me that the legislation or regulations give the Minister the authority to revisit and change the decisions to award benefits to the Claimant. Her opinion is that the legislation does not allow the Minister to pay benefits to ineligible people. This statement conflicts with her statement that the Minister must be able to pay benefits to applicants (apparently without confirming eligibility) and go back later to change decisions where they paid benefits to ineligible applicants.

[32] Ms. Charron states the law does not allow an applicant to receive a benefit unless the applicant is eligible. She then argues the purpose of the law also authorizes the Minister to make decisions quickly without first determining eligibility. She says the Minister must be able to pay benefits and then, even years later review the application to determine eligibility and confirm the decisions were actually lawful. As I explain below, I do not agree this interpretation of the law is correct or applies to the Claimant’s appeal.

II. Why I decided the Minister does not have the authority to revisit and change earlier decisions

a) The law does not give the Minister clear authority to change a previous decision

[33] The OAS Act and OASR apply to the GIS as well as the OAS pension. I do not find authority in either document for the Minister to revisit and change an initial decision on the Claimant’s eligibility for the GIS.

[34] BR involved a claimant whose application for OAS benefits was approved. The Minister then reversed its position and stated that the claimant was not entitled to two years of benefits to which he had been found entitled in the initial eligibility decision. The Minister demanded repayment of the two years of benefits.

[35] In considering the appeal in BR, the AD member conducted a careful review of the law.^{Footnote 27} He concluded that the OAS Act did not give the Minister authority to revisit a claimant’s initial eligibility once the Minister approved an OAS application. As I stated earlier, AD decisions are not binding on me but I may adopt the reasoning used in similar appeals. I find the analysis and reasoning in BR also applies to this appeal and, in particular the following conclusions:

1. As social welfare legislation, the OAS regime should be interpreted liberally.^{Footnote 28}
2. “The law favours finality, and pensioners legitimately expect that they can rely on the Minister’s eligibility decision.” If the Minister had the power to revisit the initial eligibility decision, it was reasonable to expect clear statutory language to that effect. Such clear statutory language, which is found in other benefits-conferring legislation, is absent from the provisions of the OAS Act and Regulations.^{Footnote 29}
3. For example, the OAS Act does not give the Minister the authority to rescind or amend an initial eligibility decision based on “new facts” (facts that could not have been discovered at the time the Minister made the initial eligibility decision).^{Footnote 30}
4. The OAS Act does not give the Governor in Council the authority to create regulations that would allow the Minister to change previous eligibility decisions.^{Footnote 31}
5. In cases of fraud, the Minister’s remedy is to pursue summary conviction or assess a financial penalty.^{Footnote 32}
6. The Act allows for the possibility that a pensioner’s eligibility for OAS or GIS benefits, or the amount of their benefits, might change over time.^{Footnote 33}

b) The authority to investigate does not give authority to reassess

[25] The OASR authorize the Minister to, at any time before or after the approval of an application, require the applicant to make available, or allow to be made available, further information regarding the eligibility of the applicant. The Minister may also, at any time, investigate the eligibility of a person to receive a benefit.^{Footnote 34}

[26] The fact Parliament gave the Minister broad powers to investigate, does not also give the authority to change an initial eligibility decision. Clear statutory language is necessary for the Minister to have that power. Investigatory powers are not powers to reassess. There are many reasons why the Minister may need such broad powers of investigation. These include:

1. determining whether a beneficiary continues to be entitled to a benefit,^{Footnote 35}
2. determining whether payment should be suspended,^{Footnote 36}
3. determining whether a beneficiary has received a payment, or excess payment, to which they were not entitled,^{Footnote 37} and
4. determining whether a penalty should be imposed on a person who knowing made a false or misleading statement in their application.^{Footnote 38}

c) Reassessment without authority causes significant unfairness

[27] BR refers to the “significant unfairness and tremendous stress” that pensioners experience because of ministerial reassessments of entitlements under the OAS Act and OASR. Ministerial requests for repayment – sometimes occurring years after the initial decision – can result in pensioners being liable to reimburse overpayments of $100,000 or more.^{Footnote 39} It is not difficult to appreciate the significant unfairness or tremendous stress the Claimant experienced when he learned of the Minister’s decision that created an unexpected and extraordinary debt of approximately $48,000.

d) Evidence does not show fraud or intentional misrepresentation

[28] The Minister did not make or pursue allegations of fraud against the Claimant. In addition, I find information in the file fails to prove the Claimant knowingly misrepresented his evidence with the Minister. Considering the passage of time and the potentially complicated rules and forms, it is not reasonable or fair to expect him to challenge the Minister’s decisions some 12 years after his applications were approved.

[29] BR spoke of cases where there may be alleged fraud or where a claimant knowingly gives false information or misleads the Minister. The Minister may have some recourse in cases such as those but that does not apply in this appeal. The Minister did not submit evidence that the Claimant knowingly gave false or misleading information. The Minister could have pursued a claim that the Claimant knowingly gave false or misleading information. There is authority for the Minister to pursue a remedy under the OAS Act.^{Footnote 40}

e) The Claimant was entitled to the GIS when the Minister approved his applications

[31] The Minister has the authority to recover payment when the amount paid was incorrectly calculated or where the beneficiaries received payments after they are no longer entitled to benefits.^{Footnote 41}

[32] There is no evidence the Minister calculated the pension or GIS incorrectly. The Claimant was entitled to receive the benefits once the Minister approved his application. This is true even if the Minister felt the initial approval was, with the benefit of hindsight, mistaken. This does not mean that the Minister can subsequently change the decision and recover payments from past years.

[33] The fact that the Minister may reassess entitlement to GIS benefits each year does not mean the Claimant’s entitlement for previous years remains open for review and change. When the Minister makes a decision about entitlement for a particular year it is final. The Minister can review the Claimant’s information to determine entitlement for the next or subsequent period but the previous period or periods are final unless they are appealed or otherwise changed within the authority of the law.

[34] As discussed in BR, the law favours finality. It is not fair to allow a pensioner’s monthly income to be so uncertain. Pensioners could not rely on a monthly pension even after the Minister approves and pays it. Unexpectedly, they can find themselves in significant debt and their monthly pensions reduced for years while the Minister recovers the “debt”.

[35] One would expect clear authority in the legislation to allow the Minister to revisit and change eligibility decisions. The law does not give clear authority for the Minister to change initial decisions even though the Minister may investigate entitlement to ongoing benefits. I do not suggest the Minister cannot decide entitlement to ongoing GIS benefits or take other action when a claimant knowingly makes false or misleading statements. Those circumstances do not exist in this appeal. The Minister did not have the authority to reassess and change previous decisions about the Claimant’s eligibility to the OAS partial pension of 14/40s effective September 2006 or a GIS from September 2006 to May 2011.

Conclusion

[36] The appeal is allowed.