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

Decision

[1] Leave to appeal is refused. I see no basis for this appeal to go forward.

Overview

[2] The Claimant’s wife passed away in 2005. When he turned 60 in September 2011, the Claimant became eligible for an Old Age Security (OAS) benefit known as the Allowance for the Survivor (Allowance).

[3] However, it was not until January 2016 that the Claimant applied for the Allowance. The Minister approved the application effective as of February 2015—11 months before the application date, and the maximum period of retroactivity usually allowed under the law.

[4] The Claimant appealed the start date of his Allowance to the Social Security Tribunal’s General Division. He claimed that he had not applied for the Allowance earlier because he had been incapacitated by a brain injury since September 2011.

[5] The General Division held a hearing by videoconference and dismissed the appeal. It found insufficient evidence to show that the Claimant was incapable of forming or expressing an intention to make an application before January 2016. In particular, the General Division found that, although the Claimant had been hospitalized with life-threatening health conditions on several occasions, he had largely recovered from those conditions. The General Division also placed weight on the Claimant’s activities in the period from September 2011 to January 2016.

[6] The Claimant is now requesting permission to appeal from the Appeal Division. He maintains that he was previously incapacitated from applying for the Allowance. He alleges that the General Division was wrong to say that the Minister has no obligation to inform individuals that they may be eligible for government benefits.

Issue

[7] There are four grounds of appeal to the Appeal Division. A claimant must show that the General Division

• proceeded in a way that was unfair;
• acted beyond its powers or refused to exercise those powers;
• interpreted the law incorrectly; or
• based its decision on an important error of fact.^{Footnote 1}

[8] An appeal can proceed only if the Appeal Division first grants leave, or permission, to appeal.^{Footnote 2} At this stage, the Appeal Division must be satisfied that the appeal has a reasonable chance of success.^{Footnote 3} This is a fairly easy test to meet, and it means that a claimant must present at least one arguable case.^{Footnote 4}

[9] I have to decide whether the Claimant has raised an arguable case that falls under one or more of the permitted grounds of appeal.

Analysis

[10] I have reviewed the General Division’s decision, as well as the law and the evidence it used to reach that decision. I have concluded that the Claimant does not have an arguable case.

There is no arguable case that the General Division was wrong about the Minister’s duty to inform

[11] As he did at the General Division, the Claimant argues that the Minister has an obligation to tell people about their potential eligibility for government benefits.

[12] In my view, this argument does not have a reasonable chance of success on appeal.

[13] The law is clear. The Minister is not required to inform any individual of their entitlement to benefits. It is up to claimants to find out about a benefit, to familiarize themselves with the rules governing the benefit, and to apply for it themselves. In its decision, the General Division appropriately relied on this principle and, in support of it, cited a case called Lee v Canada. Although Lee is about Canada Pension Plan benefits, it just as easily applies to OAS benefits:

There is no legal obligation on the part of the Minister to inform all individuals eligible for a benefit of their entitlement to that benefit. The CPP places the onus on an applicant to apply for benefits. The [law] cannot be construed so as to impose a positive obligation upon the Minister regularly to remind benefit recipients of their obligation to inform [the Department of Employment of Social Development] about changes to their status. The Court agrees.^{Footnote 5}

[14] There is no arguable case that the Minister had a duty to inform the Claimant of the Allowance.

There is no arguable case that the General Division ignored or misunderstood key evidence

[15] In its role as finder of fact, the General Division is entitled to some leeway in how it chooses to weigh the evidence. My review of its decision indicates that the General Division meaningfully analyzed the information available to it and came to the defensible conclusion that, more likely than not, the Claimant was capable of forming or expressing an intention to apply for a CPP disability pension between September 2011 and January 2016. In particular, the General Division placed weight on the following factors:

• The Claimant was hospitalized in January 2011 and again in May 2012 for arteriosclerosis, encephalopathy, and sepsis. However, he recovered from these conditions, and there is no evidence that they significantly damaged his mental functioning.
• In March 2011, the Claimant scored 26/30 on a mini-mental state examination. This score shows only mild cognitive impairment.
• The Claimant’s medical records show that he attended appointments by himself and was able to provide histories and make decisions about his health care.
• Although the Claimant provided declarations of incapacity from general practitioners, they contained gaps and inconsistencies that rendered them unreliable.
• The file contained no powers of attorney for personal care or property, suggesting that the Claimant was able to manage his own affairs.
• The Claimant signed applications for various other government benefits after his hospitalizations, including the CPP disability pension (May 2011), the CPP retirement pension (December 2011), and the OAS pension (November 2015).
• The Claimant acknowledged that a major reason for his delay in applying for the Allowance was the fact that he did not know about it.

[16] I see nothing to suggest that, by taking the above factors into account, the General Division misapplied the law or misconstrued the evidence. As the Federal Court of Appeal recently noted:

The case law informs us that the applicable legal test is not whether the applicant has the capacity to make, prepare, process, or complete an application for disability benefits. That is, it does not depend on whether the applicant has the physical capacity to complete the application. Rather, it is whether the applicant has the mental capacity, quite simply, of forming or expressing an intention to make an application. This capacity is the same as forming or expressing an intention to do other things [emphasis added].^{Footnote 6}

[17] The Claimant may not agree with how the General Division weighed the evidence, but that is not one of the grounds of appeal permitted by the law. There is no question that the Claimant has had serious health problems. However, that does not mean that he met the relatively heavy burden of proving that he had no ability to form or express an intention to apply for the Allowance.

Conclusion

[18] The Claimant has not identified any grounds of appeal that would have a reasonable chance of success on appeal. Thus, permission to appeal is refused.