Appeal

Overview

A person who is dissatisfied with the outcome of a request for reconsideration may appeal directly to the Employment and Assistance Appeal Tribunal.

The Tribunal is an independent, arms-length body that is responsible for the overall management and operation of the appeal process. An appeal panel of the Tribunal will decide whether the ministry reasonably applied the legislation, or whether the ministry decision was reasonably supported by the evidence submitted.

Policy

Effective: October 1, 2005

For details about the appeal process, see the Reconsideration and Appeal brochure. [see Additional Resources]

The ministry prominently displays pamphlets, posters, and information about the rights of appeal in the reception area of each Employment and Assistance Office.

A copy of the Employment and Assistance Appeal Tribunal's brochure, which provides information about appeal rights, must also be provided with any reconsideration decision that denies a person's request.

Effective: June 1, 2010

A person who is dissatisfied with the outcome of a request for reconsideration may appeal to the Employment and Assistance Appeal Tribunal. [For more information on reconsideration decisions, see Related Links – Reconsideration.]

An appeal panel of the Tribunal has jurisdiction to determine appealability.

The following categories of supplements may not be appealed to the Tribunal:

  • reconsideration and appeal supplement [see Policy – Appeal Supplement or Related Links – Reconsideration – Policy – Reconsideration Supplement; see EA Regulation, section 54, or EAPWD Regulation, section 52]

  • supplements related to Employment Plans [see Related Links – Employment Plan; see EA Regulation, section 56, or EAPWD Regulation, section 54]    

  • access to a program established or funded under the Employment and Assistance Act  or the Employment and Assistance for Persons with Disabilities Act

  • confirmed job supplement [see Related Links – Confirmed Job Supplement; see EA Act, see EA Regulation, section 56.1, or EAPWD Regulation section 54.1]

  • repayable warrant supplement due to hardship [see Related Links – Warrants; see EA Act or EAPWD Act, see EA Regulation, section 77.4, or EAPWD Regulation section 70.3]

  • repayable warrant transportation supplement [see Related Links – Warrants; see EA Act or EAPWD Act, see EA Regulation, section 77.5, or EAPWD Regulation section 70.4]

Persons may not appeal a decision to refuse to provide income assistance, disability assistance, hardship assistance, or a supplement, when they are awaiting reconsideration or the decision of the appeal panel on an earlier request for reconsideration or an appeal they brought on the same matter.

The right of appeal is subject to the time limits and other requirements set out in the Employment and Assistance Act and the Employment and Assistance for Persons with Disabilities Act and the regulations under the acts.

The decision of the majority of the appeal panel is deemed to be the decision of the Tribunal, but the decision of the chair of the panel governs in the case of a tie. The Tribunal decision is final. Tribunal decisions may be appealed through the courts (judicial review), but the courts will consider the Tribunal to be an expert Tribunal in relation to all matters over which it has exclusive jurisdiction.

Employment Plans

A client can request reconsideration and appeal of a decision that concerns the discontinuance of assistance due to non-compliance with a condition of an Employment Plan.  However, a decision relating to any of the following is final and may not be appealed or reviewed by a court on any ground:

  • requiring a person to enter into an Employment Plan

  • amending, suspending, or cancelling an Employment Plan

  • specifying the conditions of an Employment Plan

[For more information, see Related Links – Employment Plan.]

Overpayments

If income assistance, disability assistance, hardship assistance or a supplement is provided to or for a family unit that is not eligible for it, recipients who are members of the family unit during the period for which the overpayment is provided must repay to the government the amount or value of the overpayment provided for that period. The decision about the amount a person is liable to repay may not be appealed.

No Change of Circumstances

If a person reapplies for income assistance, disability assistance, hardship assistance, or a supplement and a right of appeal has been exercised after the eligibility of the person’s family unit has been determined and the Tribunal’s decision on the appeal has been implemented, no right of appeal exists for a second or a subsequent application unless the circumstances relating to the determination of the eligibility have changed.

Effective: July 29, 2013

[see also Related Links – Reconsideration – Policy – Reconsideration Supplement.]

[Section 54 of the Employment and Assistance Regulation and section 52 of the Employment and Assistance for Persons with Disabilities Regulation reference the “Reconsideration or Appeal Supplement.” In addition to the supplement’s full name, for the purposes of this topic, the term “appeal supplement” is referenced to reflect the stage the client is at in the reconsideration and appeal process at the time the supplement has been requested.]

An appeal supplement may be provided to or for a family unit that is eligible for income assistance or disability assistance if a recipient in the family unit delivers a Notice of Appeal to the Employment and Assistance Appeal Tribunal (EAAT001) to either the Tribunal office or an Employment and Assistance Office relating to a reconsideration decision that resulted in discontinuation or reduction of income assistance, disability assistance, or a supplement.

The appeal supplement, as applicable, is limited to the amount of the discontinued income or disability assistance or supplement, or the amount reduced in respect of income or disability assistance or a supplement. (The intention of the supplement is to continue the level of income or disability assistance or supplement that existed prior to discontinuation or reduction, and not place the client in a better or worse position. In addition, all rules of eligibility apply to provision of the supplement, and the supplement may be reduced or discontinued as appropriate if affected by factors that may not be related to the original reason for discontinuation or reduction.)

To be eligible to receive the supplement, the recipient must agree in writing to repay the amount paid if the Tribunal’s final decision denies the recipient’s request. In the case of a couple, both the key player and spouse must sign the Promise to Repay - Benefit While Awaiting Reconsideration/Appeal Decision form (HR2737). However, if circumstances beyond the control of either recipient prevent both from signing the HR2737, the supplement may be issued on the basis of a single signature from either the key player or spouse. [For more information see Procedures – Appeal Supplement.] If the final decision approves the recipient’s request, the appeal supplement received during the appeal period does not have to be repaid as the amount received is considered to have been paid in place of income or disability assistance or a supplement.  (The Tribunal will make the final decision—to either confirm or rescind the ministry decision.)

[For more information on Promise to Repay, see Related Links – Recoveries – Policy – Promise to Repay – Recovery of Repayable Benefits at a Future Date.]

The appeal supplement may be provided for the shorter of the following:
 

  • the period between the date that the EAAT001 is delivered and the date that the appeal is determined, and
  • the period between the date that the income assistance, disability assistance, or supplement was reduced or discontinued and the date that the appeal is determined

An appeal is determined either:
 

  • when the Tribunal has made a decision on the appeal, if the decision can be implemented without a further decision on the amount, or
  • if the Tribunal’s decision requires a further decision on the amount, when the amount has been decided

If the determination of the appeal rescinds the decision being appealed and did not require a further decision on the amount, the amount of the appeal supplement does not have to be repaid and must be considered to have been paid in place of either of the following:
 

  • the discontinued income or disability assistance or supplement, or
  • the amount by which the income or disability assistance or supplement was reduced

If the determination of the appeal rescinds the decision being appealed and did require a further decision on the amount, the recipient must repay the difference between the following: 
 

  • the total amount of appeal supplement paid to the recipient, and
  • the total amount of any adjustment in favour of the recipient for the same period in which the total amount of the appeal supplement was paid.

Effective: October 1, 2005

The duty to act fairly is the most basic component of administrative law. For the appeal process to meet the principles of fairness, it is essential that:
 

  • both parties (the ministry and the appellant) have the same information available to them about the case being appealed
  • both parties have the opportunity to present their case and hear the case against them
  • the person deciding the matter is not a party to the original decision being appealed
  • the person hearing the case must be impartial and independent of the outcome
  • clients are informed of all reasons a decision was made
  • clients are informed of their right to have their case heard

Effective: November 9, 2012

A client will receive the Employment and Assistance Reconsideration Decision (HR0101) along with a package containing copies of all other submissions, information, and records that were before the ministry when the decision being reconsidered was made.  This package constitutes the appeal record. The appeal record will be severed in accordance with Freedom of Information and Protection of Privacy legislation.

[For more information on the appeal record, see Employment and Assistance Appeal Tribunal – Appeal Record.]

[For more information on Freedom of Information and Protection of Privacy see Related Links – Information Privacy and Security (FOIPPA).]

Where the reconsideration decision denies a person's request, the package will also include an Employment and Assistance Appeal Tribunal brochure, which provides information about appeal rights, and a Notice of Appeal to the Employment and Assistance Appeal Tribunal (EAAT001).

Effective: June 15, 2009

A person who is dissatisfied with the outcome of a request for reconsideration and wishes to appeal that decision must commence an appeal to the Tribunal within seven business days of being notified of the ministry reconsideration decision. If an appeal is not received within seven business days after the person has been notified of the ministry decision, the ministry decision is deemed to be accepted and generally no further recourse to the appeal process is permitted. (Extensions may be considered in exceptional circumstances and an appeal panel of the Tribunal has jurisdiction over determining appealability.)

A person commences an appeal by obtaining and completing a Notice of Appeal to the Employment and Assistance Appeal Tribunal (EAAT001).  This form may be obtained from the Tribunal office, at local Employment and Assistance Offices or from the Reconsideration and Appeals Section, SDSI-CFD Legislation, Litigation and Appeals Branch.  A separate EAAT001 is completed for each reconsideration decision being appealed.

The person may request the assistance of an advocate in completing the EAAT001, and will be provided with names and addresses of local support agencies or non-governmental organizations that may be able to assist.

The person completes the EAAT001 and either mails or faxes the form directly to the Tribunal office, or delivers the form to a local ministry office for forwarding to the Tribunal office.

Effective: November 9, 2012

The Tribunal is an independent and arms-length body that is responsible for the overall management and operation of the appeal process. The Tribunal consists of a Chair, Vice-Chair, staff, and roster of panel members located throughout the province. Cases are heard in a timely fashion throughout the province by trained and impartial appeal panel members.  The Tribunal chair chooses a panel consisting of up to three members to hear each client-initiated appeal. These people must be impartial and independent in their decision-making, and none are a party to the original decision.

The Tribunal provides a level of external review. An appeal is not a new hearing; rather, appeals are conducted as an appeal on the record. The appeal panel of the Tribunal may only admit the submissions, information, and/or records that were before the ministry when the decision being appealed was made and any oral and/or written testimony in support of that evidence.

Once an appeal has been commenced, the Tribunal obtains a copy of the appeal record from the ministry, and will forward a copy to the client. This ensures that both parties (the ministry and the appellant) have the same information available to them about the case being heard, and are aware of the full case against the client. Where the person requesting the appeal is an advocate or person other than the client, proper authorization by the client will be required prior to release of the appeal record. 

The Tribunal is responsible for setting the date, time, and place of the panel hearing and for notifying all parties involved. Both parties have the opportunity at the hearing to present their case and hear the case against them. The Tribunal also allows ministry employees and other witnesses to attend a hearing on behalf of either party to clarify or expand on evidence.  Either party introducing supporting written information or records should provide additional copies to the appeal panel and the other party.

The appeal panel will hear and decide the appeal. The appeal panel will determine whether the ministry reasonably applied the relevant acts and regulations or whether the ministry’s decision was reasonably supported by the evidence submitted. The decision of the Tribunal appeal panel either confirms or rescinds the ministry’s decision.

Determining Appealability

Upon receiving the completed EAAT001, the Tribunal will first determine whether the outcome of the request for reconsideration is an appealable decision under any of the following:
 

  • section 17 (3) of the Employment and Assistance Act
  • section 16 (3) of the Employment and Assistance for Persons with Disabilities Act

An appeal panel of the Tribunal has jurisdiction to determine appealability.

Appeal Panel

The Tribunal Chair appoints a panel consisting of up to three members of the Tribunal to hear and determine the appeal and designates one member as the panel chair. If a panel consists of one member, that member is the chair of the panel.

The Tribunal Chair may consolidate two or more appeals involving the same parties and direct that two or more appeals involving different parties will be heard together only if both of the following apply:
 

  • the appeals involve substantially similar facts
  • each of the parties to each of the appeals agrees to the appeals being consolidated or heard together

The appeal hearing is held within 15 business days of receiving the EAAT001, unless the Tribunal Chair and the parties consent to a later date.

Appeal Record

The appeal record is required if a person commences an appeal. The appeal record must be assembled and retained in a secure manner. The appeal record will be severed in accordance with Freedom of Information and Protection of Privacy legislation.

[For more information on Freedom of Information and Protection of Privacy see Related Links – Information Privacy and Security (FOIPPA).]

The appeal record is to be kept at the Reconsideration and Appeals Section, SDSI-CFD Legislation, Litigation and Appeals Branch. A copy of the appeal record is sent to the Tribunal when a client initiates an appeal. The Tribunal will provide a copy of the appeal record to the client initiating the appeal. Where this is an advocate or person other than the client, the Tribunal requires proper authorization from the client prior to releasing the appeal record.

Method of Appeal

The person initiating the appeal can request that the hearing occur using one of the following methods:
 

  • in writing (if both parties, the ministry and appellant, consent)
  • orally, in-person
  • orally, by teleconference

An appeal is generally held orally, in-person. Either party to a hearing may request to attend by telephone. A request to attend an oral hearing by telephone will only be considered by the Tribunal in exceptional circumstances. The party making the request must fax a completed Request to Attend by Telephone form (EAAT007 – available on the Tribunal website) to the Tribunal. The decision whether to approve the request will be made by the Tribunal Chair and the Tribunal will notify both parties in writing.  

[see also Additional Resources – Employment and Assistance Appeal Tribunal]

The Tribunal sets the date, time, and place of the hearing and notifies all parties involved at least two business days prior to the hearing.

In-person hearings are usually held in the community nearest the appellant, or close to it. Both parties have an opportunity to appear before the appeal panel, and both ministry employees and/or other witnesses are allowed to attend the hearing to clarify or expand on evidence. An advocate may appear with the client, or may assist with written information for the appellant.

The ministry representative makes submissions to the appeal panel and does not attend the hearing in a decision-making capacity.

The appeal panel may hear an appeal in the absence of a party if the party was notified of the hearing.

If both parties agree to conduct a written hearing, the ministry is asked to present a written response in reply to the appellant’s written response. The response provided by the person initiating the appeal (or advocate) is given to the ministry, and the ministry’s response is provided to the person initiating the appeal (subject to proper authorization as outlined above, if not the client). The panel is then provided with both submissions for review. In a written hearing, the parties do not appear before the panel.

The panel chair is responsible for deciding any question of practice or procedure that arises during a hearing that is not provided for in the regulations or in the practices and procedures of the Tribunal Chair. For more information, see the Employment and Assistance Appeal Tribunal Internet site. [see Additional Resources]

Evidence Submitted to the Appeal Panel

The appeal panel may admit as evidence only:
 

  • the information and records that were before the ministry when the decision being appealed was made (at the time of the reconsideration decision), and
  • oral or written testimony in support of the information and records referred to above

Neither the appellant nor the ministry representative may submit new evidence to the appeal panel.

Withdrawal of Appeal

A person who has delivered a completed EAAT001 to the Tribunal has the right to withdraw the appeal at any time before the appeal panel of the Tribunal makes a decision. To withdraw the appeal, the person must complete and submit the Consent to Dismiss Appeal form (EAAT002) to the Employment and Assistance Appeal Tribunal. Both parties to the appeal must consent to the withdrawal and sign the form.

Appeal Panel Decision

After hearing the submissions of both parties or considering the written submissions, the panel makes its decision to either confirm or rescind the ministry decision. The panel does not have the power to replace the ministry decision with one of its own, nor to gather evidence on its own.

The decision of the majority of the appeal panel members is deemed to be the Tribunal’s decision, but the decision of the chair of the panel governs in the case of a tie. The decision will be completed in writing by the panel within five business days of the hearing.

The Tribunal Chair may extend this time limit for the panel to render its decision by no more than 10 additional business days if the Tribunal Chair is satisfied that the panel is making all reasonable efforts to provide the determination in a timely manner, and the best interests of the parties are served by the extension.

The Tribunal sends the parties a copy of the written decision within five business days of it being received by the Tribunal.  Decisions are communicated to clients in clear, understandable terms.

The Tribunal decision is final. Tribunal decisions may be appealed to the British Columbia Supreme Court (judicial review), but the courts will consider the Tribunal to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.  An application for judicial review of a final decision of the Tribunal must be commenced within 60 days of the Tribunal decision date. (There may be circumstances when the courts may extend the time for making an application.)

[For information on implementing a Tribunal decision, see Procedures – Implementing the Tribunal Decision.]

Effective: December 13, 2013

[see also Additional Resources – Effective Date of Eligibility Workflow Chart]

Under the policy, when the Tribunal rescinds the ministry’s reconsideration decision, the effective date of eligibility is dependent on the type of assistance applied for.
 

  • New applicants for income assistance are eligible for income assistance retroactive to the date of their application. 
  • Applicants for disability assistance, who were already designated as a person with disabilities and are re-applying for disability assistance are eligible for disability assistance retroactive to the date of their application for disability assistance. 
  • Recipients who have had income assistance or disability assistance discontinued or reduced are eligible for assistance retroactive to the date of the reduction or discontinuance. If an appeal supplement has been issued, this is not repayable and must be considered to have been paid in place of the discontinued assistance or the amount by which the assistance was reduced.
  • Applicants who qualify as a person who has persistent multiple barriers to employment (PPMB) are eligible to receive income assistance at the PPMB rate on the first day of the month after the date of the reconsideration decision.
    • In cases where the reconsideration decision has been made after the due date, staff will determine eligibility as of the first day of the month after the date the reconsideration decision was due.
  • Recipients who have their PPMB status rescinded are eligible to receive income assistance at the PPMB rate on the first day of the month after the date of the reconsideration decision.
    • In cases where the reconsideration decision has been made after the due date, staff will determine eligibility as of the first day of the month after the date the reconsideration decision was due.
  • Applicants for persons with disabilities designation are eligible to receive disability assistance on the first day of the month after the date of the reconsideration decision.
    • In cases where the reconsideration decision has been made after the due date, staff will determine eligibility as of the first day of the month after the date the reconsideration decision was due.
  • New applicants for a supplement are eligible for the supplement retroactive to the date of the reconsideration decision.
    • In cases where the reconsideration decision has been made after the due date, staff will determine eligibility as of the date the reconsideration decision was due.
  • Recipients who have had a supplement discontinued or reduced are eligible for the supplement retroactive to the date of the reconsideration decision. If an appeal supplement has been issued, this is not repayable and must be considered to have been paid in place of the discontinued supplement or the amount by which the supplement was reduced.
    • In cases where the reconsideration decision has been made after the due date, staff will determine eligibility as of the date the reconsideration decision was due.

Procedures

Effective: October 1, 2005

Timelines for Delivering a Notice of Appeal

A person who is dissatisfied with the outcome of a request for reconsideration and wishes to appeal that decision must commence an appeal to the Tribunal within seven business days of being notified of the reconsideration decision.

Effective: June 15, 2009

The person requesting the appeal must complete a Notice of Appeal to the Employment and Assistance Appeal Tribunal (EAAT001).  The EAAT001 may be obtained from the Tribunal office, the local Employment and Assistance Office or the Reconsideration and Appeals Section, SDSI-CFD Legislation, Litigation and Appeals Branch.  The person requesting the appeal should be reminded that a separate EAAT001 is completed for each reconsideration decision being appealed.

The ministry may provide the person with the names and addresses of local support agencies or non-governmental organizations that may be able to assist the person with completing the EAAT001.

Effective: July 29, 2013

The person completes the EAAT001 and either mails or faxes the form directly to the Tribunal.  If the EAAT001 is delivered to a local ministry office it must be immediately faxed [see Contacts for the fax number] to the Tribunal office.

To ensure that appeal timelines are met, an EAAT001 and any accompanying documentation delivered to a local ministry office must be date-stamped when received, and should be immediately faxed [see Contacts for the fax number] to the Tribunal office.

A note should be made on the service request in the system to document that the EAAT001 (and any accompanying documentation, if included) was received and the date it was received.  The date the EAAT001 and attachments are faxed to the Tribunal office should also be noted.

A person who delivers the EAAT001 to a local ministry office should be advised that the Tribunal will schedule the appeal panel hearing and contact both the appellant and the ministry with details about the hearing.

Effective: July 29, 2013

The Tribunal will notify the ministry of the appeal and will request a copy of the appeal record from the Reconsideration and Appeals Section, SDSI-CFD Legislation, Litigation and Appeals Branch. [For more information on the appeal record, see Policy – Employment and Assistance Appeal Tribunal – Appeal Record.]

A note should be made on the appeal service request in the system to confirm that the appeal record was forwarded to the Tribunal and the date sent. The Tribunal request should also be saved on the appeal service request. 

Effective: November 9, 2012

If a client pursues appeal of an eligibility decision involving a trust, the ministry’s submission to the Tribunal must be submitted to the SDSI-CFD Legislation, Litigation and Appeals Branch prior to being filed with the Tribunal. This will allow SDSI-CFD Legislation, Litigation and Appeals Branch the opportunity to review the submission to ensure that it clearly explains the legal basis of the ministry’s decision and the underlying trust law supporting the decision.

If a Tribunal panel rescinds a ministry eligibility decision involving a trust, the Tribunal decision must be submitted to SDSI-CFD Legislation, Litigation and Appeals Branch so that SDSI-CFD Legislation, Litigation and Appeals Branch can have it reviewed to determine if the decision should be judicially reviewed.

[For more information on trusts see Related Links – Trusts.]

Effective: May 3, 2011

If the ministry becomes aware of a potential safety concern that relates to a person who has commenced an appeal, the ministry must release this information to the Tribunal.  The Tribunal will review the potential safety concern and take appropriate measures as it deems necessary for the safety of the participants at a panel hearing.

To report a potential safety concern to the Tribunal, contact the Reconsideration and Appeals Section, SDSI-CFD Legislation, Litigation and Appeals Branch, with the following information:

  • appellant's name
  • reconsideration number, or appeal number (if known)
  • nature of potential safety concern
  • any other relevant details related to the potential safety concern

The ministry may request to attend a hearing by telephone due to a potential safety concern. The ministry office with knowledge of the potential safety concern should complete the Request to Attend by Telephone form (EAAT007 – available on the Tribunal website) with the details of the potential safety concern and fax it to the Tribunal in a timely manner. The Tribunal will use the information provided to make an informed decision about the most appropriate mode of hearing.

[See also Additional Resources – Employment and Assistance Appeal Tribunal]

The release of personal information to the Tribunal when it relates to a potential safety concern is in accordance with Freedom of Information and Protection of Privacy legislation.  The ministry is not required to notify the appellant of the disclosure if the information is necessary to protect the participants at a panel hearing.

Effective: November 9, 2012

The ministry’s representative at a Tribunal hearing should be someone other than the ministry official who made the original ministry decision or the reconsideration decision. Often this is the supervisor of the office where the appellant’s file is located.

Roles

A ministry representative attends the hearing to present the ministry’s position and submissions. The ministry representative presents the facts and evidence in the case and explains how the ministry's reconsideration decision was a reasonable application of the legislation.

The ministry representative must review the ministry’s entire case and be familiar with the facts and evidence, the relevant legislation, and ministry’s position before the Tribunal hearing. The ministry representative should have all submissions prepared before the hearing and address all submissions to the panel. In most cases the reconsideration decision will suffice as the ministry’s submission. In cases where the reconsideration decision is not sufficient, or clarification is required, ministry representatives should seek the assistance of the Reconsideration and Appeals Section, SDSI-CFD Legislation, Litigation and Appeals Branch.

If a client pursues appeal of an eligibility decision involving a trust, the ministry’s submission to the Tribunal must be submitted to the SDSI-CFD Legislation, Litigation and Appeals Branch prior to being filed with the Tribunal. [For more information, see Appeal of Eligibility Decisions Involving Trusts.]

All evidence submitted by the ministry representative or the appellant must support the information and records that were before the minister when the decision being appealed was made (i.e. the reconsideration decision). Neither the appellant nor the ministry representative may submit new evidence to the appeal panel. [For more information, see Supporting Evidence.]

If the ministry representative cannot attend the hearing, they must inform the supervisor immediately so that alternate arrangements can be made.

Only the designated ministry representative makes submissions to the panel on behalf of the ministry. Ministry observers are permitted to attend hearings for training purposes only with the consent of the appellant and are not permitted to make any statements during hearings.

If a ministry representative would like to bring an observer to a Tribunal hearing, the representative should send the request to the Reconsideration and Appeals Section, SDSI-CFD Legislation, Litigation and Appeals Branch. The Reconsideration and Appeals Section will contact the Tribunal to arrange for the observer to attend.

Supporting Evidence

Evidence introduced at the hearing by either the ministry representative or the appellant must be in support of the information and records that were before the minister when the decision being appealed was made (i.e. the reconsideration decision). Neither the appellant nor the ministry representative may submit new evidence to the appeal panel. [For more information, see Policy – Evidence Submitted to the Appeal Panel.]

The authority resides with the panel chair to determine what supports and what does not support the information and records that were before the minister when the decision being appealed was made. The panel chair will rule on whether or not evidence introduced at the hearing may be admitted.

If the ministry representative believes that the evidence the appellant wishes to present is not in support of the information and records that were before the minister when the decision being appealed was made, they should make an objection to the panel. [For more information, see Objections.]

If the appeal panel admits the evidence over an objection, the ministry representative should consider whether to ask for an adjournment to review the evidence. [For more information, see Adjournments.]

Objections

An objection can be made to call the appeal panel’s attention to improper procedure or inadmissible evidence. If new evidence is being submitted by a party at a hearing, the other party can object to the admissibility of that evidence. The party who submitted the evidence is then allowed to respond to the objection. If the party who made the objection has a follow-up submission, they should request an opportunity to present their follow-up submission.

Panels do not make determinations of the admissibility of evidence at hearings. Instead, they take the objection into consideration when making the decision, and indicate in the decision whether or not the new evidence was admitted. Because of this, the party making an objection should not only put an objection to the admissibility of the evidence on the record, they should also make submissions on the substance of the evidence itself (e.g., that a report should not be relied upon because it is new evidence and it does not support the evidence before the ministry at the time of the decision being appealed, i.e., the reconsideration decision).

Adjournments

An adjournment is requested at Tribunal to provide the ministry representative time to review information or obtain requested information. An adjournment should only be requested when it is necessary for the hearing to be considered fair. The authority to grant an adjournment always rests with the panel chair. Adjournments are not automatically granted upon request.

When requesting an adjournment, the ministry representative should state “Madam/Mister Chair, I’d like to request an adjournment,” followed by the reasons why and the estimated time required. The appellant is then allowed to oppose the request. The panel chair will determine if an adjournment will be allowed and the length of the adjournment. Tribunal hearings may be adjourned to a later time, a fixed future date or for an indefinite period.

When an appellant requests an adjournment, the ministry representative should decide whether or not to oppose the request. They should consider whether the appellant can fully present their case or if the case would be prejudiced if the appellant is not given more time. The ministry representative should not oppose an appellant’s request for adjournment if the reason is legitimate.

Example 1: Questions from panel members

If the ministry representative cannot answer the question because they do not have the information (but someone else in the ministry does), they should request an adjournment to get the information needed.

Example 2: Unexpected circumstances (e.g., previously unseen supporting evidence)

If the ministry representative can only properly respond to the new material by reviewing and answering it with other evidence or preparing additional submissions based on another aspect of law/legislation, they should request an adjournment.

Example 3: Unexpected legal argument from the appellant with no new evidence introduced

Do not request an adjournment. The ministry representative must be prepared to respond to anything raised that relates to evidence they have seen.

Effective: July 29, 2013

[Section 54 of the Employment and Assistance Regulation and section 52 of the Employment and Assistance for Persons with Disabilities Regulation reference the “Reconsideration or Appeal Supplement.” In addition to the supplement’s full name, for the purposes of this topic, the term “appeal supplement” is referenced to reflect the stage the client is at in the reconsideration and appeal process at the time the supplement has been requested.]

An appeal supplement may be provided to or for a family unit that is eligible for income assistance or disability assistance if a recipient in the family unit delivers a Notice of Appeal (EAAT001) to either the Employment and Assistance Appeal Tribunal or an Employment and Assistance office. The Notice of Appeal must relate to a reconsideration decision that resulted in discontinuation or reduction of income assistance, disability assistance, or a supplement.  The appeal supplement is not available when assistance has been denied.  It is also not available when hardship assistance is denied, discontinued or reduced.

The supplement enables a recipient to continue to receive assistance on the same basis as before it was discontinued or reduced while the decision is being appealed. The appeal supplement can be issued up to the time that the appeal is determined. The purpose of providing the supplement is to put a recipient in the same position that the recipient would have been in had it not been for the decision to discontinue or reduce assistance.  The amount of the supplement is limited to the amount of the assistance that was discontinued or the amount by which it was reduced.

Before issuing the supplement, ensure the recipient has submitted the Notice of Appeal (EAAT001) to the Tribunal or to the ministry. If the client has sent the EAAT001 directly to the Tribunal, then the Tribunal should be contacted to confirm that the EAAT001 has been received. If the client has delivered the EAAT001 to a local office, the EAAT001 should be immediately forwarded to the Tribunal.

The recipient must also sign and submit a Promise to Repay form (HR2737) [see Forms and Letters] prior to the supplement being issued. In the case of a couple, both the key player and spouse must sign the Promise to Repay - Benefit While Awaiting Reconsideration/Appeal Decision form (HR2737). However, if circumstances beyond the control of either recipient prevent both from signing the HR2737, the supplement may be issued on the basis of a single signature from either the key player or spouse. The Promise to Repay form must be signed every time the supplement is issued before it is issued.

If the Tribunal decision confirms the ministry decision, the recipient must agree to repay the amount issued as a reconsideration or appeal supplement during the reconsideration and appeal processes. The recipient is required to sign a Repayment Agreement Appeal Benefit form (HR2749) [see Letters and Forms], whereby the recipient acknowledges the debt and agrees to begin immediate repayment of the debt by deduction from the recipient’s monthly assistance. In the case of a couple, both the key player and spouse must sign the Repayment Agreement Appeal Benefit form (HR2749). However, if circumstances beyond the control of either recipient prevent both recipients from signing the HR2749, one signature from either the key player or spouse is sufficient to complete the form.  

If the Tribunal confirms the ministry decision and, as a result, the recipient is no longer in receipt of income assistance or disability assistance, the ministry may recover the amount issued as a reconsideration or appeal supplement through other methods.

[For more information on other methods for recovery, see Related Links – Recoveries – Policy – Methods for Recovery of Assistance.]

Remember: if the recipient has received a reconsideration decision that discontinued or reduced assistance, the recipient should always be informed that an appeal supplement may be provided if the recipient proceeds to appeal.

[For more information on Promise to Repay, see Related Links – Recoveries – Policy – Promise to Repay – Recovery of Repayable Benefits at a Future Date.]

[For more information on Repayment Agreements, see Related Links – Recoveries – Policy – Repayment Agreements – Repayable Benefits by Deduction from Ongoing Assistance.]

Effective: December 13, 2013

Tribunal decisions should be reviewed by a Reconsideration Officer in the Reconsideration and Appeals Section, SDSI-CFD Legislation, Litigation and Appeals Branch to ensure that each decision has complied with the acts and regulations and does not exceed the appeal panel’s jurisdiction or contain an error of law.

The Tribunal decision is final.  Unless a court stays a decision of the Tribunal, the decision of a Tribunal must be implemented.

If the ministry makes an application for judicial review of a final decision of the Tribunal, it must be commenced within 60 days of the Tribunal decision date.  (There may be circumstances when the courts may extend the time for making an application.)

In response to a Tribunal rescind decision, the income assistance, disability assistance or supplement requested should be issued under the Tribunal award. This award is intended for one-time use only. After the initial issue, the case will be updated to provide for a monthly nutritional supplement for vitamins and minerals if the supplement will be issued on an ongoing basis. For example: The client’s request for a monthly nutritional supplement for vitamins and minerals was denied at reconsideration. The client pursued appeal and the Tribunal rescinded the ministry’s reconsideration decision. In response to the rescind decision, the ministry issues the monthly nutritional supplement as a Tribunal award, backdated to the effective date of eligibility. [For information on effective date of eligibility, see Procedures – Effective Date of Eligibility – Tribunal Decision.] If the supplement will be issued on an ongoing basis, the case is updated to include the appropriate assistance for a monthly nutritional supplement for vitamins and minerals.  

In rare cases, a Tribunal rescind decision may result in a Tribunal award being used to issue an amount that is in excess of the amount permitted by the supplement or benefit.

For example: The client was awarded the travel supplement by a tribunal in 2001. The client was awarded $60, to be issued on a monthly basis. The travel benefit allows for a maximum of $46 to be issued per month. To issue the full $60, the travel benefit is used to issue $46, and the tribunal award is used to issue the additional $14.

Effective Date of Eligibility – Tribunal Decision

[see also Additional Resources – Effective Date of Eligibility Workflow Chart]

Under the policy, when the Tribunal rescinds the ministry’s reconsideration decision, the effective date of eligibility is dependent on the type of assistance applied for.
 

  • New applicants for income assistance are eligible for income assistance retroactive to the date of their application.  Staff will determine eligibility for income assistance as of the date of the application and may need to pro-rate assistance as set out in section 26 and Schedule A of the Employment and Assistance Regulation.
  • Applicants for disability assistance, who were already designated as a person with disabilities and are re-applying for disability assistance, are eligible for disability assistance retroactive to the date of their application for disability assistance.  Staff will determine eligibility for disability assistance as of the date of the application and may need to pro-rate assistance as set out in section 23 and Schedule A of the Employment and Assistance for Persons with Disabilities Regulation.
  • Recipients who have had income assistance or disability assistance discontinued or reduced are eligible for assistance retroactive to the date of the reduction or discontinuance.  Staff will determine eligibility for income assistance or disability assistance as of the date of reduction or discontinuance.  If an appeal supplement has been issued, this is not repayable and must be considered to have been paid in place of the discontinued assistance or the amount by which the assistance was reduced.
  • Applicants who qualify as a person who has persistent multiple barriers to employment (PPMB) are eligible to receive income assistance at the PPMB rate on the first day of the month after the date of the reconsideration decision.  Staff will determine eligibility as of the first day of the month after the date of the reconsideration decision.
    • In cases where the reconsideration decision has been made outside of timelines, staff will determine eligibility as of the first day of the month after the date the reconsideration decision was due.
  • Recipients who have their PPMB status rescinded are eligible to receive income assistance at the PPMB rate on the first day of the month after the date of the reconsideration decision.  Staff will determine eligibility as of the first day of the month after the date of the reconsideration decision.
    • In cases where the reconsideration decision has been made outside of timelines, staff will determine eligibility as of the first day of the month after the date the reconsideration decision was due.
  • Applicants for persons with disabilities designation are eligible to receive disability assistance on the first day of the month after the date of the reconsideration decision.  Staff will determine eligibility as of the first day of the month after the date of the reconsideration decision.
    • In cases where the reconsideration decision has been made outside of timelines, staff will determine eligibility as of the first day of the month after the date the reconsideration decision was due.
  • New applicants for a supplement are eligible for the supplement retroactive to the date of the reconsideration decision.  Staff will determine eligibility for the supplement as of the date of the reconsideration decision.
    • In cases where the reconsideration decision has been made outside of timelines, staff will determine eligibility as of the date the reconsideration decision was due.
  • Recipients who have had a supplement discontinued or reduced are eligible for the supplement retroactive to the date of the reconsideration decision.  Staff will determine eligibility for the supplement as of the date of the reconsideration decision.  If an appeal supplement has been issued, this is not repayable and must be considered to have been paid in place of the discontinued supplement or the amount by which the supplement was reduced.
    • In cases where the reconsideration decision has been made outside of timelines, staff will determine eligibility as of the date the reconsideration decision was due.