Disability means different things to different people depending on their outlook and their experiences, but in the legal system, and particularly with respect to the legal eligibility thresholds to qualify for public benefits, “disability” often has a lengthy, detailed and meticulous definition.
That makes some sense when we think about the need to spend public resources efficiently and make sure the people who need the benefits the most get them. In our quest to safeguard public expenditure, though, we often lose a sense of humanity and common sense.
Rosemary is one of my clients. She is 63 years old and she lives in the interior of BC. She has worked most of her life, but in the last few years she has suffered from significant health problems, including a failed mitral heart value replacement, a compression fracture to her spine, a total hip replacement, and an unstable IT band that causes her to lose the ability to stand and walk multiple times each day. Recently she was also diagnosed with chronic leukemia. Because of these impairments, Rosemary is no longer able to work.
Rosemary and her doctor described her limitations as follows:
- Rosemary cannot walk at all without the use of a cane. She cannot walk up the hill to her home, and climbing stairs, dressing, or walking to the washroom depletes her stamina and she needs to stop and rest. She often sleeps on her couch because she doesn’t have the energy to get up her stairs to her bedroom.
- Rosemary’s IT band gives way multiple times per day, which leaves her unable to walk to stand and causes her excruciating pain. Each time, she must lie down for a couple of hours to recover.
- Rosemary is unable to lift more than 2kg. She always needs help to carry purchases when she shops. She needs help vacuuming because she cannot lift a vacuum. She also needs help doing dishes and hanging laundry.
If our social safety net was intended to support anyone, it’s Rosemary. Even by the most cynical and conservative of views, she has paid into our public system for many years during her employment, and she now needs public income support to maintain her health and her most basic wellbeing.
The reality, though, is that Rosemary had to fight for over a year about whether or she or not she qualifies as a “person with disabilities”. During that year, Rosemary lived on Canada Pension Plan disability benefits of about $600 per month to support herself, pay her mortgage, utilities, and to buy food and other necessities. In addition to adjusting to her new physical limitations, she struggled with buying gas for her car, affording medication, and having enough food.
Rosemary was fighting for an extra $300 per month from provincial disability benefits and access to basic extended health coverage. After submitting her 23 page application filled out by her doctor, Rosemary was first denied designation as a “person with disabilities” because the adjudicator found that it could not be determined that she met the legal test for eligibility.
Rosemary appealed that decision and provided a letter describing her limitations in more detail. Her doctor wrote a note stating that he agreed with everything Rosemary said and adopted the letter as his own statement. Rosemary was then denied because the adjudicator found that, while it would not be unreasonable to suggest that she met the legal criteria to be a “person with disabilities”, her doctor had not confirmed it.
Rosemary then appealed the denial to the Employment and Assistance Appeal Tribunal, providing a note from her doctor stating, again, that he agreed with everything Rosemary described. She was denied by the Tribunal because her doctor did not write his opinion in his own words, and instead wrote that he adopted Rosemary’s letter.
CLAS represented Rosemary to bring a judicial review of the Tribunal’s decision, a complex and costly process in BC Supreme Court. The parties, all represented by lawyers by this point, agreed to settle the matter and allow Rosemary another appeal before the Employment and Assistance Appeal Tribunal.
In June 2014, 13 months after applying for provincial disability benefits, Rosemary finally won. The Tribunal determined that she did in fact qualify as a “person with disabilities”. That Tribunal hearing was the fourth time that Rosemary’s application was adjudicated, which required significant administrative cost when compared to the amount of her benefits, and Rosemary required the assistance of an advocate and a lawyer to get through a process that is not supposed to require legal assistance.
During the time I was assisting her, Rosemary repeatedly asked me how this all made sense, with questions like “Isn’t this costing them more to fight than to just give me the benefits?” and “How much more disabled do I need to be?” At times, Rosemary told me that she was exhausted and she didn’t know if it was worth it to continue. She wondered, “Do they do this just so people will get tired and give up?”
I didn’t have any good answers for her.
Note: Client name and identifying details have been altered to protect confidentiality.