VI. APPLICATION OF THE RIGHTS-OUTCOME LENS: ONTARIO DISABILITY SUPPORT PROGRAM EXAMPLE

In this section, the Rights-Outcome Lens is applied to ODSP to illustrate how it may be used in practice.  For this discussion, we begin with a general overview of ODSP, including contextual background.  We then analyze the eligibility criteria: those that determine disability status and financial eligibility. .  Finally, we address the process and administrative factors that influence access to ODSP.  We conclude with our observations of ODSP’s eligibility criteria in light of the Rights-Outcome Lens.

 

A.   Overview of the Legislation

ODSP is a social assistance program targeted to those with a significant financial need.  It is, as such, directed to those with a disability and who have little available income or assets.[57]  This disability-related benefit does not stand alone, but instead operates within a system including other benefits that are available to persons with disabilities from private and public sources.  Other income support programs include private disability insurance, federal disability pension under the Canada Pension Program, Employment Insurance and Ontario’s Workplace Safety and Insurance compensation. Access to these programs depends on when and how the impairment or injury was acquired and whether or not an individual had been part of the paid workforce prior to injury.  When a disability exists from an early age, preventing participation in work, or where other factors have led to non-paid employment, part-time or precarious employment, an individual is left to provincial social assistance programs such as ODSP for income support. 

Ontario, like most Canadian jurisdictions, divides income support between a general welfare program (Ontario Works) and a disability program (ODSP).  As the federal government has reduced its commitment to shared funding of these programs, more responsibility has fallen on the provinces and, in the case of general welfare programs, to municipalities.[58]  When the Ontario government announced the creation of ODSP in 1998, it indicated that the new program was intended to provide a different level of support and marked “the start of a new era of fair treatment and opportunity for people with disabilities in Ontario.”[59]  Increased benefit payments, employment supports, medical supports and exemption from participation in workfare, distinguished ODSP from Ontario Works, implying  that persons with disabilities were “more deserving” poor.  The Supreme Court has acknowledged this distinction between programs:

It is clear that the ODSPA and the OWA are meant to serve very different goals. The former statute is meant to ensure support for disabled applicants, recognizing that the government shares in the responsibility of providing such support (ODSPA, s.1). The latter statute, on the other hand, seeks to provide only temporary assistance premised on the concept of individual responsibility (OWA, s.1). The divergent purposes of these two statutes was alluded to by the Honourable Janet Ecker, the Ontario Minister of Community and Social Services, on the day after the ODSPA was proclaimed:

                        

This new program removes people with disabilities from the welfare system, where they should never have been in the first place, and it creates for them an entirely separate system of income support….

(Legislative Assembly of Ontario, Official Report of Debates, No. 19A, June 2, 1998 at p. 971)[60]

 

However, despite the acknowledged difference in purpose between ODSP and Ontario Works, ODSP maintained many of the same individual obligations and enforcement mechanisms as the general welfare system, situating ODSP  firmly within the charity model.[61] 

To qualify for ODSP, initial determinations of income and assets are made. Often, this is done through municipal welfare programs, administered under Ontario Works.  Once the financial criteria have been established, a disability determination package is completed by the applicant.  Some portions are completed by physicians or other health care practitioners while the “self-report” is completed by the applicant themselves.  This process focuses on determining whether an individual is unable to support themselves financially due to a medical condition.  The application is reviewed by the Disability Adjudication Unit (DAU).  If the DAU refuses an application, an individual may apply to for an “internal review” whereby the application is reconsidered by a panel of three adjudicators.  If a negative decision is made at this level, the applicant has the opportunity to have the decision considered by the Social Benefits Tribunal (SBT), an independent tribunal.  The SBT can confirm, set aside or amend the decision of the DAU. 

 

B.   Eligibility based on Disability Status

Determining who is considered “disabled enough” to qualify for benefits depends upon how “disability” is defined.   Given that all persons fall within a natural spectrum of ability, it becomes necessary when targeting disability-related support programs to make a distinction among individuals in order to best focus resources on the intended recipients.  However, as described by the Ontario Human Rights Commission, while “the government has the right to “draw the line” to accommodate resource availability... there must be a tenable justification for the resultant differential treatment.”[62]  In other words, applying outdated stereotypes or negative beliefs about persons with disabilities would not be an appropriate or principled mechanism to guide disability-related benefit eligibility.  To guide decision-making, it is necessary to identify whether choices are made based on principled values.  We apply the outcome measures to the disability status eligibility criteria to evaluate the extent to which a principled approach is achieved.  While the legislative test and its judicial interpretation largely meet the criteria from the Rights-Outcome Lens, substantial weaknesses were noted in the administrative application of disability adjudication.

The explicit definition of “a person with a disability” in ODSP is addressed in section 4 of the Ontario Disability Support Program Act which states:[63]

A person is a person with a disability for the purposes of this Part if,

(a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more;

(b) the direct and cumulative effect of the impairment on the person’s ability to attend to his or her personal care, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of daily living; and

(c) the impairment and its likely duration and the restriction in the person’s activities of daily living have been verified by a person with the prescribed qualifications.

A number of outcome measures directly impact the determination of disability status: : recognition of the individual experience of disability, recognition of the diversity of persons with disabilities, recognition of disability as both a lived experience and a social construct, and accessible and respectful processes.

 

1.         Definition of Disability that Recognizes Individual Experience

As outlined above, the experience of disability is not uniform, nor does it easily fit within specific categories of impairments or disease.  Eligibility criteria that identify “a person with a disability” must be alive to the diverse and changing understanding of disability as well as the individual experiences of disability.

On a plain reading of section 4, the ODSP definitional criteria provide for an expansive understanding of disability.  First, paragraph (a) requires an impairment that is substantial.  The use of the word substantial is a shift from previous legislation which required a serious impairment, a change that the courts have interpreted as  a lower threshold.  For example, the Ontario Court of Appeal in Gray held that this definition is “much more generous” since the provision “was intended to encompass a broader segment of society.”[64] The use of the word “substantial” is different from other provincial regimes in Canada and the federal Canadian Pension Plan disability eligibility requirements.[65]  Similarly, ODSP requires that an impairment be “continuous or recurrent”, allowing for the possibility of fluctuating illnesses.  The l impairment need only be “expected to last for one year or more” and does not have to be “permanent” as is required in other jurisdictions.[66]  In this way, the legislation normalizes the experience of disability as part of the human condition.[67] 

Inclusion of “recurrent” conditions is particularly important in the context of particular conditions, for example, conditions related to mental health.[68]  This inclusion acknowledges that conditions are not necessarily fixed and that a short term “snap shot” of an individual’s situation does not adequately represent the experience of the condition.  Nonetheless, the condition may be an impairment that can substantially restrict the individual’s participation in one or more of the enumerated areas of daily life.

The definition of disability also requires an examination of the “cumulative” impact of multiple impairments on the person and, as a result, the cumulative restrictions:

The assessment as to whether a person has a substantial physical or mental impairment must consider the various conditions individually and cumulatively. It is not necessary to break down the analysis to every part of the mind and body affected and find at least one disorder is substantial. Such artificiality would detract from the person centered and remedial purposes of the ODSPA. To analyze each physical or mental disorder separately and require that each separately result in a ‘substantial restriction’ would deprive ‘cumulative’ of any meaning in s. 4(1)(b).[69]

 The Ontario Court of Appeal in Gray found that the whole of the individual’s circumstances must be taken into account when considering whether or not they were substantially restricted:

An impairment of an important bodily function which is serious to one person may not necessarily be a serious one for someone else.  The task of the court in each case will be to decide whether the impairment is serious to the particular injured person who is before the court.  In performing that task the question will always be the detrimental effect which the impairment has upon the life of the particular injured person.  It is impossible for this court to lay down general guidelines of the concept of seriousness in all cases.  Each case must be decided upon its own facts.[70]

An impairment must be verified by a medical practitioner; however, the degree of verification required is rather minimal.  In Sandiford, the Ontario Divisional Court held that “where the verification indicates an arguable basis for the impairment, its duration and the restriction alleged, the Tribunal must then evaluate the whole of the evidence to assess whether the statutory test is met.”[71]  In other words, it is the symptoms experienced by the individual that are relevant to the consideration and not the medical category.[72]  The role of medical professionals in determining disability status is discussed further below.

Once a substantial impairment is determined that is expected to last for one year or more, the analysis shifts to identify the degree to which the impairment restricts the activities of the individual.  Recognizing that impairments affect individuals differently, an impairment is considered within the individual’s own circumstances and their ability to participate in the community. Unlike other regimes that focus on the employability of the individual, ODSP considers the varying roles that individuals may play in society.  The “direct and cumulative effect of the impairment” is considered in relation to “the person’s ability to attend to his or her personal care, function in the community and function in a workplace.”  Courts have interpreted “substantial restrictions” within the context of the whole person, in a similar manner to the determination of “substantial impairment”; courts have also considered social factors within this analysis.[73]

The one aspect of the legislative definition of disability that is highly problematic in terms of this outcome measure is the specific exclusion in section 5(2) of persons whose impairments and primary restrictions result from addiction to drugs or alcohol.[74]  This exclusion was made despite extensive evidence that established substance abuse as a mental disorder which is often experienced together with other aspects of mental illness.[75]  In Ontario Disability Support Program v. Tranchemontagne, the Ontario Superior Court noted that making distinctions about eligibility based on “assumed or unjustly attributed characteristics” resulted in the denial of “essential human worth”:

The provincial social assistance scheme must, understandably, provide different benefits according to the different purposes of each of the two programs. Indeed, differentiation in eligibility is a feature of most benefit schemes. Such schemes have been found to be non-discriminatory on the basis that they must assign benefits according to certain eligibility criteria in order to be financially viable, and are, by their very nature, specifically designed to provide assistance commensurate with eligibility: Gibbs. However, as the Supreme Court stated at para. 33 of Gibbs, comparing the benefits allocated to individuals or groups according to the different purposes those benefits are intended to serve “is not helpful in determining discrimination – it is understandable that insurance benefits designed for disparate purposes will differ. If, however, benefits are allocated pursuant to the same purpose, yet benefits differ as the result of characteristics that are not relevant to this purpose, discrimination may well exist” [emphasis in the original].[76]

In 2009, after lengthy litigation, the Superior Court upheld a determination by the SBT that the section 5(2) exclusion violates the Ontario Human Rights Code, which considers substance abuse disorders a form of disability.[77]  

It is important to note that the judicial interpretation of the ODSP disability definition, as explained above, is applied differently by the administrative decision-makers at the DAU and by the quasi-tribunal decision-makers at the SBT.  When reviewing the variance between decisions reached by these two bodies, a Ministry consultant found that separate tests were being applied to adjudicate the question of “disability”:

Generally, but not in all cases, the DAU does not apply the case law directives of looking at conditions as “cumulative” and viewing the applicant “in their own context” as widely or as often as the SBT.  On the other hand, the SBT is straying from the “medical disability” definition more into “social disability” involving language and educational deficiencies as well as medical conditions to a much greater degree than the DAU...It appears that the DAU has not moved to accept the direction of the Gray decision in broadening and liberalizing the definition of “a person with a disability” to the same extent as the SBT.[78] [emphasis in the original]

The different tests being applied point to a fundamental difference in the approach taken to disability-related income support.  While the judicial and SBT interpretation of “a person with a disability” more clearly encompasses the broad experiences of disability inherent in any population, the DAU or day-to-day interpretation is much more restrictive.  Whereas the judicial interpretation largely conforms to this outcome measure, the administrative application of the definitional criteria is more problematic.

Episodic illnesses, including mental health conditions, diabetes, rheumatoid conditions and HIV, is one category of the individual experience of disability that often falls outside of eligibility for ODSP in the administrative application of the definition.[79]  The shifting symptomotology, uncertain course of the condition and difficulty in diagnosing and/or prognosing conditions create circumstances whereby “functional restrictions become exceedingly problematic to corroborate as consistently substantial and stably recurrent” despite disabling impacts. In Denial by Design, the Income Security Advocacy Centre noted that the DAU’s definition of “a person with a disability” tends not to include persons with less understood medical conditions:

The DAU has also tended to hold to its own conservative views about less understood medical conditions such as fibromyalgia, chronic pain syndrome, and environmental sensitivity, to name a few. While there is apparently no official policy of refusing to recognize these disorders, advocates have found that the DAU rarely grants ODSP benefits in these cases. In fact, as recently as 2001, the DAU has held the position that fibromyalgia could not be considered a substantial impairment because “this debatable condition is benign, non-deforming and [does not progress] into total disability.”[80]

Persons with mental health conditions currently make up more than fifty percent of ODSP recipients, a number that continues to trend upward.[81] Despite increasing identification of mental health impacts on disability, mental health is poorly framed and understood in policy materials, leading to substantial difficulty in understanding how it fits within eligibility criteria.[82] It is not surprising then that ODSP also has difficulty fitting mental health “impairments” and “restrictions” within the disability definition.

In a study conducted by the Income Security Advocacy Centre, DAU adjudication summaries were reviewed to better understand why some forms of disability were seen to be consistently refused at that level of application and adjudication.[83]  In their review, DAU adjudicators were found to give the following reasons to deny applications for ODSP:

·         The applicant had not been hospitalized for their condition

·         The applicant was not taking psychiatric medications

·         The applicant had not been referred to a psychiatrist

·         The applicant was not suicidal, homicidal, psychotic or in crisis

·         The applicant provided no objective evidence of restrictions

·         The applicant indicated “severe restrictions disproportionate to expected impairment

The report notes that many of these reasons for denial are outside of the legislative test.  While the report was limited in its review to a “snapshot” of DAU decisions over a short period of time, the data indicate that the disability definition eligibility criterion when applied to mental illnesses is highly problematic.[84]

The Income Security Advocacy Centre review also indicated that applications for ODSP that were primarily related to musculoskeletal conditions and chronic pain were also denied more often than applications related to other conditions.[85]   Many of the reasons for denial were identical although the DAU seemingly also drew negative conclusions based on indications of conservative treatment, a lack of assistive devices and a failure to access non-OHIP funded therapies such as massage, chiropractic or physiotherapy. Some of the difficulties in establishing disability status faced by people with these conditions are under-recognition of symptoms such as fatigue, pain, dizziness, reduced stamina and anxiety as resulting in serious impairment.[86]  Further discussion of medical professionals’ involvement in categorizing and verifying impairments is found below.

The individual experience of disability, including the differential impact of impairments on individuals given their social characteristics, the existence of fluctuating and recurring conditions and the recognition that an impairment need not be tied to a medical diagnosis, is generally well reflected in the legislation and supported by judicial interpretation.  However, to the extent that the administrative application of the definition varies from the judicial considerations, the actual operation of ODSP fails to recognize the ways in which people experience disability.  In order to more effectively meet this outcome measure, a flexible and more individualized  approach to assessing disability is required to sufficiently capture the varied personal experiences of different impairments and conditions. 

 

2.  Definition of Disability that Recognizes Diversity among Persons with Disabilities

Diversity of persons with disabilities is closely linked with the outcome measure individual experience of disability discussed above. Both are derived from the principle of respect for the diversity and the experience of disability. As noted above, the individual experience of disability can be influenced by a number of social factors.  Some examples of these include age, employment experience, social roles and the ability to communicate in English or French. These factors impact both criteria of “substantial impairment” and “substantial restriction.”  While the courts have acknowledged that social factors play a role in considering the “whole of the person” within the context of his or her own situation,[87] these issues do not receive the same treatment at the administrative level, negatively impacting the degree to which ODSP meets this outcome measure.

In some respects, the principle of equality and non-discrimination also informs this outcome measure. Gender, race, cultural background and sexual orientation influence how individuals will experience or express disability.  For example, some disabilities are more prominent among certain cultural groups or are more often experienced by a particular gender.  Jongbloed notes that multiple sclerosis is experienced differently by each individual and its symptoms are invisible, difficult to document and predict.[88]  Jongbloed notes that fatigue, for example, is one symptom that is particularly difficult to quantify in terms of restrictions.  She further notes that multiple sclerosis affects women at a rate double that of men. [89]  Similarly, racial background may present differences in the types or severity of different forms of impairment or in how those impairments may be perceived.  For example, cultural differences influence the degree to which mental illness may be acknowledged or treatment sought.[90]  Given that some individuals will not approach their doctor or report particular symptoms and limitations, preferring to downplay their experience due to internalized or cultural stigma and discrimination.

A full discussion of the varying ways in which diversity impacts experience of disability is beyond the scope of this assessment.  However, it is necessary, in meeting this outcome measure, that diversity be addressed with respect to both “impairment” and “restriction” criteria.  While the legislative definition is broad and inclusive, the administrative application of that definition fails to accommodate differences.  A full discussion of the process and administration difficulties is found below.

 

3. Recognition of Disability as both an Embodied Experience and a Social Construct

The social constructionist approach to disability identifies social pathology as the sole cause of disability.  As identified above, we have adopted a theoretical framework that defines disability as the combination of an individual’s experience of an impairment and the individual’s interaction with his or her environment.   In applying this outcome measure to ODSP, we have determined that the government’s role in addressing disability is multi-faceted.  That role includes acknowledging the role of both social barriers and the individual experience of impairment in reducing persons with disabilities’ ability to fully participate in the community. 

One aspect of the government’s role is the identification and removal of socially constructed barriers to ameliorate disadvantage.  Unlike previous Ontario legislation which provided income assistance to persons who were “permanently unemployable” and who were “severely limited in activities pertaining to normal living,”[91] ODSP requires that the person have “substantial restrictions” in one or more of the following realms: personal care, community or work activities.  While the new definition acknowledges the different roles that individuals play in society, it also clearly places “disability” within the person:

This definition locates both the impairments and any limitations on the person’s ability to attend to the activities of daily living squarely within the individual. In that, its adherence to a medical model of disability is clear—it is premised on the assumption that the person cannot participate because he or she is too impaired to do so.[92]

 

Even the “social definition” of disability as applied by the SBT and the courts, one that takes into account age, education and language, are all aspects of individual limitations.[93]  There is no recognition that an impairment or the cumulative effect of impairments may be overcome by removing socially constructed barriers that prevent access to employment.[94]

Despite its negative connotations, the previous definition of disability which took into account “permanent employability,” was a broader eligibility criterion that acknowledged society’s role in excluding persons with disabilities from work. The new definition restricts those who can access income assistance.[95] This narrowing of the definition reflects a movement away from supporting recognition of the variations in experience of disability.  Placing the whole of the impairment and restriction on the individual indicates that “disability” within ODSP remains strongly entrenched in the medical model, inconsistent with this outcome measure. 

In Ontario, social barriers continue to operate to exclude individuals from full participation in the community and the workplace in a myriad of ways, regardless of the individual’s abilities.  For example, while an individual may be fully capable of performing the functions of a particular job, inaccessible transportation options may prevent them from attending the workplace.  Similarly, on-going attitudinal barriers limit the ability of individuals from obtaining and retaining jobs as discrimination continues to exclude some.[96]

A number of legislative requirements are making improvements to the environment for persons with disabilities.  The Ontario Human Rights Code requires “reasonable accommodation” in employment and recognizes that indirect and systemic discrimination continue to marginalize and exclude.[97] The Accessibility for Ontarians with Disabilities Act (AODA) seeks to proactively identify and eliminate barriers to participation, particularly in the built environment.[98]

Despite legislative and societal changes, barriers continue to exist and may be the primary reason that an individual cannot compete openly in the labour market.[99]  As the Caledon Institute points out, increasing employability is an important goal for persons with disabilities but cannot be an alternative to income:

employability expectations must bear in mind the profound barriers to employment: lack of work-related aids and devices, lack of personal supports, negative attitudes and high unemployment. Income support must always be assured in order to provide a secure base.[100] 

 

There is an obvious tension between the principles in this example as moving towards fuller participation has been used to limit access to income supports with an increased focus on creating incentives to return to work; however, the principles need not conflict as continuously improving  accessibility can occur alongside maintaining economic security. 

 

4.  Definition of Disability that Reduces Medicalization

ODSP eligibility requirements specifically require medical verification for “the impairment and its likely duration and the restriction in the person’s activities of daily living.”[101] Courts have interpreted the degree of medical verification necessary to be relatively low, requiring only an “arguable basis” for the existence of an impairment.[102]  Nonetheless, placement of “disability” within the medical model, both in the legislative and judicial interpretations and, in particular, the degree to which medical proof is required at the administrative stage of eligibility determination, reinforces inequitable power relationships between applicants/ recipients and their health care providers.[103]

Frazee, Gilmour & Mykitiuk, in analyzing women and disabilities in the context of ODSP, argue that the power inequity pervades each level of interaction with health professionals: the gaze, the dialogue and the judgment.  As the medical professional frames each aspect of the interaction, it is their perceptions that matter, minimizing the role of the woman with a disability.[104]  The emphasis on the medical practitioner’s perception is particularly problematic given that in ODSP applications, the process is not for the health care benefit of the individual and is influenced by the implied obligation under ODSP for medical practitioners to separate feigned disabilities from those that are legitimate.  The patient’s relationship of trust with their medical practitioner is changed by the very task of verifying disability.[105]  Further, as medical professionals rarely understand the experience of disability and the impact of impairments on the lives of their patients, any reporting of restrictions is based on the information received from the individual, prescribed and interpreted, and more “objective” because it is translated by the medical professional.[106]  To the extent that medical professionals are simply re-stating symptoms and limitations that have been described by a patient, the medical lens adds little to the question of qualification.

The inability of many medical professionals to understand the lives of persons with disabilities is further explored in the context of chronic illnesses.   Certain conditions are characterized by invisible symptoms, including chronic pain and multiple sclerosis.  Medical professionals have difficulty quantifying the impact of symptoms “that they cannot see” leading to problematic reporting and higher rejection rates.[107] Also problematic is the fact that most medical professionals understanding of disability is framed within the medical model and does not extend to social factors that create disability.[108]

Practical difficulties also impact the reliance on medical professionals to “prove” disability.  This issue is explored below in a discussion regarding the processes of disability determination. 

Over emphasis on the role of medical professionals will limit access to ODSP, even where an individual’s impairments and restrictions are otherwise substantial.  Again, the legislative test requires minimal verification by a medical professional, acknowledging that medical assessments can only play a small role in determining eligibility as “a person with a disability” given the confluence of factors that impact “disability.” Medical assessment will continue to be necessary to a degree; however, as the courts have recognized, such assessments should only provide an arguable basis from which to evaluate qualification.  Equally important is an assessment of social factors that alter an individual’s experience of an impairment and the individual experiences of social barriers.  Consequently, new mechanisms of verification may be explored, including the expansion of the types of individuals who may provide evidence of disability and greater reliance on self-reporting and lay evidence, in order to better meet this outcome measure.

 

Conclusion: Eligibility based on Disability Status

In applying the outcome measures to the definitional criteria of disability in ODSP, a number of concerns become apparent.  While the legislation itself, with the exception of exclusions for addictions, is generally inclusive, the administrative application of the criteria fails to recognize the individual and diverse experiences of disability.  A harmonization of the application of the legislative and administrative definition that more adequately meets the outcome measures described in the Rights-Outcome Lens will provide a more principled basis on which to assess eligibility for ODSP.

 

C.    Eligibility Based on Financial Status

 

 

Many income support programs for persons with disabilities require a financial screening process prior to disability determination.  For persons who are found to be financially eligible and ultimately approved for benefits, ongoing compliance with financial rules is imposed.  Most social assistance programs in Canada are defined as needs-tested, meaning that income requirements are compared with available assets and income in order to determine need.  This is illustrated in the purpose section of OSDP insofar as it emphasizes accountability to taxpayers, the shared responsibility of “government, communities, families and individuals,” and the conservation of resources.[109] Gilmour argues that the statement of shared responsibility permits the government to reduce its role in ensuring financial security for persons with disabilities.[110] The explicit focus on taxpayer accountability is an unusual statement in legislation.  While there is an implicit understanding that government programs must be generally accountable, ODSP makes that statement explicit.[111] In this way, ODSP fails to recognize state assistance and full citizenship as a “right”; instead, the legislation implies that persons with disabilities are only “deserving” of state assistance or full citizenship “to the extent that they demonstrate that they have taken individual moral and political responsibility for their own economic fates.”[112]

 A person’s ability to earn income and acquire assets beyond certain amounts is limited when seeking to qualify for, or maintain, ODSP benefits.  Moreover, many income support programs define the benefit unit to include more than just the individual recipient based on family status, causing persons with disabilities to be dependent on others in their benefit unit with higher incomes.[113]  These restrictions on income, assets and family size are generally inconsistent with the LCO principles and our derived outcome measures. 

Although asset and income exemptions in the ODSP are an improvement from those found in the predecessor Family Benefits Act system,[114] some of the restrictions currently in place continue to negatively affect eligibility for individuals who would otherwise qualify for benefits based their disability.  Using the Rights-Outcome Lens, this section provides a detailed discussion and analysis of such rules. 

 

1.      Definition of the Benefit Unit that Empowers the Individual

Prior to discussing outcomes that relate to income and asset provisions, income support programs for persons with disabilities must ensure that the definition of the benefit unit empowers the individual recipient.    Any restrictions placed on social assistance recipients should not impede one’s ability to be financially independent or autonomous.  ODSP stipulates that a spouse of an applicant is considered to be a dependant in the benefit unit and that the budgetary requirements, income and assets of dependants are to be included in determining financial eligibility.  Therefore the combined income, assets and expenses of a couple would be taken into account to determine financial eligibility and the amount of income support available for the recipient.[115]  This requirement does not promote an outcome of individual empowerment.    Instead, by accounting for the person’s spouse in the determination process, a situation of dependency is created whereby persons with disabilities are forced to access the financial resources of their spouses prior to being eligible for benefits under the program.  Not only is the individual’s ability to be financially independent affected, but this broad definition of benefit unit is a breach of one’s dignity. As discussed above, the Falkiner decision did make some progress this area; however, its application is currently limited in scope to single parents.[116]  

 

 2.  Income Allowances that Promote Acceptable Living Standard

This outcome measure is grounded the in interaction of three principles, as outlined above in Section IV.  Since persons with disabilities face multiple barriers to accessing economic security, ODSP provides an alternate mechanism of support, compensating for the exclusions that are created because of social organization and attitudes.  This aspect speaks to the principles of equality and non-discrimination.  The adequacy of a benefit impacts the degree to which a person with a disability can participate fully in the community, allowing for social inclusion through access to community activities, volunteerism, recreation, etc.  Similarly, the adequacy of the benefit impacts the degree to which a person with a disability can live independently and choose his or her own lifestyle. 

Several Canadian publications have discussed the importance of ensuring that income support programs adequately meet the needs of its recipients.[117] Sufficient income is accepted as a prerequisite to full participation and inclusion in society.[118] Despite these assertions, programs for persons with disabilities rarely provide for adequate living standards.  For example, the maximum available amount of income support for a single individual living in Ontario is $1,042 (monthly).[119]  This amount is supposed to cover all of an individual’s basic needs (i.e. food, clothing transportation) and shelter requirements (i.e. rent, mortgage, insurance etc.), yet the after-tax low-income cut off (LICO) for communities with populations of more than 500,000 was $17,570 in 2006.[120] Not only does this present a significant gap between provincial income supports available for people with disabilities and the amount of income required to meet their daily necessities, but it also limits one’s ability to  fully participate and be included in society.  Moreover, individuals with income in excess of their entitlement under ODSP would ultimately be ineligible for income support benefits under the program.[121] 

Given the gap between ODSP entitlements and the amount of income required to promote acceptable living standards, ODSP recipients must find ways to supplement their income in order to survive.  For those who are able to work and find gainful employment, ODSP does include certain allowances for employment earnings.  Individuals are able to retain 50% of their net employment earnings in any given month after allowances for child-care deductions[122] and disability-related work expenses.[123]  Therefore, recipients only become ineligible for ODSP if the employment income they are able to retain after the claw-back is higher than the maximum income support available to them under the program.

Some members of our focus groups appreciated this “incentive” to earn employment income while still being able to maintain eligibility for income support.  They viewed such employment income as a “top-up” to their benefits under ODSP, even after the 50% clawback had been applied.  Other members of the group classified the clawback of employment earnings as a “disincentive” to work.  The feeling conveyed was that for some individuals with disabilities, much effort is made to seek out and maintain employment.  In many cases, individuals must overcome significant barriers to accessibility in the workplace and are limited to low-paying positions.  Thus, a 50% clawback of their net earnings as a requisite to maintaining eligibility for the benefits was viewed as unreasonable. 

Individuals who are unable to work or find employment are often forced to rely on other sources of income in order to supplement their income support benefits.  ODSP regulations include a number of exempt sources of income.  Of particular note are the following two provisions:

43.  (1)  The following shall not be included in income: ...

9. Payments from a trust or from a life insurance policy, gifts or other voluntary payments, that are applied to,

i.   expenses for disability related items or services for a member of the benefit unit that are approved by the Director and that are not and will not be otherwise reimbursed, ...

13. Payments in addition to a payment under paragraphs 1 to 12 that are payments from a trust or life insurance policy or gifts or other voluntary payments up to a maximum of $6,000 for any 12-month period. [124]

 

First, the legislation allows for support from any source where the income will be used for expenses for disability related items or services.  For example, an ODSP recipient may want to access funds from a parent in order to pay for personal assistance services or occupational therapy, neither or which is reimbursed from any other plan or program.  This is a good example of a provision that allows ODSP recipients the flexibility to fulfill their everyday needs without affecting eligibility requirements for the program.

On the other hand, section 43(1)(13) of the ODSP Regulation allows for voluntary payments and or gifts from any source.  However, in order for such payments to not trigger an overpayment or affect eligibility for the program, ODSP imposes a $6,000 limit from such sources in any 12-month period per member of the benefit unit.  For example, a sibling may support her brother with funds for groceries, rent and other living expenses; however, exceeding $6,000 in support over any 12-month period would likely jeopardize the recipients ODSP benefits.  The maximum benefit available for a single individual on ODSP is $1,042 per month.[125]  While benefit levels should be increased to be truly consistent with our desired framework, a $6,000 allowance in the form of voluntary payments does not even allow individuals to meet the LICO in communities with population of more than 500,000.  At current entitlement levels, ODSP must allow for unlimited amounts of voluntary payments and gifts in order for recipients to achieve the outcomes identified in Figure 1.

Some ODSP recipients may also be eligible for income from other government sources.  While some of this income is considered exempt for the purposes of determining eligibility, other sources are not.  For example, the following government income is considered exempt:[126]

·         Payments of Assistance for Children with Severe Disabilities;

·         Some payments received under the Child and Family Services Act;

·         Payments received under the Developmental Services Act;

·         A payment or refund under the Income Tax Act;

·         A death benefit payment under the Canada Pension Plan;

·         Some payments received under the Indian Act;

·         A Canada Education Savings Grant;

·         Payments of  Universal Child Care benefits; and

·         Payments from Registered Disability Savings Plans (RDSPs).

These exemptions are commendable as income from these programs is essential to narrowing the gap between ODSP entitlements and full achievement of the identified outcomes.  There is, however, one significant source of income that is not considered exempt by ODSP.  Although receipt of Canada Pension Plan Disability (CPPD) payments does not affect eligibility for ODSP, such payments are taxable and deducted dollar-for-dollar by ODSP.  Keeping in mind that CPPD is paid to individuals who are unable to work, a full clawback of CPPD income leaves few options for those individuals to supplement their ODSP benefits.  The full claw back is inconsistent with the manner in which employment income is treated under the program.  Given that CPPD benefits are meant to replace employment income, perhaps deductions, if any, should mirror those allowances governing employment earnings. 

 

3.     Asset Allowances that Promote Acceptable Living Standards

Needs-based income support programs also consider the assets of the benefit unit when determining eligibility for benefits.  Like the overly restrictive rules relating to income discussed above, limitations on the accumulation of assets often restrict persons with disabilities from having acceptable living standards.  With ODSP entitlements well below the LICO, a principled approach to income supports for persons with disabilities should encourage the acquisition and growth of one’s asset base to allow for future financial security.  Without such opportunity, many persons with disabilities who rely on income support programs to subsidize their budgetary requirements will perpetually live in poverty.  In addition, excluding persons with disabilities with assets in excess of legislated limits forces these individuals to convert and spend such assets before accessing income supports. Focus group participants noted that this requirement has a significant impact on persons who acquire a disability later in life, forcing these individuals to exhaust all the savings they have accumulated through years in the workforce before they are eligible to access supports.  Again, this often results in a living well below acceptable standards and forms multiple barriers to achieving financial independence and autonomy.  The prescribed asset limit for a benefit unit applying for, or in receipt of, ODSP is $5,000 for an individual and $7,500 for a couple.[127] This means that a single recipient cannot exceed $5,000 in non-exempt assets without being suspended from receipt of future ODSP income.  A new applicant with more than $5,000 in assets would not even proceed to the disability status determination phase of the applicant process. 

ODSP does allow recipients to own certain assets that are exempt from the prescribed limits.  For example, an individual is allowed to own his or her own primary residence and motor vehicle.[128]   While such exemptions may look good on paper, in practice, the combination of low entitlement levels and restrictions on saving money makes it almost impossible for anyone to be in a position to acquire such assets. 

Overly restrictive limits on assets often affect recipients’ ability to save for future personal needs.  As a means of advancing savings opportunities for persons with disabilities, the federal government introduced the Registered Disability Savings Plan (RDSP) in the 2007 federal budget.  The RDSP, much like a Registered Retirement Saving Plan (RRSP), allows persons with disabilities to invest funds in a tax-deferred registered account that can attract up to $4,500 in federal contributions per year.[129]   In order for the RDSP to be an effective tool in the financial planning process, it is imperative that provincial income support programs exempt assets in RDSPs when determining eligibility.  The Ontario government has amended ODSP legislation for exactly this purpose by allowing Ontarians in receipt of ODSP to save through RDSPs without penalty.[130]

For friends and family members who wish to name ODSP recipients as beneficiaries of their estates or life insurance proceeds, careful planning must take place to ensure that an individual’s income support benefits are not jeopardized.  ODSP does not provide an exemption beyond the prescribed limits for testamentary inheritances or life insurance proceeds. To further clarify, if an ODSP recipient receives an inheritance from a family member that results in the recipient’s asset limit exceeding $5,000 (assuming that the recipient is not married and that the inheritance is not an exempt asset), the recipient’s ODSP benefits would be suspended. 

In lieu of being named a beneficiary, ODSP allows individuals to be the beneficiaries of discretionary and non-discretionary trusts.  Income from such trusts is subject to the eligibility rules and restrictions identified above.  While these instruments do allow the recipient’s income support to be supplemented by trust proceeds, some question whether this approach is consistent with the principles adopted by the Rights-Outcome Lens. While a non-discretionary trust allows the recipient some shared decision-making authority over the proceeds, there is a $100,000 monetary limit associated with this type of trust and the beneficiary must always seek approval from the trustee when accessing the funds.  There is no monetary limit associated with discretionary trusts; however, all decision-making authority over investment and spending of the funds is assigned  to the named trustee(s) of the trust, thereby creating a relationship of dependency between the beneficiary and  trustee(s). 

People related their frustration about the lack of autonomy on ODSP – even the ability to handle an inheritance which should provide some independence is restricted – while others are asking why ODSP does not do more to empower and encourage independence.[131]

Less restrictive rules regarding the accumulation of assets, especially with respect to inheritances, would likely raise the standard of living for ODSP recipients in a way that promotes their dignity, autonomy and financial independence.

 

Conclusion: Eligibility based on Financial Status  

Financial eligibility criteria for income support programs too often require persons with disabilities to be living in poverty in order to qualify for benefits.  The combination of the overly restrictive rules relating to the definition of the benefit unit, and income and asset allowances, perpetuate a poor standard of living for many individuals that must rely on such supports.  Although section 7 of the Charter has not yet been found to create a positive obligation on the state with respect to the enjoyment of life, liberty or security of the person, the majority decision in Gosselin leaves this open this possibility.[132] Arbour J.’s dissent in that case went one step further by suggesting that individuals’ economic rights, in particular “those economic rights fundamental to human life or survival”[133] fall within the scope of section 7. Perhaps the application of the Rights-Outcome Lens to the determination of financial eligibility criteria for disability-related income support programs will be a means to realize this assertion that ultimately promotes acceptable living standards for persons with disabilities.

 

D.        Process & Administrative Factors that Influence Access to ODSP

Individuals may be both financially eligible and meet the definition of disability for income support programs, but may nonetheless be unable to access benefits due to barriers in administrative processes.   An evaluation of the accessibility of such programs is beyond the scope of this paper and is better addressed by accessibility standards and frameworks applied in the policy and legislative drafting phases of each initiative.[134]  However, for the purposes of illustration, some examples are outlined below.

Community and academic articles have recognized the numerous, complex processes that make it difficult for an individual to apply, ask for a review and appeal decisions under ODSP.[135] Section 2 of the Accessibility For Ontarians with Disabilities Act[136] (AODA) defines a barrier as “anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability, including a physical barrier, an architectural barrier, an information or communications barrier, an attitudinal barrier, a technological barrier, a policy or a practice.”[137]  Income support programs, particularly those directed specifically at persons with disabilities must ensure that its legislation, policies and procedures are free of such barriers by allowing for the individual accommodation of applicants and recipients.  The applicable legislation should embrace established Charter principles, human rights legislation and accessibility laws.  For example, the Ontario Human Rights Code requires the persons with disabilities be accommodated with respect to services, goods and facilities. The Ontarians with Disabilities Act, 2001[138] (ODA) requires government bodies to develop annual accessibility plans and the AODA prescribes a process for developing and implementing enforceable accessibility standards.  In addition to these laws, income support programs should include explicit references to reasonable accommodation and accessibility.

Moreover, although a comprehensive discussion of the operational processes of social assistance programs is beyond the scope of this paper, the authors have included one process-driven outcome that applies to both the disability determination and financial eligibility of processes of such programs.

 

1.    Accessible and Respectful Administrative Processes for Eligibility Determination

ODSP receives approximately 30,000- 35,000 new applications each year, approximately half of which are granted at the initial application stage, indicating a massive caseload for adjudication.[139] For  those who are initially denied benefits, the entire process through to the point of adjudication by the SBT can take more than one year, a fact critically commented upon by the Ombudsman of Ontario in his report “Losing the Waiting Game” which found that persons with disabilities were losing access to benefits because of administrative bureaucracy and delay.[140]  The Auditor General of Ontario also commented on  delays in processing disability applications, delays in payment of benefits, inconsistent adjudication of “disability” and the significant cost to tax payers involved in appeals, particularly given the fact that the majority of cases are ultimately granted.[141]

One significant issue impacting initial administrative adjudication of disability, as identified by an internal review, is missing or inadequate medical information.[142]  As stated above, the legislation only requires  minimal verification by medical practitioners and the practice of application review must incorporate this threshold into its process.  However, to the degree that medical materials are necessary or helpful, multiple factors may influence the completeness of that material.  Medical professionals are paid little to complete forms and receive little or no training in the complex processes under ODSP.  Medical judgments are also different from DAU expectations.  Where a patient’s condition is chronic, there may be no need to conduct investigations such as MRIs; however, the DAU invariably requires this information.  If specialists are unavailable or not medically necessary, those reports may not make up the ODSP application, again leading to probable denial.[143]

Those who are unable to invest in a lengthy appeal process are simply denied benefits.  It is this system that led to the title of an early review of ODSP:  “Denial by Design” which speaks to the multiple barriers seemingly intentionally built into ODSP to disentitle large numbers of potential recipients.  While a number of changes have been made to the administration of ODSP since its inception, many individuals continue to fall between the cracks, not because they do not meet the eligibility criteria for the benefit but because ODSP procedures act to discourage applications and appeals.[144]

The failure to reconcile the administrative application processes with the legislative test, as interpreted judicially, leads to inappropriate denials and a general lack of access to ODSP.  The frustration, confusion and heavy onus on the applicant limits the ability of ODSP to meet this outcome measure.

 

Conclusion: Application of the Rights-Based Lens to ODSP

Application of the Rights-Outcome Lens to ODSP provides an opportunity to consider the outcome measures in the context of eligibility criteria for a particular disability-related support program.  The analysis reveals a number of weaknesses in the eligibility criteria dealing with both disability and financial status and general problems with the administrative processes.  Nonetheless, ODSP eligibility criteria also exhibit some strengths: the legislative definition of disability is broad, flexible and non-medical while the financial criteria, despite their weaknesses, provide levels of income and asset exclusions that are above those offered in other provinces. 

This review provides the building blocks from which to assess the degree to which eligibility criteria, particularly for income support programs, fulfill principle-based outcome measures.  However, the application of the Rights-Outcome Lens to ODSP eligibility criteria can only be a starting point for discussions about disability-related income support programs in Ontario.  Given the multiple programs offered by different levels of government and private resources, a comprehensive consideration of the intersections of these programs would be necessary for a complete picture of the sufficiency of ODSP eligibility criteria. 

In June 2010, the Social Assistance Advisory Council released its report “Recommendations for an Ontario Income Security Review.”[145]  That Report indicated the need for a comprehensive review of Ontario’s social assistance programs with a view to investigating the jurisdictional overlap between the federal, provincial and municipal governments:

The Social Assistance Review Advisory Council recommends that the Ontario Income Security Review be asked to undertake a comprehensive assessment of income security, employment supports and related services for working-age adults. The Review should include federal programs such as Employment Insurance, provincial programs such as Ontario Works and the Ontario Disability Support Program, as well as municipal, local and community roles... The process of transformation will necessarily involve other orders of government: the federal government must eventually be engaged. Lack of federal government co-operation, however, should not impede Ontario's work to define the reforms needed in federal programs to meet Ontario’s interests.[146]

The Report recognizes the vital nature of income support programs to the lives of individuals in Ontario, including persons with disabilities.  The Rights-Outcome Lens provides a mechanism to begin that discussion.

 

 

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