Contributed to The Globe and Mail
Published Wednesday, Jul. 16 2014, 9:21 AM EDT
Michael J. Prince is the Lansdowne Professor of Social Policy at the University of Victoria, and has written extensively on disability policy.
There are serious problems at the Social Security Tribunal and the Canada Pension Plan Disability Program, especially for people trying to appeal decisions on their ineligibility for this disability pension benefit.
The purpose of CPP Disability, the country’s largest public disability insurance program, is to replace a portion of the earnings of contributors who cannot work because of a severe and prolonged disability.
To determine a severe and prolonged disability, information is compiled from the applicant, their physician, and employer to produce a profile of the applicant, which is then used to determine eligibility for the income benefit. The legal test for CPP disability is one of employability, rather than medical eligibility. This is not well understood by most people, and is a reason why many people are unsuccessful in obtaining CPP/D. Severe means having a disability that leaves you “incapable regularly of pursuing any substantially gainful occupation.” It is possible to work somewhat and still receive CPP disability benefits.
The problems are as follows:
First, about 60 per cent of initial applications for CPP disability benefits are refused. Reasons why people do not succeed on the first try: Unwieldy paperwork; murky rules; failure to identify and obtain the appropriate medical and employability information; and inability to connect with real individuals who can provide genuine service.
Second, the rate of successful appeals against initial rulings on CPP disability benefits has been declining over the last decade, to just 43 per cent in 2013-14. Indeed, Canada has one of the highest rejection rates for a disability insurance program among OECD countries. If after the first decision individuals were given detailed written decisions and a copy of their file, together with information about the appeal system, an easy to complete application, and a postage-paid envelope, we might see a very different appeal profile.
Third, there is a “backlog” of more than 7,000 appeals on denials of CPP disability benefits to be heard by the Social Security Tribunal, a body established in 2013 to streamline the previous system. In fact, the previous tribunals made significant efforts to hear and decide appeals by the statutory deadline, because the consequences for appellants were obvious. Neither Employment and Social Development Canada nor the SST can claim to be surprised. The Office for the Commissioner for Review Tribunals, the legacy body for CPP/D appeals, could have cleared more if it had not been dealing with significant budget cuts, insufficient numbers of members, and been consulted in advance about the proposed reforms.
The SST did not flow from a parliamentary investigation or an audit report. The absence of any effective parliamentary scrutiny guaranteed that persons with disabilities have to live with the consequences of flaws in the new process.
Fourth, working Canadians with disabilities who apply for CPP benefits have lost certain legal rights and had other rights confined. Regulations now allow the new Tribunal to summarily dismiss an appeal if it is satisfied that the appeal has no reasonable chance of success. Moreover, clients have no right to plead their case directly to a tribunal member. An in-person hearing is no longer a guaranteed right but one option among several, that include a hearing by teleconference, by video conference or on the basis of the written documents only. The legal rules of procedural fairness require an oral hearing whenever there is an issue of credibility. Given the subjective component of CPP/D, there is always need for an assessment of credibility, hence, for an oral hearing.
Fifth, in the Social Security Tribunal system, every application to the Tribunal is heard before a single member, whereas under the previous system every application for an appeal was heard by a three member panel which usually contained a medical specialist and a lawyer along with a lay person. Most members of the Income Security division of the SST are either lawyers or health professionals. The issue is not so much their specific expertise, as the value-added of three independent decision-makers. It’s about the inherent limitations of a single perspective on complex cases.
Sixth, under the previous system new evidence could be introduced by a claimant at the second level of appeal, while under the Social Security Tribunal no new evidence or testimony can be presented before the Tribunal’s Appeal Division, following a decision by the Tribunal’s General Division. Where tribunal members exercise overlapping functions in a multi-level decision process, the courts have held that such situations may lead to a reasonable apprehension of institutional bias. With a modest staff complement and large backlog of cases, there are honest concerns about real or perceived bias.
Seventh, the federal government’s stated aim is to move to more electronic technologies for handling CPP disability cases. However, nothing in the legislation or the regulations for the Social Security Tribunal requires that teleconferences or videoconferences be accessible to people with a range of impairments or health conditions. Individuals applying for CPP/D are already under extraordinary stress. The Harper government should establish an accessibility lens on this and other federal programs to ensure that application and appeals processes are accessible for Canadians with disabilities.
The consequences of these seven problems are extremely distressing: diminished rights of working Canadians with disabilities; compromised rules of natural justice; lost expertise in decision making and an under-resourced Tribunal.
The SST is structurally flawed. Who suffers? The clients and their families, who confront new obstacles to access to an income security program vital to their well-being and financial security. But maybe that’s to be expected from a government that relegates a major change in disability policy to the small print in an omnibus budget bill.