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Social Assistance Appeals: FAQs

  1. Q. Under the Employment Support and Income Assistance Act (hereinafter referred to as “ESIA”), what can beappealed?

A.Any decision made by a social assistance official[1]including a decision to terminate assistance; to reduce it;increase it less than the legally required amount; refuse assistance to an applicant; decisions regarding special needs assistance; a refusal to grant special needs assistance; issues regarding the amount of assistance provided; and a non-decision or a refusal to make a decision regarding a request for assistance can be appealed.

2. Q.Do Department of Community Services workers have any obligation to notify applicants/recipients of their right to appeal decisions?

A. Yes, workers must advise applicants of their right to appeal “determinations made pursuant to this Act”.[2] TheAct does not specify this has to be done in writing, and in fact, many decisions are conveyed to people orally; however, this does not affect the appealability of the decision.

3.Q. What kind of process is involved in an ESIA appeal?

A. ESIA appeals involve a two-step process, with the first being an internal, administrative review, and, if necessary and requested by the appellant, asubsequent viva voce hearing.[3]

4.Q. Is there anappeal period, and if so, how long is it?

  1. A person has 30 days “after the decision complained of is communicated” in order to initiate an appeal.[4] The point regarding communication is important in situations where mail may have gone astray or where a decision was made but not effectively communicated by the worker to the person.
  1. Q. How is an appeal started?

A. Appeals are to be initiated by a written[5]and signed[6] letter. The letter must go further than simply complaining about a decision, and must actually request an appeal. While they can be “submitted” to any office maintained by the Department”[7], one would normally mail/drop it off at the DCS office which issued the decision.[8] The letter must specify the decision being appealed and the reason for the appeal.

6. Q.Should the appeal letter provide a statement of facts or an extensive explanation of the reasons for the appeal?

A.This is more a matter of strategy than a legal issue. Generally, the appeal letter should simply refer to the decision being appealed, and the reason it is being appealed (e.g., the appellant doesn’t agree with it). On the other hand, if it is clearthe facts are not in dispute/disputable, there may be no harm in setting them out fully,together with a legal submission in the hope this may cause the internal reviewer to seriously reconsider the matter on the merits,andpossiblyoverturn the initial decision.

7.Q. What happens after the appeal request has been sent in?

A. Upon receiving an appeal request, an internal review is conducted, and within 10 business days of receiving the appeal request, a DCS worker must send by mail/courier the results of the internal review. The decision letters are intended to be substantive, referring to both the relevant evidence and reasons for the decision.

The letter from DCS must state “whether the decision complained of is upheld, varied or reversed, and the reasons for upholding or changing the decision.”

Most often, the outcome of the internal review is to support the initial DCS decision.

The decision letter from the internal review willinquire whether the person wishes to continue the appeal to the next stage and will have a tick box in which the person can indicate “yes” or “no” as to whether the appellant wants the appeal process is to be continued.

8. Q. What happens if the person wants to continue the appeal?

  1. Upon receipt of the results of the internal review, there then begins a 10-day appeal period.[9] In order to continue the appeal, the tick box must be checked indicating the person wishes to continue the appeal,and the document (decision/letter) must be dropped off or faxed to the DCS officelisted at the top of the letter.[10] This formally starts the second-stage of the appeal process leading to a viva voce hearing.[11]

After receiving the request for the appeal hearing, DCS must send a copy of all the documents it isrelying on to the appellant.[12]

Preparing for an Appeal

9. Q. What documents will DCS rely on at the hearing?

A. Normally, they will be the documents that DCS sent to the person once the viva voce hearing has been requested; however, DCS can and sometimes does introduce other documents at the appeal hearing.

10. Q. What information gathering can be done in preparation for a hearing?

A. As with other types of proceedings, it is important to be familiar with the government’s position,both legal and evidentiary, as well as the evidence and legal arguments relevant to the appellant’s case.

Crucial to proper preparation for an appeal hearing would be the review of all of the relevant DCS file information concerning the person.

11. Q. How do you obtain access to these files?

A. DCS (or any provincial government files)can be accessed through a request made under the Freedom of Information and Protection of Privacy Act(FOIPOP).

If you are seeking records on behalf of a client, you will need to have the client complete a FOIPOP Consent Form authorizing DCS to provide you with access to their file. This can be sent,along with your covering letter, to the provincial FOIPOP administrator. These requests typically take several weeks to complete,therefore, the FOIPOP request ought to be made at the same time as the request for the appeal hearing.

12. Q. What records should be requested in a FOIPOP request?

A. Thiswill, not surprisingly, turn on the nature of the case, but generally, requestsshould be worded broadly, for example, in a “cohabitation” case, your request may be for all information on my Income Assistance file(s). This consent extends to and includes any and all information/records stored electronically or otherwise, together with any Eligibility Review records, notes etc. stored in any and all formats.” A sample consent form is attached as appendix “A”.

13. Q. To whom should the FOIPOP request be made?

  1. The FOIPOP request can be sent to the DCS provincial FOIPOP Administrator:

FOIPOP Administrator

Department of Community Services

P.O. Box 696

Halifax, NS B3J 2T7

Fax: (902) 424-0502

14. Q. How does the FOIPOP review work?

A. Once the FOIPOP request has been received and acknowledged, then an arrangement will be made for the appellant and/or their counsel to attend a DCS office where the file will be presented, and typically, a place will be provided in order to review the file and identify those documents which you would like copied. Most often only a small percentage of the file documentation will be relevant, and/or there is no need to copy the whole file. The identified documents are copied and sent to the appellant/their counsel.

These documents should be reviewed carefully as they often contain informationnot referred to in the DCS summary of the case (and which is helpful to the appellant) or which contradicts the DCS position. These documents can, therefore, be used in cross examination or simply tendered at an appeal hearing.

15. Q. What information from the appellant’s side should be prepared?

A. While not always necessary, it is helpful to have an affidavit prepared setting out the appellant’s evidence. Having this written record of the appellant’sposition has its obvious uses when filed at a viva vocehearing, but becomes even more useful when regard is had to the fact that an Assistance Appeal Board hearing is not recorded,andshould a judicial review application become necessary, it will often form the only record of your client’s evidence. In addition, any other witnesses or relevant documentation should be assembled (along with additional copies for the DCS representatives and the one-person appeal Board).

16. Q. Can a person or documentary information be subpoenaedto attend an

Assistance Appeal Board hearing?

A. Yes, under NS Civil Procedure Rule50.07, a prothonotary or judge may issue a subpoena in aid of a tribunal proceeding

17. Q. When will the appeal hearing take place?

A. The Assistance Appeal Regulationsprovide that an appeal board shall hear a matter and render its decision within 45 days from the time that DCS has received the request to continue with an appeal. By agreement with DCS, this time frame may be extended for an additional 30 days.

The Hearing Process

18. Q. What legislation will be relevant to an appeal?

In almost all cases, the only legislation relevant is:

  1. The Employment Support and Income Assistance Act;
  2. The Employment Support and Income Assistance Regulations; and,
  3. The Assistance Appeal Regulations

19. Q. What role do the “policies” which may be cited by a DCS caseworker play in a case?

A. Legally, none! The ESIA Policy Manual is intended as an administrative guide to the workers/supervisors who administer the program on a day to day basis. While it can be useful in order to understand some general features of the ESIA program, sometimes, the policies will suggest the ESIA program is different and more restrictive than under the legislation.

Unfortunately, too often the policy manual is cited by worker as the legal basis for DCS decisions. Simply put, the policies have no legal status and should not serve as the legal justification for decisions taken by DCS.

At an appeal hearing, should DCS rely on policies that are more onerous/less beneficial than the Act and Regulations, it will be important to bring this discrepancy to the Board’s attention and inform the Board that the policies have no legal status.[13]

20. Q. What is an Assistance Appeal Board hearing like?

A. The hearing is very informal. Typically, it will take place in a meeting room at a local DCS office. An Appeal Board member will hear the case. DCS will often have present only the case worker representing the Minister, but the caseworker might be accompanied by their supervisor. Rarely will DCS have legal counsel present.

21. Q. What is the process at an appeal hearing?

A. After introductions, the appeal board member will call upon either the DCS representative or the appellant to present their case. While it would make most sense for the Department to explain its decision to the Board followed by the appellant’s case, the regulations leave it to the appeal board member to decide the order in which the parties will be heard.[14]

22. Q. What evidence is admissible at a hearing?

A. The only restriction on the kinds of evidence deemed to be admissible is that it must be “relevant”. Hearsay evidence is regularly introduced and relied on.

23. Q. What rules of fairness are required?

A. The Assistance Appeal Regulationsprovide each party to an appeal will be permitted to:

  • present relevant evidence;
  • cross-examine witnesses;
  • present rebuttal evidence or argument; and
  • make a closing argument.[15]

24. Q. When will the Board render its decision?

  1. The decision of the Board shall be in writing and shall be rendered no later than 7 days after the hearing of the appeal.[16]

Other Resources:

  • Chapter 12 of the Department of Community ServicesESIA Policy Manual (frequently updated)containsfive pages on the appeal process. The Policy Manual can be found at:
  • The DCS also has an ESIA appeals web page containing a brief summery of the appeal process:
  • Dalhousie Legal Aid Service also has a welfare rights guide which can be found at:

APPENDIX A – SAMPLE FOIPOP CONSENT FORM

Consent to Release Information

IN THE MATTER OF: Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5.

I, the undersigned do hereby authorize the Department of Community Services, Province of Nova Scotia, to release to my legal representatives at Nova Scotia Legal Aid, including X, all information on my Income Assistance file(s).

This consent extends to and includes any and all information/records stored electronically or otherwise together with any Eligibility Review records, notes, etc. stored in any and all formats.

I intend this consent to include all information which is on my file now and is put on my file subsequent to this date with respect to any matter on which Nova Scotia Legal Aid continues to represent me.

DATED at , Nova Scotia, this day of ,200 .

______

WITNESS

[1] Section 12(1) of the Employment Support and Income Assistance Act:

Any person who has applied for or who has received assistance pursuant to this Act may appeal any decision related to the person's application or assistance received.

[2]See s. 7(1)(b)(v) of the ESIA,

[3]ESIA, s. 12.

[4]ESIA, s. 12(3). However, ESIA Policy Manual(section 12.1.4) indicates that appeal requests will be accepted up to 45 days after the person has learned of an adverse decision.

[5] The requirement that the appeal request be in writing is stipulated by s. 6(1) of the Assistance Appeal Regulations made pursuant to the ESIA.

[6]Assistance Appeal Regulationss. 6(1)(b).

[7]Assistance Appeal Regulationss. 6(3).

[8]The address and/or fax numbers to which appeal requests can be sent will be on the letter informing the person of the decision. (The contact information for all local DCS offices is at: Alternatively, appeal requests can be sent directly to: Coordinator of Appeals, Department of Community Services, P. O. Box 696, Halifax, NS B3J 2T7, fax: (902) 424-0502.

[9]ESIA s. 12(5). The ESIA Policy Manual (as well as the DCS appeals web site) indicate that appeal requests from an internal review will be accepted up to 20 days after the person has learned the outcome of the internal review.

[10] Again, appeal letters can also be sent to the office of the Coordinator of Appeals (see footnote 7 above.

[11]ESIAs. 12(6): “…the appeal shall be set down for hearing before an appeal board.”

[12]Assistance Appeal Regulationss. 7(c).

[13] The Nova Scotia Supreme Court has, on several occasions, held that the policies have no legal significance and should not be relied on by the Assistance Appeal Board: Stewart v. Nova Scotia (Social Assistance Appeal Board), [2001] N.S.J. 172 at para. 24 per Haliburton J.; Glasgow v. Nova Scotia (1999), 178 D.L.R. (4th) 181 (N.S.S.C.) per Davison J. at 186-7; and Borden v. Halifax (City) Social Planning Department (1991), 109 N.S.R. (2d) 261 (N.S.S.C.) per Gruchy J.

[14]Assistance Appeal Regulations, section 12(1).

[15]Assistance Appeal Regulations, section 12.

[16]Assistance Appeal Regulations, section 13(2).