The Ombudsman exists to help balance the rights of individual citizens against the power of a large bureaucracy. In performing this task, the Ombudsman accepts a secondary function, equal to or nearly equal to the first, to improve the systemic fairness of government.
An individual complained she was required to pay a $7,150 overpayment by the Assured Income for the Severely Handicapped (AISH) program. The ensuing full or formal investigation led us to recommend a fundamental change in the way requests to waive overpayments are considered. Another recommendation increased the expectation that Appeal Panels act more fairly by ensuring they have the authority to decide on an issue; explaining fully how they reached their conclusion; and ensuring the evidence before them is sufficient to allow a conclusion.
The complainant incurred the overpayment when federal authorities altered the approval date for her Canada Pension Plan – Disability (CPP-Disability) benefits to an earlier date, resulting in retroactive payments. This meant her AISH benefits had been overpaid. She also received a retroactive payment from Canada Pension Plan – Survivor (CPP-Survivor) when it was reassessed. The complainant argued she was unaware of the CPP benefits calculations and should not be responsible. She maintained that she was confused about how AISH calculated the overpayment and repayment would be a hardship affecting her mental and physical well-being. She argued she was taxed on the CPP-Disability benefits; and it would take years to repay, affecting her monthly living allowance.
Requests to waive AISH overpayments are considered by an executive director. In this case the executive director correctly stated the province had the right to recover the overpayment. She said the complainant had not demonstrated “appropriate circumstances” to justify waiving the overpayment, although she did offer that the complainant could negotiate the amount of the monthly repayment with her AISH worker. On reviewing AISH policy, we noted the executive director is instructed to review the “totality” of an applicant’s situation including factors such as: administrative error; client’s role and awareness of the mistake being made; impact on the client’s disability or medical condition; client’s financial situation; and whether the client benefited from the error. We concluded when policy instructs a decision-maker to consider the “totality” of the situation, all of the identified factors should be addressed. For example, in this case the complainant clearly claimed it would be difficult for her to repay and her mental and physical health might be affected. The decision letter, limited to saying “appropriate circumstances” had not been met, did not demonstrate the identified factors had been addressed.
Although decisions of the executive director are not appealable, the Deputy Minister accepted the Ombudsman’s recommendation that the request from the complainant should be reconsidered and a new decision issued. On a systemic level, it was accepted that future requests to waive overpayment must consider the “totality” of a client’s situation. The executive director did reconsider but came to the same conclusion not to waive the overpayment.
The investigation also reviewed a decision made by the AISH Appeal Panel (the Panel). The Panel exceeded its authority when it ruled the complainant must repay the overpayment because the authority to waive or not waive an overpayment lies with the executive director. The Panel was tasked with deciding if the overpayment was fairly calculated. The Panel concluded the calculations were fair. However, we reviewed the evidence presented to the Panel by the AISH administration and concluded the Panel could not have made an informed decision as the evidence was insufficient to allow such a conclusion.
We recommended the matter be reheard, and that AISH administration provide a detailed calculation of the overpayment to the Panel rehearing the matter. The recommendation was accepted. At this point, the Appeal Panel has granted the complainant a rehearing. Prior to the hearing, the complainant will receive a copy of the more detailed calculation of the overpayment.
After all the considerations are completed, the overpayment to the complainant may or may not stand. Whatever the benefit to the complainant, the investigation advanced important principles that will ensure administrative fairness for future AISH clients.