The Ontario Court of Appeal recently considered a thorny issue: can the director of the Ontario Disability Support Program (ODSP) or the Social Benefits Tribunal ever choose to waive collection of overpayments?
The answer is yes, if the circumstances warrant it. Social assistance recipients do not have to descend further into poverty to repay disability support overpayments that were unfairly assessed in the past or would cause hardship in the future.
Mr. Surdivall is a disabled senior who received Ontario Disability Support Program (ODSP) income support until he turned 65.
He made an innocent reporting error that resulted in an overpayment.
By the time the matter reached the Social Benefits Tribunal, Mr. Surdivall had turned 65 and was no longer on ODSP. He was ordered to pay half the outstanding balance, at a rate of $10/month. This sum was beyond his means.
The court’s findings
The legislation stated that overpayments may be recovered.
But the court recognized that people on welfare often receive overpayments for reasons entirely beyond their control and, potentially, because people with power over them have abused the system. The court also recognized that the ODSP can consider the circumstances and waive collection of overpayments on that basis.
Its specific findings:
The lower court (i.e., the Divisional Court) ruling against Mr. Surdivall essentially prevented social assistance recipients from challenging the collection of most overpayments, no matter how unfair the circumstances. The higher court overturned this decision, ruling that the Social Benefits Tribunal has authority to restrict the director’s recovery of an overpayment and order that part or all of an overpayment not be recovered.
- “May” and “may be recovered” can mean “may not” or “may not be recovered”, depending on the context. Essentially, the courts should interpret “may” in light of the purpose of the ODSP, which serves some of the province’s most impoverished and vulnerable residents.
- “Broad discretion over the recovery of overpayments” includes how to recover an overpayment, and “if the circumstances of an individual case warrant it,” can include choosing not to recover part or all of an overpayment.
- The director must exercise discretion reasonably, taking account of a disabled recipient’s individual circumstances. In some cases, it will not be reasonable for the director to recover all or part of an overpayment.
- Flexibility in overpayment collection is needed to meet the ODSP objectives of shared responsibility for supporting and effectively serving people with disabilities.
The court’s decision, based as it was on the objectives of the Ontario Disability Support Program, its legislative context and access to justice, is a welcome clarification of the law for clinics and low-income Ontarians.