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Victories for social assistance recipients who need special diet allowance

By Lesli Bisgould

Of course, it did take four human rights hearings and three applications for judicial review.

Community legal clinics, with help from Legal Aid Ontario’s Clinic Resource Office, have had great success in challenging the manner in which the provincial government dispenses the special diet allowance. This is a longstanding feature of social assistance in Ontario.

Individuals who rely on social assistance receive approximately $650 or $1100 per month for all their food, shelter and other “basic needs.” 1 The government assumes this is sufficient for everyone to buy what’s needed for a “regular, healthy diet.” The special diet allowance (SDA) is intended to cover food costs above these amounts that arise because of a medical condition.

Over the past several years, we have changed government policy and achieved important victories for vulnerable people across the province. Thousands of people have won financial support and the dignity that comes with having their interests represented and their voices heard.

Of course, it did take four human rights hearings and three applications for judicial review.

Background

It all began in 2005, when the government transformed its manner of dispensing the special diet allowance.

For years before then, the government had maintained a schedule of diets, and a health professional would confirm the particular diet a patient required.

However, in 2005, the government changed the schedule of diets to a schedule of medical conditions. A person whose condition was on the schedule could receive the monthly allowance allocated to that condition. 2 A person whose condition was not on the schedule was out of luck.

The design and review of the new schedule took place “extremely quickly.” 3 Thousands of people found that their medical conditions were either excluded or that their allowances were severely reduced. Many turned to their community legal clinic for help.

The challenge

The search for a legal solution to this problem was complicated by:

  • the sheer volume of affected people and the diversity of their medical conditions
  • the broad discretion that tribunals and courts normally grant to government when it designs and implements social programs.

The approach

Clinics across the province helped hundreds of clients commence claims at the Human Rights Tribunal of Ontario or appeal decisions cancelling or reducing their allowance to the Social Benefits Tribunal, which hears social assistance-related appeals.

Thanks to the success of a previous clinic-Clinic Resource Office partnership, the Supreme Court of Canada had made it clear that individuals could choose to advance their human rights in either forum. 4

But rather than litigate these cases individually, the clinics formed a litigation team, with the Income Security Advocacy Centre and the Clinic Resource Office’s barrister as co-counsel.

The team determined that the Human Rights Tribunal of Ontario was the best forum in which to have their clients’ rights adjudicated. The Income Security Advocacy Centre organized all of the clinic cases into a single inventory.

With the support of the Ontario Human Rights Commission, the team then began litigating “lead cases” which were designed to establish legal principles that would guide the resolution or adjudication of the hundreds of outstanding cases.

The gist of the human rights claim: the program discriminated against people who had disabilities requiring special diets. The claim proposed that these disabilities were not funded (exclusion cases), or that they were funded at a lower proportion of the actual cost than other disabilities (under-funding cases).

The first lead case: Ball

In Ball, the Human Rights Tribunal of Ontario established the test for discrimination that would apply in the rest of the special diet cases. In applying that test, it then found the special diet schedule to be discriminatory. It is rare for discrimination to be found in a large-scale benefits program, so this was a big win. The government’s application for judicial review of Ball was almost entirely unsuccessful. 5

However, the tribunal cautiously avoided defining the discrimination too broadly. Instead of finding that the entire schedule was discriminatory, it found discrimination against the lead complainants for their specific medical conditions. This meant that the outstanding medical conditions would have to be litigated one at a time.

As a result of the first lead case proceeding in Ball:

  • unintended weight loss due to multiple sclerosis and lupus were added to the schedule
  • the allowances for hypertension, hypercholesterolemia and extreme obesity were increased

The tribunal ordered that:

  • people who had been subjected to discrimination were entitled to retroactive benefits
  • the government would have to determine how to remedy the discrimination going forward, based on the principles the tribunal had identified.

Appallingly, the government initially decided to remedy the discrimination by cancelling the program altogether. This meant everyone would be treated equally by all being denied the support they needed.

Community legal clinics, their clients and the broader social justice community reacted with petitions, meetings with politicians, a media storm and public protests.

Their efforts worked. The government backed off, deferring the program’s long-term fate to its newly created Commission for the Review of Social Assistance.

In the meantime, to comply with the tribunal’s order, the government:

  • considerably amended the schedule; some people lost their allowances but many others found their conditions added or got an increase in their monthly support
  • agreed to settle many of the outstanding claims before the tribunal; this meant approximately $200,000 in retroactive payments.

Expenditures on the special diet allowance increased by more than $9 million from 2010/11 to 2011/12; many clinic clients benefitted and so did many unrepresented people across the province.

The next lead cases: Martel and Poloz and Buklis / MacConnell

The next lead case, Martel and Poloz, 6 added hepatitis C to the schedule. The government sought judicial review but the Divisional Court unanimously upheld the tribunal’s decision. 7

Next, the tribunal ordered all the remaining lead cases to go forward together, within a very short time frame.

For the next hearing known as Buklis, the litigation team screened more than 100 medical conditions, and ultimately brought forward 11 conditions represented by 17 lead complainants. 8

As a result of the proceeding, two conditions were added to the schedule: unintended weight loss due to renal failure and Prader Willi syndrome. The litigation team sought judicial review in respect of one other condition, unintended weight loss due to dysphagia/swallowing or mastication difficulties. In September 2014, the team unanimously won their application, in a case known as MacConnell. 9 The lead complainant won a new hearing to establish that her condition should be included on the schedule.

In December 2014, relying in part on evidence from the Buklis proceeding, the government added three more conditions to the schedule:

  • Congenital heart defect – (in certain circumstances)
  • Unintended weight loss due to Interferon treatment of hepatitis C (Body Mass Index less than 25)
  • Rett Syndrome (Body Mass Index less than 18.5)

When all is said and done...

The special diet litigation achieved a number of important victories. It:

  • called government to account for its roughshod treatment of vulnerable persons
  • put limits on what governments can do in the context of programs that affect persons with disabilities
  • established or clarified several important legal principles.

However, poverty is expensive. The special diet program costs a lot of money, and its future remains precarious. For now, thousands of individuals across the province have won some additional funding that they can put toward buying the foods they need. And that is a victory to savour.

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Lesli Bisgould is the Barrister at LAO’s Clinic Resource Office. She assists caseworkers at Ontario’s community legal clinics with their appeals and applications to court and other complex cases.

 

Notes:

  1. Pursuant to Ontario Works and the Ontario Disability Support Program respectively. These amounts are rounded off and they have changed slightly over the course of the litigation.
  2. If a health professional certifies that the person needs, to a monthly maximum of $250.
  3. This is how the Tribunal described it: Ball v Ontario (Community and Social Services), 2010 HRTO 360, para. 26
  4. Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14
  5. The government did succeed in one regard. The Tribunal had found that it was discriminatory to exclude a medical condition called “hypoproteinemia” from the schedule. The Court overturned this finding. However, the ruling was based on the specific facts of the case and would not prevent someone else with that condition from raising the challenge again.
  6. Martel and Poloz v Ontario (Community and Social Services), 2012 HRTO 735
  7. Ontario (Community and Social Services) v Martel, 2012 ONSC 6680
  8. Buklis v Ontario (Community and Social Services), 2013 HRTO 918
  9. MacConnell v Ontario (Community and Social Services), 2014 ONSC 5446


One thought on “Victories for social assistance recipients who need special diet allowance

  1. Piran Earle

    Of course, had it not been for activist medical providers flagrantly “prescribing” bottled water for every family member on thousands of cases (when tap water was certainly as safe if not safer for 99.9% of these recipients), the government would not have faced a funding crisis requiring that the special diet allowance be changed. The funding of social assistance in Ontario was in jeopardy as over $7,500,000 per month was going out for bottled water alone! (i.e. $250 per person – in some cases $1000 or more to a single household) Recipients were not using it for bottled water – they were, as these medical practitioners intended, for other items. While it is clear that the basic shelter allowance was and remains too low for recipients residing in the GTA, using payments intended for bottled water to supplement the shelter allowance was and remains fraudulent. If anyone was to blame for the elimination of some medical diets, it was not the government – it was the medical practitioners who fraudulently certified the need for bottled water and those happily completing the fraud by submitting those certifications to their caseworkers without then using the money for the sole purpose of purchasing bottled water. [Note that the bottled water item was intended to assist those living on Reserve or in other communities (e.g. Walkerton) where the water was unsafe to be consumed by humans.]

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