CPP Disability Claims Advocacy Clinic
 
 

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CPP Social Security Tribunal

by Allison Schmidt 10 January 2013 19:23

The new Social Security Tribunal will begin operating on April 1, 2013.  For those of you who read my blog, this will come as no surprise.  However, I think it is important to give an overview on how this important change is going to impact individuals who are applying for and/or appealing the denial of the Canada Pension Plan disability benefits.

The existing system goes as follows; you make your initial application to CPP for disability benefits, and if you are denied you are entitled to request a Reconsideration of this decision.  The Reconsideration is done by HRSDC - technically in house by another staff member - and if you are denied at this level of appeal, you could request a Review Tribunal.  This was an arms length appeal body and your case was heard - in person - by three panel members who determined whether you met the legislative criteria - in other words - if the decision of the Federal government was wrong.  If you were denied, you then had another level of appeal called the Pension Appeals Board who with their permission or leave - set aside the decision of the Review Tribunal granting you a fresh opportunity for the facts and evidence to be considered.  So basically you had two opportunities to convince an arms-length appeal body, that the government had got the decision wrong.

Under the new Social Security Tribunal - there is two levels of appeal - there is the General Division and the Appeals Division.  The difference is - that the General Division is your only opportunity to present all the information you can to support your case - this means medical reports, facts about your situation, any evidence really to convince the Social Security Tribunal member, that you are disabled according to the CPP disability rules. 

The decisions made by the General Divison of the Social Security Tribunal are going to be more difficult to appeal to the Appeals Division and an appeal will only be granted for specific issues that are legalistic and quite technical. There will be no chance for a person to present new evidence (medical reports etc) at this appeal level.  This is going to cause so many problems - for example - if you have a current Minimum Qualifying Period date in the future and the General Division decision says you are not disabled when they decide your appeal - then from what I understand you will be prevented from submitting additional medical information that might not have been available at the time of the General Division appeal because it simply was not available to you.  Or what happens if you are still doctoring? Are you going to have to wait for an appeal before the General Division when all of your medical is available - how realistic is that? Many of my clients continue to seek second opinions or consultations to clinics that may take years to get - chronic pain clinics for example - it does not mean they are not disabled because they are waiting for an medical appointment. 

So the decisions of the General Division are going to be much more significant and leaving this appeal to an individual who is uneducated or unaware of the lay of the land or the rules of the CPP "game" - should not be considered.

I strongly urge anyone going through this process from the CPP Application, to the Reconsideration Appeal and beyond - to get professional assistance with the process.

Securing a disability pension is far to important an undertaking, for yourself, for your family, for your finanical wellbeing to go through this process without professional help and advice.   

 

A change is going to come - April 2013

by Allison Schmidt 08 May 2012 10:46

When the Feds announced the budget in March included in the contents was this paragraph:

"The Minister will introduce legislative amendments to eliminate administrative duplication in appeals and tribunal services by replacing the current administrative tribunal system for major federal social security programs with a single-window decision body. The new Social Security Tribunal will continue to provide a fair, credible and accessible appeals process for Canadians."

This now means that the Office of the Commissioner of Review Tribunals as well as the Pension Appeals Board will cease to exist in its current format.

The Budget Implementation Act which came out April 26th, 2012 provided some information about what this new Social Security Tribunal would now look like.

The Social Security Tribunal will consist of the General Division and an Appeal Division.

The Tribunal will consist of no more than 74 full time members appointed by the Governer in Council.

The General Division can summararily dismiss an appeal if it is satisfied that it has no reasonable chance of success.

If you are denied at the General Division you can appeal to the Appeal Division and any appeal to this division may only be brought if leave to appeal is granted.

The only grounds for appeal are that

a) the General Dvision failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or

c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

The head office of the Tribunal is in the National Capital Region or at any other place within Canada that may be designated by the Governor in Council.  I have also heard through that there is a push for electronic appeals - are the hearings going to be held in the location that the appellant resides in or are they going to be done just on paper alone?

Under the current system if you are denied at the Review Tribunal and you are granted Leave to Appeal to the Pension Appeals Board you get what is called a hearing "de nova" which means that the Pension Appeals Board will look at the appeal with 'fresh eyes" - you start from scratch and essentially the prior decision carries no weight on the decision making process.  However, under the new system the appeal division will only intervene if an appellant is able to establish the decision contained one of the above noted errors.  This concerns me - the average person will have no idea how to make these arguments.  How is a person with no education, or those who have language barriers, or those who are functionally illiterate, or who are sick ever going to be able to make a successful submission?

Every application to the Tribunal is to be heard before a SINGLE MEMBER.  Who are these members going to be? Are they going to understand the tenants of the CPP legislation? Are they going to have a medical background so they can understand the medical reports? The Feds at the Pension Appeals Board had a doctor who would explain the medical condition to the Board because they did not have medical expertise - the Review Tribunal have a medical member sitting on the Panel - are these new single members going to have the expertise of a lawyer or a medical person? Also, when the appeal is heard before three panel members I understand that they have the opportunity to deliberate among themselves and there is the opportunity to discuss all the points that have been made at the hearing - when there is an appeal before a single member - well I feel that that opportunity is lost - if the single member is having a bad day - who is going to hold that single member accountable? Where will the balance in the decision making be - it is no different from presenting the information at the initial application, and at the reconsideration - those decisions are made by a single member of the Federal Government - is that the same thing that is going to happen under the new system - only the single member is in a different location??

There is also a lot of discussion in this Bill about the Electronic Administration of the Canada Pension Plan.

 

So what does this mean? I am not a friend of the Federal Government - you have read my blog and likely noticed the disdain I have for the Feds. They state in their budget document that this new tribunal is going to "provide a fair, credible, and accessible appeals process for Canadians." - not likely. My first response to this was why would the Feds do this - the Tribunal and the Pension Appeals Board run well - the system has been in place for years. I believe and have stated many times that having a hearing before three independent arm's length community panel members is an excellent way for an individual to have his case and application for Canada Pension Plan disability fully explored.

An individual from Service Canada told me that the adjudication time frame for an initial application is running as high as 32 weeks - that is eight months. Then 60% approximately are denied - and then you are waiting at least another 20 - 25 weeks for a reconsideration. I am still waiting for the results of a Freedom of Information request I submitted to formalize these statistics but things are pretty grim out there - at least that is what I hear from the daily calls of desperation to my office. So in the past I was confident that an appellant would have a good hearing before the Review Tribunal especially if they were prepared well - and now the Feds have completely changed the system and from what I read - the Canada Pension Plan Act itself.

Now everyone is up in arms about changes to the environment but what about all of these subtle changes that affect Canadians - believe me no one seems to care - unless it happens to them - and you have read my discussion about how this process and procedure negatively and significantly impacts Canadians at some of their lowest times - how exactly is that fair and credible, oh and lets not forget accessible?

So I am working here to evolve the website as these changes come in to place - I will tell you one thing I believe for sure - get help with the application - get help with your appeals - make sure you find someone - use the resources on the website - anything you can do to make sure you get a successful result before these changes came in to place.

I intuitively believe that the Feds are doing this for one reason alone - and that is to save MONEY - and of course in my opinion their CLAIMS EXPOSURE which will ultimately mean they will save MONEY.

Please check back as I make changes to this website to help you with your applications and appeals.

Credible. Fair. Accessible. My a$$

 

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