Highlights of the Evidence given to The Standing Committee on the SST.

I have condensed the evidence given by HRSDC to the Standing Committee and highlight the following for you:

There will be legislative timelines associated with the government's responsibility in terms of making decisions and delivering on appeals at the various different levels in order to improve the service to clients in terms of the period of time that they have to wait for their appeals to be heard.

They are moving from three-member panels to one-member panels. As a result it is expected that these panel members will gain experitise in their area and will hear appeals more quickly. They will have five year terms with the possibility of an extension.

HRSDC estimates that each member of the General Division on the EI side will be able to hear of maximum of 690 cases per year (note there is no indication of what a member will hear on the CPP side)

On the CPPD side they are still very much paper focused; stating it is very paper heavy. As they move forward with the service improvement strategy on the pension side, they want to move the pension delivery world into the electronic world.

The saves associated with this move is $25 Million per year.

There is no decision as to where the 74 full time members will be located.

At the General Division were it is broken in to two sections there will be 39 members who will hear appeals related to employment insurance, and the remainder will hear Pension Appeals - 35 members.

But at the Appeals Section the members who hear appeals on all three programs.

The objectives of HRSDC behind the proposal of the Social Security Tribunal is to ensure that clients have one-window access into the appeals process, and the idea is to consolidate those so clients can understand the system better and it is clearer for them.

Tribunal members will have access to legal and medical advice, much as they do now through the other panel members that sit with them. (My question is - who is going to be giving medical and legal advice - likely HRSDC doctors and lawyers - where is the impartiality)

They are trying to transform the way pension s are heard and filed to a less paper-burdened world, eventually to an electronic model which will allow individuals to file their appeals electronically. They will eventually have the option of being heard, if desired, via video teleconferencing.

Receiving new facts is probably the only opportunity for a member to change the decision at the General Division. The second level of appeal the Appeal Division is not de novo - which means - additional information cannot be added at the appeal level.

The analysis of the $25 million savings comes from the move from three-member panels down to one-member panels, from moving the four administrative bodes in to one, and moving away from paper-based photocopying there will be a significant paper reduction.

 

This is a snap shot of the evidence. I will give an analysis of what I feel about these comments and how they will impact people who are denied CPP disability benefits later. Too busy working today.

Evidence From The Standing Committee on National Finance

Again crusing around the internet to find out what is going on with the new Social Security Tribunal and came across evidene given to the Standing Committee on National Finance. I think it is very interesting and have posted it here for those who are inclined to read. In another blog I will highlight the pertinent points.

We have Ms. Sue Foster, Ms. Gillian Campbell and Mr. Raymond Nichols, all from HRSDC Service Canada. Ms. Foster, will you be giving us a few introductory remarks and leading us through?

Sue Foster, Director General, Policy, Quality and Appeals Directorate, Human Resources and Skills Development Canada: Yes, thank you. As the chair mentioned, Division 6 introduces the social security tribunal and changes to the Department of Human Resources and Skills Development Act related to service delivery, which is really code word for electronic services.

I will speak first to the introduction of the social security tribunal, which is introduced by new Part 5 to the Human Resources and Skills Development Act. Division 6 also makes consequential amendments to the Canada Pension Plan, Old Age Security and the Employment Insurance Act, as well as other pieces of legislation that are related to tribunals.

There are currently four tribunals that hear appeals in the Canada Pension Plan Old Age Security and Employment Insurance program, and these four tribunals are being collapsed into one tribunal that will hear appeals on all three programs.

Clauses 223 to 224 in the legislation create the social security tribunal. They outline the structure of the tribunal, the membership of the tribunal, how the tribunal will be administered, function of the tribunal, the timelines associated with appeals and basically the whole parameters around the tribunal.

Clause 223 is just introducing the name of the tribunal in the introduction of Part 5, and then there are a number of sections in clause 224 which create all the different parameters for the social security tribunal.

Clauses 225 to 234 are the changes to the Canada Pension Plan associated with the tribunal. It is just changing references to the review tribunal and the pension appeals board under the Canada Pension Plan to replace it with the social security tribunal. Clauses 235 to 239 do the same thing for the Old Age Security Act and 240 to 250 do the same thing for the Employment Insurance Act. In clauses 251 to 270 there are a number of transitional provisions which outline how we will make the transition from the existing tribunals into the new social security tribunal.

The consequential amendments, as I mentioned, from clauses 271 to 280 amend a number of other different pieces of legislation that make reference to the various existing tribunal bodies, replacing them with mention of the social security tribunal.

That is Part 5, which is associated with the social security tribunal.

Part 6 is on page 204 of your legislation, if that is helpful.

The Chair: Yes, it is.

Ms. Foster: This one has sort of like a sandwich to it. The way that it is set up in the legislation, the social security tribunal starts first and then the electronic services are sort of interjected as Part 6. Then we continue on with amendments to other pieces of legislation associated with the social security tribunal. It is a little tough to follow it when you are reading through the legislation. Part 5 is the social security tribunal. Then we skip over the new Part 6 which creates the electronic services authorities, and then the other legislative amendments that I just spoke to related to the social security tribunal. Hopefully that is clear. Back to the new Part 6 of the Human Resources and Skills Development Act —

The Chair: These parts should not be confused with the parts of Bill C-38.

Ms. Foster: Correct. They are parts of the division.

The Chair: They are different parts, but called by the same name.

Ms. Foster: Correct.

The Chair: They are parts of the Human Resources and Skills Development Act?

Ms. Foster: Correct. Part 6 of the Human Resources and Skills Development Act is another new part that is being added to this legislation to introduce the authorities related to electronic services. This allows for the integration and interoperability of electronic services in relation to Canada Pension Plan, the Old Age Security program and Employment Insurance, as well as grants and contributions.

In essence, it is an enabling clause that will allow the department to introduce electronic services across these programs that talk to each other and have sort of the same operability.

For example, when we are going to identify an individual electronically, we will do it the same way for all of these programs. It is about making sure that we have a consistent approach and the necessary legislative authorities to do so. That, in a nutshell, is what Division 6 is all about.

I was not sure if you want me to go through each one of the clauses or if you want to move to questions in terms of any specific clauses.

The Chair: You have referred us to the clauses. There are no other initiatives here other than the overview that you have given us?

Ms. Foster: Correct.

The Chair: The tribunal that is being created is fundamentally the same as one of the other tribunals that is being collapsed into this?

Ms. Foster: All four of them are being replaced by one tribunal.

The Chair: Yes, but the structure of that tribunal, the two levels and the people who will be appointed, all of those are things we are already familiar with, but four of them are being collapsed into one?

Ms. Foster: Right, it is streamlined.

The Chair: Streamlined; there is a word of the year. Thank you for that.

Senator Callbeck: On the social security tribunal, we now have four tribunals which will be collapsed, and we will end up with one. What is the wait time right now with those four tribunals that exist?

Ms. Foster: I believe the wait time is different for each of the tribunals.

Senator Callbeck: What is it? Do you have the wait time for each of them?

Ms. Foster: I do not have the actual existing wait time for those tribunals, but I know that one of the regulatory authorities that is being given in the legislation is to create timelines associated with the government's responsibility in terms of making decisions and delivering on appeals at the various different levels, which is something that did not exist before across the three programs. Legislating the timelines associated with this is meant to improve the service to clients in terms of the period of time that they have to wait for their appeals to be heard.

Senator Callbeck: It is a good idea. In the four tribunals now, how many people do you have involved there?

Ms. Foster: Do you mean how many members?

Senator Callbeck: Yes.

Ms. Foster: There are currently just over 1,000 part-time members.

Senator Callbeck: With the one tribunal, how many will you have?

Ms. Foster: It will be up to 74 full-time members.

Senator Callbeck: It will be up to 74 full-time?

Ms. Foster: Right.

Senator Callbeck: You said you had 1,000 part-time members?

Ms. Foster: Right.

Senator Callbeck: That is quite a difference.

Ms. Foster: The difference is in the number of people that sit on the panels, not the number of panels.

We are moving from three-member panels to one-member panels. As a result of them moving from a part-time position to a full-time position, it is expected that they will gain expertise in their area and will hear appeals more quickly, and then tenures are also longer. They are five years with obviously a possibility of extension.

In the straight number comparison, it is important to note that it is moving from a three-member panel where three individuals heard an appeal to one member hearing an appeal.

Senator Callbeck: There will be one member, and then the person can appeal that, can they, if they do not like the decision?

Ms. Foster: Yes, they can.

Senator Callbeck: To whom do they appeal?

Ms. Foster: The way that the new appeal process will work, the first step is that the individual can request a reconsideration of the minister or the commission's decision — the minister for pension decisions and the EI Commission for EI decisions.

The very first step is an official reconsideration that the department has to do of the decision that was taken that the individual is unhappy with. We do an official reconsideration of the decision, and it is that decision that the individual would actually file an appeal from to the first level in the social security tribunal, which is the general division.

In the general division, there are two sections. There is the Employment Insurance section and the income security section. Obviously, the income security section is for the pension appeals. If the individual is unhappy with the decision at that level, they would go to the appeal division, which is the second level of formal appeal, and then on to the Federal Court if unhappy with the appeal division decision.

Senator Callbeck: You say you had 1,000 in the four tribunals that exist. There are 1,000 part-time people. How many hours a year would they be involved?

Ms. Foster: On average now, it is about two days a month that they are involved in hearing appeals.

Senator Callbeck: If you calculated that for 1,000 people, that is equivalent to how many full-time?

Ms. Foster: Our estimate is that each member of the general division on the Employment Insurance section side would be able to hear a maximum of 690 cases a year.

Senator Callbeck: I am concerned about the time frame, how long it will take for the general public to make a complaint and hear the result. You said you had 1,000 part-time people. What is the equivalent of that in full-time people?

Ms. Foster: The equivalent is 74. You have to factor into the equation the fact that they are three-member panels and we are moving to one-member panels.

Just on a rough calculation, if you have 1,000 part-time members and they are sitting on three-member panels, right off the bat you only have 300 panels, right?

Senator Callbeck: Yes.

Ms. Foster: Then they are only hearing cases about two full days a week, which when you translate that into a full-time single member panel hearing appeals all year round, 74 members is the maximum that you need.

However, we also have built in a sort of pressure valve, if you will, where part-time members can be appointed if needed to take some pressure off the system. If the 74 is not acceptable, for example, if we go through what we did recently with the economic downturn, where we had more EI clients, the appeals went up just as a result of having more clients, there is a pressure valve built in where we could appoint up to the equivalent of 11 full-time members through part-time members. That would allow us to add more members as needed in order to manage any overflow, if you will.

Senator Buth: Clearly, a lot of thought and work has gone into creating this tribunal and collapsing the four into it. I am curious about the timelines that you mentioned. Can they be set in regulation or are they set within the legislation itself?

Ms. Foster: They will actually be set in the regulations. There is authority in the legislation to establish the timelines for the various steps in the appeal process for all three of the programs.

Senator Buth: Just to confirm, this is the first time that there will be regulation in terms of timelines?

Ms. Foster: That is right.

Senator Buth: Did you mention what the timelines are currently like for appeals?

Ms. Foster: For example, on the EI side, we do not actually have any timelines in the regulations regarding when the appeal system has to make decisions, but we do have key service indicators, of course. For example, at the level of the board of referees, which is the first level of appeal for a client on an Employment Insurance case, we have 30 days from the day that we receive the appeal to prepare the appeal and schedule it with the board of referees. That is something we do as a service. It is not in the regulations, but we are entrenching that type of step in the regulations.

Senator Buth: They will be into the timelines?

Ms. Foster: Exactly.

Senator Buth: In terms of the electronic piece, can you walk through what you are looking at again?

Ms. Foster: Yes. This introduces a new Part 6 to the Human Resources and Skills Development Act, which did not exist before. It is designed to give the department the authority to have an integrated approach to electronic services. This legislative authority does not exist in the Human Resources and Skills Development Act. For Employment Insurance, for example, where we have made great headway in automated agenda, our applications are provided largely on the Internet, electronically. We have been using an electronic signature for some time. Therefore, there are obviously some regulatory authorities within the Employment Insurance Act that allow us to do that. However, in terms of the pension programs, there are limited authorities to date in terms of the provision of electronic services.

We are putting it in the Human Resources and Skills Development Act sort of as a chapeau legislative authority, which will remove the bits and pieces from the various pieces of legislation and bring them into the chapeau legislation, so that they are consistent across the board. As I mentioned before, the electronic identity confirmation will be the same across all the three programs. Electronic signature is another one. How we do it on one program will be the same for another program.

This will permit consistency and interoperability between all the electronic services, making them consistent across the board. Clients will know that they will have the same treatment or access, if you will, to electronic services no matter which door they come to for a program or a service.

Senator Buth: Have you done any measurements or taken a look at customer satisfaction in terms of the electronic services being provided through the EI program?

Ms. Foster: I do not have any data available to me right now. I know that, generally speaking, our EI clients are very happy with the fact that they can make an application for benefits online. They can also electronically file their biweekly report cards, which are required to receive their cheque.

On the pension side, we are still very much in a paper-focused world; it is very paper heavy. We still rely on a wet signature. As we remove forward with our service improvement strategy on the pension side, we want to move the pension delivery world into the electronic world, as well, to ensure that all the trains are moving on the same track as we are making this massive transformation on the pension world.

Senator Buth: How long do you think it will take for you to do that?

Ms. Foster: It has taken some time to get the Employment Insurance as far advanced as it is right now. We are moving from an almost fully paper-based pension world, so it will take some time. I do not know exactly how long.

Senator Ringuette: What are the savings to be found in collapsing these tribunals into one?

Ms. Foster: The savings associated with this proposal are related primarily to the move from three-member panels to one-member panels, which is largely —

Senator Ringuette: I meant the dollar number.

Ms. Foster: It is $25 million.

Senator Ringuette: Over how many years?

Ms. Foster: At maturity, per year.

Senator Ringuette: Per year?

Ms. Foster: Yes.

Senator Ringuette: In regard to timelines and wait times, I will give you an example, and I have said this many times at this committee: CPP appeals in New Brunswick are over 180 days, while in Ontario it is 90 days. There is a timeline for the appeals in regard to CPP, and it is 90 days. It is right there publicly, so when you say that there is no timeline and this will bring timelines, I am sorry but that is not the reality.

Going back to the situation in New Brunswick, how will this new collapsed tribunal make it so that New Brunswickers will not have to wait twice as long as Ontarians to have a review of their case?

Ms. Foster: The 120 days is an average time for appeals at this time, and the 90 days that you are quoting is actually not regulated. It is a service standard, like I mentioned, on the Employment Insurance side. We are regulating periods of time. Our proposal is to regulate through the regulatory authorities provided in the legislation.

Senator Ringuette: What will be the regulation, then?

Ms. Foster: The proposed regulation is for 100 days.

Senator Ringuette: When will we see that regulation put in place?

Ms. Foster: They have not actually been drafted yet, but they will be drafted in the summer.

Senator Ringuette: This is a very large geographic country, and the thousand and more part-time members of these three different boards were located across the country. Where will the 74 full-time members be located?

Ms. Foster: This is a Governor-in-Council decision that has not been taken as yet.

Senator Ringuette: You are saying to me it is a possibility that there might not even be one in New Brunswick; furthermore, with New Brunswick being a bilingual province, who can assure New Brunswickers that the members in these panels for New Brunswick will be bilingual in order to hear the people?

Furthermore, the entire basis of tribunals and having three people on a panel was to ensure a proper assessment from the taxpayers' or clients' viewpoint. Now we are moving from a three-person panel to hear a client in regard to his or her review requests to a one-person panel that is appointed probably by the suggestion of the minister by the Privy Council.

I am seriously questioning the entire fairness that was very much engrained in the process; at least the client had a feeling that three people hearing his or her situation would have a more objective view than a one-person panel.

I know I have just thrown to you a lot of questions, but let us go back then to the first one: the geographic situation. This committee and Parliament will not know where these new 74 panels will be located throughout the country. We do not know that. We also really do not know the timelines for the three different things. Then I guess my other question will be in regard to the fairness of the process, which is removing three people from hearing a case to one person hearing a case.

Then I go on also to your statement in regard to these people will become more expert in their section. What you are saying is that those 74 members will each have an expertise in three divisions. Then you are saying that some of the 74 people will be dealing solely with EI issues, some of them will be dealing only with CPP issue, and some of them will be dealing only with Old Age Security issues; is that the fact?

Ms. Foster: Correct, yes.

The Chair: You have one minute left, senator.

Ms. Foster: There are two sections in the general division: The Employment Insurance section, which obviously deals with Employment Insurance, and the income security, which would deal with the pension issues. Then at the next appeal division, the members would hear appeals on all three programs.

Senator Ringuette: You are saying that, in reality, there is no expertise.

I suppose you have a table of those 74 members showing how many will be hearing CPP, how many will be hearing EI and so forth. Could you bring that to our clerk, unless you have it here, because we are looking at the legislation to do this?

Ms. Foster: At the general level, where it is broken into two sections, there are 39 members who will hear appeals related to employment insurance, and the remainder will hear pension appeals.

Senator L. Smith: Ms. Foster, with respect to consolidating the tribunals and going back to Senator Callbeck's question and Senator Buth's question, could you give us just a summary of the reasons for this consolidation and the benefits that will occur from it? You mentioned going from 1,000 part-timers to 74 full-timers with the objective of developing more expertise. Could you give us a little background, maybe three or four points, to summarize the objective and the outcomes that you hope to achieve from this. Will you initiate a tracking system in terms of your service levels, and will that information be forthwith given to the public so you are able to reinforce why you did what you did and maybe get some positives out of this as opposed to potential negatives? Those negatives can occur with people saying, “You will not have as much focus because you now have 74 when you had 1,000.” We understand the reasons for doing this, but if you could give us a summary, that would be helpful.

Ms. Foster: The objective behind the proposal of the social security tribunal is to ensure that clients have one-window access into the appeal process. Right now, there are four different bodies with varying levels, and the idea is to consolidate those so clients can understand the system better and it is clearer to them.

As I indicated, the members will be full-time members, which is a significant change in terms of the amount of time that they would spend sitting on these panels. They will be appointed to these panels through a competitive process, which will be required to measure their expertise before they are even appointed to the panel.

As well, they will have access in making their decisions. Particularly on the pension side, they will have access to legal and medical advice, much as they do now through the other panel members that sit with them. They will still have access to this as members of the panel that they are hearing appeals on.

The majority of the savings associated with the amalgamation of these four tribunals is associated with the collapsing from three-member panels to one-member panels and the associated travel and per diem costs related to having these 1,000 or so part-time members. We are moving to 74, and they are full time.

We are also trying to transform the way pensions are heard and filed to a less paper-burdened world, eventually to an electronic model, which will allow individuals to file their appeals electronically. They will eventually have the option of being heard, if desired, via video conference. There are a number of improvements, both from a service delivery perspective as well as from the administrative delivery perspective in terms of streamlining and improving services to clients.

Senator L. Smith: To categorize it, efficiencies, more development of your officers in that someone working two hours a month, or whatever the measurement is now, may not be able to develop the level of expertise. Even if you have three members, those three members may not have the same competency as someone who has developed a broader or more in-depth expertise in this area. Is that correct?

Ms. Foster: Yes.

Senator L. Smith: You are trying to get at the service issue that I think Senator Callbeck and Senator Buth were trying to find out.

Ms. Foster: Yes.

Senator L. Smith: Will you have a tracking system for that?

Ms. Foster: Absolutely.

The Chair: Is this initiative in the budget?

Ms. Foster: Yes, it is.

The Chair: We were trying to find it.

Ms. Foster: It is page 270.

Gillian Campbell, Acting Senior Director, Social Security Tribunal Implementation Project, Quality and Appeals Directorate, Human Resources and Skills Development Canada: I think it is page 207. It is in an annex, senator.

Ms. Foster: It is page 270, Annex 1.

The Chair: I will not say anymore.

[Translation]

Senator Nolin: Good morning to all three of you, and thank you for being here. How many part-time members do you expect there will be?

Ms. Foster: The part-time members will not be there in the beginning; this is simply a provision that will allow for an appointment if that is necessary.

Senator Nolin: In a more fundamental connection, throughout the text a tribunal is mentioned, you spoke about it, the minister refers to it. Canadians expect a tribunal to be just, fair, and to render justice, as their rights are directly affected. How can you guarantee to Canadians that the members of this tribunal will have the necessary independence to be able to act while respecting the rights of Canadians?

Ms. Foster: The candidates for these positions are recruited through a competitive process. For the members of the employment insurance board, for instance, the minister must consult a committee established pursuant to the recommendations of the chair, the employer’s representative, and that of the workers.

[English]

Senator Nolin: Let me be clearer. All those mandates are renewable.

Ms. Foster: Correct.

Senator Nolin: What guarantees a Canadian that the hearing will be fair if the member hearing him is in his fourth year? He or she may want to have a renewed mandate. What kind of guarantee does the Canadian who will be facing that tribunal have to be convinced that the member of that tribunal will respect his or her rights and not something else?

Ms. Foster: We currently have members who are renewable each three years, so I do not believe that there would be a change in terms of the fairness of the hearing that would be somehow linked to the period of the terms. They are in a similar situation now, where they are renewed.

Senator Nolin: Are all those decisions appealable?

Ms. Foster: Yes.

Senator Nolin: When you say yes, appealable in front of whom?

Ms. Foster: Which decision?

Senator Nolin: The final decision of the appeal division.

Ms. Foster: It is the Federal Court of Canada.

Senator Nolin: Is that an appeal or a review?

Ms. Campbell: It is the Federal Court of Appeal.

Senator Nolin: Is that an appeal of all the decisions or only a judicial review?

Ms. Campbell: It is a judicial review.

Senator Nolin: Can you explain to the members of the committee the difference between an appeal and a judicial review in front of the appeal division of the federal court? There is a distinction between having a right to appeal a decision and the right to question, to bring on a review of the process.

Ms. Campbell: I am not a lawyer, so I cannot speak officially to that. I can get you a correct — I will not try to provide that.

Senator Nolin: If you can, because there is an important distinction between the two. It is not appealable. It is reviewable.

Ms. Campbell: It is appealable.

Senator Nolin: Okay, that is fine. I accept your answer.

The Chair: You should be able to find the section for us quite quickly in Division 6 that refers to appeals to the Federal Court.

Ms. Campbell: Yes.

Senator Nolin: It is the amending section, I believe, 28(1)(g) of the Federal Courts Act.

Ms. Foster: The Federal Court of Appeal has jurisdiction to hear and determine applications for judicial review.

Senator Nolin: So it is a review.

The Chair: From where did you read that?

Ms. Foster: I read that out of my clause-by-clause package, which unfortunately does not have page numbers. It is clause 272(1).

Senator Nolin: It is on page 224 of the bill. Thank you. If you do not have the answer now, you could provide us something in writing from Justice Canada, and I would like to have access to that.

Ms. Foster: Yes, we can definitely do that.

Senator Nancy Ruth: My questions are in the same line. I wanted to again raise this issue of expertise of those hearing the appeals at the first level.

Can I assume there will be some transfer of people? Will they compete for these jobs and also be measured?

Ms. Foster: That is correct.

Senator Nancy Ruth: One can believe they will have expertise in the areas they will be hearing.

Ms. Foster: Yes.

Senator Nolin: If I may, I have a supplementary on the answer just given.

You asked about competition, fine, but you also asked about examination. I would like to understand how that works. The appeal exists exactly for that reason. Another judge cannot examine.

Senator Nancy Ruth: This is for the judges.

Senator Nolin: I know, but you are not examining a judge.

Ms. Foster: They are not judges, and I was talking in terms of a competitive process to measure their skill for the job.

Senator Nolin: Before giving them the position?

Ms. Foster: Correct.

Senator Nolin: Not during?

Ms. Foster: No. There is a competitive process. There will also be performance evaluations made of the members on an ongoing basis by the chair.

Senator Nancy Ruth: Clause 53(1) says the following:

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

Can you tell us what the problems were and what percentage of cases that came forward for appeal were frivolous and vexatious? Why is there a need to put this in?

Ms. Campbell: One of the savings was anticipated in the fact that there are still claimants or appellants who wish to come forward, even though they are told they would be unable to proceed with the rulings.

A simple example is with a case of Employment Insurance where an individual requires 600 hours and they only have 599. Their case will not be successful. However, under the current system, they are still able to file an appeal and have a hearing, at which point their hearing ends with, “You are not able to create that additional hour; therefore . . . .” In that case, it would be summarily dismissed because they were unable to achieve a decision that would satisfy the provisions of the act.

Senator Nancy Ruth: Are most of the cases dismissed similar to the one you have just illustrated? What other types of cases would be dismissed?

Ms. Campbell: It would really be on those types of grounds, where there is 100 per cent inability to move forward. People seek the ability to have a hearing, even though in many cases the client is well aware they will not be successful in their appeal.

Ms. Foster: They also have the right to appeal a summary dismissal. A decision to summarily dismiss is appealable to the Federal Court.

Senator Nancy Ruth: Is permission required to appeal the leave from the general division to the appeal division?

Ms. Campbell: That is correct.

Senator Nancy Ruth: Who is it that gives that permission?

Ms. Campbell: The appeal division member.

Senator Nancy Ruth: One person will look at the facts and decide whether it is appealable. Okay.

Then it goes on to judicial review at the Federal Court. The last sentence says that the social security appeals tribunal will, in limited circumstances, have the power to reconsider its own final decisions. Can you tell us why that sentence is there and what you hope to achieve by it?

Ms. Campbell: In terms of wanting to reconsider its own decisions, in some cases now, it is not permissible for them to change their decision. This enables them to change their decision, presumably in favour of the client.

Senator Nancy Ruth: Could you provide an example of that? They have made a decision, and later new information comes in, new facts. Why would they be reconsidering their own decisions?

Ms. Campbell: Receiving new facts is probably the only opportunity for them to do that, and it is allowable at both levels, although the second level of appeal, which is new to the SST, is not de novo.

Senator Nancy Ruth: What does that mean, “de novo”?

Ms. Campbell: Additional information —

Senator Nancy Ruth: — cannot be added at the appeal level?

Ms. Campbell: That is correct. Currently on the CPP and OAS side, with the Pension Appeals Board, which is the second level of appeal for pensions, it is de novo. Basically, it is a completely new hearing. It is not reviewing the facts, so this alters that.

Senator Ringuette: What is the proposed salary and benefits for these 74 proposed tribunal members?

Ms. Foster: At this point, the salary levels have not been determined, but there will be a distinguishing salary differential, obviously, between the chairs, the vice-chairs and the members.

Senator Ringuette: Earlier you said you will have a savings of $25 million. If the salaries of these 74 people have not been established, how can you anticipate a savings?

Ms. Foster: There is a three-to-one reduction in the number of members.

Senator Ringuette: Never mind that. You are saying you do not know what your costs will be. Is that right?

Ms. Foster: We used a proxy for the salary levels of the various members, but the actual final salary amount has not been determined.

Senator Ringuette: What is the range?

Ms. Foster: I do not know them off the top of my head; I am sorry. We can get back you on that, if you like.

Senator Ringuette: Yes, please. Could you provide us with the range?

Ms. Foster: Yes.

Senator Ringuette: With regard to your earlier example of an EI case where someone had 599 hours and the benefits require 600, the EI system moves from region to region, and from time to time depending on the unemployment rate in that region.

It could very well be that at the time a person completes work in a seasonal industry, for example, the requirement is 595 hours, but a week later — and we have seen many examples of this in the past five years — because of moving targets, the requirement is increased by four hours in order to qualify. It is not the responsibility of the EI client that the department has unilaterally changed the requirements to qualify. Your entire process must take that into consideration.

Ms. Foster: It in fact does, senator. What actually happens is every four weeks the unemployment eligibility rules are adjusted to reflect the local unemployment rates. That is what you are speaking to.

Senator Ringuette: Yes.

Ms. Foster: When an individual makes a claim for benefits and they just miss the entrance requirement in their area, our system will automatically check when the unemployment rate changes. If they meet the new criteria, we will send them a notice and ask them to re-file. The determining factor of which hours we use to establish a claim is based on the week that it is filed and which four-week phase it falls into. If an individual needed 595 hours and they had 590, and the next Statistics Canada cycle it dropped down to 500 or whatever the next range is —

Senator Ringuette: More likely it goes up.

Ms. Foster: If it goes up we will not notify them, because they do not qualify.

Senator Ringuette: Exactly. At least with the current process they have the ability to file. Now what you are saying is that they will be automatically dismissed, unless I did not hear you well in your explanation to Senator Nancy Ruth.

Ms. Foster: They can request an administrative review, which is the official reconsideration. The department will look at file and ensure we have the hours correct, ensure the information from the employer is correct, and confirm that our decision based on the number of hours is accurate. It really is a black and white question: Do you have the number of hours that you need or not?

They can request a reconsideration of that decision, which the department will do, then we will notify them if the hours are not changed, that they still do not qualify, and they have the right to appeal that to the general division; the Employment Insurance section. If they lose that appeal, they do not have the right to file a second appeal to the appeal division, because there is no reasonable chance of success.

Senator Ringuette: I am assuming that probably we will not have the opportunity to have the minister before us, so I am taking the liberty of asking Ms. Foster the following questions for the department.

The Chair: You mean the minister of HRSDC?

Senator Ringuette: Yes.

I know that you do not have these answers, so you can file them ASAP to our clerk.

How many employees in your department got a notice letter of layoff by province and by classification? How many of these letters went to EXs and DMs? How many staffers in your department are not under the Public Service Employment Act and under what classifications? What is the cost in your department for program management i.e. the total salaries, expenses, bonuses for management level of your department and programs?

Ms. Foster: I do not have that information.

Senator Callbeck: In view of the time, I will just ask one short question. You say that you will save $25 million by going from four tribunals to one. Could you provide the committee with analysis or breakdown as to where that $25 million comes from? Where are the savings?

Ms. Foster: I can give you the general breakdown. The majority of the savings come from the move from three-member panels to one-member panels, and the travel and per diems associated with the reduced number of members.

The other part of the savings comes from the move from four administrative bodies that currently provide support to these tribunals to one administrative body to support the one tribunal. The remainder is really coming from moving away from paper-based photocopying six copies of very thick files for six-member panels. For example, for six people on a CCPD case, we need to make only one copy. There is significant paper reduction.

Senator Callbeck: That is a very general answer. I would like to see a written answer as to where the savings of $25 million are coming from.

Ms. Foster: Of course.

More Commentary on the CPP Social Security Tribunal

I was looking through the internet if there was any more informaiton about the CPP Social Security Tribunal and I came across this article:

http://www.ipolitics.ca/2012/05/16/michael-harris-streamlining-the-dragonfly/

Here is the text of the article for you to read:

Consider this letter that ended up in my mailbox.

It was written by Judith Andrew, who you may or may not know is a federal commissioner for employment insurance appeals. On May 2, the note went out to the people who serve as employers’ representatives on various boards across the country. It is their business, or at least it was, to hear EI appeals in a professional manner.

Dear Member (Employer) of the EI Board of Referees:

The Federal Budget contained several Employment Insurance and labor market-related measures….We now know that the Budget announcement means re-making the appeals system covering Old Age Security, Canada Pension Plan, and Employment Insurance into one Social Security Tribunal (SST)….The new SST is to commence operations on April 1, 2013. The current Board of Referees (BOR) is expected to hear and make decisions on any appeals filed before that date. Such BOR decisions must be issued before November 1, 2013 at which point, or earlier if necessary, the Board of Referees will cease operations….I realize that for most everyone interested in the long-standing EI appeals system, this information comes as quite a surprise….

I do not know Ms. Andrew, nor she me, but her letter reveals a fine gift for understatement. Approximately 1,000 people had just been fired and yes, they were quite surprised. Not only were their services terminated, but what is to replace them is, well, even more surprising. The task of hearing EI appeals will now be entrusted to the new Social Security Tribunal. So instead of approximately 1,000 referees hearing EI appeals across the country, their work will now be done by just 74 people who will decide individual cases. Tellingly, all of them will be governor-in-council appointments.

It is a fair question to ask how 74 people, even super-humans, can possibly do the work of 1,000? It becomes even fairer when it is remembered that the SST will also be hearing OAS and CPP appeals, work now done by another 254 experienced and knowledgeable people who operate independently, know the local realities, their legislation and are paid a modest per diem. (In the case of the EI appeals, it is $350 per day for hearing four cases at a sitting. No one leaves until all the decisions are made, written, and signed by the three referees.) In her letter to EI referees, Ms. Andrew anticipated the question and offered a hint of how the government plans to pull off this logistical miracle. It comes down to finding a quick and dirty way to simply dump appeals before they get started. Or as the Harper government would put it, streamlining.

“One can surmise that case volumes will reduce on account of proposed changes in law and operating approach, including a new formal ‘reconsideration by the Commission’ step….” And what might that new step be? “Summary dismissal”, according to Ms. Andrew. Yes, the SST will have the power to dismiss appeals that it deems have no reasonable chance of success. But how does it do that without hearing the appeal? Revealed truth from Dear Leader? Making it even easier to say No, the government will make use of “technology and other tools to streamline matters.” Ah, streamline, of course. Bottom line? A lot of people are going to be denied an appeal by e-mail or telephone by people who have never set foot in their world.

So what is lost with the creation of the Harper government’s SST? Just about everything if you believe in a real as opposed to a virtual quasi-judicial process. Although the government has not made clear the location of service for EI appeals after April 1, 2013, it is the opinion of Commissioner Andrew that face-to-face hearings are probably a thing of the past. “It would seem that there will not be in-person appeal services in all or even many of the existing 83 Board Centers” across the country. Someone who owes his job to the government will be deciding in all likelihood from Ottawa whether Canadians get EI, OAS, or CPP. If you are disabled, a group that make up 95 percent of all OAS and CPP hearings, that is a far cry from a face-to-face appeal with a local panel of referees made up of lawyers who practice labor and employment law, citizenship judges, and doctors and registered nurses – all with expert knowledge of the legislation and most with community volunteer credentials. I suspect what their replacements will have on the resume is political connections and a supportive attitude towards the government’s undeclared true policy — just say no.

Further Commentary

PSAC calls for transparency on service cuts as thousands more federal workers are told they could lose their jobs

Canada NewsWire

OTTAWA, June 27, 2012 /CNW/ - Canada's largest federal public sector union says that 3,889 of its members in 13 departments are being told today they could lose their jobs.

"This government is misleading Canadians when it says these cuts won't impact services we all rely on," said PSAC's national president Robyn Benson. "We need Stephen Harper and his Ministers to stop hiding behind spin and start talking to all Canadians about the services we are losing."

The union says it is frustrated at the lack of information being provided about what these job cuts are going to mean for services.

"The departments are telling us very little about what programs and services are being cut, and they aren't telling the public either," said Benson. "We worry that Canadians aren't going to know what services and programs are being eliminated until they are gone."

Since the federal budget was tabled on March 29, 2012, 16,873 PSAC members in 44 federal government departments and agencies have been told they could lose their jobs.

The government can and should respond to requests from the Parliamentary Budget Officer for information on the nature and scope of cuts to services and programs that Canadians rely on.

Human Resources and Skills Development Canada: HRSDC is hardest hit, with 1,964 PSAC members being told today they could lose their jobs, adding to the 1,022 PSAC members in that department who received notices in April. Of those receiving notices today about 1,450 work for Service Canada. Very little information has been provided to PSAC's component, the Canada Employment and Immigration Union, about what programs are being cut or how services to the public will be affected. Cuts to Service Canada are especially troubling as it is impossible that frontline services won't be affected with the jobs of so many of its 23,000 employees in question.

As per changes announced in the budget bill around the appeals process for the Canada Pension Plan, Old Age Security and Employment Insurance, it is anticipated that all the PSAC members working in the Office of the Commissioner of Review Tribunals, Pension Appeals Board, the EI Board of Referees and the EI Office of the Umpire are among those receiving notices today. These changes are seriously compromising access to fair appeals for more vulnerable Canadians, including people with disabilities, seniors and the unemployed.



Read more: http://www.digitaljournal.com/pr/772460#ixzz1z7Lug8Qz

Another News Report on the Social Security Tribunal

Although this news report in the Huffington Post was written about the EI appeals system it highlights some of the issues that also relate to Canada Pension Plan disability beneifts.

http://www.huffingtonpost.ca/2012/05/25/ei-reivew-board-scrapped_n_1545421.html

Highlights from the article include:

How will one member tribunal member hear the 26,000 EI appeals and the approximately 4000 CPP appeals in a timely fashion when there will only be 74 appointed members.

The present system is not an inefficient system - that the system is an informal process heard at a local level which allowed people to feel like they were getting a fair hearing by people in the community.

The it is unclear how 74 members are gong to handle the caseload of all the appeal tribunals.

That it is a going to be a more complicated system and a poorly thought out change.

 

This is not surprising as I have been saying it since the Feds announced this was going to happen. I have heard that the good people at the Pension Appeals Board as well as the Review Tribunal were handed "affected" notices. I am very sorry for them as they do a very professional job ensuring that the appeals are heard in a fair and credible manner. Interesting as apparently this is the Fed's goal with the new Social Security Tribunal. I have been told many times - if it ain't broke no need to fix it. I just think the government fix is solely based on how they are going to save money - and who gives a rat's patootie about the person trying to secure a pension because they are disabled.

I just do not understand how the bureaucrats in Ottawa can be so short-sighted and it seems they have not done any community consultation on how these changes are going to impact the Canadian public - let alone at their most vulnerable times.

Okay all of you that are in the appeals system - hang on to your hat's folks - because who knows how this is all going to work out - or how on earth 74 members are going to hear a huge number of back logged cases. Can you really expect people to believe that they are going to get a thorough review or appeal with this kind of back log - I doubt it very much. And still no one even knows or can tell me how these new appeals are going to be heard - only that they think by paper or teleconferencing. Hmmmm.

 

 

 

No News on the Western Front

Well I think the Omnibus Bill C 38 is being voted on today. And likely the amendments to the new appeals system will be approved.

I have not heard any further information to share but I keep hoping soon enough it will all become crystal clear as to how this new system is going to work. Did I say crystal clear???? Funny one.

Okay I know there are going to be extra sittings of the Pension Appeals Board in the hopes of clearing some of their back log - good for them - cause I do not know what is going to happen to those existing appeals when then new system comes in to play - see prior posts for details.

As for the Review Tribunal I believe they are now starting to schedule in to October so for those of you just starting the process of appealing who knows what system you will fall under.

I am trying to keep my glass half full approach. But stay tuned. Hopefully we will all hear something soon.

Another concern

Okay so you have been reading about my concerns and I have just thought of another thing.

Many individuals who go to the appeals - have witnesses - support people - and sometimes doctors or professional people attend the hearing to give evidence on their behalf. Sometimes, when there is say a stroke or a brain injury and there is cognitive issues - a professional or a spouse will give evidence to the Panel to highlight the changes that they have seen in the appellant's functioning. One of the ways to quantify cognitive decline is with a neuropsychological assessment but these are extremely expensive - so my question is how are people now going to be able to give evidence - how are the single members going to be able to hear all the aspects of the case?

Is everything going to have to be in writing?

Also how is the average person going to be able to afford the cost of the medical reports to support their appeal? I am able to finance medical reports for my clients - but it is very expensive - and is the average person going to be able to secure the evidence that they need in order to win their appeal - I also have the expertise to get the information that is required from a doctor to substantiate an appeal - writing that their patient is "severe and prolonged" on a prescription pad is not going to cut it.

In what format is a spouse or partner going to be able to give evidence? The Feds mantra about no "objective medical evidence" they often use in order to deny a claim - but how is an single member going to assess a person's credibility and experience when they are talking about subjective evidence like pain or mood? How is that going to be assessed on paper?

How is a person with mental illness or brain injured going to be able to coordinate all the information they require in order to have a comprehenive appeal?

So many questions - and so far no one will give me any answers - at least not from Human Resources Development Canada.

 

Canada Pension Plan disability Social Security Tribunal

If you have been following my recent blog entries, you will be aware, that included in the Haper Government's massive Bill C38 the Budget Implementation Act 2012, it outlines what is going to happen in terms of this new appeals system that is going to be put in to place for people who are denied Canada Pension Plan disability benefits as well as Employment Insurance benefits. These changes to the CPP disability appeals system have been overshadowed by so many other changes that the government is implementing, that there has been little in fact almost zero discussion amongst Canadians.

I would like to perhaps enlighten the masses what it is like for someone who finds themselves in the position of having to apply for disability under the Canada Pension Plan system. Firstly, unless a disability is catastrophic and immediate it can take a long time before a person ulitimately decides that they can no longer work. This decision is difficult to make - so much of our self esteem and dignity is tied in to what we do - where we work - how we make a living - and it often means giving up financial independence and putting a financial burden on yourself and your family. But you decide that you can no longer work, so you get the forms from Canada Pension Plan and you start to complete them. These forms can be quite onerous for an individual for numerous reasons, and then you have to get your medical doctor on board to complete the medical report required by CPP.

Some doctors are really great, the go above and beyond to help out their patient and support them fully in the application. Some however are very lukewarm, often because of the paper work and the extra time this takes, the small amount the Feds pay for their time, as well as the pervasive feeling among doctors that most of the claims are going to be denied anyway. Still an applicant perserveres and completes the application. Sometimes, they contact me and ask me questions about how best to succeed and try their very best to send in a complete and comprehensive application.

Then they wait............. and they wait............. and they wait ............... and they phone .......... and likely after six months they might get a phone call from the adjudicator responsible for making the decision. Some of the adjudicators are very nice people and very nicely explain what their decision is - some of them - well don't get me started on that - and yes finally you get a decision - DENIED - you are denied - because while we understand you have physical limitations you are able to do "some type" of work so you do not meet the legislative criteria.

After a person reads this denial, I typically find a number of things will happen. One person may become enraged and immediately appeal, some might become discouraged and believe that the decision rendered is correct so they quit. Other appellant's may be heartbroken that their family has struggled to keep things afloat only to be denied and hope begins to fade - some people even force themselves back to work to prove that the government is wrong.

Of the people who appeal, well they go back to their doctors for more information. They try and call Service Canada to get the answers to no avail. They are lost and they do not know what to do - but they do know the decision is incorrect. Sometimes they find my office.

I do not have much faith that the appeals are fairly adjudicated - most times in the files - I just see a reiteration of the same information that the Feds relied on to deny the claim the first time around - sometimes I see pages of information that are ignored - which again only supports my belief - that there is an amount of claims exposure the Feds expect to have - not proven of course - I can never find a way to do that - but I believe it is true - but anyway you still have to go through the reconsideration.

And so they wait ......... and they wait........... and they wait - and again likely after another six months - you are denied again. So approximately 12 months after you applied you are still without any financial support and you are still unable to work.

As I have mentioned in previous blog entries, I have felt confident that an appeal that was arm's length and independent was a good thing. The Panel members and judges were well trained, and there were three people involved that would make a decision on the appeal. They were able to meet the client in person and talk about the disability - not just rely upon written information.

Now the Harper government is changing all of that. They are also pushing for appeals that are going to be held using electronic means - phone or video conferencing - or even just paper appeals - and as I have said before - how is one - appointment by the government tribunal member - going to have all the necessary experience - medical, legal, etc, to adjudicate an appeal?

It is very unfortunate that Canadians are being denied this opportunity to an arm's length independent appeal - unfortunate and shameful. All the good people at the Review Tribunal and Pension Appeals Board have worked diligently to ensure appellants got fair and non adverserial hearings and now it is all being dismantled.

Readers may assume that I am self-interested because I am a private advocate who makes her living off successful appeals - but it is more than that - I am not concerned about putting together an application or appeal that would be successful and identifying the merits of an appeal - my real fear is the impartiality and that this new appeal will simply be another way to rubber-stamp another denial - closing options for legitimate good Canadian people who have paid in to CPP and who are disabled.

These changes are coming in to effect in April 2013. So please if you are in the appeals process it is critically important that you find someone who is experienced to help you either with the application or appeals process.

I will keep you posted.

 

A change is going to come - April 2013

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$$