"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Wednesday, October 3, 2007

The NSCA Reviews the In Home Support Program

Although this decision was released in June, 2004, I think its worth examining as many may not be aware of it.

In Dassonville-Trudel v. Halifax Regional School Board * the family challenged in court the Department of Community Service's refusal to increase funding for their autistic daughter pursuant to the In Home Support Program. Following the filing of this court application, the Department found that the family's income exceeded the maximun allowable under the Program and advised them that they were no longer eligible for any financial assistance, resulting in this decision also being challenged in court.

Unsuccessful in the Nova Scotia Supreme Court, the family appealed. Allowing the appeal, in part, the Court of Appeal found that the Department had not taken into account the specific circumstances of the family or the extensive submissions made by the mother when it made its decision on funding and eligibiltiy. Thus, the matters of the family's eligibility for the program and the specific funding they were seeking was referred back to the Department for reconsideration. This was about as close to a win, from a legal point of view, as the family could get on these issues in the circumstances.

In coming to its conclusion, the Court of Appeal make a few made noteworthy statements, such as:

For reasons which I will develop, it is my view that it was not reasonable to find that funding for the requested services was explicitly excluded by the Guidelines, and, in any event, it was an unreasonable exercise of statutory discretion to rigidly apply the Guidelines without consideration of the particular circumstances of this family. [para 38]

This means two things:

  • contrary to the Department's position, the particular things** that the family was seeking funding for were not excluded by the Program's Guidelines; and
  • in any event, the Department could not simply rely on its Guidelines or policies to deny funding.

As to this last point, even though the policy may not provide for such funding or even explicitly state that funding for a particular item is excluded, the story does not end there. The Department must still look at the individual circumstances to see whether, in this case, the policy should not be followed.

As for the family’s financial eligibility, I am of the view that the Guidelines were applied in an irrational way and that their application without regard to the actual needs and circumstances of this family was an unreasonable exercise of the statutory discretion. While I speak of an unreasonable exercise of statutory discretion, as will be seen below, it is my view that, on both issues there was, in effect, a failure to exercise discretion. [para 38]
Financial eligibility for the Program was suppose to be based on "net income"; however, the Department failed to deduct any amounts for income tax or other source deductsions from the family's gross income. In addition, the mother had changed her employment during the year, resulting in a dramatic drop in her income. But this drop in income was completely ignored by the Deparment. All of which resulted in the Court finding that the Department's calculations of the family's income were "so muddled and internally inconsistent that they were irrational".

The In-Home Support Program Guidelines, insofar as they impose a family income cut-off, if rigidly applied, fail to take into account the individual circumstances of the families in need. A family with an income above the Guidelines maximum is denied assistance, although the child in question may have extraordinary needs which far exceed the parents’ financial ability to respond. Such a family may, in fact, be more in need of assistance than is one with an income below the Guidelines amount, but whose child has more moderate special needs. I am not persuaded, however, that the Minister’s reference to Guidelines, prima facie, results in an unreasonable decision. It is necessary to examine how the Guidelines were applied. [para 42]

Thus, in addition, and perhaps more relevant for the rest of us, the Court [as set out above] found that the Department could not simply rely on its Guidelines as to income eligibility without looking at the actual needs and circumstances of the particular family. The mother had made extensive submissions to the Department as to the family's situations and needs which the Court found the Department had failed to give any consideration. The issue was not whether the ultimate decdision would have been the same but whether the Department had genuinely considered the requests on their merits.

Although the In Home Support program has now been subsumed under the Direct Family Support Program, the decision continues to hold a lot relevance for parents. No matter the title of the program, never let a worker or anyone tell you that the policy simply won't let you have this or do that. Or that you don't qualify financially for a particular program. End of story.

Although its perfectly acceptable for government to formulate policies to help them run their programs more effectively, it is not acceptable to apply the provisions of a policy without genuinely looking at individual circumstances.

And read the full decision. Its worth it.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

* The particular things that the family was seeking funding for included an additional $4,7000 annually for respite care; travel and accommodation expenses and fees of approximately $3,600 to permit the parents to attend various conferences about autism; the cost of a speech pathology report ($4,000); the cost of a security system for their home (approximately $6,000), the costs of a psychologist to oversee an intensive toilet training program and additional funds to meet Dominique’s restricted dietary needs.

**The actual case was a lot bigger than this, the Department of Health, MSI, Halifax Regional School Board, IWK Health Centre and two psycholoigsts were also sued for various reasons, which we won't get into today. Unfortunately, the family was forced by circumstances to discontinue the remainder of their lawsuit without it ever being heard in court. To the best of my knowledge, Dominique's mother, Joyce Dassonville, continues her legal advocacy work for children with special needs in British Columbia.




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