Experts’ Report: Human Rights Review and Remedy Summary

I've been hearing a lot about the "Human Rights Remedy" from our DCS social worker lately. 

The full title for the process has quite a handle; namely, the "HUMAN RIGHTS REVIEW AND REMEDY FOR THE FINDINGS OF SYSTEMIC DISCRIMINATION AGAINST NOVA SCOTIANS WITH DISABILITIES".

In a previous post giving a broad overview of the changes the Department of Community Services is now legally required to implement within the next five years, I mentioned in passing the expert's report which the government is now legally obligated to follow. 

Compared to the length and complexity of the full report, the summary found here is well-worth the read. It summarizes the six key decisions arising out of the process; namely,

    individual planning and support coordination

    closing institutions

    community-based supports and services

    a program that works in all areas of the province and many professionals work together to                   support local choices

    individualized funding; and

    disability system capacity.

Check it out.

The Devil in the Details [NS Human Rights Decision]

In my last two posts, we discussed the huge changes that are in the works for Nova Scotia's Disability Support Program.

Let's see how quickly I can do a "quick" summary of the background. As if ...

Three individuals with intellectual disabilities were kept in a locked ward in the Nova Scotia Hospital
for literally decades long after they should have been discharged and placed in the community. Possibly the world's best human rights case ever (in my humble opinion, at the moment, but I admit that I might be a little biased) followed a lengthy and tortured legal process until it finally resulted in a settlement [approved by the NS Human Rights Commission, thus, giving it the force of law (which, trust me, is HUGE)] that will radically change how (and where) services are provided to individuals with intellectual and developmental disabilities in Nova Scotia.

I set out a broad overview of what the changes will look like in my last post, but noted that I hadn't yet  read the text of the HUMAN RIGHTS REVIEW AND REMEDYFOR THE FINDINGS OF SYSTEMIC DISCRIMINATION AGAINST NOVASCOTIANS WITH DISABILITIES (aka "the expert's report"), which, despite it's length (to call it lengthy would be a serious understatement), I do intend to get to. Hey, one DSP worker who actually read the report said it was "very long but very interesting". How could I not delve into that?

Alas, I digress, as usual - for now, I will share with you a more detailed explanation of the time line for these radical changes (courtesy of the Disability Rights Coalition)*.

Highlights of the Report and interim settlement include: 

Deinstitutionalization

 In year 1, the Province will institute a “no new admissions” policy to DSP funded institutions

 By year 3, 75% of those people currenting residing in ARCs, RRCs and RCFs will be living in community based settings.

 Within five years, or by March 31, 2028, the government will close all institutional settings for persons with disabilities.

 

Individualized Planning Supports and Funding 

 In year 2, the new individual planning and coordination and individualized funding system will be full operational which includes an accessible system designed with users in mind.

 In year 2, a province wide critical response team will be fully established to ensure people in crisis have immediate access to supports and services as well as multi-disciplinary teams to meet needs wherever people choose to live in Nova Scotia

Supporting People in Their Community of Choice

 In year 1, the Local Area Coordination model will begin with the creation of 25 new local area coordinators and local area coordination leads in all 4 regions and by year 3 there will be 80 local area coordinators throughout Nova Scotia. Putting an end to years-long delays in accessing social assistance

 In year 3, all persons currently on the DSP waitlist and receiving no access to social assistance will be provided with full access to the supports and services they require to live in community

 In year 5, the DSP waitlist will end, with new applicants being provided with immediate access to navigational supports and services and, where appropriate, emergency response.

 

Yeah, I too, am wondering how everything can occur on that exact schedule when the Province has openly admitted it needs to hire 100 more social workers, which they will do that at the rate of 25 per year.

Hmm, I know math has never been my strongest but ... How does that go again?

100/4 = 25. 

Nope, it must be that new math: 

100/4 + 30.5-75 x 10 + 12 = nothing to see here; move along now

Yeah, that's it. That's the ticket. 

* No, it wouldn't be too far beyond the realm of possibility for me to call the Disability Rights Coalition my heroes (and seriously, yours and yours and yours, too)

The Continuing Saga of Human Rights in Nova Scotia

In my last post, we discussed the (hopefully) upcoming changes to the Disability Support Program following the ruling of the NS Court of Appeal in the human rights case involving three residents of the NS Hospital.

I gave some of the backstory and talked about the interim agreement reached between the Disability Rights Coalition and the Province.

Believe me, after all these years, I'm as cynical as anyone else when it comes to wholesale changes in how (and if) Nova Scotia delivers services to individuals with disabilities. 

But the one change (and if this doesn't make a difference, I can't see how anything else ever will) in this case is a decision with the force of law behind it.

The NS Court of Appeal agreed with us and the Supreme Court of Canada denied the Province's leave to appeal so .... there's really nowhere else for them to go.

Our family attended one of the in-person sessions held across the Province and it was ... interesting. Kentville was suppose to be the third meeting but ended up being the first and the Province readily admitted that it wasn't prepared for the turnout. 

A few interesting take-aways from the meeting. 

• The Province has 5 years to implement all the changes set out in the Agreement.
• They will need to hire 100 more social workers to make this work.
• The plan is to hire 25 social workers every year.*
• The waiting list that always 'wasn't** will no longer exist.
• Instead your worker will come to you to ask where and how you want to live.

A very astute person in the audience asked what would happen if suitable housing wasn't available (which seems to be the case for a lot of people in the Province, with disabilities or not). The response was something to the effect that if you couldn't find what you were looking for, you would need to wait until you could. I assume that meant you would need to 'settle for something else'  (of your choice) in the interim but you know what they say about the danger of assuming. Although I suppose we can't legitimately ask the Province at this point to figure that (or a lot of other things) out right away.

The sessions are over now so I hope at least some of you attended.

BUT the reason I started this post was ... [drum roll please] ... I actually read the plain language executive summary of the independent expert report today. I found it a little hard to navigate at first - how the heck do I find p. 2 - but it turns out the squiggly little up and down arrows at the bottom of the page did the trick. It's very short and I make no comment on its sweetness but I would suggest we all at least start there.

The full report (which I admit I have not yet read) can be found here.

Very well. Carry on.

*Meaning that it will take 4 years just to get the staff they need.

** I assume most of us have found that depending on who you speak with (and when), there may or may not be a waiting list for services.

URGENT: Disability Support Program

 Back in the mists of time, we briefly discussed a human rights complaint brought against the Province regarding the Disability Support Program.

The case has had a very long and somewhat torturous* history (during which the provincial government repeatedly flipflopped on whether it would appeal any adverse  rulings**), but at the end of the day, it has turned into a ground-breaking human rights decision from Nova Scotia (of all places!).

At any rate, a huge shout out to the Disability Rights Coalition, who spearheaded the whole thing.

For anyone not in the know, back in 2015, a human rights complaint was brought against the Province regarding three intellectually challenged adults who had been locked in a mental institution for (literally) years for no good or defensible reason. Although legitimately admitted at one point, they were trapped there long past when they should have discharged because no "suitable housing" could be found in the community.

Although initially successful for the three individual complainants***, the Commission refused to extend its remedy in a way that might help other individuals subject to the Disability Support Program's residential options.

Eventually, we made it to the Nova Scotia Court of Appeal where the claim of systemic discrimination was found to be valid. 

HALLELJUAH

An interim settlement was negotiated, with yet another independent expert report, this time to advise to how the systemic discrimination in the Province's provision of supports and services could be resolved. 

However, unlike other studies and reports over years which were shelved by the government, this one has some teeth. You can read the full report here, but if you would prefer the Executive Summary in "plain language" (I know I would!), I suggest you go here.

All of which had led us here:

... there will be a series of in-person sessions held across the Province for participants and their families/support networks. The sessions will be an opportunity to com together to discuss the content of the technical report and the next steps.

The sessions will take place between May 30 and June 14 in nine communities across the province. Please see below for the schedule. Each session will be two hours and will consist of a brief presentation from People First Nova Scotia (disability self-advocacy organization) reps along with Randy Acker, DSP Director. There will be time for smaller individual and group discussions within the venue to allow people to ask questions and gather the information they need. Light snacks and refreshments will be provided. If participants require additional transportation funding to attend the session, please contact your care coordinator.

The list of dates and locations follow: 

Bridgewater - NSCC - Lunenburg Campus 75 High St Bridgewater, NS B4V 1V8 Tuesday May 30 -- 1:30-3:30 PM or 5:30-7:30 PM 

Yarmouth -YACRO Hub 6 Thurston St. Yarmouth, NS B5A 4K5 Wednesday May 31 -- 1:30-3:30 PM or 5:30-7:30 PM 

Kentville - Kentville Fire Dept 463 Main St Kentville, NS B4N 1K9 Thursday June 1 -- 1:30-3:30 PM or 5:30-7:30 PM

Pugwash - Cumberland Public Libraries - Pugwash Branch 10182 Durham St Pugwash, NS B0K 1L0 Tuesday June 6 -- 1:30-3:30 PM or 5:30-7:30 PM 

New Glasgow - Summer Street Industries 72 Park St. New Glasgow, NS B2H 5B8 Wednesday June 7 -- 1:30-3:30 PM or 5:30-7:30 PM 

Dartmouth - NSCC Ackerley Campus 21 Woodlawn Rd Dartmouth, NS B2W 2R7 Location - Gymnasium Entrance #7 Thursday June 8 PM -- 1:30-3:30 PM 

Halifax - Club Inclusion 2652 Joseph Howe Dr Halifax, NS B3N 1J2 Thursday June -- 8 5:30-7:30 PM 

Whycocomagh - Whycocomagh Waterfront Centre 9650 NS-105 Whycocomagh, NS B0E 3M0 Tuesday June 13 -- 1:30-3:30 PM Sydney - NSCC Marconi Campus – Room B101B 1240 Grand Lake Rd Grand Lake, NS B1P 6J7 Tuesday June 13 – 6:00-8:00 PM Wednesday June 14 -- 10:00-12:00 noon

 

WE SERIOUSLY NEED TO SHOW UP FOR THESE SESSIONS 

~   ~  ~  ~  ~

 * In other words, yes, you messed up and must compensate these individuals but we're not going to touch the bigger problem (lack of adequate housing and community supports) for those with intellectual or developmental challenges. Can't touch that with a ten-foot pole. 

** After several flip flops as to whether or not the government would take these poor people on social assistance to court by two different governments (first Liberal, then Conservatize), the Province just did just that, challenging the monetary compensation ordered. Fortunately, the Disability Rights Coalition cross-appealed the finding of no systemic discrimination.

 ** Cash awards were made to each complainant between $200,000 and $300,000. Unfortunately, two of the adults passed away before the case made it to the Court of Appeal.

Buried in Budget 2023 ...

Some quick snippets from Inclusion Canada concerning some positive signs from the most recent federal budget.

Frist, the provision allowing certain family members to open a RDSP on behalf of an adult with an intellectual disability has been extended and expanded.

Budget 2023 extends the “qualifying family member provision” until December 2026 and has extended this provision further to allow siblings to also become plan holders where the decision making capacity of the individual with the intellectual disability is called into question. Most importantly, the federal government has issued a call to action to the provincial and territorial governments to address issues around guardianship for people with intellectual disabilities. 

Then, the pilot of a new automatic tax filing system for individuals with disabilities.

Another subtle victory for people with intellectual disabilities in Canada: the government intends to pilot a new automatic tax filing system for vulnerable Canadians. This has the potential to remove roadblocks and improve access to government benefits and programs for people with disabilities. 

Finally, the first budgeted figure for the Canadian Disability Benefit.

Yesterday's budget committed $21.5 million to the groundwork for the development of the Canada Disability Benefit. We are encouraged by this commitment ,however we will be looking for a more substantial commitment to the actual funding of the benefit in the fall economic statement after the Bill receives royal assent. 

Carry on. 

#Where's The Bill?

Following up on my last update on the Canada Disability Benefit, I have some more news to share.

According to Disability Without Poverty, during the Committee process a few positive changes have been adopted, including

• 
  indexing the benefit to inflation; 
• a requirement that agreements with provinces and territories be made public;
• a requirement that people with disabilities be meaningfully engaged in developing regulations; and
• requiring the Official Poverty Line to be considered in setting the benefit. 

As for what's next, once Parliament re-opens on January 30, Bill C-22 must be put on the agenda so the the HUMA committee report can be presented and voted on. This vote will move the Bill into Third Reading and eventually the Senate. After the Senate passes Bill C-22 and it receives royal assent, it will become law.

The Regulations

In my mind, the most important of the amendments set out above might just be the requirement that people with disabilities be meaningfully engaged in developing regulations. 

As I've noted before, passing legislation is far from the end of the story. Regulations are always important in that they flesh out the legislation and deal with important details. They often contain some of the meat and the teeth of the law.

However, in this case, they're even more important because unfortunately, the legislation, itself, tells us very little. The proposed legislation isn't much more than a bare bones skeleton.

All we know is that those eligible (nothing tells us who that might be) will be paid a Canada Disability Benefit. [ss. 4-5] 

Other than that, the only other thing of import is that this "benefit" (however much it might be) can't be taken in cases of bankruptcy, garnished if you owe someone money or otherwise be taken away by operation of law. [sec. 9] **

Good news to be sure but .... how much and to whom? Kind of important details, wouldn't you agree? 

Sadly (and ironically), if this legislation became law today, not a single Canadian (with or without a disability) would benefit. It wouldn't even make a good paperweight, given how short it is. 

This is why  the requirement that people with disabilities (and presumably their allies) must be meaningfully engaged in developing the regulations is so crucial.

And time passes.

** Fortunately, this includes the Dept of Community Services. They won't be unable to claw the benefit back. Now that's worth celebrating.

Update on Canada Disability Benefit Act

This past week, MPs unanimously passed the second reading of  Bill C-22, the Canada Disability Act.

This only happened thanks to a lot of work by the disability community in reaching out to MPs to stress the importance of the creation of the Canada Disability Benefit. We all need to be proud of this moment. 

The proposed legislation will now move to the Committee stage, where MPs on the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (HUMA) will study the Bill and hear from witnesses, people with disabilities, disability groups and others. 

NOTE: Moving forward in this post, I will be using the terms legislation, statute and Act (such as the Canada Disability Act) interchangeably. 

However, there is a lot more work to do before the Bill is passed into law. 

After being considered by the Committee, the Bill will return to the House of Commons for the Report stage and Third Reading debate before its final vote. Only then will it be sent to the Senate where it will go through all the same stages it went through in the House of Commons. 

Inclusion Canada is hoping that it is hoped that the legislation will be passed by Parliament by December 2022 and the Canadian Disability Benefit created quickly in 2023. Unfortunately, even that is far from the end of the story. This is no time to rest on our laurels.

The Devil in the Details

This is the current version of the draft legislation. If you read it carefully, you will see it doesn't tell us much other than a Benefit will be created. We are left wondering who will be eligible, how much individuals will actually receive or if it's a one-time payment or annual benefit, among other things. 

Here's the sticking point. 

Passing legislation can be quite a challenge depending on who/what it benefits and the political makeup of the House. Think minority government. But often, as this is this case, that is far from the end of the story.

Many, many moons ago, I discussed how legislation (in this case, the proposed Canada Disability Act), regulations and policy interact. I suggest you take a quick look at that before we move on to look at what happens after next, after the legislation is finally passed.

Passing legislation is far from the end of the story.

Major Improvements to Disability Tax Credit Eligibility

I've written a fair bit over the years about the Disability Tax Credit ("DCT"); primarily how worthwhile it is to have and how difficult it is to be approved. Finally, some good news.

In order to qualify for the DTC, a medical practitioner must certify that you have have 

• a severe and prolonged impairment in one of the specified categories;
• a significant limitations in two or more categories, or 
• receive therapy to support a vital function.

The good news is that the eligibility criteria for mental functions and some other disabilities has been expanded and made retroactive to January 1, 2021, so even if you previously applied and were refused, you might just get there now.  

The various categories are set out below, but I'm going to focus on "mental function" today. You can view the previous (2020) and expanded criteria to qualify under mental function here. 

As just one example of the changes, previously only adaptive functioning, memory and judgment were considered under the heading "mental function". Now, in addition to the above, attention; concentration; goal setting; perception of reality; problem solving; regulating behaviour and emotions; and verbal and nonverbal comprehension will be considered. 

The requirements of what can be considered under each of the above items have also been expanded to  allow for consideration of more things. For example., when looking at adaptive functioning, for the first time adapting to change, expressing basic needs and going into the community will be considered.

One of my personal favourites, when looking at judgment, previously only things such as following treatment prescribed by a doctor and selecting clothing appropriate to the weather were considered. Now, in addition to the above, recognizing the risks of being taken advantage of by others and understanding the consequences of your actions will also be considered. Anyone who has dealt with a representation application (formerly known as adult guardianship) knows just how important those last two things are to safety and functioning in everyday life.

It's a little confusing to explain some of the changes, so I strongly recommend you check out the both the previous and new more inclusive list of items considered for yourself. 

As I said, we have only looked at the criteria under "mental functions" in this post, but as noted above there are changes in the criterial for other types of disabilities, too, such as 

• the recognition of more activities in determining time spent on life-sustaining therapies; 
• a decrease in the required frequency of life sustaining therapy (now requires a minimum of two times per week as opposed to three); and
• including individual with Type One diabetes under the heading "life sustaining therapy".

You can find more detail on those other categories here. 

Not to say the system is now perfect but it should be a LOT BETTER than before and remember, besides the tax savings, the DTC is the gateway to all federal programs for persons with disabilities, such as the Registered Disability Savings Plan and soon (hopefully) the Canada Disability Benefit.

* The categories are walking, mental functions, dressing, feeding, eliminating (bowel or bladder functions), hearing, speaking and vision 

Advocacy Is What Its All About

The following is an excerpt from the Inclusion Matters September 2022 email:

On September 20, Members of Parliament debated the second reading of Bill C-22, which seeks to create the Canada Disability Benefit.

This historic legislation will implement a monthly benefit for people with a disability in Canada, with an aim to reduce poverty rates across the country for people with disabilities. While many people with intellectual disabilities and their families face increased expenses and with over 70% of people with intellectual disabilities living in poverty. This bill has the potential to make life easier for many and bring people with disabilities above the poverty line. We have never been this close before to making such a positive financial impact. 

Unfortunately, on September 28, Conservative MPs denied a unanimous motion in the House of Commons that would have fast-tracked Bill C-22. As a result, further debate and passage of the Bill will be delayed. It is now more important than ever to contact your MP and urge them to support this important foundation legislation. 

We need your help!  

By phoning or emailing your MP you can ask them to support and vote in favour of Bill C-22. We need to request that all MPs, regardless of political affiliation work collaboratively to fast-track this legislation now so people with disabilities don't have to wait any longer for this much needed financial support. Tell them your story as to why this is important to you and or your family member. 

Click here for your MP's contact info here. 

Click here to a template letter you can personalize to send to your MP. 

Protecting an Inheritance with the Registered Disability Savings Plan?

I was asked recently whether an inheritance could be placed directly into a Registered Disability Savings Plan ("RDSP") so as to protect those funds from the Department of Community Services. As an aside, if you're somehow not already familiar with the RDSP, you really need to be.  

As long-time readers will know, when calculating an individual's [continuing] financial eligibility to benefits under the Disability Support Program ("DSP") the Department of Community Services ("DCS") looks at both the individual's monthly income and their assets. With some specified exceptions, the Department considers any property owned by a person regarded as having value and available to meet debts and commitments as an asset.

For our purposes, there are four main ways of transferring property or money to a beneficiary under a Will. The executor will be directed to 

• transfer the bequest directly to the named individual;
• hold the funds in the type of discretionary trust used whenever a minor child is a beneficiary;
• hold the funds an absolute discretion trust [better known as a "Henson trust"] or
• direct that the funds be placed in an identified RDSP for the benefit of the beneficiary.**

Unfortunately, only two of the above will protect an asset like an inheritance from being taken into account by under the DSP. Neither a direct transfer nor the creation of the typical and well-used discretionary trust bodes well financially for any beneficiary who is [or will be] eligible for support under the DSP, as both will result in the funds being taken into account and negatively affect the beneficiary's current (and most likely) future benefits. Unfortunately, the more significant the the inheritance, the greater that negative effect will be.  

The key to protecting any inheritance from DCS is to ensure that, from a legal point of view, the funds are never placed in the hands of the beneficiary, meaning the beneficiary has no legal right, either themselves or through an agent, to access those funds, something that both a Henson Trust and a RDSP can do IF the Will is properly worded. 

The Henson Trust                                                                                                                            I am a huge proponent of the Henson Trust in such a situation as it's the safest and most effective way to make sure that the inheritance is protected from the DCS while maintaining quick and easy access to the funds for the benefit of the beneficiary. As discussed many times over the life of this blawg, this is hands down the best way to handle an inheritance for a person who is or will be receiving government benefits. 

Yeah .... About This Whole Blogging Thing

If you followed the first link in my last post, you might have noticed that I'm much more productive on the MMC Legal Service's FB page than I am here. 

That's because it's so much quicker and easier to post a link to some current event or issue, adding my thoughts in a few lines of text than it is to pen a meaningful blawg post. 

Trust me when I say it takes me a lot longer to write a post than it does you to read it.

That's why I am throwing out the following two thoughts for your consideration.

• You might want to follow the FB page to keep more up-to-date with current goings-on.

• This gives the added benefit of being able to either DM or use the Contact Me option on the MMC Legal Services' website should you see something you think would benefit from a more in-depth discussion.

Take your time. I'll be right here waiting.

The Canada Disability Benefit Needs You ... and You ... and You

I've posted a few times on my MMC Legal Services FB page about the yet-to-be seen Canada Disability Benefit promised prior to the last federal election. 

The following is the text I received in an email from Disability Without Poverty. Please read the Call to Action found at the bottom of this post. 

Turning Bill C-22 Into The Canada Disability Benefit Act

By Amanda Lockitch 

How Does a Bill Become Law in Canada? 

On June 2, 2022, the Canada Disability Benefit (CDB) had its first reading in the House of Commons (HOC). On June 13th, with roughly 10 sitting days left before parliament adjourns for summer break, the leaders of over 75 stakeholder organizations put forth a letter to government requesting that Bill C-22 (CDB) be called for its second reading before this adjournment. The second reading will enable C-22 to move to its assigned Standing Committee and then onto the rest of the legislative process. The hope is that the CDB can progress in a timely manner because people are in desperate need of help now.

While Bill C-22 has reached the first important step of being tabled, many working age people with disabilities living in Canada are asking why their dinner plates are still empty at the end of each month. We are seeing increasing accounts of people taking the drastic step of applying for Medical Aid in Dying (MAiD) simply because they can’t make ends meet. How long will it take the CDB to reach the pocketbooks of people in need? 

Saskatchewan Senator Brent Cotter and Greg McMeekin, Alberta’s Advocate for Persons with Disabilities, held a webinar moderated by the Co-Chair of Disability Without Poverty, Michelle Hewitt, to explain the process of how a bill becomes law in Canada and answer questions that have arisen about this process. Below is an overview of that process. 

The House of Commons 

In this case, the CDB was introduced into the HOC. Once past its first reading and tabled, it must go through a second reading, where it undergoes debate and a vote on its principles. Then it moves to its Standing Committee. 

Consideration in Committee 

Witnesses and experts are invited to the committee to examine the implications of the proposal. They look at how to improve it, what might need to be added or taken away. They review it, clause by clause, and eventually report back to the HOC. In this case the committees will examine over 20 regulations to make sure they fit the letter of the bill as introduced. For example, Bill C-22, as introduced, speaks to a benefit for people of working age. That means if anywhere it includes minors or seniors as entitled to the benefit, they are ‘out of bounds’ and cannot remain in this particular bill. Once every regulation and every aspect of the bill has been approved by its committee, it is reported back, to the HOC and receives its third reading. 

The Senate 

Then it goes through a similar process from first to third read in the Senate. Once the exact same version passes through both the HOC and the Senate it obtains Royal Assent from the Governor General. It passes into law by Coming into Force at the discretion of the Governor in Council. It changes from Bill C-22 to the Canada Disability Benefit Act.

Where We Stand Today 

At this time, the HOC has risen for the summer break. 

While Bill-C22 did not receive a second reading, we are hopeful it will be picked up quickly again in the fall. We encourage you shake hands with your local MPs when you see them out and about this summer and keep the pressure on regarding the Canada Disability Benefit. As too many people living in Canada are aware: poverty doesn’t take a break for summer.

CALL TO ACTION

Disability Without Poverty is requesting people to Meet, Call or Email your local MP.

Over 1,650 Canadians have written to your MPs to let them know how important it is to move people with disabilities out of poverty but we must continue to make sure the Canadian Disability Benefit remains a national priority.

If unsure who local MP is or how to contact him or her, this page will allow you to search MPs by entering your postal code. Following the corresponding link, will give you all the contact information.