Legislation, Regulations and Policy ... Oh My!

We were previously discussing taxation credits for individuals with disabilities and their families. And today, I planned on taking a further look at provincial benefits. Until I realized that we might need a slight bit of background first.

We've already looked at some of the programs available under Nova Scotia's Services for Persons with Disabilities Program. But before a government institutes any program, policy or service there has to be, in theory at least, some grant of power for them to do so. In other words, there has to be some form of legislative authority which authorizes or allows them to do whatever it is they are doing.

For example, the provincial government receives its authority for the Servcies for Persons with Disabilities program from two pieces of legislation;

1. the Employment and Income Assistance Act (what people formerly thought of as the Social Assistance Act) and
2. the Homes for Special Care Act.

In addition to the legislation (the statutes as set out above), the government will also often enact regulations under each statute. The statute gives the broad outlines of what the government can and cannot do and/or what you and I as citizens are allowed and not allowed to do. The regulations made under each of the above statutes fill in the some of the details that are missing from the Acts themselves. Both statutes and regulations have the force of law.

Beneath those you will often 'policy' or 'guidelines" for various programs. Generally speaking, policies do not have the force of law. Which is part of the reason why, for example, in the Dassonville decision we discussed earlier, the Nova Scotia Court of Appeal found that the government must look at individual circumstances and cannot simply apply policy in a blanket manner.

You can almost think of it as a painting. We will start with a paint by number:

• The statute sets out that black and white outline which will eventually turn into a picture.
• The regulations tell you what colour goes with what number so you can starting painting in the right colour in the right spot.
• Beyond that, policies or guidelines would give you more rich detail (which shade of blue goes here, is that light brown or dark brown in this square). Maybe not the best analogy, but hopefully you get the picure.

In the next few posts, we are going to look at some of the regulations made under the Employment Support and Income Assistance Act. Regulations that affect how much money your adult child will receive if you keep him or her at home and how any assets that a disabled individual has [or even has access to] affects their eligibility for provincial benefits under programs such as the Services for Persons with Disabilities Program. And how you, as a parent, can work with that in your child's best interests when drafting your Will.

The Caregiver Credit ... Tales from the Disability and Estate Planning Seminar, Part II

Continuing yesterday's discussion of taxation credits for individuals with disabilities and their families...

If your child with a disability is over the age of 18 years and lives with you, you may be eligible to claim the Caregiver Tax Credit (Line 315 on your Income Tax Return). This is in addition to the Disability Tax Credit (DTC) which we discussed yesterday. In this situtaion, you are claiming the DTC as transferred from the individual with disabilties (assuming that they will not need to use it to offset their own tax payable). The Caregiver credit, however, is not transferred from the person with a disability; this credit belongs to the parent/caregiver.

The amount of the Caregiver credit is based on the income of the person with disabilties. As the disabled person's income exceeds $13,700, the amount of the credit will start to reduce.

One thing to keep in mind about the Caregiver credit is that you might want to broaden your view from just that of your disabled child. For example, if you have an elderly parent who has been "dependent on you due to mental or physical infirmity" and they have spent a week or two living in your home (perhaps after being discharged from the hospital), you might be able to claim the Caregiver credit there as well. In fact, as I understand it, it may not even be necessary for the person to have lived with you at all through the year, as long as they are in some sort of de facto dependency situation with you.

From reading the CRA website, it appears that the person does not need to even qualify for the DTC in order for the Caregiver credit to be claimed. In fact, the website appears to read that if the person is "your or your spouse or common-law partner's parent or grandparent, born in 1941 or earlier" you can qualify for the credit, without the person actually being "dependent on you due to mental or physical infirmity". Its reproduced here below. Read it yourself and see what you think.

One rather important issue here, however...

READ THE REST

**With grateful acknowledgment to Mr. Ken Pope and the Nova Scotia Downs Syndrome Society for 'bringing him to town'.

The Disability Tax Credit ... Tales from the Disability and Estate Planning Seminar

I sincerely hope everyone reading this knows (or at least thinks they know) about the Disability Tax Credit (DTC).

It gives a nice size tax credit to an individual with a "profound impairmant" resulting in them being "markedly restricted" in any of the basic activities of daily living. It can be used by the taxpayer (to offset their taxable income) OR transferred to another "supporting" relative, such as a spouse (or, in the case of a child under the age of 18 years, to a parent or guardian).

If you're not familiar with this tax credit, please contact Canada Revenue Agency and ask them about it. And do not be discouraged if you are told that it is very hard to qualify for or that based on what you have told them, it wouldn't apply. Maybe yes, maybe no... Ask them to send you a T2201 Form (a form which both the taxpayer and the disabled individual's physician must fill out) anyway or download it from the website. When the form comes, take it to the person's doctor (or specialist if available) and see what they think.

But here are a few additional points that even the 'knowing' may not realize:

• even if the disabled person is living indepedently (ie. in a group home or other supported living situation), you may well still be able to claim the DTC. This will turn on a question of fact; namely whether or not the taxpayer is in a "supportive" relationship with the disabled individual. This can include such things as whether or not you buy them clothes occasionally, take them on trips with you or whether they come to spend a few days with you when they are ill.
• when you do apply for the DTC, keep in mind that it can be back-dated, not just to the date of the individual's diagnosis but for up to 10 (ten) years. Think about it, many types of disabilities are life-long, from birth, even if they weren't diagnosed until much later.
• If you are the parent or other supporting relative of a child with a disability under the age of 18 years and you're already claiming the DTC, check last year's Income Tax Return or pick up the phone and call CRTC and make sure that you are claiming not just the DTC but also the "child disability" portion of the credit. This will take the tax credit from roughly $6,000 to $10,000.
• Did you know that a learning disability may be sufficient to qualify a person as eligible for the DTC? Although I had heard a few comments here and there on the subject, it was mostly news to me. And if you have one child with more severe physical or mental challenges for whom you are already claiming the DTC, it may not have even occurred to you to think about this for a second child with a learning disability (guilty as charged).

And don't forget, the DTC not only gives the taxpayer a good-sized (and much appreciated) tax credit, it also has a very positive effect on the monthly Child Tax Benefit (what we use to know as "Family Allowance") as a "child disability benefit supplement" will be added to the monthly cheque for each child who has been accepted for the DTC. Even if your family income disqualifies you from receiving the Child Tax Benefit, you can still qualify for the child disablity benefit supplement if you are claiming the DTC for the child. And any move from no monthly cheque to a monthly cheque has got to be a good thing!

If you have not applied for the Child Tax Benefit for your child, but have already filed Form T2201, complete and mail Form RC66, Canada Child Benefits Application, to your tax centre. The CRA will determine whether or not you are eligible for the Child Tax Benefit and the Chid Disability Benefit supplement.

This child disability benefit supplement came into effect in 2003, meaning that if you get your child accepted for the DTC now or in the future, there should be a lovely retroactive effect to your Child Tax Benefit.

As a general note, I would suggest you check out this page to see what else persons with disabilities can claim as a deduction or a credit. You should also check out the Medical and Disability - Related Information - 2006 Guide.

**With grateful acknowledgment to Mr. Ken Pope and the Nova Scotia Downs Syndrome Society for 'bringing him to town'.

Update: And remember that any legal fees you incur as a result of qualifying yourself or you dependant for the DTC are generally tax-deductible. Which means that if you find yourself running into difficulty with the CRA, hiring a lawyer to do the job may not be such a bad idea.

Update II: For more info on this subject, search the labels appearing at the bottom of this post.

I Know ... I Know...

Never fear, I haven't forgotten.
How could I?!

The material from the Disability and Estate Planning Seminar I was gushing about will be next up. I just wanted to finish up our look at the Services for Persons with Disabilities program first.

Done!

So give me a couple of days to catch my breath and it will be onward and upward. I am thinking early next week ... Sunday or Monday.

What's In a Name ... A Summary of the 'new' Services for Persons with Disabilities Program

I hope each and every one of you appreciate the phenomenon of deja vu.

Because in each of the three "new" policies we recently looked at, the "Services for Persons with Disabilities Policy" [under which each new program operates and is governed by] is defined, in the main, as being ... wait for it ... the "Community Supports for Adults Policy Manual". You might recall our previous discussion of the Community Support for Adults policy (CSAP) where I noted that despite the rolling out of the "new" Services for Persons with Disabilities (SPD) program, the old policy appeared to live on in various forms. Just so it seems.

And, as noted before, for the remaining policies under the Program, which you will find listed here, also appear to rely on the old Community Support for Adults Policy Manual.


So same old, same old?


Well, maybe. Or maybe not. I have outlined the three 'new' policies and I would suggest you read them and judge for yourself. But I will say this - both the Independent Living Support program and the Direct Family Support program, despite their underlying reference to and purported reliance on the old Community Support for Adults Policy Manual, do appear to offer new and very welcome alternatives to indviduals living with disabilities in Nova Scotia, their families and advocates.

Now, admittedly it does get a little "unusual" here if you closely look at the documents. As many who have tried to access services under the old CSAP are likely aware, that program did not provide for the provision of assistance or services if the person resided in their own, or a family member's, home. But the Independent Living Support program is all about the person residing in their own home. And the Direct Family Support program is all about the person residing in a family member's home. So how does that work?

Well, frankly I'm not quite sure. The only place in which the new policies exempt themselves from the CSAP policy is in regard to the financial assessement conducted to determine eligibility for the programs. So, I must admit to having a bit of a chuckle to read in both of the policy documents for the above two programs that the "Continuum of Supports and Services" offered were

A mix of program and support options available through SPD for persons with disabilities. This continuum includes in-home, residential and dayprogram supports and services.

That's amusing, you see, because, as I noted above, the CSAP policy does not include in-home supports and services. And saying it does just doesn't make it so.

But when it comes down to brass tacks, to what matters, maybe ... hopefully ... from a practical point of view, it doesn't. Although it appears all too clear that the Department is in need of a "new" policy manual to go along with its "new" SPD program, for the moment at least, we do have what appear to be two "for real " new living options for individuals with disabilities in Nova Scotia.

Alternative Family Support ... Part of the Services for Persons with Disabilities Program

The third (and last) "new" program offered under the Services for Persons with Disabilities program is the Alternative Family Support Program. Although not really so 'new' (the "foster family" approach for adults with disabilities was around under the old Community Support for Adults program), it has a new policy behind it, so let's take a look.

The Alternative Family Support Program (AFS Program) is said to "allow for placement in an approved, private family home, where support and supervision is provided for up to two individuals unrelated to the AFS Provider". Funding is provided to include such items as room and board, support and supervision, and respite. The idea is to partner with and access a variety of community support resources "to address the holistic needs of individuals with disabilities".

To be eligible for the AFS Program the individual must meet the following criteria:

• the individual’s assessed support needs can be successfully accommodated in an AFS setting;
  
• appropriate supports identified through the assessment and Individual Support Plan processes are available;
  
• the individual does not require long term or ongoing night awake support;
  
• the individual or the "person acting on their behalf" have agreed that the available AFS placement is an appropriate residential program option.

The term "person acting on their behalf" is defined in the Policy as "(i) any person who acts on the [disabled]Individual’s behalf when the [disabled]Individual has given written permission; (ii) the [disabled] Individual’s legal guardian; or (iii) a person with power of attorney for the [disabled]Individual".

Meaning that if, for example, you have taken the necessary steps to become your adult child's legal guardian, you will have the right to agree or disagree with such a placement. If you haven't taken these steps, you might want to reconsider this option.

READ MORE

Independent Living Support ... Part of the Services for Persons with Disabilities Program

The Independent Living Support (ILS) Program is another new program that is partof the Province's Services for Persons with Disabilities program.

The ILS Program provides "up to twenty one (21) hours a week of supports and services**to eligible individuals who are semi-independent and require minimum support in their own apartment or home". As with the Direct Family Support for Adults program, individuals in the ILS Program might also be eligible to receive funding for items that, in the past, were more generally considered "social assistance" items, such as shelter costs, food, clothing, household items, prescriptions, transportation and a comforts (personal use) allowance.

Although this program sounds like like former "supervised apartment" program (more on that below) what makes this one so unique is that funding and services can now be accessed within the individual's "own apartment or home". This was not possible under the supervised apartment program.

Also unique about this program is that individuals may choose to share their accommodations with another person in the program. Although expenses associated with accommodations will be shared in such a situation, each individual will still have their own Individual Support Plan and hours of support. However, support hours may also be shared when it is considered "appropriate".

To be eligible for the ILS Program the individual must meet the following criteria:

• require no more than 21 hours of support a week;
• under the age of 65;
• able to access crisis support independently and are able to use an emergency response system;
• able to manage medication with minimal support and guidance;
• able to participate in decisions about their activities and needs and are able to communicate these needs/preferences to others; and
• willing to participate in the Individual Support Planning process.

Some of the more-likely-to-be-contentious circumstances in which an individual will be ineligible for the ILS Program include where:

• the individual has safety and risk issues which cannot be accommodated and supported within the ILS Program;
• there are medication management issuesthat present concerns for the applicant’s health and well-being that cannot be reliably and safely supported;
• appropriate professional and outreach supports identified as being required cannot be provided due to logistics, cost or availability;
• the applicant requires long-term or ongoing overnight support; and
• the applicant is unable to access crisis support independently or is unable to use an emergency response system.

Contentious, of course, because the issue will be who is deciding whether an individual falls within one or more of those exclusions.

READ MORE

Budget 2007 - The Registered Disability Savings Plan

At yesterday's seminar, many were wondering where to get the latest information on the Registered Disability Savings Plan, given that there is sitll no legislation, regulations or policy documents.

This was the most "detailed" information I could find on the Finance Department website. Click on the "Personal Income Tax Measures" heading and then scroll down past the information on the "Working Income Tax Benefit". Which, by the way, as you're scrolling down, you might notice a "WITB Supplement for Persons with Disabilities", for whatever that might be worth.

Disability And Estate Planning Seminar For Parents And Families

Wow!

What more can I say?
An absolutely fabulous seminar put on by the Down Syndrome Society today. Kudos and many thanks to the Society for bringing in Mr. Kenneth Pope, an Ottawa lawyer who has a nation-wide practice devoted to trusts and disability issues.

I thought I knew most of this stuff. I really did!
Well, it turned out I knew some, but by no means, it all.

With discussions on

• the Child Disability Benefit portion of the Child Tax Credit;
  
• the Disability Tax Credit [did you know that you might well be able to claim it for a child with a learning disabiltity?];
  
• the Child Supplement to the Disability Tax Credit;
  
• the Caregiver Credit;
  
• ways to increase the Provincial benefits for your child over age 18 if he continues to reside at home with you);
  
• Henson Trusts [the particular type of trust you need to use to leave monies to your child in your Will if you don't want provincial benefits clawed back];
  
• what type of Life Insurance on your life will be most beneficial to your disabled child after your death; and
  
• the new Registered Disability Savings Plan

well, let's just say that Mr. Pope just gave me months of blogging material!

Personally, I've just learned about quite a few tax credits I haven't been claiming [both for one of my children and my mother]. And that I can now go back and open up for those claims, where appropriate, for the past ten years. Among many other things.

So stay tuned. There should be very some interesting stuff coming your way.

Update: For those that missed this great seminar, there is an upcoming "Disability Tax Credit Information Session" being offered at the IWK Health Centre in Halifax, NS, on Wednesday, November 13, 2007. Its being offered as part of a "Health Professionals: Lunch and Learn" series between 12-1:30 that day and later in the evening between 7:00 -8:30 as a "Parent Session". The speaker will be a representative from the Canada Revenue Agency.

As good as the "Disability and Estate Planning Seminar"??
I seriously doubt it. But if you missed the boat, so to speak, there does appear to be another canoe leaving the dock next month.

Direct Family Support ... Part of the Services for Persons with Disabilities Program

As promised, a look at the first of the three new policies under the Province's Services for Persons with Disabilities program.

Families familiar with the former In Home Support Program for Children will be fairly familiar with the concept behind the Direct Family Support program. Simply put, direct financial support "extraordinary expenses" is provided to a family who cares for an eligible family member with a disability at home.

Under the new program, age is not a factor - the family member with a disability can be either an adult or a child. Although the eligibility requirements are slightly different depending on the age of the indivdiual with a disability, as set out below.

For children, eligible expenses include such things as respite, transportation, medication and other items "considered as "special needs".

A different standard is applied to adults, for whom eligible expenses can include shelter, food, clothing, prescriptions, transportation, a comfort (personal use) allowance, and other "special needs". If this wording sounds familiar to you, there's good reason. The Direct Family Support for Adults is intended to take away the stigma associated with receiving social assistance (which is now more properly called "Employment and Income Assistance") and provide one source of funding for adults with disabilities in the Province, for both basic and special needs.

In the case of a child

• the child must be a permanent resident of NS
  
• under the age of 19 years
  
• live in the home of his or her family or guardian; and
  
• fit within one of the following classifications:
  

1. diagnosed by an approved clinician as having a mild or moderate intellectual disability* with a significant behavioural challenge that has been documented within the last two years;
   
2. diagnosed by an approved clinician as having a severe intellectual disability* that has been documented within the last two years; or
   
3. have a significant physical disability* with ongoing functional limitations that are a result of the disability and which seriously limits their capacity to perform age appropriate activities of daily living as determined by an approved clinician;

• In addition, the family must also meet certain financial eligibilitycriteria.

In the case of an adult:

• the adult must be a permanent resident of NS
  
• between the ages of 19 and 65
  
• reside in the home of a family member or guardian
  
• have a medical diagnosis of either an intellectual disability*, long termmental illness* or physical disability*
  
• have unmet needs as identified through the assessment process
  
• meet the financial eligibility criteria

* Definitions of these terms and others can be found in the Direct Family Support Policy document

For more information, contact:

Services for Persons with Disabilities ... Policy Documents Update

Big News!

I was just advised that the Department of Community Services will be putting their three new policies

• Direct Family Support;
• Independant Living Support; and
• Alternate Family Support

up on their website very soon. This is great news because now families and caregivers will be able to see for themselves exactly what the eligibility and other guideslines are for each program.

In addition, it allows me to do what I've been waiting for; namely, post the details about each new policy and link you to the actual policy documents.

As soon as I receive the link, I will post it.
And the info on each new policy will be up soon.

Update: New Post on Direct Family Support ...

Update II: New posts on Independent Living Support...

Upate III: New post son Alternative Family Support ... and

What's in A Name... A Summary of the'new' Services for Persons with Disabilities Program

Update IV ... The Big Update: The Direct Family Support, Independent Living Support and Alternative Family Support policy documents can now be found on the Dept of Community Services website.

"Struggling in a world of 'normal' "

I see there's some nice front page coverage in today's Chronicle Herald on the "possible ramifications if the government decides to cut tuition subsidies for parents who send their special-needs children to private schools, putting more 'special' children back into the public school system".

In addition to the "Struggling in a world of 'normal'" article, there's also the "Self-proclaimed public school success" article, which details the story of a 23 year dyslexic University student who managed to make it through the system with a lot of help from the right kind of teachers. The kind we all pray for all our kids to have.

The first article details the concerns of many parents, including those associated with the Equal Education Assocation of Nova Scotia, if the Tuition Support program is discontinued by 2010, as is recommended in the latest Special Education Report. One of the many things that bugs me about the recommendation to end the Tuition Support program is the lack of logic involved. The article sets out the supposed "reasoning" involved in the recommendation to end the program:

The report says special-needs kids should have access to good education in public schools across the province, not just in private schools in the Annapolis Valley and metro Halifax.

"The Department of Education must adequately fund school boards to enable them to respond to the learning needs of all students, including those with special needs," the report says.

It would appear that the Department of Education agrees.

Department spokesman Kevin Finch acknowledges "there may be times where (such students) have to attend a private school." But "the ultimate goal is to have every student’s needs met in the public school system," he adds.

And even the Nova Scotia Teachers Union is in agreement, as it takes the position that "adequate funding should be directed to the public system".

"Our position would be to take that money, to put it back into the public system to address the needs of all students, along with additional funds that are essential to address the needs of special-needs students," says Donnelly.

. . . . .

But Donnelly says the money — $1 million for the support program this year — could go a long way in the public schools, from lowering class sizes to making sure schools with more learning-disabled kids get more direct funding. The money for public education," she says, "needs to remain in public education."

All right. Sounds basically okay. But here's where it gets cute. Watch the logic break down. Although it may be bad form to "quote oneself":

... the Committee then goes on to state that when it has been determined that a student's need cannot be met within the Board system, the Guidelines Regarding Tuition Assistance for Students with Special Needs should be followed. So, in other words, it is recommended that the Tuition Support Program be discontinued but the Tuition Assistance Program been left in place. This despite the same statutory obligation on the governmnent and the school boards...

The first problem with this scenario [putting aside the bizarreness of the result as noted above] is that the Tuition Assitance Program is not mandatory. Sec. 64(3)(c) of the Education Act gives authority for the Program and states that school boards "may offer tuition assistance". At present, only three school boards offer the program in the Province, namely HRM, the AVRSB and the CCSRB. If you reside under the jurisdiction of one of the other five regional boards in the Province, you are, quite simply, out of luck.

And the Committee had difficulty with the limited access to the Tuition Support Program?? At least with the Tuition Support Program, a student had the option of traveling to one of the three schools. But with the Tuition Assistance Program, willingness to travel doesn't help one bit if your school board chooses not to offer the program.

The second problem is that tuition assistance is notoriously hard to receive, even from those school boards that do actually offer the program...

Well, you can read the rest of it here.

At any rate, I do believe I feel a letter to the editor or maybe even an article for either the Daily News letterstoeditor@hfxnews.ca or the Chronicle Herald letters@herald.ca coming on. What about you?

Bedtime Blessings

I came across this today and felt that I had to share it with you. May we always take a moment to focus on the good and the many blessings our children bring us.

I had a bad cold that night and I crawled into bed much earlier than usual. While my husband and kids watched a movie downstairs, I huddled under blankets, my body achy and chilled. A soft rain fell outside my window. I started to relax. Just as I began drifting off to sleep, I noticed Sarah, my daughter with Down Sydrome, standing in the doorway. "Mom... you forget to tuck me in", she stuttdered in a respectful whisper.

For Sarah, daily patterns and routines were very important. Even though she was sixteen years old, she functioned at the level of a first grader. I knew this family ritual that we called "tuck-in-time" broought closure to her day. "Let's wait a while", I suggested as I motioned Sarah near. Sarah sat on the edge of my bed. For a moment, the two of us listened to the rain. "The rrrrain is nice", Sarah said. I took her hand in mine. "It is", I replied and started remembering her early childhood and the many mother-daughter moments I had spent at her bedside. Night after night, I had tucked her in, snuggling a quilt over her shoulders and tracing a small cross on her forehead.

I remembered one night when Sarah was nine years old. I decided it was time for her to learn a bedtime prayer. "It's too hard for me" Sarah admmitted with a sigh of dismay. Stroking her hair I saw her brow wrinkled in frustration. "Sarah, what do you want to tell God?" I asked as I slowly folded her hands in prayerful clasp. She closed her eyes tightly. "Dear God, I llllove my mom".

Throughout the years, Sarah offered this 'mom prayer' time and time again. But now, much to my surprise I felt Sarah tug my bedspread over shoulders. "Mom, what do you wwant to tell God?" she asked as she traced a small cross on my forehead.

I closed my eyes and said "Dear God, I love Sarah". Sarah smiled. The prayer lingered. The rain continued to fall in song like beats.

When we least expect it, we see God's handiwork in our lives, and we realize how blessed we are.

Adapted from Treasures For Women Who Hope by Alice Gray

Services for Persons with Disabilties Program: An Overview

I would like to start with an introduction to the Department of Community Services's new Services for Persons with Disabilities Program.

The relevant Department of Community Services page reads as follows:

Services for Persons with Disabilities is a voluntary program that provides residential and day programs for adults with intellectual/physical disabilities or long term mental illness. Residential services include a continuum of options ranging from support to families caring for a family member with a disability in their own home, to full 24 hour residential support. The goal is to create a range of programs that can support people at various stages of their development and independence.

Overview of the Program
The first thing to note is that contrary to the above, the Services for Persons with Disabilities (SPD) Program, or at least a portion of it, is applicable to children with intellectual and physical disabilities. We are told that the SPD program is a new umbrella program which covers a variety of residential options. But although its true that it does encompass a few new policies and thus, offers a few new options, its important to realize that, at least at this point, the umbrella also covers a lot of old program options which appear to have simply been given a new updated handle. But we will delve deeper into that situation in future posts. For now, I'm just going to lay out, in a bare bones fashion, the "options" provided under the current SPD Program.

READ MORE

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.