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ODSP Continues To Confuse And Fail

If the Ontario Cabinet Committee on Poverty Reduction is as committed to reducing poverty as their statements indicate, reforming the social assistance programs must be part of the strategy. Various groups including the ODSP Action Coalition and the Income Security Advocacy Centre (ISAC) have submitted recommendations to the cabinet committee calling for systemic changes to Ontario Works and the Ontario Disability Support Program.

The programs, legislated in May and June 1998, replaced the General Welfare Assistance Act, the Family Benefits Act and the Vocational Rehabilitation Services Act. The problem, critics say, is that the programs operate on a presumption of ineligibility with hundreds of rules that are enforced, "resulting in constant surveillance and intrusive monitoring of the daily lives of recipients," as ISAC put it in their submission to the cabinet committee. "Ontario Works and the Ontario Disability Support Program deepen poverty and increase the social exclusion of recipients. And the philosophy, rules and rhetoric surrounding both programs foster negative stereotypes that limit community support and opportunities for social assistance recipients."

They are recommending a wholesale rethinking of the programs into ones that focus on lifting people out of poverty while recognizing the diverse needs of recipients. They suggest a one-year process to develop the new design with an immediate elimination of punitive rules to set the tone for the transformation and a commitment and firm plan to close the gap between social assistance and adequacy of income.

Despite the challenges and outdated thinking behind OW, the program with the most systemic problems is ODSP. The Coalition highlights 48 systemic barriers.

If there was one program that failed to live up to it's billing and resulted in a huge waste of public resources and emotional distress to people, it's the Ontario Disability Support Program. Former Community and Social Services Minister Janet Ecker, who introduced the program, called it "the start of a new era of fairer treatment and more opportunity" for the disabled. The reality has been the polar opposite.

Critics say the program is rife with barriers. "Most of these barriers are systemic-they are inherent in the ODSP program, whether by design or by practice, and prevent the program from adequately serving the needs of the people who find themselves forced to rely on it," the Coalition states in their submission to cabinet. ISAC, in their 2003 report, Denial by Designthe Ontario Disability Support Program", wrote, "The current system is based on discriminatory and misguided assumptions and is fundamentally flawed."

The first problem is the application process. No supports are provided, leaving individuals on their own. Some may be lucky enough to have help from an OW worker or a community agency but the vast majority have to figure it out themselves. The Coalition states, "The ODSP application process is so complicated that many applicants cannot navigate it on their own. Some disabilities, such as mental illness, development disabilities or a learning disability make it particularly hard for people to complete the application process." Another group facing difficulties are those for whom English is not a first language.

Add to this tight timelines to get the application in. The application consists of the Health Status Report, an Activities of Daily Living (ADL) Form and a Self Report. A physician, psychologist or certain registered nurse practitioners must fill out the first two. Doctors who fill out both forms are only paid $100 by the government. The major concern is the ADL form, a grading system used to determine an applicant's level of impairment.

Advocates for the disabled have consistently complained that the form requires a depth of knowledge that few health practitioners will possess, or given the minimal payment, will take the time to develop. Many, including Deborah Kehler, a paralegal with Niagara North Community Legal Clinic, say that social workers should be permitted to complete the form. The Ministry has consistently refused. Ultimately, doctors either rush through the report or either under-report or overstate the disability.

Applicants have 90 days to get the forms completed and turned in. Applications are processed by the Disability Adjudication Unit comprised of adjudicators with backgrounds in various health professions. With the aid of the ministry's Disability Determination Manual they make a decision as to whether an applicant is a "person with a disability." But as ISAC has reported, "Some of the most glaring injustices with the ODSP eligibility process are associated with the Disability Adjudication Unit. While ostensibly an attempt to bring more thorough analysis and greater consistency to the disability adjudication process, the DAU has proven to be a major barrier for disabled individuals attempting to access ODSP supports. The thrust of its decisions have been in the direction of proving ineligibility, rather than fairly and objectively determining whether an applicant meets the definition of disability under the ODSP Act." About 50 per cent of applicants have been denied by the DAU since 1998.

Kehler, like ISAC and the Coalition, is "frustrated" with the "completely poor decision making at the DAU." The two groups have long documented examples of adjudicators "cherry-picking" evidence in an attempt to deny an application. Kehler says, "Doctors are horrified that their words are being twisted" to deny someone. And cases still abound of adjudicators suggesting treatment which they're not qualified or legislated to recommend.

In order to successfully appeal the decision, the applicant must ask for an internal review within 10 days. Critics say this stage should be eliminated because, as Kehler says, "it's very rare" an internal review will reverse the earlier decision. Once its effectively been denied twice, an applicant can appeal the decision to the Social Benefits Tribunal. However, ISAC estimates about 50 per cent give up at this point. It can take up to a year between the time the appeal is filed with the SBT and a decision is rendered. In that time, the applicant is usually forced to live on OW or no benefits at all.

Kehler and her colleague, lawyer Vicki Doidge, say they are winning about 90 per cent of the cases at the tribunal. ISAC notes a similar pattern. "The high rate at which the denial of benefits are overturned by the Social Benefits Tribunal indicate a structural problem in the disability adjudication process."

It's a huge waste of public resources. Appeals to the SBT by ODSP applicants now represent a large percentage of legal aide and legal clinic cases. Doidge says these account for 75 to 80 per cent of their cases today. ISAC estimates provincial legal clinics are spending tens of millions of dollars each year handling disability-related appeals. "As legal clinicsare funded almost entirely from the provincial government through legal aide, the province is one way or another paying for the inadequacies of the ODSP system."

Once successful in their appeal, the benefits condemn people to "a life sentence of poverty," the Coalition says. Singles on ODSP are currently living 31 per cent below the poverty line. And if they're able to work part-time, 50 per cent of their earnings are deducted from their benefits.

The two groups say the first area that must be addressed is the rates. They're calling for increases in both OW and ODSP to lift people out of poverty and the establishment of an independent body to review and set benefit rates annually.

Government Services Minister Ted McMeekin had introduced a private member's bill that would have done just this in 2007 but the bill failed. It's expected another government backbencher will reintroduce the bill in the fall session.

Passage of this bill would be a sure sign the government is serious. The next challenge is the DAU. Critics say it needs a radical overhaul to be effective. ISAC advocates moving towards a more simplified income-tested rather than needs-tested program. Kehler points out the SBT recently had a half-day of training in chronic pain conditions. Similar training is needed by the DAU, she says. As applications based on chronic pain are routinely denied by the DAU, it's a good first step. She also recommends having the DAU pay more attention to the Self Report portion of the application. Applicants "take that part so seriously. They pour their hearts out." Yet, the DAU "routinely disregards" it. Doidge says in one recent SBT hearing, the applicant was asked if they wrote the Self Report themselves. When the answer was yes, the hearing officer said they didn't need to hear more; the appeal was successful. Just one example of how a year and hundreds of dollars of public monies could have been saved.

The Coalition says the DAU decision making process must be made transparent and accountable by explaining the rating system used by adjudicators, ensuring that adjudicators understand and implement court interpretation of disability and giving more weight to the opinions of applicants' health practitioners. In addition, they recommend the government provide support workers to assist applicants in getting through the process.

Service providers, policy analysts, academics and even the Ombudsman's Office have prepared 17 reports in the decade since ODSP's inception. Many of the recommendations are similar but few have been acted upon. With the government's stated intention of developing strategies and targets for eliminating poverty, there's never been a better time for true reform. The Coalition writes, "We believe that implementation of the recommendationswould make significant progress toward reducing the poverty of those currently living on ODSP, as well as the many who qualify, but for a variety of reasons, cannot access ODSP benefits."

P [WILLY NOILES]

Reproduced from http://www.pulseniagara.com/viewstory.php?storyid=4309

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