Law Times

Law Times • sepTember 11, 2017 Page 11 www.lawtimesnews.com Challenges launched over disability benefit rate BY GABRIELLE GIRODAY Law Times L egal clinics have launched human rights challenges regarding the disability benefit rate two clients are receiving. The challenges relate to the monthly amount received by two disabled men who get both their meals and room from their landlord through the Ontario Disability Support Program. The legal clinics say the men are receiving reduced ODSP rates as "board and lodgers" and are being discriminated against, contrary to the Ontario Human Rights Code. Each man is being "economi- cally disadvantaged by receiv- ing less money than he would be receiving had his disabilities permitted him to live indepen- dently," they say. "Our argument is that this reduction of benefits discrimi- nates against social assistance recipients whose disabilities are a barrier for them in resid- ing on their own," says Niiti Simmonds, a staff lawyer at the Income Security Advocacy Centre. Simmonds says if a single person rents an apartment on their own, they receive an ODSP benefit amount of about $1,128 per month. She says a benefit rate of about $1,147 per month is also given to people who live in spe- cific types of institutions, such as long-term care, chronic-care hospitals and group homes. But people who get their food and room from the same source, known as board and lodge, re- ceive only $863 per month. "Our client's disabilities ac- tually prevent them from liv- ing on their own, [and] their disabilities mean they have to pay for a room, meals and ad- ditional supportive living ser- vices, such as 24-hour access to personal support workers," Sim- monds says. "We say that when some- one's disability dictates their choice of housing — and in fact requires that they pay for those additional supportive living services — it's discriminatory for them to actually receive a re- duced benefit rate of the board and lodge rate set out in the leg- islation." In one of the challenges, ISAC is co-counselling on the matter with Community Legal Assistance Sarnia, and in the other, with the Community Ad- vocacy & Legal Centre in Bel- leville. "[We're] a community le- gal clinic that has a mandate to engage in test cases in the area of social assistance, and so our mandate is to support other On- tario clinics with cases that we think have a test-case element," says Simmonds, who explains that ISAC has teamed up with the clinics to advance "novel hu- man rights arguments" in each case. In one case brought forward to the Social Benefits Tribunal by Community Legal Assis- tance Sarnia and ISAC, the cli- ent — a 63-year-old man with an acquired brain injury — was hospitalized in 2014 and was unable to return home after his medical care team determined it would not be safe. The clinics say the client was put on a wait list for a place in a long-term care facility and moved to a retirement resi- dence. Prior to his hospitalization, they say, the client was receiv- ing an ODSP rental rate of $1,120 per month, and now, he receives a board and lodge rate of $863. "If [the client] was residing in long-term care, which is a des- ignated institution under the regulation, his monthly benefit rate would be $1,124. If his dis- abilities permitted him to reside on his own and prepare his own meals, his monthly benefit rate would be $1,128," says a state- ment of particulars filed by the organizations. The man is a person with dis- abilities, they argue, and "his de- mentia, mental health disabil- ity and overall declining health render him unable to reside in a rental apartment on his own or purchase and prepare meals as he once was able to." They say he is "adversely af- fected by an assumption that his living costs are decreased because he receives board and lodging from the same source." "The board and lodge rate exacerbates [the client's] vul- nerability and disadvantage as a person with a disability," says the statement. The other challenge filed by ISAC and the Community Ad- vocacy & Legal Centre in Bel- leville involves a second client, a 54-year-old man with depres- sion, inadequate personality disorder, anxiety, chronic pain, asthma and migraines. The clinics say he lived with his mother his entire adult life, until she died in 2011. He now lives in a care home and assisted living facility be- cause he is unable to live alone safely, they say, and gets 24-hour support. According to the challenge, the client receives an ODSP board and lodge rate of $863 per month, contrasted with the $1,128 he would receive as a sin- gle renter. "The essence of the Appel- lant's claim is that depriving him of the greater monthly benefit provided to renters and those in designated institutions discriminates against him on the basis of his disability be- cause the nature of his disabili- ties require him to reside in a care home, and pay for a room and meals, plus additional dis- ability related supports," says a statement of particulars. Deirdre McDade, the staff lawyer and co-director of legal services at Community Advo- cacy & Legal Centre, says her client is "living in extreme pov- erty because he's unable to live alone. "He essentially has absolutely no money, so he lives in a four- ward bed in a rundown care home, he doesn't have a cell- phone, he doesn't have money for bus or taxi or any extras, toothbrush, shampoo, that kind of stuff," she says. She says the social benefits tribunal can order individual remedies, as it has in other cases. "But that doesn't change the law at all; it just means those particular clients get more mon- ey," says McDade. She says the human rights challenge is taking on the legis- lation. "If we're successful, it will mean that this provision that pays people less money if they're . . . disabled and reside in a care home will be struck down," says McDade. "We're finding with the aging population there's just more and more people who have nowhere else to reside." A spokeswoman for the province's Ministry of Commu- nity and Social Services, Kristen Tedesco, said it would be inap- propriate to comment on any- thing before the tribunal. The challenge involving the 54-year-old man was filed in March 2016 and the tribunal made an interim decision in June 2017. It is due to return to the tri- bunal in December 2017 on human rights aspects of the case. In the 63-year-old man's case, the challenge was filed in February 2016 and the tribunal returned an interim decision in June 2016. The next hearing date has not been determined yet. Brian Killick, the staff lawyer at Community Legal Assistance Sarnia acting in the 63-year- old' mans case, says the human rights challenge has important implications for his community. "There's an innate sense that this situation is just unfair, people with these significant disabilities essentially receiving less for their greater needs," he says. LT FOCUS Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. We offer unparallelled expertise for your most catastrophic injury cases. Direct access to hundreds of specialists from all areas of healthcare expertise. A top provider of cost of care reports for your most catastrophically injured clients. More than 2,000 malpractice, personal injury and class action cases. More than 300 lawyer clients assisted. 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