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4. Special Diet Supplement

(a) Overview

Until amendments to the General Regulation in November of 2005, ODSP had discretionary authority to grant a "special diet" supplement of up to $250 per member of the benefit unit upon being provided with medical verification of the need for such assistance (the supplement was added to the recipient's budgetary requirements). The program was quickly and enthusiastically picked up by recipients, social workers, medical professionals, advocates (largely the Ontario Coalition Against Poverty in Toronto) - and even ODSP workers - who saw this as a way to redress chronically inadequate social assistance rates, which often resulted in poor diet amongst an already marginalized class.

Then the province moved in November 2005 (and again in April 2011) (Reg 562/05: "Prescribed Policy Statements") to heavily codify the special diet supplement by establishing a Schedule listing specific medical conditions and "fixed" special diet amounts that were allocated to each of them - once again capped at a maximum of $250 per member. Under this new Schedule many conditions previously granted a special diet allowance were unlisted, and of those that were listed the allowance was often quite low.

Under the current Schedule any element of discretion at the hands of the Director with respect to dollar amount granted has been removed. Many conditions previously granted under general medical opinion that 'good nutrition is good for health') are now simply unlisted (and thus not eligible for coverage), presumably because the province only wants to cover conditions that have specific dietary therapies.

Reg.562/05: Special Diet Regulation

(b) Eligibility

The special diet supplement is available to all members of a benefit unit in any of the following categories of recipient:
  • Renters and Home Owners [Reg s.30(1)4](see s.2 above)
  • Boarding and Lodging [Reg s.33(1)4] (see s.3 above)
The new special diet rules require verification of a Schedule-listed medical condition and verification that a special diet is required to treat it.

Verification must be by an "approved health professional" [ie. approved by policy of the Director of ODSP: Reg s.2(4)] who this purpose, includes [Policy Directive 6.4]:
  • doctors,
  • registered nurses in the extended class,
  • registered dieticians,
  • registered midwives,
  • traditional aboriginal midwives recognized and accredited by their community.
Once established, the special diet supplement runs from the month of receipt of the application forward until and including the month that the administrator requires re-verification. Failure to re-verify will result in the special diet supplement being terminated [Reg s.25(1)].

Documentation requirements have also changed over time to become more stringent. As before, current rules require the member to, for either an initial and a re-assessment application, provide the administrator with an application form completed by an "approved health professional". The application must verify the medical condition on which the application is based [General Reg 30(1)4, 33(1)4].

Under current rules however the administrator can, at their discretion, impose either or both of two additional requirements:
  • a separate application re-verifying the medical condition, though this one must be from a different health professional (ie. one that has not completed any prior applications for the member) [General Reg 30(5)3, 33(4)3]; and

  • that the member provide them with additional (and otherwise unspecified) "information respecting his or her requirement for a special diet because of a medical condition" [General Reg 30(5)2, 33(4)2].

    This second requirement is quite open-ended, and failure to comply with it can result in the benefit unit's budgetary requirements being reduced by "the amount of the budgetary requirement for a special diet because of a medical condition" [General Reg 25(1)]. This sanctions provision is ambiguous however as it fails to specify whether it voids only the special diet of the non-compliant member, or that of all the members of the benefit unit (conventional statutory interpretation principles would limit it to supplement otherwise due to the non-compliant member only).
(c) Transition Rules from FBA

If an ODSP recipient who has been grand-parented from FBA (see Ch.2, s.8 "Claimants: Substitutes for PWD Status") was receiving a special diet under that program in an amount greater than $250, and that rate has continued to the present, then that old higher rate is grand-parented (ie. maintained) as well. If however that rate ever drops below $250 the grand-parenting status is lost and the (new) regular rules apply [Reg 30(3-4), 33(2-3)].
Case Note: Bigras v Ontario (Div Ct, 2008)

Two recipients who had their special diet amounts re-assessed and reduced under pre-2011 transition rules appealed the matter to the Social Benefits Tribunal, where they lost, and then upwards to the Divisional Court. They argued that their original ODSP eligibility grants, which had long-dated (and in one case no) medical review dates, entitled them to maintain their previous levels of special diet allowance - as a sort of 'vested interest'. The court disagreed, citing [ODSP] Reg s.29(1) which required that budgetary requirements (in which special diet is included) be (re-)calculated monthly, and established principles of statutory interpretation that there is no permanent vesting of statutory entitlements in the recipient.
(d) Underinclusive Coverage and the Human Rights Code

The case of Ontario (Community and Social Services) v WB (Ont Div Ct, 2011) was a judicial review application, brought by the province, of the decision of an Ontario Human Rights Tribunal that upheld a complaint alleging discrimination of the basis of disability by virtue of the ODSP program's failure to accord special diet allowance respecting the applicant's specific medical condition (ie. it was unlisted in Schedule 1 to the ODSP Special Diet Regulation). The case was initially brought under the old pre-2008 Human Rights Code.

As restated by the court, the Tribunal posited the following (new at the time) test in making it's determination:
[12] Consistent with this purpose for the program, the Tribunal then concluded that to establish disability-based discrimination related to the special diet allowance as currently structured, a complainant must demonstrate that four conditions are satisfied:

1. The complainant’s claim of discrimination is based on a disability or disabilities;

2. There is general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of the claimant’s disability or disabilities;

3. The diet leads to additional food costs as compared with a regular, healthy diet for a person without the disability or disabilities; and

4. There is no funding for the additional costs, or the funding is significantly disproportionate to the actual costs (up to the maximum of $250).
While the Tribunal found that there was adequate evidence supporting satisfaction of all elements of this test, the court concluded that there was no evidence supporting the first three elements (not even the diagnosis), thus rendering consideration of the fourth moot.

That said, the court implicitly endorsed the above-stated test in the narrow circumstances of alleging underinclusiveness within the special diet regimes of both ODSP and, since the Ontario Works regimes is identical, that regime as well. It openly invited the parties to commence new proceedings before the (now) Human Rights Tribunal of Ontario (HRTO) with improved evidence. The whole case, particularly paras 40-43, is essential reading for anyone contemplating a similar special diet underinclusiveness challenge.

While the original complaints (there where three complainants below) also involved claims that the regime was discriminatory for underfunding of the conditions that it did list in the Schedule, that issue was not before the court. However the above-stated test articulated by the Tribunal may be suited to address underfunding claims as well.

5. Pregnancy Supplement

Once a pregnancy is confirmed by a "approved health professional" [(approved by policy of the Director of Ontario Works: Reg s.2(4)] (in most cases a doctor) an additional supplement is available from that month forward to and including the month of birth, AND then for another 12 months if the baby is breast-fed. The amount of the monthly supplement shall be:
  • $40; or

  • $50, if an approved health professional confirms that the person requires a non-dairy diet.
This supplement is provided to:
  • Renters and Home Owners [Reg s.30(1)5] (see s.2 above)
  • Boarding and Lodging [Reg s.33(1)6] (see s.3 above)

6. Sponsored Immigrants

(a) Overview

A chronic problem in social assistance law has been the treatment of income "available" to sponsored immigrants when their sponsor refuses to pay it(normally, sponsorship income reduces income support dollar-for-dollar). Keep in mind the 'duty to realize available assets' discussed in Ch.8 "Asset Rules".

Of particular concern were situations where the immigrant continued to live in premises owned or controlled by the defaulting sponsor. If rent were paid by the recipient the net effect was that of ODSP "paying" the landlord/sponsor while the sponsor continued to ignore their responsibilities.

Prior to amendments to the General Regulation in December of 2004, ODSP law tried to redress this situation by "deeming" an income charge of $100 against sponsor-defaulting immigrants, which resulted in their assistance being reduced by $100. This deduction was imposed even when the immigrant had no control over the abandonment, and it was subject to legal challenge and criticism as being discriminatory on the basis of race, ethnic origin, etc. It was ODSP's flawed attempt to 'get at' the situation through the often innocent recipient because they could not 'get at' the defaulting sponsor directly.

By virtue of the December 2004 amendments the province acknowledged the discrimination in its former approach and promulgated (somewhat convoluted)amendments which restructured the situation of the sponsor-defaulting immigrant applicant. This new law is explained below.
Case Note:
Where a sponsored immigrant makes use of social assistance, the assistance provider has a statutory entitlement, which is contractual in nature, to recover the amount of assistance provided as a debt: Mavi v Canada (SCC, 2011). This right may be enforced by filing a ministerial certificate in federal court, or any provincial court of competent jurisdiction. The decision to pursue debt recovery is subject to a duty of procedural fairness, as follows:
[5] In the exercise of this discretion, which Parliament has made clear is narrow in scope, the Crown is bound by a duty of procedural fairness. The content of this duty is fairly minimal. The Crown is obliged prior to filing a certificate of debt with the Federal Court (i) to notify a sponsor at his or her last known address of its claim; (ii) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant personal and financial circumstances that are said to militate against immediate collection; (iii) to consider any relevant circumstances brought to its attention keeping in mind that the undertakings were the essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place; and (iv) to notify the sponsor of the government’s decision. This is a purely administrative process. It is a matter of debt collection. There is no obligation on the government decision maker to give reasons. .....
(b) Budgetary Requirements of Recipients NOT Living in Sponsor-Controlled Premises

Now, the situation for sponsored immigrants who live in premises NOT owned or controlled by a sponsor is simple. They are treated as normal applicants subject to normal budgetary requirement determination, and no "deemed income" rule.

If the sponsor does pay some money towards their support it is deducted dollar-for-dollar.

(c) Treatment of Recipients Living in Sponsor-Controlled Premises

. Overview

Now however, the situation of the sponsored immigrants who reside in premises controlled in whole or part by the sponsor is not simple.

The first rule here is that where the full sponsorship undertaking is being honoured, the amount paid is deducted from assistance dollar-for-dollar.

If however the amount paid is zero (or less than the undertaking) (ie. a defaulting sponsor), then further rules apply. In these cases the applicants are granted the "basic needs" component of the budgetary requirements, but (with exceptions noted below) are denied the "shelter" component. Technically, the denial of the shelter component is achieved by use of a "deemed income" rule as set out below. Recall that "deemed income" has the effect of reducing assistance dollar-for-dollar in the amount of the "deemed income".

. Calculation of "Deemed Income"

Now all sponsored immigrants are "deemed" to have income at a level which is the greater of "A" or "B" below [Reg s.51]:
A. the monthly amount paid and/or "available" (as determined by the welfare administrator) to the member of the benefit unit under the immigration sponsorship;

B. the result of the following formula (which produces a result equal to the shelter component for renter/owner recipients):

i. the monthly amount of budgetary requirements as calculated under the "renter/owner" rules (see s.2 above) minus

ii. the amount set out in the below table [Reg s.40(1)ii]:

# of Non-Spousal DependentsDependents 18 plusDependents 0-17 yrsRecipientRecipient & Spouse (one ODSP)* Note 2Recipient & Spouse (both ODSP)* Note 1

For each additional dependent 18 years and older: add $211.
For each additional dependent 17 years or younger: add $0

Note 1:
The last column: "Recipient and Spouse (both ODSP)" applies to situations where both applicant and spouse are ODSP-eligible but only where their eligibility is based on either:

- being found to be a "person with a disability" (the most common);
- being CPP-disability or QPP-disability eligible;
- being in receipt of a QPP disability pension under paragraph (b) of section 105 of An Act Respecting the Quebec Pension Plan;
- grand-parenting of FBA eligibility on basis of being blind, disabled or PUE (permanently unemployable) status;
- persons determined to be eligible for services and supports and funding under the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008.
- residents, and former residents if they are resident after 01 January 2018, of facilities established, licensed or approved by the province under the Homes for Special Care Act (typically, former residents of long-term provincial psychiatric facilities) [Reg 4(1)5, 5.1];
- residents and former residents of homes that are part of the program of the Ministry of Health and Long-Term Care known as Community Homes for Opportunity [Reg 4(1)5.2];
- being persons in receipt of an award under the English and Wabigoon River Systems Mercury Contamination Settlement Agreement Act, 1986.

Practically this covers most situations of dual-ODSP eligibility. While it does NOT apply where ODSP eligibility is based on facility or institutional residence as discussed in Ch.2 "Substitutes for PWD Status", such a recipient would not normally be co-habiting with spouses at such times. Similarly, most other grand-parenting categories are now either spent due the age of the recipient (over 60 or 65 years of age categories), or were 'hived-off' to the Ontario Works (welfare) system (single parents) in June of 1998.

Note 2:
See sub-section 2(d) "Maximum Basic Needs and Shelter for Two Spouses", above.

OCB Note:
Since July 2008 basic needs amounts for children were reduced in conjunction with the introduction of the Ontario Child Benefit (OCB) and the elimination of the National Child Benefit Supplement (NCBS) clawback. Under this change recipients are, for the most part, presumed to be in receipt of OCB and the NCBS - thus making up for the basic needs reduction. The Ontario Child Benefit scheme is explained in detail at Ch.7, s.6.
If the "A" deemed income applies then the administrator has designated the amount "available" (or actually paid) and simply deducts this dollar-for dollar from the monthly assistance.

If B applies the effect is to eliminate the shelter component. Note that the chart at B(ii) is the same one used to determine the "basic needs" component of budgetary requirements under the "renter/owner" rules. By subtracting this from the budgetary requirements the effect is to eliminate the shelter component from the budgetary requirements for the applicant.

. Exceptions

In any of the following circumstances, the "deemed income" above shall itself be deemed to be zero (thus restoring normal shelter component rules and coverage for basic needs):
  • the sponsor is in receipt of or eligible for social assistance (either welfare or ODSP);

  • the sponsor receives the Guaranteed Income Supplement (GIS) under the Old Age Security Act (Canada) (this is distinct from an OAS pension) OR a GAINS-Senior allowance under the Ontario Guaranteed Annual Income Act;

  • the sponsorship undertaking has broken down by reason of domestic violence;

  • the recipient has a legal obligation to contribute to any element of shelter expense for the premises (see s.2(c) above for a list of these items);

  • the recipient, in order to continue to reside in the premises, is "required" by the sponsor to pay for shelter.
. Comment

In my view these new rules compex and achieve very little.

This is not to say that the problem they attempt to address does not occur, but that the response is excessively complicated and amounts simply to a repudiation of the formerly punitive rules "$100 deemed income" rules. This could have been achieved by a simple repeal.

Further, the primary mischief to which this whole new scheme is directed occured when defaulting sponsors 'rented' to the sponsored immigrant who then 'passed on' this charge to ODSP through the shelter allowance. But these new rules are excepted in just that situation (above): ie. where the immigrant is either under a 'legal obligation to' or 'required to' pay rent to continue to reside in the premises.

7. Prisoners

The ineligibility rule for persons in penal facilities is set out in Ch.2 "Claimants: Prisoners". Below I discuss the application of this rule.

If the person is placed in a penal facility while they are on ODSP, the following rules apply with respect to their budgetary requirements [Reg s.35]:
  • upon detention, budgetary requirements are reduced on a pro-rated basis by the number of days of the month in which the person is detained (ie. they end immediately, but the recipient gets the part month up to the incarceration);

  • during full months of detention budgetary requirements are deemed to be zero;

  • upon release:

    - the basic needs component of budgetary requirements are reduced on a pro-rated basis by the number of days of the month in which the person is detained (ie. it restarts immediately on request, but the recipient only gets it for the part month they are out), and

    - the shelter component MAY (at the discretion of ODSP) be similarly treated (this gives discretion to ODSP to grant grant the whole month's shelter component).
The key practical points are that recipients should immediately advise ODSP on both incarceration and release. Failure to advise ODSP on incarceration and allowing assistance to accumulate will result in an eventual overpayment assessment (see Ch.11, s.3 "Director Decisions: Overpayments" AND potential (though unlikely) fraud charges. Failure to advise ODSP on release will delay the recommencement of assistance.

Anyone losing their housing in these circumstances (which is highly likely in any situation of prolonged incarceration) should consider applying for the Community Start-Up and Maintenance Allowance (CSUMA) (see Ch.4 "Benefits").
Almost identical "prisoner" regulation provisions apply to recipients of Ontario Works [OW General Reg s.46]. They differ slightly in that the ODSP version [ODSP General Reg s.35] APPEARS to reduce income support ONLY for the time of actual "detention" in a jail or penetentiary (contrasted with the welfare version which also bars eligibility during parole release "residence" in a community 'half-way' house).

This difference is apparently only a drafting oversight as ODSP Reg s.9 makes it clear that the ineligibility applies to periods of such community residence as well.

8. Institutional Residents

(a) Overview

Institutional residents whose shelter and food are supplied by the institution they reside in, usually have their budgetary requirements set at a "personal needs allowance" or "PNA" rate [$149 at 31 August 2018]. The PNA calculation is based on the non-food part of a basic needs component (ie. clothes and miscellaneous). There are some variations to this rule, but the budgetary requirements of each category of institutional resident are set out in this section.

Institutional residents can be grouped as follows:
. Categorically-ODSP Eligible

These are persons who, solely by virtue of their residence in a particular type of institution, are granted ODSP medical eligibility.

These categories are identified in Ch.2, s.8(e) "Claimants: Substitute for PWD Status: Institutional and Facility Residents", and they are re-listed below in sub-section (b).

. Otherwise-ODSP Eligible

These are persons whose ODSP eligibility is established other than by institutional residence, but who also happen to reside in some form of institution. Typically their eligibility is established by being assessed as a 'person with a disability', but also by other eligibility criteria as are discussed in Ch.2, s.8 (eg. CPP eligibility, FBA-grandparented, over 65 but not OAS-eligible).

. ODSP-Ineligible

Institutional residents not having either PWD or "categorical" eligibility status may, in some cases, be able to obtain additional assistance from Ontario Works (welfare) in additional to the basic shelter and food supplied by the institution.

These are covered in the welfare program, Ch.2 "Claimants".
(b) Categorically-ODSP Eligible

Residents of the following facilities are granted automatic ("categorical") ODSP eligibility [Reg s.4(1); s.32]:
  • Psychiatric Facilities

    All provincial psychiatric institutions (including former such facilities now merged with hospitals) listed in s.1, Reg 744/90 under the Mental Health Act: Listed Psychiatric Facilities;

    They receive the PNA rate.

  • Centre for Addiction and Mental Health (CAMH);

    They receive the PNA rate.

  • Homewood Health Centre (Guelph);

    They receive the PNA rate.

  • Homes for Special Care Act Facilities

    Facilities under the Homes for Special Care Act (typically, former residents of long-term provincial psychiatric facilities);

    They receive the PNA rate.

  • SSPSIPDD/A Facilities

    An intensive support residence or a supported group living residence, as defined in subsection 4(2) of the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008".

    Their budgetary requirements are assessed at $1,021, in addition to the PNA rate
(c) Otherwise ODSP Eligible
  • Overview

    These are persons who have established ODSP eligibility independently of their residence in an institution, but who nonetheless reside in an institution. These include those establishing eligibility under the main "persons with a disability" determination, as "grand-parented" FBA recipients, as CPP-disabled recipients, and most seniors not eligible for federal pensions (see Ch.2 "Claimants: Substitutes for PWD Status" for these categories).

    The PNA rates and budgetary requirements of residents of these institutions are as follows.

  • Long-Term Care Homes

    Long-term care homes under the Long-Term Care Homes Act, 2007 (this category includes those formerly categorized as residents of nursing homes, homes under the Charitable Institutions Act, and homes under the Homes for the Aged and Rest Homes Act) [Reg 32].

    Their budgetary requirements are set at $1,017 in addition to the PNA rate. Such persons who were formerly resident in "an approved charitable home for the aged under the Charitable Institutions Act" who, in the opinion of the Director, require financial aid in order to travel in the community, may receive up to another $30 [Reg 44(1)9].

  • Facilities for the Chronically-Ill

    Hospitals for chronically ill patients, chronic care hospitals or chronic units attached to a general or convalescent hospital (if designated as a hospital or health facility under the Health Insurance Act Regulations for providing insured services) [Reg 32].

    They receive the PNA rate.

    Residents of chronic care facilities may also have additional "extra services and items" coverage available to them (see Ch.4, s.2: "Benefits: Listed Benefits: Chronic Care Institution Extra Services and Items".

  • Corrections-Related Community Residences

    A community residence if the applicant or recipient is on temporary absence, parole or probation or is serving a conditional sentence and if his or her placement in the community residence is funded in whole or in part by the Ministry of Community Safety and Correctional Services [Reg 32(2)4].

    They receive the PNA rate.

  • CYFSA Facilities

    A residential facility providing treatment, care or rehabilitation programs under the Child, Youth and Family Services Act [Reg 32(2)4].

    They receive the PNA rate.

  • Residential Schools for Vision or Hearing Impaired

    A provincial residential school for persons whose vision or hearing is impaired [Reg 32].

    They receive the PNA rate.

  • Abused Women's Interval or Transition Homes (Shelters)

    The standard budgetary requirements of a woman residing in "an interval or transition home for abused women" is a personal needs allowance (PNA) of $149 [at 31 August 2018] per member of the benefit unit [Reg s.33.1].

    However, for the first three months of residence in a women's shelter, a woman wishing to try to preserve her right to return home may have her budgetary requirements calculated as though she still lived at home [ie. under the normal rules that apply to "renters and owners" or "boarders and lodgers", as applicable]. After three months however the Director may (at their discretion) reduce the budgetary requirements, but not below the PNA level [Reg s.33.1(2)].

    Similar transitional rules (at welfare rates) apply to residents of women's shelters who are eligible for welfare (Ontario Works) (see that Guide, Ch.3, s.9 "Basic Assistance: Institutional Residents)".

  • General Interval or Transition Home (Shelters)

    ODSP recipients who are in 'general' (not specialized facilities for abused woman) interval or transition homes (either men and women) each receive $149 per month [Reg 33.3(3)], which happens to be the PNA rate.

  • Hospitalization

    The situation of ODSP recipients who are hospitalized is similar to that of women in shelters though there is no legal requirement to drop down to a PNA rate at any fixed time.

    For the first three months of hospitalization no budgetary requirement reductions may be made against members of the benefit unit that are hospital patients, so for that time it is just as though they still lived "at home" [Reg s.36]. However, after that point the Director may, at their discretion, apply reductions, which typically first involve ending the basic needs component (food and clothing) only.

  • Residential Substance Addiction Treatment Programs

    Similar to recipients who become hospitalized, a recipient who enters a facility for a "residential substance abuse recovery program" may have their budgetary requirements reduced at the discretion of the Director, but only after three months of such residence [Reg s.36.1].

    Typically this will be done only to off-set shelter, food and basic needs that are otherwise provided, for the duration of the program.

  • Homeless and Living Rough

    ODSP recipients generally get the PNA rate while living in shelters [see 'General Interval or Transition Home (Shelters)' above], while this suggests that homeless ODSP recipients are only entitled to the PNA amount, this is not always accurate. ODSP recipients finding themselves forced into homeless situations (outside shelters) should maintain contact with their regular ODSP office and advise them of their status and residence.

    The budgetary requirements of purely (non-shelter) homeless recipients are the same as for the regular "renter/owner" category [Reg s.30] - with of course natural adjustments for the absence of "usual" shelter expense of rent or mortgage payments. Thus homeless persons are entitled to the "basic needs" component of their budgetary requirements under the same category as "renters and owners",

    The same budgetary requirement calculation applies to persons not living in a homeless shelter, including persons "living rough" (ie. sleeping in ravines, bus shelters, etc) and those "crashing" with friends or acquaintances without any formal rent arrangements.

    Situations of "crashing" can include a shelter component if the host is prepared to accept a role as "landlord" - however temporary - and charge "rent". However legally this establishes a "tenancy", with all its incumbent legal rights and duties under the Residential Tenancies Act - a burden which the host may not be prepared to accept. The benefit of course to the 'landlord' is that ODSP should cover the rent charge, as long as it does not exceed the maximum ODSP shelter amount.

    In all situations of homelessness the potential to use the "shelter" component of income support is typically ignored both by recipient and the Director. Imaginative use of the shelter component [see s.2(c) above] with respect to non-rent shelter expenses such as heating fuel, water, building supplies, etc is available.
(d) ODSP-Ineligible

Some institutional residents who are not eligible for ODSP may have eligibility under welfare (Ontario Works) [OW General Reg s.7(2)], typically for the PNA (personal needs allowance) where shelter and food are provided.

Some others may not have welfare eligibility [OW General Reg s.7(1)], and have to rely entirely on the institution in which they reside for food, shelter and personal needs [see the welfare (Ontario Works) Guide at Ch.2 "Claimants" and Ch.3 "Basic Assistance"].

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