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Welfare (Ontario Works) Law
(01 November 2009)
Chapter 5 - Information Eligibility
- Overview
(a) General
(b) Comment
. Overview
. The Administration Attitude towards Eligibility Information
. Advocacy
- Initial and On-going Eligibility Information Required
- The Legal Problem: Information versus "Verification of Information" versus "Evidence"
(a) Overview
(b) s.7 Act
(c) s.17 Regulation
(d) s.14 Regulation
(e) Reg s.20(3)
(f) Consents to Disclose and Verify Information
(g) Municipal Freedom of Information and Protection of Personal Privacy Act (MFIPPA)
(h) Summary
- Eligibility Review Officers
(a) Overview
(b) EROs and On-going Eligibility
- Home Visits
(a) Overview
(b) Nature of a "Home Visit"
(c) Verbal Questions During a "Home Visit"
(d) Refusal of a "Home Visit"
- Practical Issues Related to Providing Information
(a) 'Duty to Meet' is Limited
(b) Cheque-'Holds'
(c) Unclear Requests for Information
(d) Substitute Forms and Sources of Information and "Proof"
- Summary
________________________________________
1. Overview
(a) General
Many of the other chapters in this program deal with the primary "conditions of eligibility" that applicants and recipients must satisfy to get and maintain eligibility for welfare asistance, including: income and asset eligibility, categorical eligibility, Ontario residence, workfare compliance, etc. No one is eligible for assistance unless they satisfy "all conditions of eligibility under this Act and the regulations" [Act s.7(1)].
Effectively however another free-standing and separate "condition of eligibility" exists which relates to - and over-arches - all primary conditions of eligibility. This is what I call "information eligibility": the providing [by the applicant/recipient and (most) members of their benefit unit] to the administrator of the information and "verification of information" required to establish these primary "conditions of eligibility": Act s.7(3)
No person is eligible for income assistance unless,
.....
(c) the person and the prescribed dependants provide the information and the verification of information required to determine eligibility including,
(i) personal identification information, as prescribed,
(ii) financial information, as prescribed, and
(iii) any other prescribed information; ... Fact situations involving this issue are identified whenever an applicant receives the so-common "failure to provide information" disentitlement Notices. While these cases are often closely intertwined with allegations that the applicant has 'failed to prove' or 'does not meet' the primary conditions of eligibility it is important to know that the legal ground of disentitlement is quite distinct.
A recent court case Rea v Simcoe County has focussed on this distinction and also made the specific consequences of non-compliance with information duties more onerous than for other types of non-compliance (see Ch.9: "Administrator Decisions: Cancellation, Suspension and Reduction Decisions: Consequences of Non-Compliance: Non-Compliance with Information Duties". Essentially, non-compliance by ANY member of the benefit unit results in complete benefit unit disentitlement - rather than the normal 'splitting-off' of the 'bad' member that is applicable in other instances of single-member non-compliance with conditions of eligibility.
This chapter discusses the nature of these information requirements and (extensively) their legitimacy. This topic is closely and delicately intertwined with the issue of welfare prosecutions (see Ch.12 "Fraud and Prosecutions") - which almost invariably involves allegations of concealment or misrepresentation of the "information" required to establish eligibility. As will be seen in that chapter, a key theme on these prosecution issues is the tension between "information", "verification of information" and self-incrimination rights that arise in the criminal situation.
Anyone involved in these more serious prosecution concerns should review both this chapter and Ch.12 carefully, AND seek the advice of a competent criminal lawyer.
(b) Comment
. Overview
In my view, the duty to provide information (and especially "verification of information") is the most misapplied and misunderstood area of welfare administration, and it is the one where claimants most frequently get themselves into trouble - both in terms of eligibility and in terms of fraud prosecution.
The main reasons for this are:- The adminstration of welfare in Ontario has developed a culture of information intrusiveness which far exceeds their legal entitlements (explained below);
- Practically any information given to welfare can be used both to determine eligibility and in prosecution of the claimant for fraud (see Ch.12 "Fraud and Prosecutions");
- Welfare claimants as a class are amongst the most unsophisticated and vulnerable persons in our society, and loss of assistance has drastic impact on such things as housing loss, loss of custody of children (the ability to support children is relevant to apprehension and continued custody), health (drug coverage can be lost and psychiatric health often suffers), and nutrition;
- Welfare is THE program of last-resort for many people (ie. it is thoroughly means-tested and most other sources of income are "deducted" from it) - so failure to satisfy a "condition of eligibility" can result total loss of income for the claimant - effectively coercing them into compliance with administrator's excessive information and evidence demands.
. The Administration Attitude towards Eligibility Information
While the law requires the claimant to "provide the information and verification of information required to determine eligibility" [Act s.7(3)(c)], this phrase taken in isolation (as it is in welfare administrative policy) is quite misleading. The legal duty to "verify" is much lighter than welfare policy would have claimants believe (see the section 3 below: "The Legal Problem: Information versus "Verification of Information").
Further, welfare has an independent duty (not a discretion) to inquire into the circumstances of a claimant [Reg s.22] - and effective means to do so through the use of the "Consent to Disclose and Verify Information" (from THIRD parties) forms which are a mandatory part of the application process (see Ch.8 "Applications and Procedures". While these forms exist and are used in all welfare applications - there is nothing to say that they should be used ONLY to seek information AGAINST claimants as they almost universally are. There are many instances - birth certificates and Health Card numbers are classic examples - where they ocul dbe used as the basis to establish functional information exchange relationships BETWEEN government departments to relieve unsophisticated applicants of the difficulty of wending their way through bureaucracies to prove something FROM one government agency TO another government agency.
The significant - sometimes overwhelming - pressure that is placed on applicants for them to provide eligibility information and evidence far beyond their legal duties has developed out of a combination of imbalance of power and administrative convenience. It's practice is supported and perpetuated by a range of factors, including:- the use of assistance cut-off as coercion to provide more information and evidence;
- applicant ignorance as to their true information duties;
- an administrative culture that has institutionalized its excess information "entitlements" (ie. in its Policies and Procedures);
- the insertion of excessive information into the Director-designed forms used in welfare applications.
. Advocacy
So institutionalized is the mindset that a claimant is entirely responsibility for providing the information and evidence required to establish eligibility that - ironically - many "failure to provide information" eligibility refusals can be 'solved' by obtaining a copy of the claimant's prior file from welfare (see Appendix 2: "Getting a Copy of Your Welfare File") and then returning to them information or copies of documents that the file contains.
Further, while many or most claimants may be content to comply with the excessive demands of welfare policy for the sake of convenience or to avoid dispute, this compliance may not always be possible or advisable - particularly if investigation is afoot (see Ch.12 "Fraud and Prosecution"). For such cases, it is essential for claimants and advocates to understand the limits of welfare's right to information.
2. Initial and On-going Eligibility Information Required
The information [and in one instance, "proof"] which the administrator may require from a claimant (and most members of the benefit unit) on initial application includes the following [see Chapter 2 and Reg s.17]:- The person's social insurance number.
- The person's health number under the Health Insurance Act.
- PROOF of the person's identity and of his or her birth date.
- Information with respect to the person's income and assets.
- A report of an approved health professional relevant to a determination respecting assistance.
- Information with respect to the benefit unit's budgetary requirements.
- Information with respect to the person's attendance and progress in an education or training program.
- Information with respect to the person's employment and proposed employment assistance activities.
- Information with respect to the person's status in Canada.
In addition to the information taken on initial application (above), the applicant may also be required to provide on-going information as follows:- any new or changed personal circumstances regarding earlier information given;
- workfare participation (see Section on Workfare, below)
- receipt and disposition of assets,
- receipt and expected receipt of income or other financial resources.
Monthly reports, in a form established by the province, may be required from any benefit unit member to the administrator regarding business or employment income and assets, workfare participation, and "any other conditions relevant to determining the person's eligibility". Failure to provided these reports may result in ineligibility. These monthly reports are normally only be required where a benefit unit member has regular employment or business income or other regularly changing circumstances [Reg s.14].
3. The Legal Problem: Information versus "Verification of Information" versus "Evidence"
(a) Overview
Welfare policy assumes that the claimant must not only provide the "information" that the law requires, but also that they must 'VERIFY' it - in practice almost always a demand for some sort of third party documentary "evidence" substantiating the information (leases, rent receipts, cheque stubs, bank statements, etc). A simple example would be the giving of a Social Insurance Number (SIN) (information) versus the providing of an original SIN card (verification of information, or evidence) - welfare wants the card as well as the information.
The reality is that - when the eligibility information laws are examined in detail - they (overwhelmingly) only require a claimant to provide 'information'. ONLY in one very specific and narrow information situation do they mention 'proof' - and even then 'proof' is not defined any further - leaving it open to flexible interpretation.
(b) s.7 Act
So let's look at that whole passage that was quoted in s.1 ("Overview") above (emphasis added): s.7(3)
No person is eligible for income assistance unless,
.........
(c) the person and the prescribed dependants provide the information and the VERIFICATION of information required to determine eligibility including,
(i) personal identification information, AS PRESCRIBED,
(ii) financial information, AS PRESCRIBED, and
(iii) any other PRESCRIBED information; ... As mentioned, it is to this passage that welfare policy and administrators point to when justifying their demands for 'verification' and documentation - ie. documentary "evidence".
Note however that each of the sub-paras (i,ii and iii) of 7(3)(c) is conditioned by the phrase "as prescribed". This is legal terminology meaning that the specifics of the thing referred to are actually spelled out in the regulations (remember the difference between Act and Regulations explained in Chapter 1). So it is to the wording of these regulations that we must have regard.
The key regulation sections are s.14 and s.17. They were referred to in section s.2 ("Initial and On-going Eligibility Information Required") above.
(c) s.17 Regulation
I repeat the passage relevant to our present discussion here (emphasis added): s.17(2) Reg
The administrator may require an applicant to provide INFORMATION NECESSARY TO DETERMINE AND VERIFY the applicant's eligibility for basic financial assistance, including the following information with respect to any member of the benefit unit:
1. The person's social insurance number.
2. The person's health number under the Health Insurance Act.
3. PROOF of the person's identity and of his or her birth date.
4. Information with respect to the person's income and assets.
5. A report of an approved health professional relevant to a determination respecting assistance.
6. Information with respect to the benefit unit's budgetary requirements.
7. Information with respect to the person's attendance and progress in an education or training program.
8. Information with respect to the person's employment and proposed employment assistance activities.
9. Information with respect to the person's status in Canada. First notice that the language in s.17 is permissive: that the "administrator MAY ...require". This means that the requirement is not a mandatory one on the part of the administrator - but discretionary. Legally, any discretionary duty must be exercised reasonably in all the circumstances of the situation - and as well the exercise of this discretion may be reviewed before the Social Benefits Tribunal (see Ch.8: "Procedures and Appeals"). If there is a reasonable excuse why the information cannot be provided, the administrator must consider whether they should insist on full compliance.
Next note that the phrasing: "information necessary to determine and verify", easily encompasses the claimant giving (1) eligibility information (eg. income information) and (2) giving further information that would enable the eligibility information to be verified BY THE ADMINISTRATOR (eg. the name and contact information of an employer). Recall the discussion of the burden on the administrator to investigate eligibility on their own [(s.1(b) "Comment" above].
Next - all of the listed items in 17(2) - except items 3 and 5 - require only "information" or "numbers", and item 5 requires a medical report in some circumstances (usually for medical workfare participation waiver). ONLY item 3 applies a requirement for anything like 'verification': ie. "PROOF of the person's identity and of his or her birth date."Note:
Legal authority given to welfare to obtain "biometric" (eg. fingerprints, DNA) identity information [Act s.75] and to use electronic signatures [Act s.76] is not yet implemented. It is a principle of statutory interpretation that where otherwise similar provisions differ in an important respect (here the requirement for "proof") that the term should not be implied in the provisions where it is absent. Therefore this is the only 'verification' requirement in s.17 Reg if we are to understand that term as meaning "evidence" (as it invariably is understood by welfare administrators).
It is also a principle of statutory interpretation that any uncertainty in the interpretation of benefits-conferring legislation flows in favour of the benefits-claimant: Rizzo v Rizzo Shoes [1998] 1 SCR 27. In short, if there is any doubt in the interpretation of the law on this issue, the benefit of the doubt goes to the claimant.
Even in the one instance where "proof" is required - (ie. "of the person's identity and of his or her birth date") the law does not specify that the ONLY acceptable proof is a birth certificate (as welfare policy requires). If a birth certificate is not readily available, what about an affidavit? a letter from a parent? or another reliable document that contains the information? - Why not? Remember that all welfare applications are taken in the form of sworn affidavits [though legal authority for this is dubious as only "signing" is required: Reg s.20(3)]: the worker asks the questions (including name and date of birth), completes the form, and then presents it the claimant for review (if of course they can read). The claimant is expected to verbally confirm the information as true and then sign and swear to it.
The applications are then co-signed ("commissioned") by the worker just like a lawyer commissioning an affidavit (all welfare workers are legally Commissioners for the Swearing of Affidavits: Act s.69. In any other legal situation, including court, an affidavit such as this is adequate "proof" or 'verification' for most purposes. Why should the sworn statements in the application affidavit be treated with less respect and weight?
(d) s.14 Regulation
This passage deals with on-going reporting duties. It reads in full: s.14(1)
The administrator shall determine that a person is not eligible for income assistance if the person fails to provide the INFORMATION the administrator requires to determine initial or ongoing eligibility for income assistance, including information with respect to,
(a) new or changed circumstances;
(b) participation in employment assistance activities;
(c) the receipt or disposition of assets; and
(d) the receipt or expected receipt of income or some other financial resource.
14(2)
The Director may require that a member of a benefit unit provide monthly reports to the administrator respecting,
(a) the income and assets of members of the benefit unit;
(b) attendance at employment assistance activities; and
(c) any other conditions relevant to determining the person's eligibility.
14(3)
A monthly report under subsection (2) shall be prepared in a form and manner approved by the Director.
14(4)
If a person is required to complete and return a monthly report under subsection (2) and fails to do so, the administrator may determine that the person is ineligible for income assistance. Subsection (1) here only requires "information", so the intricacies discussed above do not even arise in this case. Subsections (2) through (4) relate to claimant-completed monthly reports which are required in this form for information-gathering convenience only. There is no further requirement for independent or documentary 'verification' contained in s.14 Reg.
(e) Reg s.20(3)
A further provision that might be pointed to by an administrator on this issue is Reg s.20. This section deals with the execution of a welfare application and the documentation that is required with it: s.20(3)
The application is not complete until the application and all accompanying forms, agreements and consents have been completed and signed and have been provided, together with any required verification of information, to the administrator. The key phrase here is "required verification". Legally the administrator does not have authority to require anything unless it is required elsewhere by law, so this phrase can only drawn it's meaning from otherwise expressly stated legal authority. As such it can only refer to the very limited authority established in s.17, discussed above, and it does not extend that authority in any respect.
(f) Consents to Disclose and Verify Information
Another practical mechanism available to administrators to obtain eligibility information is the "Consent to Disclose and Verify Information" [Form 0985], which is a mandatory element of any Application for welfare assistance. These Consents can be used to exercise the administrators' authority - and indeed duty [see s.1(b) "Comment" above] - to engage in its own verification of eligibility information with third parties. However it must be noted that such "Consent" authority is limited to gathering "information" from third parties [Reg s.19].
Surprisingly, the Form used for this purpose [Form 0985], and drafted by the Director of OW is not particularly over-reaching on its face - referring consistently to "information" and not to documents. However it is almost universally accepted amongst third parties that these "Consents" operate to allow them to provide the administrator with copies of material documents as the means of conveying this "information". Any lawyer will tell you that there is a huge evidentiary difference between 'information' and information embodied in a pre-existing documents (ie. evidence). Excessive or unwarranted disclosure by such involved third parties may even conceivably form the basis of a civil action for breach of fiduciary duty.
(g) Municipal Freedom of Information and Protection of Personal Privacy Act (MFIPPA)
Additional Ontario law respecting the collection [MFIPPA s.28(2)], use [MFIPPA s.31] and disclosure [MFIPPA s.32] of "personal information" is set out in the Municipal Freedom of Information and Protection of Personal Privacy Act (MFIPPA). As municipalities are "institutions" within the meaning of MFIPPA, welfare administrators - as their agents - are thereby subject to it as well.
While the definition of "personal information" extends beyond 'pure' information to include "recorded information" [MFIPPA s.2(1), 28(1)] (ie. documents, computer-stored information, etc), these provisions only address the right of institutions to collect and use information by their own efforts. They do nothing to directly assist the administrator in 'compelling' applicants and recipients to disclose information or documents to them.
Further, MFIPPA use and collection authority essentially duplicates "rights" that the administrator already has via the "Consent to Disclose and Verify Information" forms which are a mandatory part of the application process.
(h) Summary
A solid legal basis exists for the position that - with one exception - the only form in which a CLAIMANT must provide eligibility information is just that: to give INFORMATION. "Proof" may be required only of identity and date of birth.
Otherwise, the providing of "proof", "verification" and sworn affidavits (ie. the application form) - in other words, documentary EVIDENCE - are not required in law. In particular, there is no legal authority to demand, as a condition of eligibility, any of the following typically-demanded documents:- SIN cards
- OHIP cards
- income cheq stubs
- bank, RRSP, GIC etc statements
- copies of leases or rent receipts
- immigration documentation
Of course, it may be more expedience for the claimant to provide these documents, and they can do so if they choose. But even then, where these forms of documentation are NOT readily available, it is open to the recipient to provide reasonable alternative forms of verification.
That said, the unfortunate reality is that welfare authorities will refuse eligibility unless they are provided with the form of documentary evidence that they view as appropriate. On these issues, welfare administrators have, with the aid of provincially-mandated policies, misapplied the law. This has been done to the gross detriment of thousands of unsophisticated claimants who cannot meet these excessive and illegal demands, and at the cost of illegal infringement into of privacy rights of hundreds of thousands of others. These practices and policies reflect an undue focus on the concerns of "welfare fraud" to the prejudice of those legitimate claimants who simply have difficulty meeting the excessive and illegal evidence requirements demanded by welfare administrators.
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