Hot! Ontario woman entitled to sympathy, not benefits, court rules

NationalPost.com – news
Sep 9, 2011.    Joseph Brean

An Ontario court has scolded the province’s Social Benefits Tribunal for giving disability benefits to a mother of four who did not even try to work, and had only minor or easily treated ailments.

In a written ruling, three Ontario Divisional Court judges said the tribunal blurred the line between the difficult personal circumstances of 34-year-old Parveen Anwari — who suffered migraine headaches, depression and heartburn — and her claimed disability.

“It would have been very helpful to the disposition of this appeal if the Tribunal had given more extensive reasons better explaining its analysis and conclusions, particularly in light of the fact that the respondent had not actually tried to function in any workplace,” according to the newly released judgment.

In overuling two earlier rejections, Tribunal Member Linda LeBourdais ruled in 2009 that, in her opinion, “this young mother is overwhelmed with what is on her plate, over and above the impairments she experiences from her conditions. Together they make functioning on a day-to-day basis difficult. Lacking a significant education, a lack of workplace skills and experience, in addition to an inability to read and write, realistically preclude any chance for employment.”

That is a regrettable plight, the Divisional Court judges ruled, but it is not a disability.

“Although it is difficult not to sympathize with the plight of [Ms. Anwari], her struggles and challenges resulting from other causes do not entitle her to the benefits that she claims and the Tribunal has stepped beyond what the act allows,” the Divisional Court judgment reads.

Under the law, a person is disabled if and only if they have a continuous or recurring physical or mental impairment, verified by an expert and expected to last a year or more, that results in a “substantial restriction” in their ability to function in the community and workplace. If deemed eligible, a person may then receive payments from the province, which vary depending on circumstance, but for example, the maximum a single person could receive each month for basic needs and shelter under the program is $1,042, according to Charlotte Wilkinson, a spokeswoman for Ontario’s Ministry of Community and Social Services.

Ms. Anwari, according to court records, completed a Grade 12 education in Pakistan before her school was shut by the Taliban, and she immigrated to Canada with one child, settling in rural Port Elgin, Ont., with her husband, where they lived in a two-bedroom apartment that lacked basic furnishings, even beds and strollers for the children. She did not smoke or drink, has no history of obesity, and has never been employed.

At the time of her disability application, in the summer of 2008, she was pregnant with a fourth child, and being treated for gestational diabetes, which was expected to resolve after the birth. Her husband had lost his job at a convenience store, and he was dealing with health problems of his own.

Her family doctor, Don McCulloch, reported on a medical form “minimal” concern regarding a number of things, and moderate concern only in “learning,” such as language, math or attention. He also reported “mild or slight” impairment in ability to do housekeeping. He said it is “unrealistic” that she would try to enter the workforce. “She will need to be a ‘stay at home’ mother for the next few years until her children are out of school,” Dr. McCulloch wrote.

The initial rejection letter from the ministry cites several reasons for turning her down, including lack of documentation about any advanced symptoms or attempts at treatment or diagnosis. There were no hospitalizations, no visits to specialists, and indeed no past treatments other than some medication for her heartburn. GERD, or chronic heartburn, is “generally understood to be a manageable condition,” the letter says.

At her appeal to the Tribunal, another doctor confirmed the diagnosis of “major depression,” but said there was no reason it could not be treated after her pregnancy. Her testimony, however, painted a darker picture of an overwhelmed, housebound woman, unable to sleep, and confused by her sadness.

“She cries nightly. She misses her family back in her homeland and worries about them and the war torn existence that surrounds them. Her in-laws are not helpful to her,” the Tribunal decision reads.

In granting Ms. Anwari disability benefits, Ms. LeBourdais said she relied on a rule that allows the Tribunal to “consider the applicant in the context of her own situation,” and not just as any person with these ailments. Her reasons for this decision, however, “do not meet the [legal] requirement of completeness,” the judges ruled.

The Social Benefits Tribunal is one of several quasi-judicial tribunals set up by the Ontario government to resolve disputes outside of full courts, such as the Human Rights Tribunal of Ontario, the Landlord and Tenant Board, and the Custody Review Board.

The court ordered a new hearing under a differently constituted tribunal.

< http://news.nationalpost.com/2011/09/09/ontario-woman-entitled-to-sympathy-not-benefits-court-rules/ >

4 Comments

  1. This article points to a number of problems with Ontario’s current social welfare system that urgently need to be addressed. The fact that Ms. Anwari clearly suffers from a number of structural inequities warrants a more substantial response than “sympathy”.

    First, the fact that she is apparently not disabled enough to qualify for ODSP is a familiar experience for many Ontarians who face barriers to employment and social inclusion as a result of conditions that are not recognized as truly disabling.

    Brean’s article mentions the maximum monthly allowance that ODSP recipients may collect. However, it is important to note that most recipients don’t even qualify for this amount. In any event, $1,042/month is typically insufficient to meet the needs of people who often require special diets, assistive devices, home care supports and other services in order to actively participate in their communities.

    In fact, many impairments are exacerbated by the stresses associated with attempting to navigate a very complex bureaucracy just to determine and maintain eligibility. The assumption, sadly, is that applicants are trying to ‘cheat’ the system. These challenges are further compounded if the applicant is a new immigrant and not fluent in French of English.

    However, the most important point that this article makes, albeit not directly, is that there is a substantial population who do not meet the strict eligibility criteria of either OW or ODSP, yet still need support to raise strong families and obtain gainful employment. Failing to support these individuals and families only costs all of us more in the long run in terms of increased burdens on health, education and judicial systems, not to mention the unquantifiable loss of potential contributions that people who are not worn down with poor health and social marginalization might otherwise make to enrich their communities.

    Yours truly,
    Karen McCauley

  2. This paper certainly does diplay some of the areas that need more focus and attention to in our society. I also get the message that there are strict requirements in order to qualify for ODSP benefits; so what is the purpose of sending readers this message? For those beginning to consider or in the middle of applying for ODSP, how will they feel after reading this article? If they are refused the benefits, just what other alternatives are available to them?

    In this particular circumstance, we have young children involved; so how do we offer them a more positive opportunity when they have parents who have limitations? In my opinion, this family needs several social support systems to offer services in order for them to improve their lifestyle.

    Another concern this particular case brings to me, is the fact that there has been no mention of social support services being referred to this family. After all, EVERY member of this family is greatly being affected; so do we allow their barriers to trickle down to the children? How do we affect change by simply rejecting the help they’re attempting to get? What is being done by the ODSP case worker to help this family? Are they left to figure it out on their own?

    This is where some families need that extra support, after all when people are not mentally well this impairs their judgement and ability to make good decisions since they’re in an overwhelming state of mind. And let’s not forget that this family is also dealing with language barriers, as well as the adjustment in cultural lifestyles; they need some form of support!

    Concerned citizen,
    Belinda Hurley

  3. After reading the article I could not help feel somewhat helpless. Canada always assert proudly that it is a multi-cultural country, yet this article regarding the lady and her husband and their four children only proves further that women, children and immigrants are indeed at a disadvantage.

    I’m not at all familiar with Ontario’s policies with respect to the issues faced by this family, but after reading the article, I see that although Canada states that it is a multicultural county,they pay little attention to the possible cultural barriers that this women faces on a daily basis. Furthermore, it is sad to read that her family is lumped in with other Canadians who do not face such issues as she faces and without so much considering the possible cultural barriers that is faced by her family, they are expected to deal with their issues and find employment regardless of their circumstances. Everything else that this women faces deters her from gaining sustainable employement, but the courts obviously do not recognize that.

    It is not difficult to understand that the women suffers from depression and no doubt her circumstances only adds to that, for instance how could she not be depressed when faced with the challenges that she has? It seems to be that her depression under such circumstances can only get worst, leaving her with even less of a chance or opportunity to deal with what she deals with on a daily basis. She is denied the opportunity to care for her family and she is judged negatively for it by the people who are suppose to be there for them in their time of need.

    To make matters worst, she is negatively assessed, regarded and judged just because she is unable to find work. It is hard enough in this country to find sustainable employment, even for those who are educated and are deemped employable.

    Canada needs to make more efforts to address these types of issues and they need to change or look at how the policies that are put in place either provincially or federally actually deters people from living a healthy productive life for themselves and their families.

    Imagine all the other immigrants that come into this country, I’m sure there are other immigrants that face similar issues and I’m sure those issues are not adequately looked at or addressed, this article proves that.

    Sincerely,
    Johanna Tuglavina

  4. Why are we responsible to pay people who come here that can’t contribute and wants to live off the system while we work and sacrifice our lives to make a living?
    She comes to this country to make babies while not having any income and dad working in a convienience store.. This country should be more picky at who we allow in here regardless of their situation. It’s not our burden. Stop making all those kids if you can’t afford it!

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