Income Security Administrative Procedures

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14.02 – Review and appeal

 

DEFINITION

 

A review is a RE-EVALUATION of a decision made within a framework set out in the Act. This right is conferred on a physical person covered by a decision and in certain circumstances on a corporate person.

 

REVIEWABLE DECISIONS

 

Any decision made pursuant to the Act is SUBJECT TO REVIEW.

 

MONTHLY CHEQUES are considered to be decisions equivalent to written notice sent to a recipient. An application for review may therefore be filed every month, to contest the amount of assistance granted for that month. Both the cheque received in the month and those issued during the 90 days (calendar) preceding the application for review may be examined.

 

A CHEQUE issued for reimbursement of a SPECIAL BENEFIT that is not accompanied by a notice of decision also constitutes a reviewable decision. This includes pre-authorized special benefits paid to a supplier.

 

ARE NOT REVIEWABLE

 

Decisions made, with respect to preparation of an Individualized Integration, Training and Employment Plan, referral to a temporary employment support, training or community activity measure, concluding an agreement with the employer, payment of an employment assistance allowance or additional expenses, other information, mentoring, placement, funding and assistance services given to an individual organization or business.

 

However, these decisions may be subject to final administrative reconsideration.

 

COUNSELLOR’S DUTIES

 

The Income Security counsellor must:

 

  • remain NEUTRAL in a recipient’s decision to request a review or an appeal or not;

 

  • provide the necessary EXPLANATIONS so that the recipient makes a judicious and informed decision. These explanations include:

 

  • what the right of review or appeal entails;

 

  • the time limits involved for submitting an application for review or appeal;

 

  • who is responsible for reviewing the file (reviewing officer, physician or committee);

 

  • the possibility of requesting an interview with the person(s) responsible for the appeal the file in order to present his or her case, the preferred means being by telephone;

 

  • the approximate duration of a telephone or an in-person interview in cases dealing with eligibility for the severely limited capacity for employment allowance or the temporarily limited capacity for employment allowance based on health reasons, average of 40 minutes;

 

  • in all other cases, can slightly exceed this average depending on the reasons, but generally not longer than 90 minutes;

 

  • the possibility of being assisted by a third party for the purpose of presenting his or her views (eg: a parent, a friend, a social worker, a lawyer);

 

  • if there are new facts, the possibility of resubmitting an application to the program.

 

  • provide any necessary assistance to the person who has come to make an application.

 

FORMULATION OF THE APPLICATION

 

An application for review or appeal must be made in WRITING. The counsellor must help any person who asks for assistance.

 

DEADLINE FOR OBJECTION

 

An application for a review or appeal must be filed within 90 days (calendar) of the date on which the person was informed of the Income Security decision. This date is generally the date on which the cheque or the notice of decision was received. Administratively, the decision is considered to have been received seven days after it is issued, unless there is evidence to the contrary (for example, postal receipt).

 

If the time for filing an application expires on a day when the offices are closed, the person may file it the following working day.

 

An application is accepted even after the 90-day period has expired if the person shows that he or she was UNABLE TO ACT SOONER.

 

A recipient is UNABLE TO ACT where it is established that, as a result of circumstances outside his or her control, such as failure to receive notice of the decision, he or she had no opportunity to act earlier. The circumstances in question must not be brought about by the recipient, and must be such that he or she was left with no way of complying with the time limit.

 

It should be noted that when an applicant has formally entrusted a third party (lawyer or not) with the review, any failure by this representative to meet the deadline will be considered to mean that the applicant was "unable to act" provided that the applicant took steps to monitor the progress of his or her file.

 

A person may appeal to the Appeal Committee from a decision refusing him or her a review after the expiry of the 90-day time limit (request for review after the deadline), within 15 days from the date on which the person was notified of the refusal. If the Appeal Committee allows the appeal, the file is returned to the person who rendered the initial decision for a decision on the merits of the case.

 

PERSON DESIGNATED TO CONDUCT REVIEWS

 

Decisions are reviewed by a person who has been designated for it.

 

Decisions are reviewed:

 

REVISION

  • by a single reviewing officer who may be the Income Security Counsellor responsible of the case; However he may be a nurse of a physician when the presence of a temporarily limited capacity for employment with respect to a person’s health must be evaluated.

APPEAL

  • by a committee including 3 or 4 persons in authority and that at least one of them have a significant knowledge of the Income Security Program and hasn’t been the one to take the previous decision.

 

EFFECTS OF THE APPLICATION

 

  • An application for review or appeal must be dealt with promptly. It is recommended that the complete file be sent immediately to the Appeal Committee

 

  • The filing of an application for review or appeal does NOT SUSPEND EXECUTION of a decision.

 

Exceptions:

 

  1. Re-establishment of assistance

 

When an application for review relates to a determination the effect of which is to cancel an benefit other than a special benefit by more than half (including cancel it entirely), last resort financial assistance MUST BE RE-ESTABLISHED until the decision on the review is rendered, if that decision is not rendered within 10 WORKING DAYS FOLLOWING:

 

  • The day of receipt of the application for review or the day it becomes effective if this day is later;

OR

  • the day on which the recipient is ready to give his or her observations and provide documents in support of the application for review where the recipient applies for an extension to do so.

 

  1. Recovery measures

 

As long as the notice of claim is being contested, no debt recovery measures are carried out unless, in the opinion of the Band Council, the debtor is trying to elude payment of the debt.  

 

TIME FRAME FOR RENDERING THE REVIEW DECISION

 

The review decision must be rendered within 30 days (calendar):

 

  • of receipt of the application by the Band Council and/or Tribal Council;

OR

  • of presentation of the debtor’s observations or the production of documents if AN EXTENSION WAS REQUESTED;

 

The fact that an interview took place does not necessarily mean that an extension was requested since a person may be prepared to submit his or her arguments when he or she files the application.

 

However, an extension is considered to have been requested:

 

  • when an interview was requested and the reviewing officer tried unsuccessfully to reach the person or, if applicable, the person’s representative within 30 days of the application having been filed, or if the review committee contacts the person or the person’s representative and a request is made for an extension for submitting the observations and documentation.   

 

  • when, because the person or his or her representative was not available, the interview date could not be set for the period of 30 days following the filing of the application or because this date was postponed as a result of a request to do so;

 

  • when the documents are filed after the date of the application for review to complete the evidence that the person wants to submit to the reviewing officer.

 

  • If, upon making a request for review, the person also makes a written request to have access to his file, should these documents be required to present observations.  

 

 

A review decision is not invalid for the sole reason that the 30-day deadline was not met. However, in this case, the person whose claim is upheld will not be penalized with higher interest charges since no retroactive interest will be calculated in this case between the 31st day and the date of the review decision.

 

REVIEW or appeal DECISION

 

The review or appeal decision:

 

  • shall INCLUDE REASONS and be written clearly and concisely; The decisions of the Appeal Committee are final without the possibility of appeal; an application for judicial review may be presented to the Federal Court of Appeal, however this court is bound by deference concerning this type of remedy;

 

  • shall be transmitted in WRITING to the applicant and his or her counsel when he or she is represented. If the applicant had a person other than counsel to assist in presenting his or her observations, a copy of the decision is transmitted to this person if requested by the person applying for a review;

 

  • shall be RETROACTIVE to the date on which the decision of the CLE was rendered. In cases where the review decision has to do with the presence of a severely limited capacity for employment or a health-related temporarily limited capacity for employment, the decision shall be retroactive to the date on which the initial decision should have come into effect, taking into account production of the relevant medical report;

 

  • Note that when a person has contested a monthly cheque and not the initial decision, the reviewing officer can render a decision relating only to this cheque and cheques issued during the 90 days before the application for review or appeal; the review or appeal decision is not retroactive to any time before the date of these cheques;

 

  • shall mention the possibility of interest payments when the review decision allows the application and awards benefits retroactively;

 

  • Must be signed by the reviewing officer or, if applicable, the review committee.