ASSISTANCE RECEIVED UNDULY
When assistance has been paid and should not have been paid, its amount must be established by RECONSTITUTING A MONTHLY DEFICIT in accordance with the allocation rules existing in each of the months in which assistance was unduly received.
The claim is established by using the LEGISLATIVE AND REGULATORY PROVISIONS in effect during the period covered by the claim and the resources available to the adult or family.
When the amount of the assistance is correct but it was granted in unconditional form when it should have been granted in CONDITIONAL FORM, the amount repayable must be established as if the assistance had been granted in conditional form.
Since January 1, 1999, we have not been establishing claims for unconditional assistance granted for periods before August 1, 1989.
CLAIM
When establishing a claim due to income that was not taken into account, if this income ceases during a month subject to the claim, the rules regarding income ceasing will apply if the income was diligently reported. We consider that such is the case when the Income Security received information from the beneficiary regarding this income, orally or in writing, not later than the last day of the month following that when this income began (refer to 5.6.5).
CONDITIONAL ASSISTANCE
In the case of conditional assistance granted before August 1, 1989 for which the right was not realized until after January 1, 1999, a claim must be established because we were unable to act before.
Since October 1, 1999, in spite of any provisions to the contrary in any legislation, the amount of a realized right or property acquired with this right can be seized when the expectation of this right WAS NOT DECLARED by a client.
In the case of conditional assistance, a claim governs assistance paid up to THE AMOUNT OF THE RIGHT REALIZED, that is, the net amount of the realization after priority debts have been repaid.
If the right realized is the proceeds of a life insurance policy received as payment to the designated beneficiary, it is reduced by the amount used by the beneficiary to pay funeral costs for the deceased person within 30 days of receipt of the proceeds of the life insurance.
The amount realized may be a lump sum (such as compensation for loss of a limb) or an amount derived from accumulated payments (such as monthly payments by the Quebec Régie des Rentes).
The rule of ANTERIORITY OF THE DEFICIT applies when realization of the right occurs after July 31, 1989. The resources which a client had during the month in which the event occurred affect only the benefits for the following month and so on. Assistance paid is repayable only from the month following that of the occurrence of the event that gave rise to the realized right.
Reimbursable assistance is that paid as ADULT-BENEFIT, adjustments for children or SPECIAL benefit.
The AMOUNT of the CLAIM is determined by establishing the relationship between what the person received from assistance and what was realized for the period in question. When a right was realized in foreign currency, the amounts received are calculated by applying the exchange rate in effect when the lump sum was actually received.
1- Realization of a lump sum
When the REALIZATION OF A RIGHT takes the form of a LUMP SUM, such as the total indemnity from a civil action, the exemption for liquid assets to which the client is entitled must be applied to it, taking into account liquid assets held at the time the right was realized. The liquid assets exemption is granted even if the conditional assistance covers the period between April 30, 1986 and August 1, 1989, during which the exemption was not granted, if the right is realized after July 31, 1989.
However, the liquid assets exemption does not apply where support is replaced by a lump sum.
Assistance is equal to the lesser of the following amounts:
- Assistance issued for the period pending realization of the right, but excluding the month when the event occurred giving rise to the right;
OR
- Amount of the right realized less the basic exemption.
When the RIGHT REALIZED is in the nature of PROPERTY, the allocation of benefits must be recalculated taking into account the excess value (value - exclusion x 2%) for each month between the date of the event giving rise to the right and the date of realization of the right (refer to example at the end of this item).
2- Amount realized deriving from accumulated payments
When the realization takes the form of an AMOUNT DERIVING FROM ACCUMULATED PAYMENTS, calculation of the amounts to be repaid is made by applying the eligibility rules and expected benefits for each of the months between the date of the event giving rise to the exercise of a right and the date the right was realized.
ELIGIBILITY for assistance must be RECALCULATED for each MONTH taking into account the rule of anteriority of the deficit and the determination made of the amount of assistance that would have been paid if the accumulated payments had been received at the time they were due.
Claim
As part of the reassessment of a period of assistance covering a month where an adjustment was granted, as soon as one of the conditions of these applications does no longer exist (refer to 5.6.5) and that a claim for assistance must be made for that month, it must include the adjustment of assistance granted when an income ceased.
CLAIM
Following the realisation of a right derived from “accumulated payments” resulting in a claim, the claimed amount will take into account all the rules of determination of eligibility to an employment insurance benefit: those for the granting of assistance, those of the anteriority of the deficit and those applying when income ceases. Income ceasing rules therefore apply to realised income whose payment will come to an end.
OTHER POSSIBLE SITUATIONS RESULTING FROM THE REALISATION OF A RIGHT
When the realisation of a right causes a condition of application that no longer exist, the reconciliation of the repayable amount will be made by including the adjustment paid when income ceased (refer to 5.6.5).
Various situations may occur:
- When the right realised is not of the same type as that of the income ceasing while assistance is received and begins during the month of cessation, the concept of income ceasing and the application are not questioned. However, it is necessary to check whether R-99 is still applicable.
- When the realised right is not of the same type as that of the income which ceased during assistance and begins during a month prior to the month of cessation, the concept of income is not questioned. However, income will be compared again for the month during which an adjustment has been overpaid for an income ceasing. If the total income of the month of cessation is now in excess, the adjustment will be claimed. If it remains below, the adjustment is not claimed.
- When the right realised is of the same type as that of the income ceasing while assistance is received and starts during the month of cessation or within 30 days of the following month, the income ceasing is no longer considered since an income of the same type has resumed within 30 days of its cessation. The rule of anteriority is applied again, which results in a claim which includes, in whole or in part, the adjustment granted for an income ceasing.
- When the amount of the right realised causes to eliminate the deficit for the month where the section applied on income ceasing, the total amount paid for that month is claimed.
CLAIM FOR MONTH OF APPLICATION
Claims are established according to the rule of anteriority of the deficit. As assistance for the month of application is not granted in accordance with this rule, it is not claimed except in the following cases:
- ASSISTANCE paid for the month of application in CONDITIONAL form, if the amount from the realized right is actually RECEIVED DURING THIS MONTH;
- Assistance paid during a PERIOD OF INELIGIBILITY OR REDUCTION of benefits granted by another program. The phrase "up to" amounts that would have been payable under another Act clearly indicates that all assistance which should not have been paid must be repaid. However, repayment cannot exceed benefits payable under the other Act which the client has lost.
TAX PAYABLE ON RIGHT REALIZED
A client is not required to repay an amount equivalent to tax payable on money received when a right is realized in certain circumstances. If repayment of the assistance has already been made at the time the tax authority assesses the client, the Income Security will repay the debtor the amount overpaid on presentation of proof of payment of the tax.
- Amount of right realized
The amount of the right realized is similar to that taken into account when applying section 102 of the Act (calculation of reimbursable assistance).
If the proceeds of realizing the right take the form of a lump sum, the amount of the right realized corresponds to the total lump sum payment received.
If the proceeds of realizing the right take the form of accumulated payments (such as monthly income support payments), account is taken of the amount received for each month of the period during which the person awaiting realization of the right received assistance. The amount pertaining to a period in which the person was not receiving assistance is not taken into account in establishing the amount of the right realized.
Income Security debt does not take precedence over claims that are called "preferred" in the Civil Code. Such claims consist mainly of legal costs, lawyers' fees and mortgage expenses on property sold. The words "up to the value of the right must therefore be interpreted to mean the net amount of the realization after claims that have priority over the last resort financial assistance programs have been paid.
NOTE : No claim may be established for a period of assistance before November 1, 1999 in the case of clients already receiving assistance and before October 1, 1999 in the case of new applications where spouses are of the same sex since this legislative amendment did not come into effect until October 1, 1999.
The claims (right that can be realised) are not interrelated.
The section specifies: “The repayable amount is due as soon as the right is realised and up to the value of this right. It is established by applying the rules of calculation of resources.” This provision of the Act is not supported by the computer system as it does not prevent the repayable amount of the realised right from being higher than that obtained upon the realisation of this right.
Consequence
When establishing a claim on the realisation of a right, when the adjustment paid on income ceasing must be included in the repayable amount and if this causes the claimed amount to be higher than the amount of the realised right and that there are two adults in the file, 2 separate claims will then be established in order to meet Act. The provision on the realised right will not be interrelated while the provision on the amount of overpaid assistance will be. This will be processed during the pre-processing phase of an appeal for reconsideration if the claim of the realised right is challenged as the system does not allow to detect claims that do not comply with the provisions of the section.