While the Assistance Appeal Board applied an erroneous analysis of a provision allowing an income support recipient to spend assets for specified purposes, the Court declined to set aside the Assistance Appeal Board’s decision finding, on a standard of review of correctness, that the Board’s conclusion was correct

28. July 2009 0

Administrative law – Decisions of administrative tribunals – Assistance Appeal Board – Ministerial orders – Benefits – Income assistance – Eligibilty – Basic need – definition – Judicial review – Interpretation of  legislation – Jurisdiction – Standard of review – Correctness

Savary v. Nova Scotia (Community Services), [2009] N.S.J. No. 234, 2009 NSSC 123, Nova Scotia Supreme Court, April 15, 2009, J.D. Murphy J.

The Applicant, who had been receiving income assistance from the Respondent Department of Community Services (Nova Scotia), settled a claim for wrongful dismissal and human rights violations with her former employer for the sum of $13,000.00. She advised the Department that she intended to use the settlement funds to pay off various debts, including rent and utility arrears, as well as debts to individuals. The Department notified her that she was ineligible for continued assistance because her assets were “greater than allowed under program regulation”. The Applicant first pursued an unsuccessful internal appeal with the Department and then with the Assistance Appeal Board. The Board denied her appeal, finding that while certain expenditures were approved as “reasonable dissipation” of the assets, the remainder were regarded as excess assets rendering her ineligible for assistance for the period of one year. The Applicant sought judicial review of the Board’s decision.

The application was dismissed. The appropriate standard of review was correctness. Neither the Employment Support and Income Assistance Act nor the Assistance Appeal Regulations provide a privative clause protecting the decisions of the Board from judicial review, which suggested a lower level of deference. The issue was how the relevant legislation and policy applied to undisputed facts before the Board, and not factual issues intertwined with legal issues. In other words, the issue was one of legal interpretation. The Court was not satisfied that the Board has any specialized expertise that supports deference on judicial review.

The Board applied an unauthorized analysis of s.55(4) of the Employment Support and Income Assistance Regulations, which permitted an assistance recipient to spend assets for specified purposes. There was no basis for a “reasonableness” assessment under that provision and once a supervisor was satisfied that the assets were spent for designated purpose (and approved the expenditure if it was for shelter), there was no discretion to allow or disallow expenditures that fell within the designated categories on the basis of “reasonableness”. However, the applicant failed to establish that a department policy of not automatically treating debt repayment as a matter of “basic need” was unauthorized by the Act or the Regulations and, as a result, despite the erroneous reasoning in interpreting s.55(4) of the Regulations, the Board’s conclusion was correct. Debt repayment was presumptively not a “basic need” expenditure except where possibly debt repayment was necessary to maintain or obtain a “basic need”. Finally, the adequacy or inadequacy of social assistance rates is not an issue to be decided by the Court.

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