Expected to Work/Barriers to Full Employment Policy & Procedures

Published Date: March 14, 2017
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17 Appeal and Decision Review

Appeals through an Income and Employment Supports Appeal Panel

AUTHORITY

Income and Employment Supports Act, Sections: 43-48
Income Support, Training and Health Benefits Regulation, Sections: 93-97

INTENT

To allow an individual who does not agree with a decision made by Community and Social Services to present his/her situation to an Income and Employment Supports Appeal Panel for independent review and decision.

Authority and Structure of the Income and Employment Supports Appeal Panel 

Income and Employment Supports Appeal Panels:

  • Are under the auspices of the Appeals Secretariat 
  • Are made up of citizens at large 
  • Are appointed by the Minister of Community and Social Services 
  • Are located in various sites across Alberta
  • Are independent quasi-judicial bodies 
  • Have the authority to: 

An appeal hearing is a quasi-judicial process where all parties to an appeal have equal opportunity to present their case. It is also a forum for all parties to hear, to access and to challenge the validity of any or all information presented. By law, appeal panel members must ensure that information presented at an appeal hearing remains confidential.  

POLICY

Activities in Advance of the Appeal Hearing

The Community and Social Services Supervisor ensures that all relevant information, concerning the client's situation the Department’s position, is documented for the appeal hearing. Documentation should present a fair and complete summary of the facts considered in making the decision under appeal. 

Note
Should Community and Social Services make application to have the appeal panel’s ruling on the decision under appeal quashed, only documentation presented at the appeal hearing can be introduced as evidence at Court of Queen's Bench.
 Appeal Packages

The Supervisor is required to prepare appeal packages for each member of the appeal panel, the Department representative attending the appeal hearing, and the client. The appeal package must include every document the Department intends to introduce at the appeal hearing and must include:
  • A copy of the original decision (e.g. Mobius Notes if the notification was provided verbally, otherwise a copy of the written notification).
  • Copy of the policy (or policies) used to make the decision.
  • Verification that the client was notified of the appeal hearing (e.g. Appeal Hearing Letter from AIMS; or, if the notification was provided verbally, a record of contact in the appeal summary). 
  • A copy of the EMP 0547A Notice of Appeal and/or the written submission prepared by the client, in its entirety, requesting an appeal.
  • A copy of the Review of Decision including all documents used for the decision.
  • Any other supplemental information considered in Community and Social Services' decision (e.g. Mobius Notes, budget and household printouts from CCD).

In all cases, documentation to be presented at the appeal hearing is made available to the client prior to the scheduled hearing date.  To ensure that the client receives this information with sufficient time to review it prior to the appeal hearing, the Supervisor must ensure the appeal package is made available to the client no less than seven calendar days prior to the hearing date.

Note
If the appeal hearing is scheduled with less notice, the Supervisor must make arrangements to provide the documents to the client, as soon as possible, prior to the appeal hearing.  The client can be given the option to pick up the appeal package from an Alberta Works office prior to the appeal hearing.

Failure to allow the client sufficient time to review documentation in advance of the appeal hearing may result in delays or adjournments to the appeal process.

The date the appeal package is provided or mailed to the client must be recorded in the Activity section of AIMS and Mobius Notes.

Should the Department wish to introduce information not described in the Review of Decision and not included in the original package, it must share the information with the client prior to the appeal hearing early enough to allow the client to consider it.  Any new information should be discussed with the appeal panel at the hearing.
Legal Counsel

To secure legal representation for the Department at an appeal hearing, the  Supervisor is required to contact Legislative Services.  Legislative Services will decide whether the situation warrants involving legal counsel and will contact Justice, Family Law when a decision has been made to proceed.

Situations where legal representation may be appropriate are:
  • The client will have a lawyer in attendance. 
  • The client or the appeal panel is challenging the validity of a regulation or statute. 
  • The matter under appeal involves an important, precedent-setting case. 
  • The appeal panel has heard a series of appeals with similar facts and Community and Social Services wishes to ensure that the Department’s position is presented consistently.

Legal assistance is not restricted to having a lawyer present at an appeal hearing, and can be accessed from Legislative Services in one of the following ways:

  • Discussion prior to an appeal hearing.
  • Request for advice in the form of a written opinion prior to an appeal hearing. 
  • Phone consultation, if necessary, during an appeal hearing.
Note
Requests for legal support are sent directly to Legislative Services via email and addressed to Joanne.Esbaugh@gov.ab.ca
.
The subject line of the email should read: LEGAL ASSISTANCE REQUIRED RE: INCOME AND EMPLOYMENT SUPPORTS APPEAL PANEL HEARING. Legislative Services will forward the request to Family Law, if required.
The Review of Decision is used to provide information to legal counsel concerning the technical or jurisdictional arguments that Community and Social Services will be presenting at the appeal hearing.

Media Attendance

Prior to allowing media to attend an appeal hearing, the Department Representative must specify that:
  •  No cameras or recording devices are allowed, and 
  •  Media may only attend the segment of the appeal hearing that relates directly to the client who has requested media presence.

If a client requests that media be allowed to attend the appeal hearing, in advance of the appeal hearing date, the Supervisor is required to contact Communications at 780-427-5585 prior to scheduling the hearing.

Communications will:

  • Advise whether an onsite media spokesperson is required;
  • Provide a spokesperson to speak to the media on behalf of the Department, (if necessary); 
  • Decide which program and background materials (if any) may be provided to media representative(s); and,
  • Notify the Minister as appropriate.

If a client requests that media be allowed to attend the appeal hearing, at the time of the appeal hearing, the appeal panel holds a pre-hearing to advise the client of the possible consequences of a media representative being in attendance. The client should be advised that:

  • Media attendance at the hearing will not change the appeal panel’s ruling on the decision under appeal. 
  • Any information presented could become part of the media story, whether favorable or unfavorable to the client and his/her family. 
  • No third party information can be presented or released to the media.
Note
Members of the appeal panel consult with the Appeals Secretariat regarding media presence at a hearing. The appeal panel has the authority to deny the request for media to attend the appeal hearing.

The Supervisor is required to request an adjournment to consult with Communications regarding media presence at an appeal panel hearing. If the Supervisor raises no objection after consulting with Communications (and the appeal panel does not object) the hearing will proceed with media present.  Regardless of media attendance, the appeal hearing process and the Department’s presentation do not change.

Responsibilities of the Client

The Client:

  • Provides any new information to Community and Social Services staff in advance of the hearing: 
    •  presenting new information that has not previously been reviewed, may result in an adjournment of the hearing
  • Reviews documentation provided by the Supervisor 
  • Provides written consent if another person will be representing the client at the appeal hearing
  • Advises the appeal panel via the Appeals Secretariat: 
    • if unable to attend the appeal hearing (clients who cannot appear in person may participate in the hearing by teleconference.)
    • if an advocate or another individual will be in attendance at the hearing to assist with presenting the client’s appeal information
    • if a lawyer will be in attendance at the hearing 
    • if an interpreter, is required, as all hearings are conducted in English (clients may contact the Appeals Secretariat for assistance in obtaining an interpreter.)

Activities During the Appeal Hearing

The Person Chairing the Hearing:

  • Makes introductions 
  • Explains the rules of the hearing 
  • Clarifies the decision being appealed 
  • Asks if anyone objects to the people on the panel and/or their right to rule on the decision under appeal
  • Asks if all parties received the information submitted and if they are ready to proceed
  • Asks if there is any new information or documentation to be presented

The Department Representative (Community and Social Services Supervisor):

  • Ensures that a Community and Social Services representative is present at the appeal hearing
  • Explains Community and Social Services' original decision to refuse, change or cancel a benefit
  • Should not withhold any relevant information 
  • Ensures that all relevant information concerning the client’s situation and Community and Social Services' position is presented at the hearing
  • Advises that a Community and Social Services representative cannot advocate on behalf of the client during the appeal hearing.

After the Supervisor presents information on behalf of the Department, both the client and members of the appeal panel have an opportunity to ask questions.
The Client:

  • Is given the opportunity to provide information relevant to his/her appeal either verbally or in writing 
  • Should not withhold any relevant information

After the client presents his/her information, both the Community and Social Services Supervisor and members of the appeal panel have an opportunity to ask questions.

The person chairing the appeal hearing asks if either the client or the Community and Social Services Supervisor have any additional information to present.

The client and the Community and Social Services Supervisor then have an opportunity to make final statements regarding information presented during the hearing.

Adjournments

The Supervisor and the client may both request an adjournment if new information is presented at the appeal hearing that has not been previously reviewed. 

The Supervisor requires adequate opportunity to review new information; as the nature of Community and Social Services' original decision may change based on the additional information provided.

Adjournments are until a specific date agreed upon by all participants.

Activities After the Appeal Hearing

The Income and Employment Supports Appeal Panel: 

  • Prepares and issues a Panel Decision on the matter under appeal
  • May confirm, reverse or vary (change) the decision under appeal: 
    •  if the appeal panel reverses/varies Community and Social Services' original decision:
      • an itemized list of the specific benefits, goods and/or services awarded to the client is recorded
      • any restrictions pertaining to cost, frequency, time limitations (etc.) are also recorded
  • Prepares the Appeal Report, including: 
    •  facts and/or evidence on which the appeal panel based its ruling, as presented by the client, witnesses who attended the hearing, and the Community and Social Services representative.
    •  justification for the decision
    •  authority for the decision by citing the appropriate section of the Act or Regulations
  • Sends the Appeal Report to the Alberta Works Centre and to the client with a written decision of the appeal panel (usually within 10 business days after the appeal hearing date).

The Department Representative (Community and Social Services Supervisor):

  •  Schedules payment of benefits, if the appeal panel reverses or varies the Department’s original decision
  •  Updates Mobius Notes.

Non-Attendance at the Appeal Hearing

If the client does not attend a scheduled appeal hearing and has not notified the appeal panel in advance, the appeal panel may:

  • Proceed with the appeal hearing and make a decision in the client’s absence; or,
  • Choose not to proceed with the appeal hearing and reschedule another hearing date.        

When a client fails to attend a scheduled appeal hearing, a notation is made in AIMS.  The Appeals Secretariat sends a letter advising the client to contact their office to either reschedule another hearing date or to withdraw the appeal request.

The Appeals Secretariat will also make an effort to contact the client and will document the number and type of contact attempts made in AIMS. If unable to make contact with the client, the Appeals Secretariat may reschedule another appeal hearing and send the client an Appeal Hearing Letter advising of the date, time and location of the rescheduled hearing.

Clients that Fail to Respond

If the client:

  • Reschedules another hearing date with the Appeals Secretariat and does not attend the appeal hearing for a second time; or,
  • Has not contacted the Appeals Secretariat and fails to appear at the rescheduled appeal hearing:    
    •  The department may request that the appeal panel proceed with the appeal hearing and make a decision in the client’s absence; or
    •  The department may request that the appeal panel consider the appeal to be abandoned and confirm Community and Social Services' original decision.

It is within the appeal panel's discretion to reschedule another appeal hearing.

In all circumstances the Department representative must be prepared to present to the appeal panel. The Department representative may also request that the Appeals Secretariat provide a record of the number of attempts made to contact the client.

Appeal Considered Abandoned

If a client does not attend a scheduled appeal hearing for a third time the following may occur. Upon the Department’s request the appeal panel will likely issue a decision in the client’s absence; which includes declaring the appeal to be abandoned and confirming Community and Social Services' original decision. In this instance, the appeal panel would render a Panel Decision to the client advising that his/her appeal has been declared abandoned. A copy of the Panel Decision is also provided to the Department.

Note
In situations where the appeal concerns an assessed overpayment, the appeal process must be concluded before further Department activity can occur (i.e., before the overpayment can be determined to be a debt repayable to the Department and collection can begin).

Challenge of the Income and Employment Supports Appeal Panel Decision

In most circumstances, the appeal panel’s ruling on a decision under appeal, is final. However, if the client is not satisfied with the appeal panel’s ruling, he/she may: 

 

  • Ask the Ombudsman’s Office to review the process used by the appeal panel to make its decision; or,
  • Request a ruling from Court of Queen’s Bench by filing a Judicial Review of the decision.

If Community and Social Services believes that the appeal panel has exceeded its authority, the Department may present the matter to, and request a ruling from, Court of Queen's Bench by filing a Judicial Review of the decision.

Recovery of benefits authorized by the appeal panel will occur if Court of Queen’s Bench quashes or sets aside the Panel Decision.

Benefits authorized by the appeal panel must be issued to the client, pending outcome of Community and Social Services' challenge of the appeal panel’s ruling.

PROCEDURE

If Community and Social Services believes that the appeal panel has exceeded its authority:

  1. The Supervisor alerts the Income Support (IS) Program Specialist and forwards a copy of the appeal package and the the appeal panel decision for review.
  2. The IS Program Specialist provides this information to IS Program Area, Workforce Supports Division to initiate corrective action (if appropriate) through Court of Queen’s Bench.
  3. The Supervisor informs the client of Community and Social Services' intention to challenge the appeal panel’s decision, and that a recovery of the benefits authorized by the appeal panel will occur if: 
    •  Court of Queen’s Bench quashes the appeal panel’s decision, and
    •  A new decision is issued by the appeal panel, which upholds Community and Social Services' original decision.