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Learner Policy & Procedures

Published Date: March 14, 2017
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Appeals and Reviews

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 the Learner Income Support Office 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

Appeal Panels:
  • Are under the auspices of the Appeals Secretariat
  • Are made up of citizens at large 
  • Are appointed by the Ministers of Advanced Education and Labour 
  • Are located in Edmonton and Calgary
  • Are independent quasi-judicial bodies 
  • Have the authority to: 


An appeal hearing is a quasi-judicial process where 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, the appeal panel members must ensure that information presented at an appeal hearing remains confidential.  

Activities in Advance of the Appeal Hearing

The Learner Income Support Office (LISO), representing either Advanced Education or Labour, ensures that all relevant information, concerning the individual’s situation and 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 the Department 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

LISO is required to prepare appeal packages for each member of the appeal panel, the Department representative attending the appeal hearing and the individual initiating the appeal. 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 Funding Decision letter).
  • A copy of the policy (or policies) used to make the decision.
  • Verification that the individual was notified of the appeal hearing (e.g. Appeal Hearing Letter from AIMS; or, if 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 individual, 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 the decision (e.g. Mobius Notes).


In all cases
, documentation to be presented at an appeal hearing is made available to the individual prior to the scheduled hearing date. To ensure that the individual receives this information with sufficient time to review it prior to the appeal hearing,  LISO 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 hearing date is scheduled with less notice, LISO must make arrangements to provide the documents to the individual, as soon as possible, prior to the appeal hearing. The individual 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 individual 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 individual prior to the appeal hearing early enough to allow the individual 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, LISO 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 individual initiating the appeal will have a lawyer in attendance. 
  • The individual 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 the Department wishes to ensure their 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 should be 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 the Government of Alberta will be presenting at the appeal hearing.

Media Attendance

Prior to allowing media to attend an appeal hearing, LISO must specify that:

  •  No cameras or recording devices are allowed, and  
  •  Media may only attend the segment of the hearing that relates directly to the individual who has requested media presence.


If an individual requests that media be allowed to attend the appeal hearing, in advance of the appeal hearing date, LISO is required to contact Communications 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 an individual 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 individual of the possible consequences of a media representative being in attendance. The individual 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 individual 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.

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

Responsibilities of the Individual

The Individual:

  • Provides any new information to LISO 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 LISO
  • Provides written consent if another person will be representing the individual at the appeal hearing
  • Advises the appeal panel via the Appeals Secretariat: 
    • if unable to attend the appeal hearing (individuals 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 appeal information
    • if a lawyer will be in attendance at the hearing 
    • makes arrangements for an interpreter, if required, as all hearings are conducted in English (individuals 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


Learner Income Support Office (Representing the Department):

  • Ensures that a LISO representative is present at the appeal hearing
  • Explains the original decision to refuse, change or cancel a benefit
  • Should not withhold any relevant information 
  • Ensures that all relevant information concerning the individual’s situation and The Department's position is documented at the hearing 
  • Advises that a Department representative or a service manager (from a training provider or assessment/case management centre) cannot advocate on behalf of the individual during the appeal hearing.


After LISO presents information on behalf of the Department, both the individual initiating the appeal and members of the appeal panel have an opportunity to ask questions.

The Individual:

  • 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 individual presents his/her information, both LISO and members of the appeal panel have an opportunity to ask questions.

The person chairing the appeal hearing asks if either the individual or LISO have any additional information to present.

The individual and LISO then have an opportunity to make final statements regarding information presented during the hearing.

Adjournments:

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

LISO requires adequate opportunity to review new information; as the nature of the 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 the original decision: 
      •  an itemized list of the specific benefits, goods and/or services awarded to the individual is recorded
      •  any restrictions pertaining to cost, frequency, time limitations (etc.) are also recorded
  • Prepares the Appeal Report, including: 
    •  facts or evidence on which the appeal panel based its ruling, as presented by the individual initiating the appeal, witnesses who attended the hearing, and the representative from LISO.
    • justification for the decision 
    • authority for the decision by citing the appropriate section of the Act or Regulations
  • Sends the Appeal Report to LISO, and to the individual with a written decision of the appeal panel (usually within 10 business days after the appeal panel hearing date).

Learner Income Support Office (Representing the Department):

  • Schedules payment of benefits, if the appeal panel reverses or varies the Department’s original decision 
  • Updates Mobius Notes, and 
  • Ensures that all documents referred to at an appeal hearing, either by the Department or individual, are placed on the individual’s record.


Non-Attendance at the Appeal Hearing

If the individual 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 individual’s absence; or,
  • Choose not to proceed with the appeal hearing and reschedule another hearing date.        


When an individual fails to attend a scheduled appeal hearing, a notation is made in AIMS. A letter is then sent, advising the individual to contact the Appeals Secretariat to either reschedule another appeal hearing date or to withdraw the appeal request.

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

Individuals that Fail to Respond

If the individual:

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


It is within the appeal panel’s discretion to decide 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 an individual 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 individual’s absence; which includes declaring the appeal to be abandoned and confirming the original decision. In this instance, the appeal panel would render a Panel Decision to the individual 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 individual is not satisfied with 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 the Department 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 individual, pending outcome of the Department's challenge of the appeal panel’s decision.