I have received a lot of calls surrounding the issue of reassessment. These are CPP disability recipients who are being reassessed by HRSDC to see if they still qualify for disability benefits.
Unfortunately, I receive a lot of calls in my office from individuals who have been working while collecting a CPP disability benefit, who are now facing significant overpayments, and who want me to do something about it. Nothing frosts me more. Believe me, if you are working at a significant level while collecting CPP disability eventually you will be caught - word to the wise.
And then there are individuals who try to do some work and they are cut off. My client let's call her Sue comes to mind.
Sue had been in receipt of CPP disability for approximately 10 years. She lived in cottage country. She had a large plot of land and she had a garden plot in which she grew vegetables in season. Over the summer months - she put a stall at the end of her driveway and she sold new potatoes and vegetables to the cottage crowd. She also was an artisan and as a hobby over the winter months she painted. She also sold some of these crafts at the end of her driveway.
A disgruntled neighbour who wanted to get even over a prior neighbourhood incident - reported that she was "working" to Canada Pension Plan.
CPP disability started to investigate Sue's earnings with Canada Revenue Agency and soon found that these earnings were insignificant - less than $1500 per year - and well below the allowable earnings provision. Okay, so legitimately they were concerned how Sue had the functional capacity to "work" a garden. Sue submitted letters from her neighbours and family members supporting that she was not responsible for any physical work. They also wondered how she was capable of sitting at a stall all day - to which Sue provided evidence stating that her "customers" were regulars - who she had known for some time - and who called on her home if she was not in the stall - and that she also heard cars as they came to her driveway.
In order to develop the file, Canada Pension Plan sent her for a Functional Capacity Evaluation. This conveniently came back stating that she was capable of sedentary work - however - the report also said that her sedentary capacity was not consistent, that she had chronic pain, and a whole host of other comments that tended to mitigate the comment that she was capable of sedentary work.
Sue ended up having to appeal to the Office of The Commissioner of Review Tribunals - some 18 months after CPP cut her off - she had her hearing. Sue had to go on Social Services in order to survive.
When there is a reassessment hearing the onus to establish a client is NOT DISABLED rests with The Minister. That means HRSDC has to establish that the CPP recipient is capable of regularly pursuing a substantially gainful occupation. HRSDC also has to establish this on the balance of probabilites using the totality of the information on file, that the appellant is no longer disabled at the time the benefits were terminated. The Minister cannot argue that the decision to allow the CPP benefits on application was incorrect - they cannot vary a prior decision confirming a claimant's eligibility.
The Review Tribunal found in favour of Sue, it was pretty obvious really; a no brainer. The Feds had the opportunity to review the same information as the Review Tribunal yet they still maintained their position that the client was working.
There is an allowable earnings provision for individuals who are CPP recipients - stay tuned - I will tell you all about it.