Some Canadians who believe they have been wrongly denied federal disability benefits are being told, under new rules, that they have no right to plead their case directly to the adjudicator of the new Social Security Tribunal who will decide their appeal.
A lawyer who handles Canada Pension Plan disability cases says his clients will be stripped of their right to basic justice if they cannot appear before the tribunal. And a retired doctor who heard appeals under the previous system says he could not have made fair decisions without meeting claimants face to face.
“I can tell you there were a couple of times when you would say to yourself, ‘This is a slam dunk for denial,’ until the human walked in,” said George Sapp, who lives near Halifax. “Then you would see the person that’s attached to the file. And sometimes it took you back. And you listened.”
CPP disability benefits are available to people who paid into the pension plan and cannot work because of a serious and prolonged ailment. Until the spring of last year, anyone who was told by the government that they were not entitled to collect them, had the right to tell a three-person review tribunal why that decision was wrong.
But, in April 2013, the Conservative government eliminated the roughly 350 part-time members of those panels, including Dr. Sapp.
They were replaced by 35 full-time members of the new Social Security Tribunal (SST) which, despite inheriting a backlog of 7,224 cases, managed to hear just 348 appeals in its first year of operation. By last month, the backlog had grown to nearly 10,000, some of them dating back several years.
New rules introduced when the SST was created allowed adjudicators to hear cases by teleconference, video conference, in person, or by written question and answer. But the adjudicators could also decide, unilaterally, that the written material given to them by the claimants and the government was sufficient and that no further live input was necessary.
In the first 13 months of the SST’s operation, 57 cases were decided on the basis of the existing written record alone. In the same period, 173 appeals were heard by teleconference, 52 by video conference and 123 were done in person.
Dominique Forget, the senior director of the tribunal, said in a telephone interview on Friday: “It’s a question of flexibility and efficiency.” Appellants can express their preference, she said, but “we’re trying to move files and to be as quick as we can.”
Ms. Forget said the tribunal does not keep statistics to show the relative success of appellants who are permitted to present their case in person versus those who are not.
Allison Schmidt, a Regina-based consultant who helps people appeal denials of CPP disability benefits, said it has only been in recent weeks that her clients have been told that an adjudicator would make a decision without hearing directly from them.
“It appears that the way the Social Security Tribunal is going to manage the enormous accumulation of backlogged appeals is to unilaterally deny Canadians the right to be heard in an in-person hearing,” said Ms. Schmidt. “By denying this right to this type of appeal, the federal government has found another way to tilt the playing field in their favour.”
One of Ms. Schmidt’s clients who was told he would not get a hearing was Stu Lang, a British Columbia man who had to quit his job building airplanes after a catastrophic shoulder injury. He was denied CPP disability benefits and launched an appeal in 2011.
Mr. Lang, who does not yet know what the adjudicator will decide in his case, said he was “a little peed off” to be told three years later that he would not be able to explain, in person, why he believes he is owed the benefits.
Richard Fink, a Toronto lawyer who handles CPP disability cases, said none of his clients have yet been told they will not get a hearing. On the other hand, said Mr. Fink, there is such a backlog at the SST, none of his clients have received a hearing of any kind in recent months.
But “the rules of natural justice say you are entitled to an oral hearing if there is some value in having it,” said Mr. Fink. “There is judicial precedent that where your rights are being decided, you are entitled to appear before the party making the decision.”