‘Fight for it’: ODSP appeal backlog keeps denied applicants waiting years for benefits

Joanne first applied for ODSP benefits on September 1, 2020.

Six days before Ontario voters gave Doug Ford’s PCs their second mandate to form government this past June, she was finally approved.

Joanne, who was born with Ehlers-Danlos Syndrome (a connective tissue disorder affecting her entire body) and a mutated gene that causes hearing loss and problems with the blood, was left mostly bed-bound in 2018 after falling ill with pneumonia for the third winter in a row.

She said her last bout “broke my body,” requiring use of a power wheelchair to get around, and leaving her with exhaustion “so debilitating there should be a whole new word for it.”

“I can dislocate all my fingers opening a door, my hips refuse to ever stay in place and my knees and ankles like to give way as I’m taking a step,” she says. “My body feels as if it is made of cement, weighs 10,000 pounds. I am often too tired to speak, to type, even to chew food. I am unable to wash my own hair. I manage one bath a week when I’m feeling good.”

She says when she applied for ODSP benefits, “it was because I truly needed it.” But three weeks later, Joanne, who Queen’s Park Today agreed not to identify by her real name, received a rejection letter.

She was told she didn’t qualify as she did “not meet the program’s definition of a person with a disability” because she does not have “substantial physical or mental impairment that is continuous or recurrent.”

Despite the Ford government raising ODSP rates by five per cent following an election cycle that highlighted the plight of recipients receiving just $1,169 per month, Joanne says her case illustrates a broader problem with the program’s application process — one that leaves potential clients “to fight for it to prove you really need it.”

The rejection left Joanne “disappointed but not surprised,” as “it’s common knowledge that they deny almost everyone on the first attempt.”

“ODSP is for people with disabilities — it’s right there in the name, yet we are expected to be able to navigate legal and government processes, something most folks find confusing, much less those of us with mental impairments,” she says. “To make matters worse, we’re already unable to work to support ourselves, so there’s no way we can afford to hire a lawyer.”

Appealing a denial for ODSP benefits is a two-step process. Those rejected by the province’s Disability Adjudication Unit must first request an internal review within 30 days of the decision.

Lindsay Blair Holder, a lawyer for Parkdale Community Legal Services, says there’s been a steady flow of clients at her clinic seeking assistance to navigate the ODSP appeals system over the past five years.

“Those types of cases where people are being denied are by far the ones that we see the most in terms of social assistance cases,” she tells Queen’s Park Today. “lt’s a consistent thing that cases are being denied and that hasn’t changed.”

She says the Parkdale clinic will first seek to collect as much medical evidence as possible to plead their clients’ case. That can involve talking to their care professionals, such as doctors or nurse practitioners, mental health professionals or social workers, and obtaining medical records to supplement the information contained in their application.

But Holder says it’s often unclear why the information provided from the get-go doesn’t meet the threshold for ODSP eligibility, which stipulates that a person’s impairment must result “in a substantial restriction in your ability to work, care for yourself, or take part in community life.”

“I think it would be helpful if there was some transparency in the process,” says Holder. “We know there’s legislative tests. But what we don’t know is what the adjudicators are looking at at the Disability Adjudication Unit. There seems to be a discrepancy between what we understand to be the test, and then what we’re actually seeing.”

If they are rejected at the internal review stage, ODSP applicants can appeal to Ontario’s Social Benefits Tribunal (SBT).

The SBT aims to schedule and complete an appeal hearing within 210 days (followed by a decision rendered 30 days later) for 80 per cent of cases it receives. But the pandemic has exacerbated the appeals backlog. Just two per cent of cases made it through the system in that targeted time frame in 2019-20, down from 94 per cent two years earlier. In 2020-21, the standard was met 47 per cent of the time.

“Over the past few years, we’ve seen clients waiting definitely over a year, sometimes two years or a little bit longer,” says Holder. “Just recently, in the last few months, we’ve been starting to see a little bit of decrease in that timeline.”

For the first time since the pandemic, the SBT closed more appeals cases than it received last year involving ODSP and Ontario Works applicants who were initially denied benefits, according to Tribunals Ontario’s 2021-2022 annual report.

Despite progress, its caseload remained 54 per cent higher than three years earlier, when the backlog included more than 6,300 appeals yet to be decided upon. There were still more than 9,700 active appeals not yet adjudicated by the SBT at the end of the 2021-22 fiscal year — which ended in March — down from 10,984 in 2020-21.

“Over the past two years, the Social Benefits Tribunal has been actively working at improving its service standards and modernizing its operations to provide fair and accessible dispute resolution to the people of Ontario,” Tribunals Ontario spokesperson Janet Deline said in an email to Queen’s Park Today.

(The annual report points to the recruitment of 33 new adjudicators this past fiscal year, bringing the total as of March 30 to 23 full-time and 26 part-time adjudicators.)

“Progress is being made on the backlog and parties are being provided with much needed outcomes to their matters. We are confident that service improvements will continue to be made throughout the remainder of 2022 and beyond.”

Of roughly 4,400 ODSP decisions made by the tribunal last year, 53 per cent of applicants were successful in being granted benefits.

For those still denied, Holder says the only option that often remains is to reapply for benefits, especially in instances where a medical issue has worsened or a new one has arisen over the course of the appeal process. That essentially means starting all over again.

Joanne described the process as “stressful” and “awful” to wade through.

“I understand that they are trying to weed out those who do not truly need it, but instead what they are doing is preventing those of us who do need it from getting help,” she says.

Daniel Schultz, a spokesperson for the Ministry of Children, Community and Social Services, declined to detail the most common reasons that applications are usually rejected. Asked by Queen’s Park Today, he would only say that rejections are handed down when “applicants did not meet the legislative definition of a person with a disability, were not financially eligible, or did not meet other eligibility requirements.”

The spokesperson was also unable to provide a figure for the percentage of applications initially denied.

“Individuals have the right to ask for an internal review of any decision about their social assistance that they do not agree with,” Schultz said in an email. He did not answer how the government is addressing the ongoing backlog of appeals.

Advocates say the province’s approach to people with disabilities is having detrimental consequences. In Joanne’s case, she says she did “irreversible damage to my body by having to constantly push myself to work more than I could in order to stay alive” as she waited nearly two years for her denial to be overturned.

But problems plaguing the system are consistent with the government’s broader direction on social assistance, according to Holder, which saw rates frozen from 2018 until this fall.

“When there hasn’t been increases to social assistance amounts, it’s really putting people in a more difficult position,” she says. “I think the reason that we’re seeing denials ongoing is because … everything has been very focused on employment, focused on people getting back to work, getting into the workforce. There seems to be a kind of a stance that people shouldn’t be accessing benefits, they should be trying to work.”

NEW — One year ago, Ontario's PC government unveiled a poverty strategy aiming to move 70% more social assistance recipients per year into work.

But Ontarians with disabilities say the plan is leaving them behind. My latest for Queen’s Park Today: https://t.co/yCeu3lebrm#onpoli

— Sammy Hudes (@SammyHudes) December 13, 2021

The PC government’s five-year poverty reduction strategy launched in late 2020 contains a target of getting ODSP and OW recipients “to move into meaningful employment and financial stability.” By 2024, the government aims to be shifting 60,000 recipients per year from those programs into the workforce, up from around 35,000 in 2019.

In its 2021 annual report on the strategy, Children, Community and Social Services Minister Merrilee Fullerton’s office boasted that “more people exited social assistance than joined over the course of 2021,” while conceding that the number of recipients that left the program for employment declined to 20,899 from 26,928 in 2020.

“We know that the best poverty reduction strategy is creating the economic conditions for more people to find good-paying jobs,” Fullerton stated in the report. “We are modernizing and renewing social assistance programs to help more people move towards employment and independence.”

The government’s recently tabled estimates say ODSP will pay out slightly less in 2022-23 ($5.492 billion) than it did last year ($5.502 billion). Schultz said the government’s five per cent rate increase last month is not reflected in that figure and will be applied to next year’s estimates.

Holder says “there’s a misconception that people are trying to take advantage of the system or don’t want to work.”

“But if you look at the amount of money that people are actually getting, it’s not a livable position, and a lot of times people are making choices between eating and paying their phone bill or rent,” she says. “If you talk to people who are on ODSP, a lot of them will tell you they would rather be working. It’s not something that people want. It’s something that they need.”

Joanne says “changes are needed desperately and they are needed yesterday.” She points to the base amount recipients can receive — now totalling $1,228 per month — “while the average rent for a studio apartment is more than that.”

“Yet we’re still expected to somehow pay rent, bills, eat, pay for our medicine and assistive devices and whatever else is needed to survive. The numbers literally do not add up,” she says.

“My quality of life is garbage. I am still stuck in the same loop of making my health worse by pushing myself to work and do everything I need to do to keep a roof over my head, and there is not a doubt in my mind that I will die much sooner than I should because of it.”