Legal Clinic Practice: Managing the Monster-ODSP Disability ...

Legal Clinic Practice: Managing the Monster-ODSP Disability ...

Legal Clinic Practice at the Social Benefits Tribunal: Managing the Monster-ODSP Disability Appeals SOAR CONFERENCE Innovative Projects and Resources for the Self-represented Litigant November 5, 2015 Traditional Clinic Practice Historical poverty law practice Continuum of services: summary advice, brief services, representation, law reform, public education and community organizing

Service provided according to need of client and community Where advice or brief service doesnt resolvefull representation available Community Boards of Directors determine priority areas of service and balance of types of service. Traditional Clinic Practice Recent Challenges Continued growth in demand for appeals of negative decisions on disability applications (Ontario Disability Support Program - ODSP) basic income for survival at stake - only

alternative is Ontario Works below subsistence 60% of appeals are granted by Social Benefits Tribunal Initial impact - pushed out other areas of practice (reduced services in housing, WSIB, immigration) Traditional Clinic Practice Recent challenges LAO eliminates certificates for poverty law services- private bar used to be available for overflow Clinics become responsible for delivery of all

poverty law services- when clinics say no, no alternative available Clinic provincial strategic plan- looking beyond our usual borders (catchment areas) to achieve social justice Grappling with Service Decisions Problem Volume of demand greater than clinic resources for full representation Even clinics where 80% of clinic practice devoted to disability appeals resources are

insufficient to meet the demand Disability appeals involve complex medical evidence and increasingly technical rules of evidence Guided Assistance Program Clinic Board decisions: Where is greatest added value? Obtaining medical evidence to supplement inadequate application forms Organizing the evidence and legal argument

re: relevance of medical evidence Assess whether client has capacity to proceed without counsel- prepare them for hearingnew video from Hamilton Clinic Means we rely on the Tribunal to conduct the hearing without the benefit of counsel Guided Assistance Programs Adapting to the new program Communication between clinics and Tribunal essential at a minimum to ensure that no adverse inference is drawn where counsel does not appear at hearing (past practice - merit screening) Clinics need to know: How can clinics best

prepare the case for the Tribunal? What does Tribunal need? Tribunals need to understand the experience of the appellant. Clinic caseworkers on training panels for SJTO. What does the appellant need? Guided Assistance Programs Role of Tribunal Active adjudication- what does this mean when Respondent (MCSS) is represented? When it is not? What is the role of the adjudicator when the appellant faces multiple barriers? Language,

gender, recent immigrant? What is the role of the Tribunal when the majority of appellants have a disability? When a significant number have mental health disabilities? How does the Tribunal accommodate disability? Guided Assistance Programs Clinic system safety net - when things go wrong Tribunal may adjourn and refer back to clinic

where it is clear client cannot proceed without assistance Negative decisions - clinics are available for reconsideration applications where appropriate ISAC is available for Divisional Court Appeals where appropriate (cases have been settled after filing of factum) Looking upstream: clinic role Clinic Law Reform Systemic approaches ISAC in partnership with Steering Committee on Social Assistance - voice for clinics Clinics submit that 60% reversal rate by Tribunal indicates

a problem with initial process Clinics advocate with government for changes to application and adjudication processes we submit that many disability appeals flow from flawed application process Procedural issues: clinics advocate for earlier availability of reasons for decision and disclosure Substantive issues: application of disability test in statute and how applications are adjudicated. Looking Upstream: Tribunal Role Tribunal stakeholder engagement SBTs Practice Advisory Committee: nonadjudicative issues can be addressed in an

ongoing process Tribunal convened tripartite discussion with clinic representatives and Ministry to address upstream issues and consider pilot project to reduce workload and enhance access to justice Tribunal develops early resolution process pilot for medical reviews in partnership with institutional parties and representatives.

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