Comments of ARCH Disability Law Centre On
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1
Comments of ARCH Disability Law Centre
on the
Discussion Paper 2: Approaches for Reform,
February, 2012
of the
Commission for the Review of Social Assistance in Ontario
March 20, 2012
Ivana Petricone and Dianne Wintermute
TABLE OF CONTENTS
INTRODUCTION: ABOUT ARCH ......
COMMUNITY CONSULATION WITH PEOPLE WITH DISABILTIES
THEORETICAL FRAMEWORK
The Issues
1.Removal of Barriers to Employment and Necessary Supports
2.Designing Benefits for People with Disabilities
3.Mandatory Treatment and/or Rehabilitation
4.A Separate Program for People with “Severe” Disabilities
5.Asset Limits for People with Disabilities
6.Special Programs for Children with Disabilities including Transitional Programs and Special Services at Home
7.Other policies and programs that Impact on the number of people receiving social assistance
Conclusion
RECOMMENDATIONS
INTRODUCTION
ABOUT ARCH
ARCH is an Ontario-based community legal clinic that is dedicated to defending and advancing the equality rights of people with disabilities. ARCH is governed by a volunteer board of directors, a majority of whom are people with disabilities. We provide a telephone summary advice and referral service to Ontarians with disabilities and represent individuals as well as provincial and national disability organizations in test case litigation at all levels of tribunals and courts. We provide education to people with disabilities on disability rights and to the legal profession about disability law. We make submissions on matters of policy and law reform. ARCH maintains a web site on disability law at: As is the case for all community legal clinics funded by the Legal Aid Services Act, ARCH is funded is to promote access to justice for low-income individuals
ARCH’s experience with people with disabilities who rely on social assistance and/or who live in poverty is broad and is based on our contacts with people with disabilities themselves, their families and support people, advocates and community organizations. ARCH regularly hears concerns about the delivery of employment supports and services to people with disabilities, and ARCH staff provide legal information and advice as part of our summary advice and referral service to individuals who experience barriers in securing employment or discrimination in the workplace for reason of their disability. ARCH has represented clients in litigation dealing with employment issues. We have engaged in discussions of these issues with consumer and advocacy groups and have conducted legal and non-legal research on employment supports and services for people with disabilities.
ARCH intervened, and played an active role, in the cases of The Director of ODSP v. Robert Tranchemontagne and Norman Werbeski. The first round in these cases raised the question of whether an administrative tribunal (in this case, the Social Benefits Tribunal) was required to apply the Ontario Human Rights Code (the Code) to its governing legislation. The Supreme Court of Canada[1] ordered that a tribunal must apply the Code because it is fundamental law which has primacy over other enactments of the Legislature.In the second round of this case, the Ontario Court of Appeal[2] held that excluding people with addiction disabilities from receipt of ODSP was contrary to the Ontario Human Rights Code.
Given the community that ARCH serves, our submissions will focus on issues related to the experience of persons receiving or eligible for Ontario Disability Support Program benefits.
COMMUNITY CONSULATION WITH PEOPLE WITH DISABILTIES
In order to canvas the views and opinions of persons with disabilities ARCH consulted a wide range of organizations that advocate on behalf of persons with disabilities, including persons with intellectual disabilities, persons with physical disabilities, persons with mental health disabilities and persons with episodic, recurring and/or intermittent disabilities. These submissions represent a compilation of the comments gathered through this consultation process as well as comments based upon the experiences of those persons with disabilities who seek assistance or information from ARCH.
ARCH’s consultation revealed that the following issues raised in the Commission’s Discussion Paper 2 are the areas of key concern among persons with disabilities requiring income supports. Each of these issues will be addressed in these comments.
1.Removal of Barriers to Employment and Necessary Supports
2.Designing Benefits for People with Disabilities
3.Mandatory Treatment and/or Rehabilitation
4.A Separate Program for People with “Severe” Disabilities
5.Asset Limits for People with Disabilities
6.Special Programs for Children with Disabilities including Transitional Programs and Special Services at Home
7.Other policies and programs that Impact on the number of people receiving social assistance
THEORETICAL FRAMEWORK
ARCH urges the Commissioners to situate their analysis and recommendations within the following frameworks.
First, it is important to be mindful throughout this Review that the impetus for the review of social assistance in Ontario arose as a result of the Provincial Government’s Poverty Reduction Strategy. We therefore suggest that one of the governing principles on which the Commission should base its recommendations is that, upon implementation of any reformed social assistance program, no one in receipt of social assistance in Ontario be worse off in terms of the income and other benefits they currently receive. People in receipt of social assistance are the most marginalized and vulnerable in our society. Any austerity measures that the Government may consider to address its fiscal circumstances should not sway the Commission from making recommendations that will move people out of poverty, treat them with dignity and provide positive, personalized supports, rather than subjecting them to onerous penalties or expectations that cannot reasonably be met.
Second, it is important that the Commission consider the rationale for introducing the Ontario Disability Support Program. When the program was introduced in the legislature, then Minister of Community and Social Services, the Honourable Janet Ecker stated that:
“…last week I announced the government would create a new income support program to meet the unique needs of persons with disabilities. The Ontario Disability Support Program Act would move people with disabilities off the welfare system and provide them with greater opportunities for independence…We have been told by people with disabilities that the current system does not meet their needs. They want individuals to be treated individually…. The proposed system would help people take advantage of employment opportunities. It would allow people with disabilities to accept work without worrying about any delay in having their benefits reinstated if they could not continue with the job.” [3]
It is imperative that the Commission recognize the reasons for the creation of two very distinct programs that replaced the General Welfare Act and the Family Benefits Act. Ontario Works is designed to provide temporary financial assistance and the fastest route to employment. People with disabilities, however, are to be treated differently than people in receipt of Ontario Works benefits. The legislation recognizes that because of societal barriers, people with disabilities require a different income and benefits structure, employment and social supports. It is anticipated that people with disabilities will require longer term supports.
Third, we would like to urge the Commission to consider a phased-in approach to any recommended reforms. While certainly less than perfect, the current ODSP program has allowed people with disabilities to meet their basic needs and live with some measure of stability. People with disabilities should not lose their vital income supports through a process designed to improve the social assistance system in Ontario.
In this regard, ARCH supports the thoughtful and expert submissions that you will receive from the Income Security Advocacy Centre and the ODSP Action Coalition.
The Issues
1.Removal of Barriers to Employment and Necessary Supports
The overwhelming consensus during our consultation on this Review is that people with disabilities want to work. If people with disabilities are to move out of poverty through access to employment, the Commission must take the following into account in formulating its recommendations:
the very nature of disability and the challenges involved in working with a disability;
current barriers that prevent access by people with disabilities to the labour market;
the significant discrimination faced by people with disabilities in all aspects of the employment cycle;
lack of accommodation in employment notwithstanding robust human rights guarantees and accessibility legislation; and
stable income support until employment barriers are removed.
i) The nature of disability
Accommodating the needs of a person with a disability requires an individualized approach.[4] Each person’s experience of disability is unique, and cannot be assessed by taking a “cookie cutter” approach. We heard from people with episodic, intermittent or recurring disabilities, who may be able to work some days, but not every day. Moreover, the days and times that the disability may occur cannot be predicted. Given the very nature of these types of disabilities, these people need to work with flexible schedules. We also heard from people whose onset of disability may occur during the prime of their working life, and who might want to continue to work, but need appropriate accommodations, where none was required before. We heard from people whose families were affected by a late onset of disability, and where the family had been able to live on two incomes, they were now reduced to no income, because one member of the family could no longer work as a result of disability, and the other could not work due to the need to provide care giver services to their loved one. Almost all community members that we heard from spoke of difficult obstacles that they regularly face due to social, environmental and attitudinal barriers.
The Courts have provided us with guidance on the interpretation of eligibility under s.4(1) of the Ontario Disability Support Program Act. In The Director of the Ontario Disability Support Program v.Gallier [5]the Court held that each person applying for ODSP benefits must be considered within the context of their own unique situation. This decision supports a social model of disability, and that an individualized approach must be applied in determining eligibility for ODSP benefits.
Moreover in Gray v. Director of the Ontario Disability Support Program[6] the Ontario Court of Appeal held that the current definition of a person with a disability in the ODSPA was intended to encompass a broader segment of society and to provide benefits to those with significant but not severe long-term functional barriers. In addition, because the ODSPA is a benefit scheme, it must be given a large and liberal interpretation, and where there is any doubt, it should be resolved in favour of the applicant for ODSP benefits.
When someone applies for ODSP, one of the legislative requirements under s. 4(1) of the Act is whether a person’s impairment impacts on their ability to work.
All of these issues, taken together, speak to the fundamental recognition that people with disabilities have unique and individual needs that may impact on an ability to function in a workplace. We therefore ask the Commission to adopt the present approach to disability under the ODSPA, and not impose any mandatory work requirements on people with disabilities.
Recommendation 1: The current definition of a “person with a disability” be respected and maintained.
Recommendation 2: Employment activities should be voluntary, and not mandatory, for people in receipt of disability benefits.
ii)Current barriers to the labour market.
We have significant concerns about the availability of jobs for persons with disabilities. Enhancing employment supports is a positive and welcome step, but only if jobs are available for people with disabilities. Available employment with necessary accommodations has not been the experience of people with disabilities.People with disabilities face widespread discrimination in hiring processes.[7] The systemic barriers to economic and social inclusion that confront people with disabilities are recorded in numerous studies and are acknowledged in Canadian jurisprudence. The ODSP Employment Supports Policy makes provision for the important supports and services that the Commission suggests at page 8 of its Discussion Paper 2. The difficulty lies in addressing the many challenges faced by people with disabilities. We believe the Commission has not sufficiently tackled this issue.
The Preamble to the ODSP’s Employment Supports Policy states that:
The Employment Supports Component of the [ODSP] was implemented in January 1999 in order to provide goods and/or services to remove disability-related barriers to competitive employment and assist people with disabilities to prepare for, obtain and maintain competitive employment”.
The type of Employment Supports currently offered under ODSP are intended to meet individual needs, and are supposed to be tailored to individual circumstances, in order to assist in the removal of barriers to employment. These include: the provision of assistive devices; the services of a job coach; modified workplaces; employment or self-employment planning assistance, preparation and training; and on the job training.
Some tools are already in place. But in the experience of persons with disabilities, they have not been enough. Intensive training and skills development for persons with disabilities, some of whom may not have been in the workforce before, are necessary. These must be of a long-term nature, and must encompass both pre- and post- employment. Better co-ordination of support services is also required. Transitional supports and services must be put into place for young adults with disabilities leaving school. Employment supports must be comprehensive. The fact that barriers to employment continue to abound notwithstanding the Employment Supports Policy is evidence, in our submission, that a different approach is required to assist “people with disabilities to prepare for, obtain and maintain competitive employment”.
People with disabilities continue to face significant attitudinal barriers. These are based on stereotypes that ignore the abilities, interests and aspirations of a person with a disability, consider their hire a liability, compare them instead to “able-bodied people”, focussing on what people with disabilities cannot do as opposed to what they do contribute to society. Until attitudinal barriers are removed, people with disabilities will continue to face obstacles to employment. This will require a culture shift in the way that people with disabilities are viewed and treated.
One of the ways that attitudinal barriers can be addressed is by extensive training for both employers and the public in general, who may find a person with a disability as a co-worker. Training must challenge stereotypes based on ableism, audism, and other attitudinal barriers. Self advocates must be trained to deliver the training, as opposed to hiring other “experts” who speak for people who, with supports and services, can speak for themselves. Instead of being viewed as objects of pity or charity, people with disabilities must be accepted as having equal entitlement or right to employment, with appropriate supports and services. Employers must understand and accept that flexibility and accommodating workplaces is the law in Ontario.
People with disabilities are often prevented from entering the labour market due to fear that accommodations will cost too much and/or reduce an employer’s profits. The Commission’s Discussion Paper 2 states that an accommodation fund could be set up to encourage small employers to hire people with disabilities. ARCH supports the establishment of such a fund and urges that details which ensure the sustainability of an accommodation fund be integral to such a program. We further recommend that the design of an accommodation fund be developed in consultation with people with disabilities and with their on-going advice on implementation.
Recommendation 3: Employment supports must be enhanced to benefit the person with a disability to foster independence and an ability to obtain and maintain employment.
Recommendation 4: Extensive training must be implemented for the public and employers that will address attitudinal barriers. This training is most appropriately delivered by self-advocates.
iii)Tools to assess employment readiness
At page 5 of the Commission’s Discussion Paper 2, it is noted that assessment tools are being used by some Ontario Works Administrators to identify where a person is on the continuum of employment readiness. The Commission asks whether a similar tool should be used for persons with disabilities. Our response is an unequivocal no.
A program designed to assess work readiness for persons without disabilities can not be implemented in a program that is designed for those with disabilities. The impact of disability can fluctuate or change from one day to the next. It is difficult to see how one tool can capture the experience of living with a disability for the community of people with a disability.
Our consultation group asked: What will happen if someone has an episodic, intermittent or recurring disability? If they are assessed at one point in their disability cycle, what will be the consequences if their disability recurs? Who will do the assessing? Who will define “job readiness” for each individual? Different disabilities are characterized by social constructs and not the abilities of persons with disabilities. If an in-depth understanding of a particular disability is missing, there is likelihood that assumptions based on stereotypes will be made. Will the assessments be used to reduce benefits if the assessor decides someone is work ready? Will an assessment be used to identify work related activities that will be captured by a participation agreement? Isn’t a person with a disability best placed to know if they are ready to take advantage of the Employment Supports available to them, whether they are job ready, what their interests are, and with the help of a job coach, determine whether the job they would like to do is appropriate and available to them? Would the money spent to develop such a tool be better spent on training and creating jobs for persons with disabilities?