HUMA Committee Report

Accessibility of Canada Pension Plan Disability Benefits

In June 2003, the Standing Committee on Human Resources Development and the Status of Persons with Disabilities published an in-depth assessment of the Canada Pension Plan Disability (CPP-D) Program ^[6]. In its response of November 2003, the government made a commitment to implement a number of recommendations and to report to the Standing Committee regularly on its initiatives. The first progress report was tabled on 20 April 2005, by the Hon. Ken Dryden, Minister of Social Development ^[7].

The Subcommittee wants to emphasize the effort that has been made, and greets with special enthusiasm the automatic reinstatement of benefits. This modification to the CPP-D enables clients who have stopped receiving benefits after resuming employment to have their benefits reinstated, without a new application or reassessment, if they find themselves incapable of continuing to work because of a recurrence of their disability within two years of the date their benefits ceased.

A number of problems continue however to complicate the administration of certain aspects of the CPP D. Among these problems the Subcommittee found two that the government should prioritize. The first is the disconnection between the work done by physicians and that done by the CPP D’s nurse adjudicators. The second is the lack of clear statistical data on reasons for rejecting benefit applications and on the economic consequences of such rejections.

The Role of Physicians in Assessing Benefit Applications

Under the Canada Pension Plan legislation, beneficiaries of disability benefits must (1) be under the age 65; (2) have contributed to CPP for a minimum number of years; and (3) have a “severe and prolonged” disability that makes them “incapable regularly of pursuing any substantially gainful occupation,” which usually means that beneficiaries must be incapable of holding down any employment, of any kind whatsoever ^[8].

When it comes to determining an applicant’s eligibility for disability benefits, there seems to be some ambiguity about the relative importance of the medical report and the judgment of the CPP-D adjudicators, who are not themselves physicians. The applicant’s physician provides medical information that assists the adjudicators in determining the applicant’s eligibility. An adjudicator may decide that the applicant is not eligible for benefits even if the physician’s judgment was favourable. This leaves the distinct impression that the CPP D adjudicators, who are normally nurses, interpret the data provided by the physician in a manner that dismisses his or her judgment, and moreover do so without ever having met the patient.

The explanations given by representatives of the Department of Social Development hinged on the fact that CPP D adjudicators are specialists in the application of the Program’s complex criteria, which physicians are not. According to these representatives, it would not be reasonable, from the public finance standpoint among others, to call on physicians to administer the Program. It is therefore preferable to limit their role to simply providing objective medical data, and leave judgments about eligibility to specialists in the Program’s complex criteria ^[9].

In the opinion of the Subcommittee’s members, this explanation is not satisfactory. It implies that physicians are not competent to judge their own patients’ fitness for employment, while on the other hand making the assumption that CPP D adjudicators are entirely competent to interpret medical data provided by physicians.

Two quite simple factors are getting in the way of integrating the work of physicians and CPP D adjudicators. The first factor is of course the absence of physicians on the adjudication team responsible for determining applicant eligibility. In the 1980s, decisions on eligibility were made by a two-person panel, of whom one was a physician ^[10]. In Quebec, where an equivalent system is administered separately, the analysis of medical reports used to determine eligibility for disability benefits under the Quebec Pension Plan is entrusted to a team of physicians ^[11]. This approach avoids a situation where a physician’s judgment is overturned by someone who is not a physician.

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RECOMMENDATION 4

The Subcommittee recommends that no application for disability benefits under the Canada Pension Plan be rejected for medical reasons without this rejection being a decision made by a physician.

The second factor involves the medical report form that must accompany the benefit application: it does not contain a single question that would allow the physician to give an opinion on his patient’s ability to hold a job. By contrast, the Quebec Pension Plan medical report form contains a number of questions that ask the physician to evaluate the patient’s fitness to work. Far from constituting the usurpation by physicians of the CPP D’s administrative authority, a similar approach would perhaps be more likely to encourage a productive exchange between physicians and CPP D adjudicators.

RECOMMENDATION 5

The Subcommittee recommends that the medical report form accompanying an application for Canada Pension Plan disability benefits be amended to include at least one question allowing the applicant’s physician to give an opinion on his patient’s ability to hold a job.

Lack of Statistical Data

The Department of Social Development does not compile data that would make it possible to determine what happens to the 30,000 people whose applications for disability benefits are rejected every year ^[12]. The Subcommittee’s members are in no way claiming that these people should have received benefits, or that they are all without any means of support. The members are however troubled by the fact that this issue does not seem to be of concern to the administrators of the CPP D.

Such data would for example make it possible to know what proportion of CPP D benefits constitute an alternative to social assistance for the applicants. If it should turn out that a significant proportion of rejected applicants are living below the poverty line, a mechanism could be introduced to prevent these people from finding themselves on the street.

The absence of public data on the reasons for denial of benefits is also of concern to the members of the Subcommittee. Such data might help the administrators of the Program identify which eligibility criteria are less well understood and adjust their communication plans accordingly.

RECOMMENDATION 6

The Subcommittee recommends that the Department of Social Development compile statistical data, on an ongoing basis, on the reasons for rejecting Canada Pension Plan disability benefit applications, as well as on rejected applicants’ socio economic circumstances.

Accessibility of Modes of Transportation Under Federal Jurisdiction

With the passage of the Canada Transportation Act in 1996, the regulations on accessible transportation for persons with disabilities were replaced by voluntary codes of practice. Advocacy groups for the rights of persons with disabilities, in particular the Council of Canadians with Disabilities, argue that this decision by Transport Canada completely nullifies the power of the Canadian Transportation Agency to regulate the accessibility of transportation. Partly to protest Transport Canada’s refusal to return to regulation instead of relying on voluntary codes of practice, the Council of Canadians with Disabilities withdrew from the Transport Minister’s Advisory Council on Accessible Transport, of which it had been a member since 1979.

The instances most frequently invoked in support of this position are:

• VIA Rail’s retention of its Renaissance passenger rail cars, even though the Canadian Transportation Agency had ordered VIA to eliminate 14 undue obstacles in the cars; ^[13] and
  
  
• Airline carriers’ use of inaccessible regional jets for routes that had previously been served by larger aircraft.

In the first of these instances, the Federal Court of Appeal overturned the Agency’s decision in March 2005 ^[14], but the Council of Canadians with Disabilities has appealed the Court’s ruling. In the second, at least one law suit is still under consideration by the Agency. For the members of the Subcommittee, the fact that airline travel has become inaccessible for important interprovincial routes, and rail travel made more difficult, is a very serious concern that they will examine more closely.

In response to questions from members of the Subcommittee, who wanted Transport Canada’s representatives to explain why voluntary codes of practice should be preferred, the representatives argued that they could not comment on matters that are before the courts or the Agency ^[15].

While the Subcommittee’s members understand that certain legal constraints may prevent Transport Canada from presenting its position in detail, they are not convinced that Transport Canada is sincerely committed to greater accessibility for persons with disabilities. The Department’s representatives displayed no intention of taking prompt action in this matter.

The Subcommittee has not carried out a study that would enable it to assert that regulatory measures are necessarily more beneficial than the voluntary approach, but the members note that the government has not developed any well-supported arguments for its position, unlike the advocacy groups for the rights of persons with disabilities. The latter have found convincing evidence that voluntary measures are ineffectual. The Council of Canadians with Disabilities in particular has carried out a serious comparative study. It demonstrates that Canada’s approach runs counter to initiatives developed in a great many countries where accessibility is now much better than it is in Canada ^[16].

The Transport Canada representatives said that they were currently studying systems in other countries. However, the study process appears to lack transparency and has neither a fixed deadline nor a clearly-defined methodology ^[17]. In the Subcommittee’s opinion, the seriousness of the problems raised demands much more energetic action on the part of Transport Canada.

RECOMMENDATION 7

The Subcommittee recommends that the Minister of Transport immediately order an independent study of the comparative advantages of the regulatory and voluntary approaches to improving accessibility for persons with disabilities to modes of transportation under federal jurisdiction.

The parameters of this study should be determined by the Minister of Transport’s Advisory Committee on Accessible Transportation, and presented to the Subcommittee on the Status of Persons with Disabilities. It should take into account the experiences of other countries. With an irreproachable methodology, the study would serve as a basis for discussion in which the viewpoints of government, advocacy groups for the rights of persons with disabilities and the Canadian transportation industry could all be voiced, in order to arrive at a long-term solution by no later than 2007.