Anyone? Anyone at all? Yeah, I thought so.
For those of us so blessed, how many have been told that the amount of respite available to your family member is capped at a certain amount or that the Department of Community Services will only pay $10 per hour for respite workers and, if yours happen to charge more, well, so sorry but you will just have to make up the difference yourself?
I see those heads nodding.
How about this one - anyone ever been told (and I mean told) that the government is not obligated to provide these programs, that they do so voluntarily. With the implicit undertone being Do. Not. Rock. The. Boat. Do. Not. Push. Us. Too. Far. Or. You. Will. Find. Yourself. Without. Any. Help. Whatsoever.
Well, then, you're sure to really appreciate this March, 2011 decision from the Nova Scotia Supreme Court. Check it out. You're going to love it. Trust me.
But first, let me ask you this - how many times have I suggested that we need to help one another, to stand and work together when it comes to getting the system to meet the needs (and respect the rights) of individuals with disabilities and their family members? I only ask because, to me, this decision is a prime example of just how (and why) that works.
Anne Boudreau went to court to get her son and herself the help they desperately needed, the help the government refused to provide. But in winning a victory for Brian and her family, she also won a victory for you. For me. For all of us. Which explains exactly how I view the world - anything I do for one of my children, I do for other children. And anything I do for another child or family, I do for my children and family.
Brian Boudreau has autism and requires 24/7 care. To assist with this, his mother received money to pay for part-time and full-time personal care workers from the Services for Persons with Disabilities (SPD) Program. But the Boudreaus were unable to keep these workers because they couldn't pay a sufficient hourly rate. Needless to say, this constant turnover was not in Brian's best interests, particularly given his very high level needs.
Receiving funding of only $10 and $12 per hour respectively for part-time and full-time workers [the hourly rates set by the Department, which have remained unchanged since 1998], when the average hourly wage in their area was $14 per hour plus benefits, it shouldn't have surprised anyone when they went through seven workers in the span of one year.
Her request for extra funding to allow her to pay $12 and $15 respectively to the part-time and full-time PCWs denied,
["As you know the Direct Family Support program bases its respite amount on $10 per hour. Unfortunately Services for Persons with Disabilities (SPD) staff have not been authorized to increase this hourly amount at this time. In regards to the possibility of increasing your monthly amount, in order that you can use the additional funding to pay extra per hour, SPD has not been authorized to allow any increases which result in payments exceeding $2200 per month. As Brian’s current respite allowance already exceeds $2200 per month no increase may be authorized at this time."]Mrs. Boudreau appealed. And although initially unsuccessful, she was successful at the second appeal level, to the Assistance Appeal Board.
The Board found that although neither the directive [in November, 2009 a directive had been issued from the Director of the SPD program limiting DFS program approval levels for respite funding to $2200 per month] nor the policy [which also limited DFS respite funding to $2200 per month] supported the appeal, neither was there any Regulation under the Act to support the directive or the policy. [You can find a discussion of how that interaction works from a legal point of view here.]
Instead the Regulations provide a guide to the intention of the Act, which allows for variance from policy and directive when it was in the best interest of the client. Sound familiar?
Not surprisingly, this result did not please the Department, who promptly took the matter to court.
Because the Board had found that Brian was entitled to the additional funding under the Employment Support and Income Assistance Act (ESIAA), one of the issues before the court was which of the three possible pieces of legislation [the Employment Support and Income Assistance Act (ESIAA); the old Social Assistance Act ("SAA"), which was effectively gutted when the ESIAA was proclaimed; or the Homes for Special Care Act] govern the SPD Program. Or, perhaps it was as the Department argued, that the Program is something done out of the goodness of their heart, with absolutely no legislative authority?
For those of us less legally inclined, I am going to provide the summation of what this case actually decided here. Those with interest can read on to see how the court came to the conclusions it did.
In other words, pay attention. Here's the important part.
In the words of Mr. Calderhead*, the Boudreau decision is very important for at least four reasons.
- It settles, once and for all, the question of whether the SPD program is authorized by legislation (it is!) and which legislation (the Social Assistance Act and the Municipal Assistance Regulations).
- It makes it clear that there is nothing voluntary about the SPD program. That is, once eligibility for services has been shown/accepted, a legal entitlement arises automatically.
- Further, as with any other “assistance” under the Social Assistance Act, eligibility triggers not just a right to that assistance but one that is to be immediately provided.
- Generally, the SPD Program will fall under the ‘special needs assistance’ provisions in the Social Assistance Act and, in situations where the legislation does not stipulate a maximum amount for such assistance, the Department should be paying “reasonable” amounts sufficient to meet the need.
Now, for those of you brave enough to venture further, you can READ MORE.