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Legal Clinic Practice_ Managing the Monster-ODSP ...

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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 practiceContinuum of services: summary advice, brief services, representation, law reform, public education and community organizingService provided according to need of client and communityWhere advice or brief service doesn’t resolve- full representation availableCommunity Boards of Directors determine priority areas of service and balance of types of service.
Traditional Clinic Practice
Recent ChallengesContinued 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 subsistence60% of appeals are granted by Social Benefits TribunalInitialimpact -pushed out other areas of practice (reduced services in housing, WSIB, immigration)
Traditional Clinic Practice
Recent challengesLAO eliminates certificates for poverty law services-private bar used to be available for “overflow”Clinicsbecome responsible for delivery of all povertylaw services- when clinics say no, no alternative availableClinic provincial strategic plan- looking beyond our usual borders (catchment areas) to achieve social justice
Grappling with Service Decisions
ProblemVolume of demand greater than clinic resources for full representationEven clinics where 80% of clinic practice devoted to disability appeals resources are insufficient to meet the demandDisability 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 formsOrganizing the evidence and legal argument re: relevance of medical evidenceAssess whether client has capacity to proceed without counsel- prepare them for hearing- new video from Hamilton ClinicMeans we rely on the Tribunal to conduct the hearing without the benefit of counsel
Guided Assistance Programs
Adapting to the new programCommunication 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 TribunalActive 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 thingsgowrongTribunal may adjourn and refer back to clinic where it is clear client cannot proceed without assistanceNegative decisions - clinics are available for reconsideration applications where appropriateISAC is available for Divisional Court Appeals where appropriate (cases have been settled after filing of factum)
Looking upstream: clinic role
Clinic Law ReformSystemic approaches – ISAC in partnership with Steering Committee on Social Assistance- voicefor clinicsClinics submit that60%reversal rate by Tribunal indicates a problem with initial processClinics advocate with government for changes to application and adjudication processes – we submit thatmany disabilityappeals flow from flawed application processProcedural issues: clinics advocate for earlier availability of reasons for decision and disclosureSubstantive issues: application of disability test in statute and how applications are adjudicated.
Looking Upstream: Tribunal Role
Tribunal stakeholder engagementSBT’s Practice Advisory Committee: non-adjudicative issues can be addressed in an ongoing processTribunal convened tripartite discussion with clinic representatives and Ministry to address upstream issues and consider pilot project to reduce workload and enhance access to justiceTribunal develops earlyresolution processpilot for “medical reviews” in partnership with institutional parties and representatives.





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Legal Clinic Practice_ Managing the Monster-ODSP ...