Author Topic: Veterans Ombudsman Says Rules. Agent Orange Ex Gratia Payment Are Unfair  (Read 1367 times)

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Office of the Veterans Affairs Ombudsman

December 22, 2011 15:06 ET
Veterans Ombudsman Says Rules Used by Veterans Affairs Canada to Determine Eligibility for the Agent Orange Ex Gratia Payment Are Unfair

OTTAWA, ONTARIO--(Marketwire - Dec. 22, 2011) - Today, Canada's Veterans Ombudsman Guy Parent renewed his call to Veterans Affairs Canada to grant Agent Orange ex gratia payment claims that are being denied to eligible claimants. Parent says that the claims in question are based on eligibility criteria that are clearly not compliant with the intent of the Order in Council (SI/2007-87 and SI/2010-96) that established the Agent Orange ex gratia payment.

"Veterans Affairs Canada is denying claims from caregivers based on a very narrow interpretation of the Order in Council concerning the definition of a 'primary caregiver' and 'principal residence'. The definitions used by Veterans Affairs Canada would not withstand public or legal scrutiny. This is nothing short of scandalous!" said Parent. "One wonders how many other individuals have been denied the ex gratia payment unfairly."

Since November 8, 2011, the Office of the Veterans Ombudsman has received a number of requests for assistance from applicants whose claims for the ex gratia payment have been denied by the Department. In one case, the widow of a man who met the eligibility criteria was denied payment on the grounds that she was not the primary caregiver because her husband was in a long-term care facility at time of his death and she did not live with him at the facility despite the fact that this spouse of 50 years continued to live in the principal residence that she shared with her husband for 23 years and continued to attend to his needs for the 17 months that he spent in the facility. Moreover, his name was still on the deed of the principal residence at the time of his death; he continued to receive mail there; and his personal belongings remained within the home.

"No one questions the need for eligibility criteria: Canadians have a right to demand that programs funded with their tax dollars are administered well, and determining who is eligible for programs is part of that," said Parent. "But eligibility criteria must respect the spirit of the legislation to which they refer. The policies pertaining to primary caregivers developed by Veterans Affairs Canada to administer the Agent Orange ex gratia payment do not do that."

The Order in Council defines a primary caregiver as someone who "immediately before the individual died, (a) was primarily responsible, without remuneration, for ensuring that care was provided to the individual; and (b) for a continuous period of at least one year, resided in the principal residence of the individual and maintained the individual or was maintained by the individual."

"The widow in question ensured that her husband received the care that he needed by placing him in a facility when she could no longer care for him at home, and she visited that facility every day to assist staff where possible," said Parent. "Unfortunately, the Department narrowly has interpreted the Order in Council to mean that care must be provided directly by the caregiver."

As for the definition of 'principal residence', Veterans Affairs Canada has again narrowly interpreted the Order in Council by claiming that the caregiver must have lived in the same home together with the individual for an on-going period of at least one year prior to the individual's death. In this case, the Department concluded that the long-term care facility was the husband's primary residence. There is no requirement in the Order in Council for spouses to physically live together under the same roof and the Department's definition of 'principal residence' is at odds with provisions of the Income Tax Act.

Based on this narrow interpretation, Veterans Affairs Canada concluded that the widow did not meet the definition of primary caregiver and denied her claim. "It is clear that this spouse meets the intent of the Order in Council and is being unfairly denied the Agent Orange ex gratia payment," said Parent. "This is unfair!"

The Office of the Veterans Ombudsman is also raising questions about a number of other cases where individuals were denied because they did not meet the criteria for extenuating circumstances for late applications. Many of these applicants have provided very legitimate reasons for being late. One case, where the Office was successful in getting the Department to reconsider its decision, involved a serving member of the Canadian Forces on mission in the Middle East. "It is difficult to think of a more valid reason than that for being late," said Parent.

Backgrounder

Definition of 'primary caregiver' and 'principal residence' for the Agent Orange ex gratia payment

The Agent Orange Ex gratia payment was established by Order in Council (SI/2007-87 and SI/2010-96). The Order in Council defines 'primary caregiver' and 'principal residence' as follows:

"primary caregiver" in relation to an individual, means the adult person who, immediately before the individual died,

(a) was primarily responsible, without remuneration, for ensuring that care was provided to the individual (emphasis is our own); and

(b) for a continuous period of at least one year, resided in the principal residence of the individual and maintained the individual or was maintained by the individual (emphasis is our own) http://gazetteducanada.gc.ca/archives/p2/2007/2007-10-03/html/si-tr87-eng.html

Veterans Affairs Canada defines "primary caregiver" and "principal residence" as follows:

The definition of a "primary caregiver" means you were the adult who, at the time of death, was primarily responsible for caring for an eligible individual and you did not receive a wage for providing this care. You must have lived in the same home together for an on-going period of at least one year prior to their death and you must have provided financial and emotional support to him or her, or have received that same support from him or her. http://www.veterans.gc.ca/eng/services/pensions/orange/qa_qr#01

A primary caregiver is defined as an adult who:

1) was primarily responsible for caring for the individual, at the time of death (emphasis is our own);

2) was not receiving a wage for providing this care;

3) was living in the same home as the deceased individual for an on-going period of at least one year prior to the individual's death (emphasis is our own); and

4) was providing financial and emotional support to the individual or received that same support from him or her at the time of death.

To be eligible for the ex gratia payment as a primary caregiver, all four of these requirements must be met.

When the Office of the Veterans Ombudsman asked for clarification, the Department provided the following response:

For the purposes of the ex gratia payment a resident is a person who ordinarily lives at a place that has always been, or that has been adopted as, his or her dwelling place, and to which the person intends to return when away from it. A person can only have one place where he or she is a resident and it cannot be lost until another is gained.

Where an individual applies as a primary caregiver of someone who lives at a different address (i.e. a manor or nursing home) the person is not eligible as she/he does not meet either part of the definition of a primary caregiver; that is, immediately before the individuals death she/he was not providing care to the individual and did not live in the primary residence of the individual.

Position of the Office of the Veterans Ombudsman

The Office of the Veterans Ombudsman argues that "ensuring that care was provided" does not mean that the primary caregiver is directly responsible for providing the care. The Office of the Veterans Ombudsman argues that there is no requirement in the Order in Council for the spouses to have lived in the same physical location together, as inferred by the Department's definition. Furthermore, the Office contends that the Department's definition of 'principal residence' is not consistent with the definition of 'principal residence' provided under Section 54 of the Income Tax Act.

Instead of liberally interpreting the Order in Council for the Agent Orange ex gratia payment, Veterans Affairs Canada has applied rules that limit accessibility.
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