Rethinking The Ontario Disability Support Program Act

By: Anchal Bhatia, 2L Student, Windsor Law

ODSP is based on asking people with disabilities to constantly prove their struggles. It is time we rethink the ODSPA.

In May 2015, there were significant discussions surrounding the backlog of medical reviews for people on the Ontario Disability Support Program (ODSP). The Toronto Star featured an article regarding disability welfare reviews and one on the difficulty of maintaining benefits that indicate the impact of the intensive review process. Despite the focus on disability reviews and how the most vulnerable people could lose their right to benefits being received, the articles indicate that similar risks exist within the initial process of applying for disability eligibility. This is because current process is inefficient: it does not account for the possible barriers experienced by recipients, is detrimental to the wellbeing of beneficiaries, and creates and perpetuates a discriminatory environment.

The Ontario Disability Support Program Act (ODSPA) provides the raison d’être for the Ontario Disability Support Program (ODSP). The Act and its regulations describe who is eligible for ODSP, and its procedural process. The ODSPA defines a person to be one with a disability if: (a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more (b) the direct and cumulative effect of the impairment on the person’s ability to attend to his or her personal care, function in the community and function in a workplace, results in substantial restrictions in one or more of these activities of daily living and (c) the impairment and its likely duration and the restriction in the person’s activities of daily living have been verified by a person with the prescribed qualifications. Fifty percent (50 %) of applicants are rejected on these criteria because they are found to not have a substantial restriction. Though the limitations only have to apply to one or more daily activities, adjudicators refuse disability benefits, claiming the person can avoid specific restrictions and therefore imply an individual is not “disabled enough”. Even those who are granted benefits are assumed to be able-bodied individuals at their medical review and must prove again that they are eligible under the Act. An individual has to complete a medical review if they have been selected as one of the 600 per month the government wants to review or if their decision had a review date decided by the adjudicator. The articles illustrate how inefficient the process is for those receiving disability benefits. For instance, gathering evidence for the application may be nearly impossible because of transient relations with healthcare providers. This prevents benefit recipients from collecting adequate evidence to meet the qualifications under the Act. Similarly, these barriers may exist for those applying for ODSP for the first time.

The articles speak about how gathering evidence can impede wellbeing, and that the process is extremely detrimental for individuals who lack the information, support or guidance. Yet, it can be equally detrimental for those who have support. It can be frustrating and patronizing to have abled individuals decide what is “enough” of a disability. ARCH submits there should not be distinctions on ability to work, or severity. They argue that such distinctions create arbitrary and discriminatory assumptions; leading people who have “non-severe” disabilities but face major barriers to employment or social inclusion to fall to the wayside. However, the analysis of severity is the cornerstone of the ODSPA. Adjudicators use their discretion to determine if the individual has a substantial enough restriction. Those not determined to have a disability lose out on essential benefits that decrease barriers; not being validated has also led to emotional instability. The system places an onus on the individual to fit into society. In addition to the invalidation, applicants are penalized when they are able to find strategies to circumvent the full impact of their restrictions because they are not seen as disabled enough. This leaves a very narrow definition of who is accepted as deserving of state support.

It is time to radically revise the starting premise for disability support eligibility to put more faith in those who self-identify as persons with disabilities. From the perspective of the government it is difficult to balance their limited resources with and ever growing need for these benefits. However, if we started at the position of accepting all applicants as disabled, it would be easier to strike that balance. It would support a more social model of disability because it would be assume every individual faces barriers and so the process itself would need room for accommodation. This is more aligned with the purpose of the ODSPA that “recognizes that government, communities, families and individuals share responsibility for providing such supports”, shifts the onus on how to remove barriers and dispel beliefs about people with disabilities being lazy and manipulative. Therefore, while the process may have frustrating aspects, there would be a positive shift in how people with disabilities are viewed. It would hopefully also show that abled-individuals are not indifferent to the plight of those who face a disability

This starting point of the process would be to examine each case on an individual basis to understand what accommodations are needed, instead of providing benefits with broad strokes. By acknowledging everyone has a disability; individuals might still be denied because they do not have enough of a financial need or directed elsewhere for accommodation The key question is would it be less frustrating than being told you are not disabled and therefore do not deserve accommodations. By validating someone’s truth, it can help reduce the emotional effects that exacerbate illness and impairments and show that our society is genuinely attempting to become more inclusive. It would encourage abled-focused institutions and ODSP to accommodate to the point of undue hardship, as promised in the Human Rights Code.

That is not to say the process has to no room for reviews; however, they shouldn’t be conducted with the purpose of trying to find those who are no longer eligible for the benefit, but rather to ask how the needs of the recipient has changed. This is different than the 2011 Social Assistance Review in Ontario (Brighter Prospects: Transforming Social Assistance in Ontario) which suggests various benefits that go beyond on the realm of simply supplementing income to A system that takes the time to understand what accommodations are needed for a particular person’s case might realize that they need money temporarily but are in more need of the employment program. A screening process that allows for a more complete picture of the person’s life is required. For example, the ability to allow non-health practitioners to provide evidence regarding an individual’s restrictions because not everyone has consistent doctors who know to speak of those details.

The articles emphasize the need for an efficient process, but it is also time to remove the discriminatory viewpoint that the legislation holds. Before any reform can take place extensive consultations should occur on how the process can make individuals feel validated and supported while making hard decisions on how resources can be effectively shared. The consultations from 2011, focused greatly on improving the current system to make it more effective. While that will continue to be a feature, there needs to be a shift of perspective tobeing more accepting of peoples’ truth and finding concrete ways to ensure that is occurring. But, reforming the legislation to allow room for accepting everyone who identifies as disabled would be beneficial in reducing the agony that is present with being told you do not understand your own experiences. After all, what is being said when ODSP sends a letter stating the applicant is not disabled after engaging the applicant in such an extensive process.

An individual-focused system may seem to make the job too large and more tedious. In the beginning the process might be difficult, but with time, it would hopefully become easier and faster to employ. In addition, while examining individuals’ specific needs, creative solutions will arise that allow for the integration of other systemic programs to ensure equality and further inclusion for people with disabilities. It is also possible that accepting all applicants as disabled may not be enough to reduce frustration for a significant amount of people with disability, but I do believe that by at least starting the discussion, the door to more genuine integration will be opened.