On March 21, 2019, the Liberal Government announced its plan to spend $253.8 million to make structural changes to the Social Security Tribunal over the next five years. The government official who oversees CPP disability and Social Security Tribunal, stated that these changes were in response to feedback from key stakeholders, including unions and employer groups.
My perspective is that of a lawyer who represents people in CPP disability appeals before the Social Security Tribunal. I was not involved in the stakeholder meetings, and have have no insider knowledge about the proposed changes. I have written extensively about the CPP disability program, and you can learn more by reading the Beginner's Guide to CPP Disability, online edition.
We don’t know all the details yet, but I expect the biggest change is the return of three-person panels as the first layer of appeal within the Tribunal. These panels will likely include a lawyer, a health professional and a member of the public. Panel members would be appointed by the Government to the Social Security Tribunal. Currently, the first level tribunal hearings are run by a single tribunal member (judge), who is usually a lawyer. So, basically they are replacing the single judge with a three-person panel. The panel members will work together to come to a joint decision. It is possible that many of the current tribunal judges, will serve on the new three-person panels.
The Government announced that the Social Security Tribunal would keep the current structure of having two levels of appeal. The first level is a hearing of the evidence before a three-person panel. The second level would be an appeal of the panel's decision to a single judge. So, there will continue to be only one hearing where a person can present evidence and give testimony (three-person panel hearing), and the second appeal (before single judge) will focus on whether the panel made a mistake with the facts, law or both.
The March 21, 2019 announcement focused on the Tribunal, so we don’t expect any changes to the current process for CPP disability applications or reconsideration appeals within Service Canada.
How these changes will affect you:
These changes will be rolled out over the next five years. There will be a date when the new system takes effect and until then you will continue to use the current system. We don't know when the new three-person panels will start, but we expect it will take months for the government to get these panels in place.
If you are already appealing a CPP disability denial, it is likely that your appeal will continue under the current system. You would use all the current forms and you would likely have a hearing with a single tribunal judge, rather than the proposed three-person panel.
If you haven’t already applied for CPP disability benefits, then it is possible your appeals will fall under the proposed new system when (and if) you appeal to the Tribunal.
Concerns with Proposed Changes
Overall, I don't have major concerns with the proposed changes. I believe the move to a three-person panel will be a positive thing for CPP claimants. Having three decision-makers with different backgrounds and perspectives should lead to better decisions. This type of collaborative decision-making will also reduce the risk of individual bias playing a role in a claim decision.
I don't see how moving to a three-person will save time or make the system more efficient. But I will keep an open mind and wait to see how the new system will work.
I have some minor concerns, which I will discuss below. We don't know all the details so it is possible these concerns will not come to pass:
Reduced time to prepare for hearings
With a goal to speed things up, I am concerned that the Government will shorten the time people have to send in documents before their tribunal hearing. Failing to present the right documents to the decision-maker is one of the most common reasons an otherwise legitimate CPP disability claim will be denied. So, any changes that make it harder for people to get documents in on time, has the potential to cause problems.
The three-person panel is based on the old Review Tribunal System that was in place before April 2013. Under that system, people had only ninety days to send in all their documents before their tribunal hearing. On the other hand, under the current system, people have up to one year to send in their documents. You don't need to take the full year, but you have it if you need it. With the three-person panel, we expect the government may also bring back the old ninety-day deadline for sending in documents. Ninety days may sound like a long time to send in documents, but it really isn’t. It can take months to get medical files or reports from doctors, even if you get started right away.
If we return to a ninety-day deadline for documents, it will be even more important for people to start preparing earlier. People will need to order key documents much earlier, during their reconsideration appeal. Unfortunately, many people who represent themselves will not do this, so there needs to be better education to raise awareness on the importance of getting documents early.
Reduced options for hearings
With a return to the three-person panels, I am concerned the government may require all hearings to be done in-person. Under the current system, people have the choice to have their tribunal hearing in-person, by teleconference, by video-conference, or by review of the documents only.
Like many, I was skeptical when teleconference and video-conference hearings became an option in April 2013, but they turned out to be a pleasant surprise. I have represented many clients who preferred to have their tribunal hearing done by teleconference because of difficulty with mobility, anxiety or other medical reasons. For example, I successfully represented a man who lived in the middle of the Yukon wilderness and had mobility issues that made travel difficult. We used the teleconference hearing option because that made the most sense for him. He also would have been unable to find a representative if the teleconference hearing had not been an option.
In-person hearings are ideal in may situations, but we should not presume that they are always the best option for everyone. We hope the Government will continue to allow people the option to choose teleconference or video-conference hearings.
We will continue to update this article as more information is known. Overall, I expect the change to a three-person panel will be a positive development. I like the idea of the panel members bringing different perspectives to the hearing and their decision. I have concerns about the potential for reduced time for people to send in documents, but that can be managed by better educating people to start collecting documents earlier. Finally, I know that Paul Aterman, the current chairperson of the Social Security Tribunal, wants to make the Tribunal more client-centered in its operations. I hope the Tribunal will continue to offer a variety of hearing choices (i.e., in-person, teleconference, and video-conference) as part of its client-centered mandate.