ACCESSING JUSTICE (Part 3 of 4) Reassessments of Disability Tax Credit Applications Many people with disabilities, including Fibromyalgia and Chronic Fatigue Syndrome are being subjected to reassessment of their application for the Disability Tax Credit. This is so, even for many who have been receiving a tax credit for more than ten (10) years. Further, changes in the disability tax credit application form suggest that the government is seeking to limit the disability tax credit to an extremely narrow segment of the disability population. The effect of this apparent shift by the government toward an extremely narrow and exclusive view of eligibility for the disability tax credit would appear to completely ignore the original intent of the tax credit to aide those with disabilities in meeting the added burden of medical expenses and other costs related to disability as well as reduced income on account of disability. Moreover, the narrow approach taken by government in the form T2201 has made it difficult, if not impossible for many doctors to complete the form on behalf of their patients. The reason for this is that the questions in the first part call for yes or no answers. For most people with disabilities, especially those with Chronic Fatigue Syndrome or Fibromyalgia, the answers to questions relating to restrictions in the activities of daily living require more comprehensive explanations than simple yes or no answers. Despite recent changes in the Disability Tax Credit Certificate, which doctors must complete on behalf of their patients, there has not been any change in the definition of disability or the eligibility requirements for the disability tax credit since 1991. As such, a person is entitled to the disability tax credit where they have a severe and prolonged mental or physical impairment that markedly restricts their ability to perform a basic activity of daily living. An impairment is prolonged where it has lasted, or can reasonably be expected to last, for a continuous period of at least 12 months. The person�s ability to perform a basic activity of daily living is markedly restricted where all or substantially all of the time, the individual is blind or is unable, or requires an inordinate amount of time to perform a basic activity of daily living. A basic activity of daily living in relation to an individual means: (i)perceiving, thinking and remembering (ii)feeding and dressing oneself (iii)speaking so as to be understood, in a quiet setting by another person familiar with the individual (iv)hearing so as to understand, in a quiet setting, another person familiar with the individual (v)eliminating (bowel or bladder functions); or (vi)walking The Income Tax Act goes on to further explain that marked restrictions from performing the activities of daily living mean more than simply a complete inability to do housekeeping, social or recreational activities, or to work. The Disability Tax Credit form is divided into two (2) separate sections. The first requires your physician to answer a series of seven (7) questions with yes or no answers. Part (b) permits your physician to provide greater explanation with respect to diagnosis, impairment and functional limitations on one�s ability to engage in the activities of daily living. Unfortunately, many doctors will complete part (a) of the form and then find that they are not able to provide significant answers in part (b) without contradicting their earlier answers. Doctors are best advised to begin completion of the form by completing part (b) relating to diagnosis, degree of impairment and an explanation of the functional limitation of a patient�s disability on their ability to engage in the activities of daily living. The doctor is then best advised to return to part (a) and to answer each of the seven (7) questions in the context of their answer to question (b). As such, it would not be uncommon for a doctor to report in section (b) that the patient experiences Fibromyalgia and Chronic Fatigue Syndrome which is a chronic disability expected to last for greater than 12 months. As such, the condition is prolonged. Further, the condition is a significantly variable condition which means that a patient�s limitations and functions will vary significantly from day to day. However, the patient does remain markedly restricted from performing the activities of daily living on a consistent basis almost all of the time. Moreover, a patient will at times be able to pursue certain activities of daily living but may take an extremely long time to perform these activities and may experience significant flares or a worsening in their condition in the period following the completion of any given activity. In particular, the patient is encouraged to walk for brief periods of time, including for distances of greater than 50 meters where the patient is able to do so. However, there will be significant periods of time in which the patient is not able to do so on account of significant pain and fatigue. Moreover, the patient experiences consistent difficulties with memory, concentration which are attributable to a sleep disorder and chronic fatigue which markedly restricts the patient from engaging basic activities of daily living and which require the patient to spend considerable periods of time, as many as 10 to 18 hours per day in bed. As indicated above, the symptoms will vary from day to day, but are experienced consistently and in a pervasive way by the patient. With respect to feeding and dressing, it may be noted that for some patients they may not be able to even prepare basic meals for themselves and will experience periods of time during which they are unable to dress themselves on account of chronic pain and fatigue. With respect to eliminating bodily waste, patients frequency will suffer from Irritable Bowel and Irritable Bladder Syndromes which can cause patients significant difficulty in attempting to perform activities of daily living in that the patient will be confined to their household or to a place where they are close to washroom facilities. Answers such as those above would be common for many people with Fibromyalgia and Chronic Fatigue Syndrome and could be included as part of part (b) of the Disability Tax Credit Certificate as well as supplementary responses to the questions in part (a) in order to provide those questions with a proper, accurate and non-misleading context. Doctors should be encouraged not to feel compelled to simply answer yes, no answers where those answers are not responsive to the questions posed and where they do not accurately and clearly reflect the nature of a patient�s condition, their restrictions and degree of impairment. Physicians need to understand that they are not the final decision maker with respect to a patient�s eligibility for the Disability Tax Credit. Their role is to provide clear and accurate medical information so as to enable the Ministry to make proper determinations. The Ministry and doctors in completing Disability Tax Credit certificates ought to be guided by case law by the Federal Court of Appeal and other relevant courts with respect to the interpretation of the Income Tax Disability Tax Credit. In the case of Radage v. Canada (1996), the Federal Court of Appeal ruled that the disability tax credit provisions are to be construed liberally, humanely and compassionately, and not narrowly and technically. In the cast of Froese v. The Queen (1998), the court ruled that �It does seem rather strange that the Department of National Revenue routinely ignores certificates by doctors that a patient has a severe and prolonged impairment, but where the doctor, in the fact of all the evidence ticks a box that does not favour the impaired person, this is treated as a conclusive bar to his or her claim. Such an approach is an unacceptable use of technicalities to deny worthy claims. I am not prepared to deny this obviously meritorious claim because of a misplaced tick mark.� Moreover, in Tanguay v. Canada (1997), Judge Dussault took issue with the new Disability Tax Credit Certificate requiring �yes� and �no� responses from the doctor. He noted �I find that, to the extent that one wishes to obtain unequivocal answers, it would appear better to ask complete questions containing all the elements stated in paragraph 118.4(1)(a)(b) of the Act.� An important point to be made is that inability to perform basic activities of daily living does not mean that a patient must be unable to perform each and every one of the basic activities of daily living. On the contrary, if it can be demonstrated that a patient is substantially unable to perform one (1) basic activity of daily living because of a severe and prolonged condition then this may be enough to satisfy the standard under the Income Tax Act. Many doctors have difficulty completing the Disability Tax Credit Certificate on behalf of their patients for fear of allegations of fraud or professional misconduct against them. Doctors should be encouraged to use their best professional judgment and common sense to clearly answer the basic question posed by the Income Tax Act as to a patient�s marked restriction from performing one (1) or many basic activities of daily living as a result of a severe and prolonged disability. In order to ensure fairness in the adjudication of Disability Tax Credit claims, it is imperative for physicians to feel comfortable to provide comprehensive, accurate and meaningful medical information based on their education, training and experience in order to best enable the Ministry, or the courts, to properly adjudicate these claims. In this respect, doctors should not feel constrained by the specific wording of the questions on the Disability Tax Credit Certificate. By contrast, professional responsibility and common sense obligates doctors to provide clear, comprehensive and accurate medical information on behalf of patients when completing these forms. While Parliament�s intent in changing the form of the Disability Tax Credit Certificate may be to eliminate thousands of disabled Canadians from receiving a disability tax credit, patients and physicians should complete their application for the tax credit in a clear, comprehensive and accurate fashion, providing as much detailed information and evidence about a patient�s medical condition to assist the Ministry to make a proper determination as to the application of the Income Tax Act in each case. |
back |
next |