| Jun 12, 2008

Legalese - June 12, 2008

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Legalese - June 12, 2008 Special Diet AllowanceWilliam A. Florence, Barrister and Solicitor, Rural Legal Services

Those in receipt of Ontario Works, and income support from the Ontario Disability Support Program, are able to apply for a “Special Diet” Allowance. If the recipient has a medical condition for which a qualified medical practitioner prescribes the need for a Special Diet, additional assistance may be provided. The amount that the recipient may receive is determined pursuant to a chart, (called the Special Diets Schedule), that lists different medical conditions, and the additional amount of assistance that the recipient may receive for each of the medical conditions. The maximum amount of additional assistance that may be provided is $250 per month. If the medical practitioner indicates that the recipient has more than one of the medical conditions included in the Schedule, a cumulative total of additional assistance will be calculated, capped at $250 per month. The Special Diet program does not cover items that the Ontario Drug Benefit Program provides.

If you are in receipt of social assistance and you want to apply for this Allowance, you should contact your worker, and ask for an application form. If you are already in receipt of a Special Diet Allowance, but you believe that it is inadequate to meet your needs, it may be possible to appeal the amount that you receive. As well, if you have been denied coverage for a Special Diet Allowance because your specific medical condition does not appear in the Schedule, or if you were previously entitled to a Special Diet Allowance and no longer are, then similarly you may be able to appeal that decision.

There are currently two venues to appeal Special Diet decisions. One is the Social Benefits Tribunal, (the “SBT”). The SBT hears appeals of people who disagree with a decision that affects the amount of, or their eligibility for, the social assistance they receive from Ontario Works or the Ontario Disability Support Program. The other venue of appeal is the Human Rights Tribunal of Ontario. As of March, 2008, 77 Special Diet cases have been referred to the Human Rights Tribunal. The basis of the complaints is that the Special Diet program discriminates on the basis of disability. At this point, it appears that appeals of Special Diet Allowance at the Social Benefits Tribunal may be adjourned, pending the outcome of the cases at the Human Rights Tribunal. There is broader remedial jurisdiction at the Human Rights Tribunal, and its human rights expertise may make it a more promising place for the Special Diet appeals to be heard.

Many of the appeals that have been filed relate to changes in the Special Diet program made by the Ontario government in 2005. Prior to the changes, medical practitioners were able to utilize more individualized assessments of dietary needs for their patients. After the changes, medical practitioners are now required to simply select from a list of medical conditions, each of which have pre-determined allowance amounts. A difficulty that this raises is that two patients with the same medical condition may have different special diet needs, due to factors such as age, or how far their disease has progressed. The medical practitioner would not be able to account for these differences when prescribing the Special Diet. In addition, medical conditions that were previously covered by the Special Diet Schedule are no longer covered. For instance: multiple sclerosis, lupus, multiple chemical sensitivities, arthritis, irritable bowel syndrome, cerebral palsy, and chronic fatigue, are no longer included in the Schedule.

Many individuals were adversely affected by these changes, and therefore appealed the decision which reduced, or eliminated, their Special Diet Allowance. It remains to be seen how either the Human Rights Tribunal, or the Social Benefits Tribunal, will resolve this complex problem.

Legalese is a column of general information and opinion on legal topics by the lawyers of Rural Legal Services, Box 359, Sharbot Lake, ON, K0H2P0, 613-279-3252, or 1-888-777-8916. This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.

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