Ford, Lysyk team up to go after the vulnerable
Doug Ford and Bonnie Lysyk have become a powerful tag team with a common foe: Rising social assistance costs.
Their shared remedy: Reducing the right of appeal by those claiming disability payments.
Armed with the auditor’s critiques, the Ford government is moving fast to disarm the independent Social Benefits Tribunal. Restricting the right of appeal would reduce the number of applicants on the welfare rolls — allowing the Tories to lower costs without having to pay a political price for redesigning the program or redefining eligibility.
Now, experts in the field are speaking out about Lysyk’s leaps of logic. They fear her “value for money” audits have imposed Lysyk’s own costcutting values upon core judicial values — music to the ears of Ford’s Progressive Conservative government as it targets spending on social services.
The emerging debate raises important questions about how seemingly esoteric policy disputes at the highest levels can have a dramatic impact on people at street level — notably those with disabilities who are dependent on social assistance. When the auditor general’s office imposes its own accounting prism on the judicial process it is, in effect, auditing the adjudicators.
“This is so terribly wrong that this vulnerable group, seeking basic financial support — the most vulnerable among us — should basically be losing their appeal rights,” said George Thompson, a former deputy minister and retired judge who headed past government probes on social assistance reforms.
You don’t hang the judge merely for finding an injustice, Thompson told me, adding: “My difficulty is when (Lysyk) says the solution here includes just reducing the right of appeal.”
While the auditor’s office fixates on the costs of an independent judicial process for poor people, it doesn’t calculate the human or social cost of denying people with disabilities the welfare payments they desperately need — $1,169 a month (versus $707 for regular Ontario Works welfare). It’s not as if the auditor has uncovered fraud by unqualified applicants but the exact opposite — too many people with disabilities weren’t getting the welfare payments to which they were entitled by law.
Christine Pedias, a spokesperson for Lysyk in the auditor general’s office, declined to comment for this column. But in her 2020 report, the auditor gave a public nod to the PC government’s declared intention to phase out the Social Benefits Tribunal, which allows people with disabilities to appeal for Ontario Disability Support Program (ODSP) payments.
“Cost effectiveness could be achieved if the number of ODSP appeals was decreased,” the report notes dryly. The government has “initiated a review of tribunals in Ontario, including the Social Benefits Tribunal … (and) potential reforms of the ODSP appeals process and the tribunal.”
But as documented in a previous column, the Ford government has been quietly gutting the Social Benefits Tribunal, reducing its ranks to roughly half by declining to reappoint many of its experts. That stealth war of attrition with adjudicators has created contrived backlogs — a self-fulfilling scenario where justice delayed is justice denied, according to the independent watchdog group Tribunal Watch Ontario.
Nicko Vavassis, a spokesperson for Attorney General Doug Downey, did not dispute the tally of rising vacancies, but countered that the government is trying to make the best use of limited resources: “We are working with Tribunals Ontario to address adjudicative resources at tribunals and to ensure that current resources are being used efficiently and effectively.”
And yet the problem of a tribunal forced to operate at only half-strength is only the half of it.
The government’s bigger objective is to eliminate the meddlesome Social Benefits Tribunal, replacing it with more amenable adjudicators.
A 2019 report by the auditor complains that the existing tribunal overturns about 60 per cent of ministry decisions. Rather than confine herself to a problematic decision-making process in the bowels of the bureaucracy, Lysyk suggested they disembowel the tribunal.
Ontario needs an “appeals framework that enhances the consistency of disability decisions between the ministry and the appeals body,” her report notes, adding approvingly that B.C.’s more constrained tribunal model “rescinded less than five per cent of the appeals that it heard on disability decisions.”
Ford’s Tories took the hint, readily agreeing to “review appeal frameworks within other jurisdictions … by March 2021,” the auditor’s report notes.
Now, Ontario is poised to import B.C.’s model of a toothless tribunal thanks to the auditor’s legal overreach and overeager suggestions, says Mary Marrone, former head of legal services at the Income Security Advocacy Centre — and, like Thompson, a member of Tribunal Watch Ontario.
“The government has embraced her recommendation … despite the fact that she strays far beyond her mandate and areas of expertise,” Marrone said.
“What she doesn’t understand is that the Social Benefits Tribunal is the oversight body, so if there’s inconsistency, it’s the government that has to comply … not the other way around.”
Rather than right its own wrong-headed decisions at the source, Ford’s Tories are embracing the auditor’s suggestion that it remove the right of appeal. It is upside down thinking.
A similarly fateful switch attracted sharp public criticism last week: The commission looking at Ontario’s COVID-19 response strongly suggested that Ford’s Tories erred by adopting Lysyk’s recommendation to change its criteria for nursing home inspections.
Embracing the auditor’s 2015 advice to “prioritize” inspections based on complaints and critical incidents, the government shifted to “risk-based” inspections to clear its backlog — which came at the expense of annual comprehensive inspections. That tradeoff left “an incomplete picture of the state of infection prevention and control and emergency preparedness,” argued the commission chaired by Frank Marrocco, adding: “This is a key gap.”
On Monday, Lysyk dismissed criticism of her 2015 suggestion to restructure nursing home inspections as a “misrepresentation of our work.”
But Tribunal Watch’s Marrone says that when the auditor oversteps her mandate, acting like an instant expert, it has consequences: Much like nursing home inspections, judicial tribunals are a deadly serious business.
“The fallout from this could ultimately be as bad as the fallout from her ill-informed recommendation on long-term care,” Marrone says.
Of late, even Ford has taken to second-guessing Lysyk, with this sarcastic comment on a COVID-19 report she issued last month: “I’m really glad the auditor general has got a health degree and become a doctor over the last year or so.”
It goes without saying that one doesn’t need to be a doctor to be an auditor. Yet that’s essentially what the auditor said in a 2019 critique of the Social Benefits Tribunal:
“We also noted that tribunal members are not required to have a medical background,” her report intoned gravely — if fatuously.
Ford and Lysyk have a similarly short-sighted vision of controlling social service costs at the expense of judicial independence and the rights of people with disabilities.
On the evidence, the auditor keeps exceeding her accounting mandate. But it is the premier who is her enabler — and who remains accountable to the electorate.