Fighting the Enemy: Ending the Lifetime Ban on Income Assistance

By: 

Zoë Macmillan

The Ban
On April 1, 2002, then Minister Coell introduced the government’s new social assistance legislation, the Employment and Assistance Act.  This Act was to “signify a new era” and represented “a significant change in B.C.’s income assistance system.” Indeed, the changes were significant. Notable was the introduction of a lifetime ban on receiving assistance for individuals convicted under the Criminal Code of income assistance fraud.  In speaking to this provision, Minister Coell stated: “The legislation will give the ministry a new tool in the fight against income assistance fraud.”i

While a lifetime ban may have represented a new tool in B.C., it had already been used elsewhere in Canada with tragic consequences. In August 2001, Kimberly Rogers was found dead in her Ontario apartment. She was pregnant and serving house arrest following a conviction for assistance fraud. Kimberly’s crime was that she illegally collected benefits and student loans while attending school. In addition to her conviction, her assistance was suspended. An inquest into Kimberly’s death, which was announced September 2001, produced several recommendations. Firstly, the lifetime suspension of benefits should be eliminated. The jury also recommended improved communication between government departments. This was in response to evidence that the advocate in Kimberly’s trial had not known a fraud conviction would lead to suspension of benefits.

Despite these recommendations and proof of their deadly consequences, the B.C. fraud provisions continue to exist. However, we may soon be rid of them. TAPS has learned there is proposed legislation to amend the Act by removing the lifetime ban and instead making offenders repay their debt. While the change is certainly welcomed, we believe it has come too late for many, and should never have existed in the first place.
 
The Fight Against Fraud
While the introduction of the ban was a significant change to B.C.’s income assistance system, it was not unexpected. The so-called “war on welfare fraud” has been a battle long in the making. Between 1948 and 1974 there was little change in the province’s social assistance legislation as it related to fraud. However, 1974 saw the first ominous clouds in what has become an all-out war. With the amendment of the Social Assistance Regulations, new provisions addressing overpayments and fraud were introduced. Since that time, successive legislation has resulted in increasingly complex rules, further restrictions on eligibility, and growing investigative powers and penalties for fraud.ii

Is it possible these measures are necessary because we are actually at war? Reports indicate the vigorous pursuit of “welfare fraud” is questionable at best. Canadian and international research has repeatedly documented overpayment and fraud in fewer than 5% of cases. Moreover, studies suggest investigators are more likely to find cases of underpayment of assistance than evidence of fraud.iii

So if there is no overwhelming evidence of a fraud problem, why do we assume there is? One suggestion is that increasing measures against fraud should be understood as a political tool, rather than a response to a larger social problem.iv It is in government’s best interest to minimize public expenditures. Not only is it fiscally prudent, it is generally a politically popular thing to do. Decreasing the number of assistance recipients, even during poor economic times, means a better bottom line. However, how does one dismantle a social assistance regime while maintaining public popularity? One option: create an enemy in the form of welfare fraudsters. Suggesting fraud is rampant, by creating harsher penalties and increased monitoring, fosters a public perception that recipients are basically criminals in waiting. Stigmatizing income assistance and those who receive it, enables government to reduce the availability of benefits without incurring public backlash.

And the creation of this enemy has been highly effective. As a paper prepared for the Law Commission of Canada concluded: “the impression that there is widespread defrauding of benefits by recipients has been so successfully installed in public discourse and government policy that social assistance is now primarily viewed not as a necessary form of support for those in need, but rather negatively, as a burdensome problem of regulation, policing and crime control.”v
 
Who Is the Real Enemy?
There is no denying fraud occurs. There are individuals who intentionally mislead the government by withholding or providing false information in order to receive assistance. However, there are also many individuals caught in the web of complexity that is income assistance rules. And this lack of clear information regarding rules and lifetime bans has made criminals of otherwise unsuspecting individuals.

In R. v. Dennis the B.C. Court of Appeal highlighted the problems with current information on lifetime bans. The case involved Tiffany Dennis, an Aboriginal woman receiving Persons With Disabilities benefits. She had significantly impaired intellectual and memory function and suffered from anxiety and depression. Tiffany pled guilty to a number of charges, including defrauding the ministry by cashing two cheques which she claimed she had lost and failing to report her child tax benefit cheque. When sentenced for her crimes neither she, her lawyer, the Crown lawyer, or the judge were aware that she would be subject to a lifetime ban from assistance due to her conviction.

In the appeal of the sentence, the judge was finally made aware of the legislation. He further acknowledged that although Ms. Dennis was eligible to receive Hardship Assistance, this was not comparable to her regular benefits. Ultimately the judge reduced Tiffany’s sentence so that she would be not subject of a lifetime ban. To find otherwise represented a disproportionately severe sentence for her crime.
 
Ending the Ban
While TAPS applauds steps to remove the lifetime ban, we believe it should never have been introduced in the first place. Instead of creating an enemy in the form of phantom fraudsters, the public would be better served by focusing resources on those who need assistance in the first place. Ending the ban may be one step in ending the stigma. However, we have a long way to go.

If you should find yourself under investigation by the ministry, contact an advocate at TAPS at 250-361-3521. And if you are being told fraud charges are under consideration, do not plead guilty without first obtaining legal advice.
 
 
i. Debates of the Legislative Assembly (Hansard) British Columbia. April 16, 2002. Pg 2850.
ii. Rachert, J.A. “Welfare Fraud and the State: British Columbia 1970-1977” (1990).
iii. Canadian Centre for Policy Alternatives, “A Bad Time to Be Poor: An Analysis of British Columbia’s New Welfare Policies” (2003).
iv. Rachert
v. Mosher & Hermer, “Welfare Fraud: The Constitution of Social Assistance as Crime” (2005).