PTSD and the DTC

The DTC (Disability Tax Credit) gives non-refundable tax credits to qualifying individuals, as well as other significant benefits. To qualify, one must fill out a CRA form, and have it completed by an appropriate clinician, and submit it to the CRA… Then, depending on the phase of the moon and the mood of the decision maker, you may or may not be accepted. DTC certificates typically are good for 5 years, after which you must re-apply.

The process often seems arbitrary, random and unfair; I was accepted without question for the first DTC, then when I re-applied, I was rejected… using the same clinician, no change in my disability, and my clinician using the same information in the form nearly word-for-word. The rejection letter contradicted policy, and highlighted some pretty obvious discrimination in the CRA process. If you have certain physical disabilities, it is easy to qualify… if you have a mental disability, it is VERY hard to qualify… This blog post deals with *how* the DTC discriminates against those with PTSD, in the hopes that you can address the discrimination in the application process.

At this point, it is worthwhile to establish the legal and medical definitions of “Disability” and “Impairment” and how the differences in these two terms manifest themselves in an affected individuals life. These two terms are not interchangeable, and each has a very distinct meaning.

Impairment– The sixth edition of the Guides to the Evaluation of Permanent Impairment published by the AMA defines impairment as “a significant deviation, loss, or loss of use of any body structure or body function in an individual with a health condition, disorder, or disease”. The World Health Organization (WHO) defines impairment as “any loss or abnormality of psychological, physiological or anatomical structure or function”.

Disability– The AMA Guides define disability as “activity limitations and/ or participation restrictions in an individual with a health condition, disorder or disease.”; The WHO defines disability as “an activity limitation that creates a difficulty in the performance, accomplishment, or completion of an activity in the manner or within the range considered normal for a human being.”

Impairment does not equal disability. Consider the oft cited example of two different people who sustain the exact same impairment, an amputation of the pinky finger of the non- dominant hand. This represents a 5% “Whole Person Impairment” per the AMA guides for both people, but one is a concert pianist and the other a lawyer… for the lawyer, this does not affect their work at all, so zero disability. The concert pianist on the other hand would be completely disabled from his previous line of work. The Disability Tax Credit is *supposed* to be awarded on basis of disability, not impairment, but it seems all physical impairments qualify without having to prove disability, while PTSD applicants have to prove a very high degree of disability. 

In the process of comparing different qualifying conditions, it is worth noting that these comparisons are made in the interest of establishing a threshold for the CRA in awarding the Disability Tax Credit, and not to detract from the challenges of any particular impairment posed to affected individuals. So let’s take a look at each system, as the CRA breaks them down-

Vision– If an individual has the impairment of being blind per the CRA criteria for same, the CRA automatically presumes them to be disabled to the point where they qualify for the DTC, no further proof is required on part of the applicant. There is no requirement that an individual who is blind to take three times as long to complete a given task, nor demonstrate disability of any kind. It is possible for a person who is legally blind to maintain gainful employment, negotiate daily transactions independently, and live independently and still qualify for the DTC.

Speaking– If an individual has the impairment of being aphasic (unable to speak), or has difficulty speaking to the point where it takes an inordinate amount of time to be understood, they automatically qualify for the DTC, no proof of disability is required (only the presence of an impairment). In fact, the CRA allows use of sign language as an indicator of eligibility to the DTC (per CRA publication RC4064(E) Rev. 16, page 11). In some situations, use of sign language as opposed to using a spoken language is not actually a disability at all (the individual has an impairment and is using an adaptive strategy, but if the affected individual can make themselves understood to others without taking an inordinate amount of time, there is not a disability). Again, the DTC is supposed to be awarded on basis of disability, not impairment.

Hearing– This particular example has a couple interesting facets; First, it is possible for an affected individual who is, for all intents and purposes, deaf, to qualify for the DTC without further evidence required. The first of two examples cited in CRA publication RC4064(E) Rev. 16, page 11 specifies that the affected individual must rely completely on lip reading or sign language to be understood; This is another example where an impairment exists, but through adaptive means, there is little or no disability. Case in point, if the person is able to use an alternate adaptive means to communicate (sign language or lip reading), the disability has been mitigated to an extent. Further, there is no requirement that the affected individual prove derogatory effects on their lives. The above cited CRA reference even allows for a lower threshold of hearing loss that allows the person to hear, but would require the other party to speak louder; again, this adaptive action mitigates the disability, but the individual still is entitled to the DTC.

Walking– This example in particular speaks to the ambiguous requirements for the DTC; In establishing a threshold for the disability, the CRA allows the individual to be able to walk, although slower than average. Reliance on a wheelchair (for example, paraplegic) also qualifies the applicant. As with previous examples, an example of this type of impairment would allow the affected person to lead a relatively “normal” life with adaptive strategies, and to qualify under this condition for the DTC, the individual is not required to prove further effects of disability on their lives.

Eliminating– The only criteria required to qualify under this category is to take “an inordinate amount of time to manage bowel or bladder functions”; This is defined as taking at least three times as long as an average person, and the CRA cites an ostomy as an example in CRA publication RC4064(E) Rev. 16, page 12. In the example of an ostomy, apart from the extra time in the day to manage the device to effect elimination, there may be virtually NO disability in their daily lives, yet they would qualify for the DTC. As with previous examples, the affected individual is not required to prove deleterious effects on their lives, the mere presence of the impairment is enough to infer disability sufficient to qualify for the DTC.

Feeding– This rather specific category requires the affected person to either rely on tube feeding, or take three times longer than average to prepare meals and eat (per CRA publication RC4064(E) Rev. 16, page 12). With tube feeding, there are feeding pumps that allow full mobility to the affected individual, to the point where a person can lead a nearly “normal” life. While there are extra requirements for feeding, the degree of disability is not commensurate with other categories nor is there a requirement on part of the applicant to prove deleterious effects to their lives.

Dressing– This category requires an individual to take “an inordinate amount of time to dress yourself on a daily basis”; CRA publication RC4064(E) Rev. 16, page 12 explains this is ONLY the act of dressing, and does not include time spent to identify, shop for or obtain clothing. Given that I do not have a disability in this area, I can typically dress in the AM in less than 5 minutes, which means the threshold to qualify in this category would be to take more than 15 minutes to dress independently or rely on a third party for assistance. As with previous examples, there is no requirement to prove further manifestations of the impact of the disability on their daily lives.

Life-sustaining therapy– To qualify an adult applicant in this category, they must attend regular kidney dialysis or require frequent chest physiotherapy to ease breathing. In both cases, there is a time investment in therapy for the affected individual, but they may be able to lead a relatively “normal” life beyond those requirements, with minimal disability in their daily lives outside of time required for therapy. As with previous examples, there is no requirement to prove further manifestations of the impact of the disability on their daily lives.

Mental functions necessary for everyday life– This category is a catch-all for all mental impairments, and sets a much higher threshold to qualify in comparison to the previous physical examples cited. There are several troublesome requirements and examples set out in CRA publication RC4064(E) Rev. 16, page 12; The first requires that the person be “independent in some aspects of everyday living; however, despite medication and therapy, you need daily support and supervision due to an inability to accurately interpret your environment”. The second specifies that the affected person “cannot make a common, simple transaction, such as buying food at the grocery store, without help at least 90% of the time”. The third example states that the affected person “experiences psychotic episodes several times a year. Given the unpredictability of your psychotic episodes and the other defining symptoms of your impairment (for example, lack of initiative or motivation, disorganized behaviour and speech), you continue to need DAILY supervision”. The fourth and final example requires that the affected individuals “are unable to express your needs or anticipate consequences of behaviour when interacting with others”. There are several elements that make these requirements discriminatory on basis of disability.

First, each of the criteria cited requires that for anyone to qualify in this category, they must be either institutionalized or require daily and ongoing supervision due to their disability. No other category that deals with physical impairment requires the individual be institutionalized or require daily care; indeed, a person with any of the physical impairments cited previously may lead completely independent lives. Based on this criteria alone, it is obvious that applicants with mental impairments are treated differently, and less equitably, than those with physical impairments.

Second, this category requires the affected individual to PROVE an impact in their daily lives secondary to their impairment where others with physical impairments do not. These requirements are ambiguous at best, and set a higher threshold than for those with physical impairments. This double standard is discriminatory.

Third, this category requires a near total absence of cognitive ability to qualify, whereas other physical categories only require the affected individual take three times longer to perform a given task. This differential standard is discriminatory, and fails to adequately assess the impact of the impairment on the affected individual.

Fourth, the category only assesses cognitive function, and even then in a manner that is not commensurate with the burden of proof required for physical conditions. This narrow focus denies a large swath of individuals with mental impairments and presents a barrier to obtaining the DTC in all but the most extreme of cases. This differential standard places those with mental impairments at a distinct disadvantage.

Fifth, other physical categories do not assess, measure or require alterations in an affected individuals social life. In my case, the refusal letter from the CRA dated Dec. 7, 2016 even states on page 3, para 3 that “…for the DTC, the presence of difficulties in areas such as social or recreational activities and working, are not considered marked restrictions in performing the mental functions necessary for everyday life”, yet CRA publication RC4064(E) Rev. 16, page 12, under “Mental functions necessary for everyday life”, under “Notes” specify that “Mental functions necessary for everyday life include: adaptive functioning (…abilities to initiate and respond to social interactions, and common, simple transactions). It appears that selective “cherry picking” in what the CRA accepts as a measurable disability is subjective, ambiguous, and unfairly weighted against those with mental impairments.

Conclusion

The Systems based approach to the Disability Tax Credit is weighted to allow certain physical disabilities with minimal evidence, while setting a much higher threshold for those with mental disabilities. Additionally, the DTC disallows large segments of those with mental disabilities by narrowing the scope of what is eligible for the DTC. The criteria to successfully obtain the DTC requires a person with a mental disability to either be institutionalized or require daily assistance to maintain life; All physical disability categories lack this requirement. When applicants with mental disabilities are compared with those applicants with physical disabilities, it is clearly apparent that a differential and discriminatory standard is applied to those applicants with mental disabilities.

  • If the CRA denies your application, obtain the reason why as soon as possible, and appeal as soon as you are able.
  • Consider a Human Rights complaint to the Canadian Human Rights Commission (this Federal agency deals with human rights complaints against Federal Government departments and Federal Crown corporations).
  • Copy your complaint to the Federal Minister of Finance.
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