Disability Tax Credit Certificate
Lembi Buchanan
Mrs. Buchanan has presented a submission to the Parliamentary Sub-committee on the Status for Persons with Disabilities asking for a full review of the Disability Tax Credit (DTC) Certificate Form 2201. This submission is being supported by a number of provincial and national organizations which have members who have lost the tax credit because of changes to the wording of the questions in the T2201 form in recent years.
Whether in financial support mechanisms, special education or other areas, it appears that persons with disabilities face similar issues when the questions determining eligibility are no longer based on medical fact but on the often mistaken perceptions of bureaucrats.
Mrs. Buchanan has used her husband as a case study and all of the information is in the public domain because of their recent tax court case.
When is a disability not a disability?
The bureaucrats at Canada Customs and Revenue Agency (CCRA) believe that they know exactly where to draw the line. Instead of relying on the medical profession for an accurate and fair assessment of the severity of each patient's disability according to the eligibility criteria in the Tax Act, CCRA has revised the Disability Tax Credit (DTC) Certificate, Form T2201 to simplify the process. What could be easier for the physician than checking off a few "yes" and "no" boxes?
Of course, nothing in life is quite that simple. The current DTC form has created a hurdle which is virtually impossible for every individual disabled by a mental impairment to surmount because the federal government has made two assumptions which are not true:
- individuals with a severe and prolonged mental impairment cannot think, perceive or remember, and
- individuals with a severe and prolonged mental impairment cannot manage or initiate personal care without constant supervision.
The answer to the question "Is your patient able to think, perceive and remember?" must be "yes" or "no." In fact, doctors are advised to "answer no only when their patients cannot manage or initiate their own personal care without constant supervision." The questions in a follow-up form sent to physicians requesting further "clarification" also misrepresent the objectives of the Tax Act, ignore the legal standards set out in the Tax Act, and disregard case law.
In
James W. Buchanan v. Her Majesty the Queen [cf:
Reasons for Judgement], Judge Diane Campbell recognized that "disability" did not mean "inability." She noted that Buchanan's disability (bipolar disorder) was severe enough to meet the highly restrictive criteria of the Tax Act even though he has maintained many of his intellectual capabilities as well as the ability to take care of his personal needs and make his own decisions regarding medical treatment. As far as Judge Campbell was concerned, Buchanan's doctor misinterpreted the Tax Act when completing the DTC Certificate for his patient. But that is hardly surprising because the questions in the form are incomplete, inaccurate and ambiguous.
CCRA does not agree with Judge Campbell's ruling. A Notice of Application has been filed in the Federal Court of Appeal by the Attorney General of Canada on behalf of the Minister of National Revenue for a judicial review of her judgment. The action by the Minister is indicative of the direction of our current [federal] government with respect to social policy. It would appear that the government has the mistaken notion that physical impairments are more disabling than mental impairments.
There is no question that setting appropriate parameters for mental impairments is a more complicated process than for physical impairments. On the other hand, case law provides significant guidelines for government officials in the determination of whether or not an individual's specific disability falls within the eligibility criteria. Government has a responsibility to review and revise the DTC certificate when required, based on the interpretation of the Tax Act by the Tax Court.
The Tax Act was not designed to provide tax relief only for individuals with physical disabilities.
A submission requesting a full review of the DTC Certificate Form T2201 has been presented to the
Parliamentary Sub-committee on the Status of Persons with Disabilities, chaired by Dr. Carolyn Bennett, MP, St. Paul's.
Reasons for Judgment
from Judge Diane Campbell's summary of
James W. Buchanan v. Her Majesty the Queen
"From the facts and the evidence, it is clear, in answering the questions on the form, he [Dr. C.] clearly held the incorrect view that most individuals with mental impairments did not qualify for the credit and that it was intended instead for those (as he wrote in his correspondence to the Appellant) who had difficulty 'feeding themselves, dressing, using the toilet or carrying on a simple conversation.' He clearly did not understand that the six items defining a basic activity of daily living, as contained in subsection 118.4 (1) (c), are not to be read together, but each activity is treated separately.
"Mrs. Buchanan stated that although his [Buchanan's] perception of reality is blurred and consequently his thinking is distorted, he can deal with some items in a lucid manner… She stated that to members of the public, he can appear functional and lucid while in the throes of a severe episode. She stated that he has an uncanny 'knack for masking his symptoms,' hiding as she stated, 'behind a façade of normalcy.' She stated that his thought processes were affected every day, although this might not be readily apparent to those around him or even to his own doctor. Mrs. Buchanan described his disease as one with 'continuous symptoms varying in severity.' One can never know, she stated, when he is scheming to engage in inappropriate, irrational behaviour…
"He [Dr. C.] stated that in a number of areas his [Buchanan's] ability to think and perceive is impaired. He indicated that he may be able to present well to the public even when quite ill. That while being mentally impaired, he could otherwise function quite well at some level or perform some skill while the remaining thought processes were impaired… In fact, Dr. C. stated that it would be possible for the Appellant to be quite ill and yet his own doctor would not necessarily recognize it." [Dr. C. has been Buchanan's psychiatrist for almost 10 years and continues to see him on a regular basis.]
"Although the Appellant is certainly able to operate adequately in some areas, his impairment permeates his entire existence. The facts support that while engaged in some seemingly rational activity to the outsider, all other thought processes are otherwise exploding in an array of erratic, bizarre and potentially harmful activities. However, the Appellant's ability to perceive, think and remember, although not non-existent, is of such a severity that his entire life is affected to such a degree that he is unable to perform the necessary mental tasks required to live independently and competently in everyday life."
"I conclude that the Appellant's condition and resulting behaviour so far exceeds the normal and reasonable ambit that he comes within the otherwise very narrow confines of these sections (118.3 and 4) of the [Tax] Act…. The facts quite clearly demonstrate that the Appellant does not engage in rational, logical, organized thought processes. His judgment does not permit him to function reasonably and independently. It is an obvious case…."
Update
Since this article was written, the newly struck Sub-committee on the Status of Persons with Disabilities decided to study the Disability Tax Credit as one of the first items on its agenda in the fall of 2001.
For more information about the submission,
please contact Lembi Buchanan 416-922-0202 or 416-875-1959.
In March 2002, the sub-committee's report was tabled in the House of Commons.
For current information, please visit
www.disabilitytaxcredit.com.
