Researchers' recommendations focus on disability inclusivity, mental health supports, languages
In a report praising an initiative to assist self-represented appellants navigate the process at the Social Security Tribunal of Canada, researchers have recommended the service expand its assistance to additional languages, adopt more of a disability-inclusive lens and maintain mental-health supports for staff.
Dr. Laverne Jacobs, professor at Windsor Law, led an independent study examining the Social Security Tribunal’s (SST) use of its Navigator Service for Canada Pension Plan and disability appeals. The SST launched the Navigator Service in 2019 to assist self-represented tribunal users. Jacobs’ study, which was funded by the federal Department of Justice, looked at appeals heard by the Income Security – General Division between November and April of 2021. The study’s findings are contained in the recently released report, “Examining the Social Security Tribunal's Navigator Service: Access to Administrative Justice for Marginalized Communities,” which was authored by Jacobs and Sule Tomkinson, Assistant Professor at the Department of Political Science at Université Laval.
Jacobs and Tomkinson call the Navigator Service, “a high water mark in services provided to self-represented tribunal users in Canada.”
“I think one of the most important findings is that the navigators provide a lot of emotional support for tribunal appellants,” says Jacobs, who is an expert in administrative law, human rights law and the rights of people with disabilities. “The appellants greatly appreciate the support. And in our report, we outlined some of the ways that emotional support is valuable and the ways that the interviewees identified how much emotional support was helpful to them.”
Among the report’s recommendations is that the SST continue and develop its mental health resources because of the significant emotional toll borne by navigators in the process. While supports were in place during the study, Jacobs says it is important to maintain them and to consider ways to adapt them as the service evolves.
Another of the report’s recommendations is that the SST collaborate with community organizations to implement more in-home assistance. In the study, tribunal users reported having trouble sorting through paperwork, not having anyone at home available to help, says Jacobs. Some of the reported difficulty stemmed from literacy gaps, and Jacobs and Tomkinson also recommended the SST provide services in additional languages, including sign language.
Having studied appeals dealing with CPP disability claims, Jacobs and Tomkinson also highlighted the importance of providing services with a disability inclusive lens. In the report, they recommend hiring a consultant to review SST decisions and communications and advise on disability-inclusive language. People with lived experiences of disability and organizations committed to disability rights should form part of the SST stakeholder consultation group, said the report.
“A lot of the appellants in the CPP disability context considered themselves to be ‘newly disabled’ – an expression that they use, or at least one or two use in our study,” says Jacobs. “It's useful, as well, to show them some of the disability-inclusion aspects and disability-equality aspects of being a person with disabilities.”
The final recommendation was that the SST explain the process and document filing procedures with infographics or by some other means.
The SST is responsible for adjudicating appeals concerning the Employment Insurance Act, the Canadian Pension Plan and the Old Age Security Act and 70 per cent of SST appellants are self-represented, says Paul Aterman, SST chairperson.
The SST’s services tend to be reactive, focused on answering inquiries and requests as they come, says Aterman. Finding that approach did not work, they developed the navigator concept with the view that they needed to contact appellants first.
“One of the things that we found was, people were coming to hearings, they weren’t prepared. They didn't understand what the legal test was. They didn't know what to do. Nobody told them. And lawyers don't take these cases on because there's no money in it for lawyers, for the most part.”
With the Navigator Service, when the SST gets a file and they see there is a self-rep, the navigator calls the appellant to explain how the process works and assures them they will assist them throughout. The navigator explains the legal test, the timeline, tells them what kind of evidence is required and what will happen at the hearing. The navigator is not there to provide legal advice or to be an advocate, but to ensure they have all the information they need to prepare and represent themselves.
“We don't do this in a single call. It's spread out over a number of calls over the course of the life of the file,” says Aterman.
The SST executed its own internal evaluation, measuring appellants who had the help of a navigator against a control group without one. They found appellants assisted by a navigator were prepared for the tribunal sooner and withdrew their matters less frequently.
“There's a lot of talk about the access-to-justice crisis. There's not a lot of action,” says Aterman. “This is an example of something that can be done, which makes a real difference in real cases.”
“It didn't cost us a lot. Basically, we were taking staff within the tribunal and training them up to a different level… It's basically a cultural change, which says you can be an impartial tribunal, but it doesn't mean that you turn your back on people and make the process difficult for them. You can make the process easy for them and still retain your impartiality.”
One of the positive attributes of administrative justice is that administrative agencies, bodies and tribunals can employ a more “user-centred” approach to justice delivery, says Wissam Aoun, assistant professor and acting associate dean at Windsor Law.
“And this is a perfect example of an administrative body thinking creatively and saying, ‘Look, we're going to focus on the user,’” he says.
