In the spring of 2017, the federal government acted on complaints from across the country by hiring a consultant to carry out a review of the Employment Insurance appeals process. That consultant’s report has now been made public. The report makes important findings about problems with the appeal process and recommendations for change.
There are fatal flaws in the current structure of Canada’s Employment Insurance appeal system. The new model introduced by the previous government has had enormous consequences for workers who need a reliable program they can turn to when they lose their jobs. Employment Insurance rates have fallen to historic lows with only about 40% of the unemployed having access to benefits. There are a number of reasons for these low numbers, but the failed experiment with the Social Security Tribunal is an important part of that story.
The Income Security Advocacy Centre calls on the federal government to move swiftly on many of the report’s recommendations, but argues that it will take a major re-structuring – not band aid solutions – to return fairness to Employment Insurance.
Employment Insurance is an essential social insurance program for making sure workers are not forced into poverty when they lose their jobs. If their applications for benefits are turned down, workers must have access to a fast and easy way to have the decision reviewed, so that they aren’t forced to go into debt or rely on social assistance while they wait.
In 2013, the federal government created a new tribunal, called the Social Security Tribunal. The Social Security Tribunal replaced an appeal process that had been in pace for many years, and which workers felt was fast and fair. The main reason for creating the Social Security Tribunal was to cut costs. Now, almost five years later, it is clear that the hopes for cut costs have not been realized and the new appeal process has stacked the odds against unemployed workers.
When someone is denied EI benefits, they are faced with a complex appeal process that has as many as four different stages:
- A worker must first request that the Employment Insurance Commission “reconsider” its decision
- If the decision stands, they must then appeal to the General Division of the Social Security Tribunal
- If still no change, the next step is to request “leave to appeal” to the Appeal Division of the Social Security Tribunal
- The final appeal is to the Appeal Division of the Social Security Tribunal
The Income Security Advocacy Centre has worked with legal clinics in Ontario through the Employment Insurance Working Group to identify some of the key problems:
- The “reconsideration” process creates an additional hurdle
- Workers don’t know what they are appealing until after they have appealed
- The community perspective has been lost with the change to one “professional” adjudicator
- It takes too long to resolve an appeal
- Too many hearings happen by telephone
- Some workers don’t get a hearing at all
- The Appeal Division requires a high level of literacy and legal expertise
- The Tribunal does not publish all of its decisions
- The appeal process is needlessly complex and creates barriers for people with language barriers and persons with disabilities
The KPMG Review
A private company, KPMG, was hired to do a review of the Social Security Tribunal. The company delivered its report to Minister Duclos (responsible for Families, Children and Social Development) in the fall. That report has now been made public and can be found here.
KPMG’s major findings confirm what workers and advocates have been saying since the Social Security Tribunal opened its doors:
- The motive for creating the Social Security Tribunal was cost savings. Any cost savings have come as a result of a drastic reduction in the number of appeals
- In fact, the cost per Employment Insurance appeal is 3.4 times higher than it was under the former system
- An Employment Insurance appeal takes on average over five times longer
- New procedures introduced to expedite appeals have merely added complexity and have slowed down the process
- The Tribunal and the appeal process are widely perceived to be too complex, inaccessible, unaccountable and appellants’ voices have been lost
- The Tribunal is not focused on the needs of clients
KPMG has suggested a “resetting” of the Social Security Tribunal – not the return to the former system, as many advocates have called for. That resetting would include:
- Shifting to a “client centric model”
- Minimizing complexity
- Providing assistance to help navigate the system
- Ensuring the process is fair and transparent
- Giving stakeholders a voice in the overall direction and priorities of the Tribunal
- Improving accountability and reporting to the public
But the KPMG report has one important flaw, which is that it minimizes the important role that labour and employers should play in decisions about Employment Insurance. The old system had a tripartite model that ensured that workers and employers – the funders of the system – were partners.
The KPMG report has placed a lot of its focus on a cultural shift at the Social Security Tribunal. But culture isn’t the problem at the Social Security Tribunal. The roots of the problems at the Tribunal are structural.
How must the process be improved?
The Income Security Advocacy Centre, in consultation with legal clinics “EI Working Group”, has proposed the following concrete changes to restore fairness to the Employment Insurance appeal process:
- Return to a three-person decision making panel with representatives from labour, business and the community. A model already exists – the former appeal process at the Board of Referees, which was less expensive and faster. The KPMG report was unfairly dismissive of this option. There is no need to re-invent the wheel or tinker with a broken Social Security Tribunal.
- End the current long delays at all levels in the process, and adequately fund the Commission / Tribunal
- Eliminate the leave-to-appeal requirement
- The Commission should automatically conduct a “reconsideration” when an appeal is started – it should not be an additional step outside the appeal process
- Expand resources for challenging decisions to better support claimant advocates including unions
- Give appellants the right to choose the kind of hearing they want – in person, by phone, by video.
- Eliminate the summary dismissal provisions
- Provide appellants with a copy of their full file early in the appeal process, before they are required to submit their own evidence/arguments
- Publish all Tribunal decisions
Some, but not all, of these recommendations were included as “options” in KPMG’s report.
To read our detailed position paper on how the Social Security Tribunal can be improved, including specific recommendations for change, click here.
What you can do
If you share our hopes for a fair appeal process, or have ideas of your own, now is the time to act. Minister Duclos will be moving quickly to act on the KPMG recommendations.
You can send your written feedback on the KPMG report to Minister Duclos, or you simply send a letter endorsing our position. We’ve created this template letter for you to use.
Letters can be sent, postage free, to:
Minister of Families, Children and Social Development
House of Commons