Retroactive CPP Disability Benefits

Note: Portions of the following may need to be updated due to changes in legislation

CPP benefits are normally awarded a maximum of 15 months prior to date of application for benefits, with a 3 month waiting period. The date of application is usually the date that the CPP office receives and date stamps the application form. So if you don’t have all your medical documentation together and it appears that it may be some time before you have them together, my advice would be to send in the application form, and a short letter advising CPP that you will be sending the balance of the required documentation as soon as it is available.

But Section 60 of the Canada Pension Plan reads as
follows:
“(9) Where an application for a benefit is made by or on behalf of a
person and the Minister is satisfied, on the basis of evidence provided by
or on behalf of that person, that>
(a) the person had been incapable of forming or expressing an intention to make an application before the day on which the application was actually made, …
…the Minister may deem the application to have been made in the month preceding the first month in which the relevant benefit could have commenced to be paid or in the month that Minister considers the person’s relevant period of incapacity to have commenced, whichever is the later.
Pension Appeals Board decisions are reported publicly at:
http://www.pab-cap.gc.ca/deci-eng.cfm
This issue has been dealt with a few times by the Pension Appeals Board. They key is whether the applicant was “incapable of forming or expressing an intention to make an application before the day the application was actually made.
Case law has shows that the decision must be based on all relevant factors. Saying I didn’t know about my rights to apply earlier – is not enough to trigger this provision. Saying I was depressed – is not enough. What is required is an inability to form the intention. Not an inability to apply. So if you could ask or instruct someone to file the application on your behalf you can form the intention to apply. If you are in a coma, you cannot form that intention.
One case where backdating an application has been allowed is where the claimant is paranoid schizophrenic and does not even appreciate that he or she is disabled. You cannot form the intention to apply for disability benefits if you don’t know you are disabled.
In the decision of Weisberg v. Canada (Minister of Social Development)m 2004 LNCPEN 31, Appeal No. CP21943, the Canada Pension Appeals Board stated:
20 Because of the nature of the illness of the Appellant in this case and the medical evidence presented, I am of the view that some attempt must be given to define what Parliament intended in enacting Subsection 60(9).
DISCUSSION AND CONCLUSION
21 I start off with the well-settled rule that whenever Parliament enacts a statutory provision, each word used by the draughtsman must have been intended to have some specific meaning. Here Parliament has used the expression “incapable of forming or expressing an intention.” Applying that rule of statutory interpretation, it would mean that an incapacity to form an intention was intended to encompass an incapacity different from an incapacity to express an intention, otherwise there would have been no purpose in separating the two expressions with the disjunctive “or.” If I am correct in that assumption,
then I would think that an incapacity of forming an intention must refer to a cognitive deficiency that precedes the expression of that intention. In other words, one must be able to form an intention before communicating it. An incapacity of expressing an intention, on
the other hand, can be either a cognitive or a physical incapacity or both. Here an applicant might be capable of forming an intention to apply for a pension, but incapable of expressing that intention because of an inability to communicate. An example might be where the applicant has suffered a stroke and is unable to speak or to write or to do both. The inability to speak would be a cognitive incapacity. The inability to write would be a physical incapacity.
22 Although Subsection 60(9) refers to an incapacity of the applicant of forming or an incapacity of expressing an intention to apply for a disability pension, and not an incapacity to recognize that he or she is disabled from working, in my view, the two are necessarily
connected. Unless an applicant has some cognitive recognition that he or she is disabled, although not necessarily the extent of that disability, there would be no reason to apply for a pension.
23 A person suffering from psychosis, that is, a disturbance of such magnitude that there is a personality disintegration and loss of contact with reality, would be person at one end of the spectrum who is likely incapable of forming an intention to apply for a disability pension. Such persons would not only be incapable of realizing the nature and extent of their illness, they would be incapable of realizing that they were mentally ill and probably “incapable regularly of pursuing any substantially gainful occupation.” On the other hand, persons who know that they are suffering from a physical illness but unable to appreciate
the nature and extent of that illness would not necessarily be considered incapable of forming or expressing an intention to apply for a disability pension. Most people who feel physically ill are incapable of recognizing the extent of their disability until they have been seen by a doctor and told the nature of their illness and the prognosis for recovery. Until
they are made aware of the nature and extent of their disability, it is unlikely that they
would apply for a pension. Surely, it was not the intention of Parliament that such persons
would fall within the words of incapable of expressing an intention to make an application
in Subsection 60(9) of the Plan.
24 In this case, it was submitted that the Appellant’s neurocognitive deficits would have prevented him from internalizing and thereby recognizing the nature and extent of his impairment. To put it another way, his neurocognitive deficits would prevent him from forming an intention to apply for benefits. To understand the need to apply for a disability pension, it was argued, the Appellant had to understand that he was disabled. The Appellant could not form an intention to apply for a pension because he did not realize that he was disabled.
25 On all of the evidence, I am satisfied that although the Appellant was aware that something was wrong with him, he was incapable of recognizing that it was a disabling condition. If I understand Dr. Fulton correctly, it was his view that persons with right hemisphere compromise suffer lack of awareness or insight into their own deficits.
Someone like the Appellant would be incapable of appreciating his own difficulties, even when provided with feedback by his doctors. Although generally persons who are advised by their doctors of the nature and extent of their illness are capable of appreciating their deficits, Dr. Fulton felt that the Appellant was unable to do so. In my view, the Appellant’s incapacity to appreciate his own deficits, even when told what they were, rendered him incapable of forming the intent to apply for a disability pension.
26 I would allow the appeal and find that the Appellant’s incapacity arose in 1993 and
continued until he applied for his disability pension on April 9, 1999.
DATED this 8th day of December, 2004.
(signed) R.E. Salhany
I concur (signed) D.R. Matheson
I concur (signed) R.V. Deyell
The moral of the story is that you must apply at the earliest you can and don’t let any appeal periods lapse.