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4. Special Diet Supplement

(a) Overview

The ODSP Special Diet program is a monthly dietary supplement (the supplement is added to the recipient's 'budgetary requirements') to a maximum of $250 for Schedule-listed (Reg 562/05: "Prescribed Policy Statements") verified medical conditions that may benefit from special nutrition.

Until 2005 (amended again in April 2011) the program allowed both doctors and the ODSP Director a great deal of discretion as to what 'conditions' to authorize. At it's start, the program was quickly and enthusiastically picked up by recipients, social workers, medical professionals, advocates - and even ODSP workers - who saw it as a way to redress chronically inadequate social assistance rates, which often de facto resulted in poor diet amongst an already marginalized class.

Now however, the program heavily codifies the special diet supplement by establishing a Schedule listing specific medical conditions and fixed special diet amounts that were allocated to each of them - still capped at a maximum of $250 per member.

(b) Eligibility

The special diet supplement is available to all members of a benefit unit in any of the following categories of recipient:

• Renters and Home Owners [Reg s.30(1)4](see s.2 above)
  
• Boarding and Lodging [Reg s.33(1)4] (see s.3 above)

As noted, the special diet rules require verification of a Schedule-listed medical condition and verification that a special diet is required to treat it.

Verification must be by an "approved health professional" [ie. approved by policy of the Director of ODSP: Reg s.2(4)] who this purpose, includes [Policy Directive 6.4]:

• doctors,
  
• registered nurses in the extended class,
  
• registered dieticians,
  
• registered midwives,
  
• traditional aboriginal midwives recognized and accredited by their community.

Once established, the special diet supplement runs from the month of receipt of the application forward until and including the month that the administrator requires re-verification. Failure to re-verify will result in the special diet supplement being terminated [Reg s.25(1)].

(c) Usual Forms

Special diet rules require the member to, for either an initial and a re-assessment application, provide the administrator with an application form [Form 3111/3112)] completed by an "approved health professional" [General Reg 30(5)1]. The application must verify the medical condition on which the application is based [General Reg 30(1)4, 33(1)4]. Most applications only require this single medical form, if properly completed.

(d) Additional Informations and Forms

However, the Director can, at their discretion, require the following additional documentation [General Reg s.30(5)2,3]:

• a separate application re-verifying the medical condition, though this one must be from a different health professional (ie. one that has not completed any prior applications for the member) [General Reg 30(5)3, 33(4)3]; and/or
  
  
• that the member provide them with additional (and otherwise unspecified) "information respecting his or her requirement for a special diet because of a medical condition" [General Reg 30(5)2, 33(4)2].

These additional provisions - particularly the 'second doctor' requirement - harken to media-induced concerns in the early history of the special diet program, where medical professionals were suspected of over-using the program to compensate for inadequate basic income support rates.

However, in the current (28 Mar 2022) Policy Directive 6.4 [see: 'Receiving an Incomplete Application for Special Diet Allowance (Form 3111/3112)'] the Director presents these additional documentation provisions [again, General Reg 30(5)2,3] as corrective measures to address 'incomplete applications'. While administrative letters make good sense to address 'incomplete applications', the Director still retains the fraud-avoidance measures which these provisions were obviously intended for.

(e) Transition Rules from FBA

If an ODSP recipient who has been grand-parented from FBA (see Ch.2, s.8 "Claimants: Substitutes for PWD Status") was receiving a special diet under that program in an amount greater than $250, and that rate has continued to the present, then that old higher rate is grand-parented (ie. maintained) as well. If however that rate ever drops below $250 the grand-parenting status is lost and the (new) regular rules apply [Reg 30(3-4), 33(2-3)].

Case Note: Bigras v Ontario (Div Ct, 2008)

Two recipients who had their special diet amounts re-assessed and reduced under pre-2011 transition rules appealed the matter to the Social Benefits Tribunal, where they lost, and then upwards to the Divisional Court. They argued that their original ODSP eligibility grants, which had long-dated (and in one case no) medical review dates, entitled them to maintain their previous levels of special diet allowance - as a sort of 'vested interest'. The court disagreed, citing [ODSP] Reg s.29(1) which required that budgetary requirements (in which special diet is included) be (re-)calculated monthly, and established principles of statutory interpretation that there is no permanent vesting of statutory entitlements in the recipient.

(f) Special Diet, Underinclusive Coverage and the Human Rights Code

The case of Ontario (Community and Social Services) v WB (Ont Div Ct, 2011) was a judicial review application, brought by the province, of the decision of an Ontario Human Rights Tribunal that upheld a complaint alleging discrimination of the basis of disability by virtue of the ODSP program's failure to accord special diet allowance respecting the applicant's specific medical condition (ie. it was unlisted in Schedule 1 to the ODSP Special Diet Regulation). The case was initially brought under the old pre-2008 Human Rights Code.

As restated by the court, the Tribunal posited the following (new at the time) test in making it's determination:

[12] Consistent with this purpose for the program, the Tribunal then concluded that to establish disability-based discrimination related to the special diet allowance as currently structured, a complainant must demonstrate that four conditions are satisfied:

1. The complainant’s claim of discrimination is based on a disability or disabilities;

2. There is general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of the claimant’s disability or disabilities;

3. The diet leads to additional food costs as compared with a regular, healthy diet for a person without the disability or disabilities; and

4. There is no funding for the additional costs, or the funding is significantly disproportionate to the actual costs (up to the maximum of $250).

While the Tribunal found that there was adequate evidence supporting satisfaction of all elements of this test, the court concluded that there was no evidence supporting the first three elements (not even the diagnosis), thus rendering consideration of the fourth moot.

That said, the court implicitly endorsed the above-stated test in the narrow circumstances of alleging underinclusiveness within the special diet regimes of both ODSP and, since the Ontario Works regimes is identical, that regime as well. It openly invited the parties to commence new proceedings before the (now) Human Rights Tribunal of Ontario (HRTO) with improved evidence. The whole case, particularly paras 40-43, is essential reading for anyone contemplating a similar special diet underinclusiveness challenge.

While the original complaints (there where three complainants below) also involved claims that the regime was discriminatory for underfunding of the conditions that it did list in the Schedule, that issue was not before the court. However the above-stated test articulated by the Tribunal may be suited to address underfunding claims as well.


5. Pregnancy Supplement

Once a pregnancy is confirmed by a "approved health professional" an additional supplement is available from that month forward to and including the month of birth, and then for another 12 months if the baby is breast-fed. The amount of the monthly supplement shall be [Reg s.30(1)5, s.33(1)6]] :

• $40; or
  
  
• $50, if an approved health professional confirms that the person requires a non-dairy diet.

An 'approved health professional' for these purposes is a [Policy Directive 6.5; General Reg s.2(4)]:

• Physicians;
  
• Registered Nurses in the Extended Class [RNEC];
  
• Registered Dietitians;
  
• Registered Midwives; and
  
• Traditional Aboriginal Midwives recognized and accredited by her or his Aboriginal community.

This supplement is provided to 'Renters and Home Owners' (see s.2 above) and 'Boarders and Lodgers' (see s.3 above).


6. Sponsored Immigrants

(a) Overview

Normally, immigrant sponsorship income reduces income support dollar-for-dollar.

But sometimes the sponsor defaults in their support, for whatever reason. Of particular concern were situations where the immigrant continued to live in premises owned or controlled by the defaulting sponsor. If rent were paid by the recipient to the sponsor then the net effect was that of ODSP "paying" rent to the landlord/sponsor while they continued to default in their financial responsibilities.

ODSP rules governing this situation are explained here.

(b) Budgetary Requirements of Recipients Not Living in Sponsor-Controlled Premises

The situation for sponsored immigrants who live in premises not owned or controlled by a sponsor is simple. They are treated as normal applicants subject to normal budgetary requirement determination. When the sponsor pays money towards their support it is deducted dollar-for-dollar.

(c) Treatment of Recipients Living in Sponsor-Controlled Premises

. Overview

The first rule for sponsored immigrants who reside in premises controlled in whole or part by the sponsor is that where the full sponsorship undertaking is being honoured, the amount paid is deducted from assistance dollar-for-dollar.

If however the amount paid is less than the undertaking (ie. a defaulting sponsor), then the applicants are granted the "basic needs" component of the budgetary requirements, but (with exceptions noted below) are denied the "shelter" component. Technically, the denial of the shelter component is achieved by use of a "deemed income" rule as set out below. Recall that "deemed income" has the effect of reducing assistance dollar-for-dollar in the amount of the "deemed income".

. Calculation of "Deemed Income"

In this case, all sponsored immigrants are "deemed" to have income at a level which is the greater of "A" or "B" below [Reg s.40]:

A. the monthly amount paid and/or "available" (as determined by the welfare administrator) to the member of the benefit unit under the immigration sponsorship;

B. the result of the following formula (which produces a result equal to the shelter component for renter/owner recipients):

i. the monthly amount of budgetary requirements as calculated under the "renter/owner" rules (see s.2 above) minus

ii. the basic needs amount calculated above in s.2(b) [2. 'Renters and Home Owners, (b) Basic Needs'] (reduced by any 'Shared Custody or Shared CCTB Eligibility for a Dependent Minor').

If the "A" deemed income applies then the administrator has designated the amount "available" (or actually paid) and simply deducts this dollar-for dollar from the monthly assistance.

If B applies the effect is to eliminate the shelter component. Note that the chart at s.2(b) is used to determine the "basic needs" component of budgetary requirements under the "renter/owner" rules. By subtracting this from the budgetary requirements the effect is to eliminate the shelter component from the budgetary requirements for the applicant.

. Exceptions

In any of the following circumstances, the "deemed income" above shall itself be deemed to be zero (thus restoring normal shelter component rules and coverage for basic needs):

• the sponsor is in receipt of or eligible for social assistance (either welfare or ODSP);
  
  
• the sponsor receives the Guaranteed Income Supplement (GIS) under the Old Age Security Act (Canada) (this is distinct from an OAS pension) or a GAINS-Senior allowance under the Ontario Guaranteed Annual Income Act;
  
  
• the sponsorship undertaking has broken down by reason of domestic violence;
  
  
• the recipient has a legal obligation to contribute to any element of shelter expense for the premises (see s.2(c) above for a list of these items);
  
  
• the recipient, in order to continue to reside in the premises, is "required" by the sponsor to pay for shelter.

7. Prisoners

The ineligibility rule for persons in penal facilities is set out in Ch.2 'Claimants', s.10 'Prisoners'. Below I discuss the application of this rule.

If the person is placed in a penal facility while they are on ODSP, the following rules apply with respect to their budgetary requirements [Reg s.35]:

• upon detention, budgetary requirements are reduced on a pro-rated basis by the number of days of the month in which the person is detained (ie. they end immediately, but the recipient gets the part month up to the incarceration);
  
  
• during full months of detention budgetary requirements are deemed to be zero;
  
  
• upon release:
  
  - the basic needs component of budgetary requirements are reduced on a pro-rated basis by the number of days of the month in which the person is detained (ie. it restarts immediately on request, but the recipient only gets it for the part month they are out), and
  
  - the shelter component may (at the discretion of ODSP) be similarly treated (this gives discretion to ODSP to grant the whole month's shelter component).

The key practical points are that recipients are required to advise ODSP on both incarceration and release. Failure to advise ODSP on incarceration and allowing assistance to accumulate will result in an eventual overpayment assessment (see Ch.11, s.3 "Director Decisions: Overpayments"). Failure to advise ODSP on release will delay the recommencement of assistance.


8. Institutional Residents

Note: The "PNA" rate at 01 July 2024 is $149.
(a) Overview

Institutional residents whose shelter and food are supplied by the institution they reside in, usually have their budgetary requirements set at a "personal needs allowance" or "PNA" rate [$149 at 01 July 2024] (this amount is not inflation indexed) [General Reg 32(1)1]. The PNA calculation is based on the non-food part of a basic needs component (ie. clothes and miscellaneous). There are some variations to this rule, but the budgetary requirements of each category of institutional resident are set out in this section.

Institutional residents can be grouped as follows:

. Categorically-ODSP Eligible

These are persons who, solely by virtue of their residence in a particular type of institution, are granted ODSP medical eligibility.

These categories are identified in Ch.2, s.8(e) "Claimants: Substitute for PWD Status: Institutional Residents", and they are re-listed below in sub-section (b).

. Otherwise-ODSP Eligible

These are persons whose ODSP eligibility is established other than by institutional residence, but who also happen to reside in some form of institution. Typically their eligibility is established by being assessed as a 'person with a disability', but also by other eligibility criteria as are discussed in Ch.2, s.8 (eg. CPP eligibility, FBA-grandparented, over 65 but not OAS-eligible).

. ODSP-Ineligible

Institutional residents not having either PWD or "categorical" eligibility status may, in some cases, be able to obtain additional assistance from Ontario Works (welfare) in additional to the basic shelter and food supplied by the institution.

These are covered in the welfare program, Ch.2 "Claimants".

(b) Categorically-ODSP Eligible

Residents of the following facilities are granted automatic ("categorical") ODSP eligibility [Reg s.4(1); s.32]:

• Psychiatric Facilities
  
  All provincial psychiatric institutions (including former such facilities now merged with hospitals) listed in s.1, Reg 744/90 under the Mental Health Act: Listed Psychiatric Facilities;
  
  They receive the PNA rate.
  
  
• Centre for Addiction and Mental Health (CAMH);
  
  They receive the PNA rate.
  
  
• Homewood Health Centre (Guelph);
  
  They receive the PNA rate.
  
  
• Homes for Special Care Act Facilities
  
  Facilities under the Homes for Special Care Act (typically, former residents of long-term provincial psychiatric facilities);
  
  They receive the PNA rate.
  
  
• SSPSIPDD/A Facilities
  
  An intensive support residence or a supported group living residence, as defined in subsection 4(2) of the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008".
  
  Their budgetary requirements are assessed at $1,073/1,195 (this amount is inflation indexed), in addition to the PNA rate

(c) Otherwise ODSP Eligible

• Overview
  
  These are persons who have established ODSP eligibility independently of their residence in an institution, but who nonetheless reside in an institution. These include those establishing eligibility under the main "persons with a disability" determination, as "grand-parented" FBA recipients, as CPP-disabled recipients, and most seniors not eligible for federal pensions (see Ch.2 "Claimants: Substitutes for PWD Status" for these categories).
  
  The budgetary requirements of residents of these institutions are as follows.
  
  
• Long-Term Care Homes
  
  Long-term care homes under the Fixing Long-Term Care Act, 2021 (this category includes those formerly categorized as residents of nursing homes, homes under the Charitable Institutions Act, and homes under the Homes for the Aged and Rest Homes Act) [Reg 32].
  
  Their budgetary requirements are set at $1,068/$1190 (this amount is inflation indexed) in addition to the PNA rate. Such persons who were formerly resident in "an approved charitable home for the aged under the Charitable Institutions Act" who, in the opinion of the Director, require financial aid in order to travel in the community, may receive up to another $30 [Reg 44(1)9].
  
  
• Facilities for the Chronically-Ill
  
  Hospitals for chronically ill patients, chronic care hospitals or chronic units attached to a general or convalescent hospital (if designated as a hospital or health facility under the Health Insurance Act Regulations for providing insured services) [Reg 32].
  
  They receive the PNA rate.
  
  Residents of chronic care facilities may also have additional "extra services and items" coverage available to them (see Ch.4, s.2: "Benefits: Listed Benefits: Chronic Care Institution Extra Services and Items".
  
  
• Corrections-Related Community Residences
  
  A community residence if the applicant or recipient is on temporary absence, parole or probation or is serving a conditional sentence and if his or her placement in the community residence is funded in whole or in part by the Ministry of Community Safety and Correctional Services [Reg 32(2)4].
  
  They receive the PNA rate.
  
  
• CYFSA Facilities
  
  A residential facility providing treatment, care or rehabilitation programs under the Child, Youth and Family Services Act [Reg 32(2)4].
  
  They receive the PNA rate.
  
  
• Residential Schools for Vision or Hearing Impaired
  
  A provincial residential school for persons whose vision or hearing is impaired [Reg 32].
  
  They receive the PNA rate.
  
  
• Abused Women's Interval or Transition Homes (Shelters)
  
  The standard minimum budgetary requirements of a woman residing in "an interval or transition home for abused women" is $149 (which happens to be the PNA rate at 01 July 2024) per member of the benefit unit [Reg s.33.1]. As the provision uses the phrasing: "the Director may reduce the budgetary requirements of the applicant or recipient to an amount that is ... not less than the sum of $149" this is a discretionary reduction, no doubt influenced by the agency's budget.
  
  However, for the first three months of residence in a women's shelter, a woman wishing to try to preserve her right to return home may have her budgetary requirements calculated as though she still lived at home (ie. under the normal rules that apply to "renters and owners" or "boarders and lodgers", as applicable).
  
  
• General Interval or Transition Home (Not Shelters)
  
  ODSP recipients who are in 'general' (not specialized facilities for abused woman) "interval or transition homes" (either men and women) each receive $149 per month [Reg 33.1(3)], which happens to be the PNA rate.
  
  
• Hospitalization
  
  For the first three months of hospitalization no budgetary requirement reductions may be made against members of the benefit unit that are hospital patients, so for that time it is just as though they still lived "at home" [Reg s.36]. However, after that point the Director may, at their discretion, apply reductions, which typically first involve ending the basic needs component (food and clothing) only - so that the shelter component is maintained (regardless of how inadequate this is to maintain their housing)
  
  
• Residential Substance Addiction Treatment Programs
  
  Similar to recipients who become hospitalized, a recipient who enters a facility for a "residential substance abuse recovery program" may have their budgetary requirements reduced at the discretion of the Director, but only after three months of such residence [Reg s.36.1]. Typically this 'after three months' reduction will be done to end the basic needs component (food and clothing) for the duration of the program.
  
  
  *********** below is temporally transferred to external file
  
  -------------------
  >>>> Addressing shelter/homelessness now?:
  
  **** working at s.33.1(3); also PD 8.1-8.5;
  **** homelessness needs an SS consideration of PD 6.1 (basic needs) and 6.2 (shelter); address Genl Reg 30(1) preamble ... [does the province (PDs) deal with homelessness entirely in welfare? see OWA PD 6.16 - ]
  
  Consider from OWA PD 6.16:
  "Persons staying at an emergency hostel or shelter that is funded by an MMAH program to prevent homelessness, and who are eligible for Ontario Works, will receive financial assistance and employment assistance." [no mention of shelter, so none]; can't find any parallel ODSP PD passage on same, so assume(?) same (would be absurd otherwise)
  --------------------
  
  
• Homeless and Living Rough
  
  ODSP recipients generally get the PNA rate while living in shelters [see 'General Interval or Transition Home (Shelters)' above], while this suggests that homeless ODSP recipients are only entitled to the PNA amount, this is not always accurate. ODSP recipients finding themselves forced into homeless situations (outside shelters) should maintain contact with their regular ODSP office and advise them of their status and residence.
  
  The budgetary requirements of purely (non-shelter) homeless recipients are the same as for the regular "renter/owner" category [Reg s.30] - with of course natural adjustments for the absence of "usual" shelter expense of rent or mortgage payments. Thus homeless persons are entitled to the "basic needs" component of their budgetary requirements under the same category as "renters and owners",
  
  The same budgetary requirement calculation applies to persons not living in a homeless shelter, including persons "living rough" (ie. sleeping in ravines, bus shelters, etc) and those "crashing" with friends or acquaintances without any formal rent arrangements.
  
  Situations of "crashing" can include a shelter component if the host is prepared to accept a role as "landlord" - however temporary - and charge "rent". However legally this establishes a "tenancy", with all its incumbent legal rights and duties under the Residential Tenancies Act - a burden which the host may not be prepared to accept. The benefit of course to the 'landlord' is that ODSP should cover the rent charge, as long as it does not exceed the maximum ODSP shelter amount.
  
  In all situations of homelessness the potential to use the "shelter" component of income support is typically ignored both by recipient and the Director. Imaginative use of the shelter component [see s.2(c) above] with respect to non-rent shelter expenses such as heating fuel, water, building supplies, etc is available.

(d) ODSP-Ineligible

Some institutional residents who are not eligible for ODSP may have eligibility under welfare (Ontario Works) [OW General Reg s.7(2)], typically for the PNA (personal needs allowance) where shelter and food are provided.

Some others may not have welfare eligibility [OW General Reg s.7(1)], and have to rely entirely on the institution in which they reside for food, shelter and personal needs [see the welfare (Ontario Works) Guide at Ch.2 "Claimants" and Ch.3 "Basic Assistance"].