To qualify for higher income assistance in Nova Scotia, a home now needs running water and a sewer connection.
The province filed the legislative amendment on Aug. 25 and it took effect the same day. It rewrites the provision the Nova Scotia Court of Appeal interpreted on Aug. 7, when it ruled that Bradley Lowe’s tent was his accommodation.
Lowe died Dec. 15, 2023, of an overdose in a tent in front of Halifax City Hall, after camping at Victoria Park. Two months earlier he applied to move from $380 a month to the enhanced rate of $974, saying he had a disability and owned his tent. He was denied because he was deemed unhoused.
Under the amended rates, a single person on income assistance receives $410 a month without a home and $738 with one. The rate rises to $1,022 for someone with a home who has a disability, is 55 or older or meets other criteria in the regulations.
“I am satisfied that the tent owned by Mr. Lowe, and in which he resided, was his accommodation within the meaning of s. 49 of the Regulations,” Chief Justice Michael Wood wrote in the decision.
The amendment strikes “is renting or owns their accommodation” from Section 49 and substitutes “lives in a home.”
The previous regulations never defined accommodation, but now defined a home as the primary residence of a recipient that is a self-contained unit they rent or own, a room in a municipally approved or licensed rooming or lodging house or a single occupancy room in a building run by an approved provider under the Supportive Housing Program.
A self-contained unit requires private living, kitchen and bathroom facilities, including a plumbed water supply and sanitary sewer disposal. The definition of mobile home is repealed outright.
Vince Calderhead, the Halifax lawyer who represented Lowe’s estate, said in an email to National Post that the plumbing requirement is “the key change that serves to overturn the court of Appeal’s decision.”
Calderhead said this month that people living in their cars might also have qualified under the ruling, and that it was hard to say whether people in trailers would. The province could rewrite the regulations and redefine accommodation “in a way that would exclude tents or cars or campers or anything like that,” he said.
The same test now applies to the $738 rate, which Section 48 pays to a recipient who “lives in a home or boards.” Anyone who qualifies for neither falls to $410.
The order describes itself as updating assistance rates, adding income exemptions, amending definitions and modernizing language. It does not mention the court.
The Department of Opportunities and Social Development said in a statement that the court interpreted the regulations as they were written at the time and identified that some language, including how accommodation was described, could be clearer. “While previous decisions had supported the department’s interpretation of the regulations, the Court of Appeal reached a different conclusion, highlighting the need for greater clarity,” the statement said.
The amendments “provide clearer direction on how different living situations are considered when determining eligibility for income assistance rates,” the department said. Eligibility for income assistance itself has not changed, it said, and people experiencing homelessness will continue to be able to access it and other supports for which they qualify.
Rafey Zuberi, a communications advisor with the department, did not answer whether someone living in a tent can qualify for either of the higher rates.
Nicole MacDonald, who speaks for the department, told the National Post in an email on Aug. 18 that it was carefully reviewing the decision and the existing legislative and regulatory framework. She did not say whether the regulations would be rewritten or whether the province would appeal to the Supreme Court of Canada.
She said an estimate of what the ruling would cost would be speculative because eligibility is decided case by case. The minister’s recommendation for the amendment is dated the next day.
Dalhousie Legal Aid Service prepared a guide encouraging homeless people to apply. Mark Culligan, a community legal worker there, said on Aug. 18 that it had helped half a dozen file.
Asked whether the amendment reaches applications made before Aug. 25, Calderhead wrote that it “is harder to say.” The department said applications from between Aug. 7 and Aug. 25 are assessed “on a case-by-case basis, looking at all of the circumstances of the individual.”
The amendments strike the word accommodation from five provisions and leave it in one. Subsection 55A(2)(b) still requires a recipient to board, rent or own their accommodation to receive a disability supplement, set at $324 a month in the new table.
“I hadn’t noticed that but you are right,” Calderhead wrote when the provision was put to him. Someone in a tent could possibly still qualify for the supplement, he wrote, “so long as they have a disability.”
Calderhead said this month that the ruling could have applied to between 200 and 300 people in Nova Scotia’s warmer months. Culligan said about 50 people live at Halifax’s two designated encampments.
Wood’s reasoning turned on the purpose section of the Employment Support and Income Assistance Act, which he wrote speaks of independence and self-sufficiency and does not reference shelter or housing types. The order amends the regulations, not the Act. Calderhead wrote that “we’ll need to review it closely.”
The amendments do not change what a recipient in a home receives. They write the current rates into the regulations and add an annual adjustment for inflation.
Calderhead wrote that the province had a choice after the ruling. “It could leave the regulations stand and give a measure more dignity to people who are desperately poor or they could choose to re-write the law in a way that pushes homeless people back into desperate poverty, miles below the official poverty line. Today, we see which way this government has chosen.”
The ruling still stands for Lowe’s estate. Wood found he was entitled to the enhanced rate at the time of his October 2023 application and awarded $3,000 in costs.
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