The report, Veterans’ Right to Know Reasons for Decisions: A Matter of Procedural Fairness, contains the results of the Veterans Ombudsman’s examination of letters issued by Veterans Affairs Canada to inform applicants of its decisions pertaining to their application for disability pensions or disability awards.
The purpose of the review was to determine whether the Department has adequate policies and procedures in place to ensure procedural fairness by providing adequate reasons for assessment decisions. A set of guidelines applicable to procedural fairness in public sector decision-making as it relates to providing reasons for decisions was used to assess the adequacy of information contained in the Department’s letters informing applicants of its assessment decisions. A random sample of 213 decision letters sent out between 2001 and 2010 were examined as part of this review.
Veterans, in common with all Canadians, have a right to procedural fairness from public decision-makers. The obligation to provide adequate reasons for decisions that affect them has been well established in administrative law in Canada and abroad. It is even more important to fulfill that obligation where it is an explicit legal requirement, as is the case with assessment decisions made by Veterans Affairs Canada under both the Pension Act and the Canadian Forces Members and Veterans Re-establishment and Compensation Act.
Veterans have a right to know why and how decisions that affect them are made by the Department. The review uncovered a pattern of letters that provided information to applicants about decisions made, the legislation, policies or evidence considered, without providing an adequate explanation of how the decisions were made:
15 percent of letters reviewed simply stated the assessment result.
65 percent of letters provided minimal explanation by informing applicants of the assessment result and providing references to governing legislation, assessment tools and supporting documents.
20 percent of letters provided detailed information on legislation, assessment tools and supporting documents that would likely enable the recipients of these letters to infer to some extent how the decision was arrived at.
In applying the guidelines established for this review, the Ombudsman found that all the letters examined failed a test of adequacy in the reasons given for the decisions. Providing information to support a decision is fundamentally different to providing a reason for a decision. This difference seems not to be understood by the Department as all letters examined did not apply any analysis to the information they contained to clearly explain the decisions. It is equally clear from the review, that corrective measures are needed to improve the process used by the Department to generate decision letters.
The failure to provide reasons for decisions, a denial of procedural fairness first brought to the Department’s attention by the Auditor General of Canada in 1998, is at odds with the commitment to fairness and respect for Veterans guaranteed by the Veterans Bill of Rights.
The resulting lack of procedural fairness to Veterans is of great concern to the Veterans Ombudsman:
Veterans have a right to know why and how decisions are made. The letters concern monetary entitlements that have a direct impact on Veterans’ quality of life. Veterans need assurances that their applications for disability benefits have been fully and fairly considered. A detailed decision letter is the essential source of that information.
It troubles me to think that many Veterans may be wrongly assessed and do not pursue the matter further because the letter did not reveal where the Department’s decision might have been flawed. It is equally unacceptable for Veterans to exercise their appeal rights without having been provided with a clear explanation of the decision.
Veterans Ombudsman’s Recommendations
For Veterans Affairs Canada to improve the mechanisms by which disability benefit assessment letters are generated to make sure essential information is captured for inclusion in letters. This information should be presented in a form that is understandable and is in relation to the decision made. An explanation of how this information has been used to arrive at the decision is required. The Department should also ensure that a notice of the right to appeal is contained in every disability benefit decision letter.
For reasons for decisions to be written in plain language. Any legal, medical, or administrative terms used should be explained. A separate brochure or other companion piece would serve this purpose and could be included with decision letters.
For procedure manuals and training modules to be examined to ensure that adjudicators are aware of the minimum information to be provided in letters and what is needed to substantiate the reasons for their decisions.
For quality assurance procedures to be put in place to ensure decision letters fully comply with standards for adequacy of reasons for decisions.
