Document Type
Article
Abstract
The United States federal government’s disability insurance system is a leading example of the problems that arise when a social program combines subjective eligibility criteria with an administrative apparatus that cannot handle the inevitable expenses and delays that such criteria create and that are expensive to reverse. In particular, Black, female, and non-English speaking individuals are most likely to be improperly denied benefits under that program. By contrast, Canada is moving in the right direction with its recent enactment of the Canada Disability Benefit Act. That Act, while obviously not perfect, importantly improves access to social support for people with disabilities throughout Canada. This paper advocates that Canadian policymakers should do what they can to make sure that their country does not replicate the experience in the United States.
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Citation Information
Buchanan, Neil H..
"Disability Benefits and Administrative Vulnerability: Lessons for Canada from the US’s Social Security System."
Osgoode Hall Law Journal
61.2 (2024)
: 501-511.
DOI: https://doi.org/10.60082/2817-5069.4024
https://digitalcommons.osgoode.yorku.ca/ohlj/vol61/iss2/8
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References
1 Visiting Professor of Law, University of Toronto, James J Freeland Eminent Scholar Chair in Taxation and Professor of Law Emeritus, University of Florida Levin College of Law, nh.buchanan@utoronto.ca. I gratefully acknowledge my excellent research assistants at the University of Florida Levin College of Law: Tonianne Attard ’23, Grace O’Connell ’23, Laura Chiu ’24, Serina Combs ’24, Sarah K Janetzke ’24, and Donald J Murdaugh ’25. I received very helpful comments during an oral presentation of some of the ideas developed herein, in particular from Professor Jinyan Li, at the “Women with Disabilities: Income Security and Tax Policy” workshop, sponsored by Osgoode Hall Law School on 11 November 2022. I would also like to thank the organizers of that workshop, Professors Jinyan Li and Hengameh Saberi, for kindly inviting me to participate.
2 See generally Canada Disability Benefit Act, SC 2023, c 17 [CDBA].
3 See Osgoode Hall Law School, “Women with Disabilities: Income Security and Tax Policy” workshop (19 December 2022) at 00h:04m:08s, online (video): [perma.cc/Z2CQ-4TU7].
4 See CDBA, supra note 2.
5 Social Security Administration, “Old-Age, Survivors, and Disability Insurance – SSA, Social Insurance Programs” at 9, online: [perma.cc/KJ9A-VK33].
6 See ibid at 12. For details about the retirement system, see generally Social Security Office of Disability and Retirement Policy, “Social Security (Old-Age, Survivors, and Disability Insurance) Program Description and Legislative History,” (2020) online: [perma.cc/Y3Q2-92U9].
7 See ibid, Social Security Office of Disability and Retirement Policy.
8 Ibid.
9 Social Security Administration, “Fact Sheet: Social Security” (last visited 8 February 2023) at 1, online: [perma.cc/Y5NN-JQLS].
10 For citations in support of the discussion here, see generally Neil H Buchanan, “Social Security Is Fair to All Generations: Demystifying the Trust Fund, Solvency, and the Promise to Younger Americans” (2017) 27 Cornell JL & Pub Pol’y 237 at 272 [Buchanan, “Social Security is Fair to All Generations”].
11 See Joseph G Haubrich, “A Brief History of Bank Capital Requirements in the United States” (28 February 2020) at 1-2, online: [perma.cc/US3X-UV7R], DOI: https://doi.org/10.26509/frbc-ec-202005 (demonstrating very small “capital requirements” and reserve rules are in place to prevent runs on banks).
12 See Buchanan, “Social Security Is Fair to All Generations,” supra note 10 at 298.
13 See ibid at 288.
14 See Neil H Buchanan, “Social Security’s Good News is Good News” (23 June 2022), online (blog): [perma.cc/N4MY-RMB8].
15 Ibid.
16 Buchanan, “Social Security Is Fair to All Generations,” supra note 10.
17 Center on Budget and Policy Priorities, “Policy Basics: Top Ten Facts about Social Security” (last visited 4 March 2023), online: [perma.cc/7AEJ-RHWF].
18 Office of the Chief Actuary (Social Security Administration), “Benefit Computation Examples for Workers Retiring in 2024,” online: [perma.cc/4QJQ-R7E8].
19 Social Security Administration, “Social Security Administrative Expenses” (last visited 22 March, 2023), online: [perma.cc/CGG6-QKJT].
20 See US, Congressional Budget Office, Administrative Costs of Private Accounts in Social Security, (Washington, DC: Congressional Budget Office, 2004) at 2 (showing that private mutual funds’ costs reduce retirement benefits by 23 per cent in total, whereas Social Security’s costs reduce total assets by 2 per cent).
21 See e.g. US Department of Agriculture, “SNAP Work Requirements” (last modified 26 February 2024), online: [perma.cc/4QVN-6DCJ]; USAGov, “Unemployment benefits” (last modified 18 December 2023), online: [perma.cc/YT3X-EHDJ]; Megan Messerly & Robert King, “Georgia offered Medicaid with a work requirement. Few have signed up.,” Politico (26 December 2023), online: [perma.cc/P4RX-F945].
22 Gerald Ray & Glenn Sklar, “An Operational Approach to Eliminating Backlogs in the Social Security Disability Program” (June 2019), online: McCrery-Pomeroy Social Security Disability Insurance Solutions Initiative [perma.cc/QP6H-KC8J]. Ray and Sklar observe that:
Applicants trapped in extensive backlogs risk losing homes, vehicles, and/or private health insurance. If applicants attempt to work, they may compromise their likelihood of prevailing on their claim. If they do not work while they wait for a decision, they may face potential economic calamity.
23 See Lisa Rein, “Social security denies disability benefits based on list with jobs from 1977,” The Washington Post (27 December 2022), online: [perma.cc/WF8P-PSQA] (Rein describes one worker who was denied benefits at a final appeals hearing four years after initially applying, following two strokes).
24 Ibid (Rein finds that “[a]bout 1 in 3 claimants are awarded benefits on their first try”).
25 See Shawn Trabanino, “Health, Law, And Ethnicity: The Disability Administrative Law Judge And Health Disparities For Disadvantaged Populations” (2020) 108 Cal L Rev 2079 at 2087, DOI: https://doi.org/10.15779/Z389W0903K.
26 See Rein, supra note 23 (“‘We thought [in 2008] we could [update the job categories] in 10 years. It might take 20 years,’ said Byron Haskins, who worked on the project as a branch chief from 2010 to 2016. ‘In the meantime, we’re not standing on solid ground on these decisions’”).
27 See Lisa Rein, “Social Security offices critical to disability benefits hit breaking point,” The Washington Post (5 December 2022), online: [perma.cc/Q453-LBVT].
28 Trabanino, supra note 25 (“Appearance before the ALJ occurs about a year later” at 2087).
29 Ibid (“Through the five-step process, low-income claimants who cannot afford an attorney must represent themselves as pro se claimants in a difficult legal process. Claimants must cover their own costs, which includes proof of disability derived from various sources” at 2088).
30 See Lisa Rein, “Social Security services to worsen despite budget boost, agency head says,” The Washington Post (18 February 2023), online: [perma.cc/8ZYT-HCBK].
31 US, Social Security Administration, General Statement (Washington, DC: Social Security Administration, 2023) at 2.
32 US, Social Security Administration, What Every Woman Should Know (Washington, DC: Social Security Administration, 2023) at 1.
33 National Academy of Social Insurance, “Social Security and People of Color” (last visited 4 July 2023), online: [perma.cc/AFW5-QTDQ].
34 See Kathy A Ruffing, “Women and Disability Insurance: Five Facts You Should Know” (14 March 2018), online: [perma.cc/7H7L-LG4T].
35 Trabanino, supra note 25 at 2089 (“[t]he SSA indicates that those most often improperly denied are claimants who are Black, women, and non-English speaking”).
36 Social Security Ruling, SSR 13-1p: Titles II and XVI: Agency Processes For Addressing Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges (ALJs), 78, Fed Reg 6168 (2013) at 6169.
