FULL TEXT OF SUPREME COURT OF BC RULING

Province must pay in precedent-setting disability case

Chad Skelton, Vancouver Sun
Published: Saturday, June 17, 2006
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Neil Fahlman was only about six years old when he started setting things on fire.

His mother, Fiona Gow, still remembers getting out of the shower one day to see virtually all the candles in her house lined up in a row and lit -- and her son walking around with a homemade torch.

"He'd taken a broom handle, wrapped it in newspaper and set it on fire," she recalled.

Fahlman, who suffers from a developmental disorder similar to autism, became even more difficult to control as he entered his teens.

"He's done a great deal of damage to our house. Most of our walls are patched. A lot of our doors have had to be patched or replaced," said Gow.

"It's almost like having a toddler sometimes -- except he's nearly 300 pounds and five feet, 11 inches."

Since his mid-teens, Fahlman has been receiving seven hours a day of intensive one-on-one support, paid for by the provincial government at a cost of about $77,000 a year.

But last summer, Community Living B.C. -- a government agency -- decided it would cut Fahlman off once he reached the age of 19 the following January.

It wasn't because Fahlman no longer needed support -- a psychological report conducted by the agency said he would be "extremely vulnerable" without it -- but because he failed to meet a single criterion: his IQ was too high.

Under the agency's guidelines, the same as those used by the ministry for years, adults are only eligible for Community Living services if they have an IQ below about 70.

Fahlman scored a 79.

Gow, who happens to works as a lawyer in the Attorney-General's ministry, decided to take Community Living to court, arguing the agency had no reason to deny services based on an IQ test.

This week Justice Eric Chamberlist agreed with Gow, finding there was no legal basis for the agency to deny Fahlman benefits simply because his IQ wasn't low enough.

He ordered the agency to review Fahlman's case on its merits -- something Gow is confident will ensure that Fahlman continues to receive support.

(Community Living had earlier agreed to continue his benefits until the case was decided.)

Adrian Dix, the NDP's Children and Families critic, said Wednesday's decision could have a far-reaching impact on many families in B.C.

"I have personally met with dozens of families in similar situations," Dix said.

He also urged the government to set aside enough money to pay for the new cases, so the money to pay for them doesn't come from existing clients.

Sally Greenwood, a spokeswoman with Community Living B.C., said the agency doesn't know how many people may be affected by the ruling.

She said the agency is still reviewing the decision and hasn't decided whether it will appeal.

Gow said she was terrified last summer that her son would lose his benefits -- especially because she had no way of paying for his care out of her own pocket.

"I really couldn't bear to think about it," she said. "I was afraid he would end up on the street and become a dupe of drug dealers and the like because he really doesn't have any sense and he's so desperate for companionship," she said.
Gow and her first husband adopted Fahlman when he was just five weeks old.

By the age of two, they knew he had problems.

His speech was slow, he had difficulty following directions and, when frustrated, often became violent -- symptoms Gow believes were due to exposure to alcohol and cocaine in the womb.

Gow said her son's condition can be deceiving.

"When he's calm and everything's under control, he's good company," she said. "He can seem perfectly normal."

But he has difficulty focusing, and can't deal with even mild stress, she said.

"He can't cope with any anxiety -- it just sends him into a frenzy."

When Fahlman reached age 15, Gow and her second husband could no longer control him and he moved out, living in several foster homes before the family rented him a small cabin on Shawnigan Lake.

That arrangement didn't last long -- neighbours complained about his erratic behaviour -- and he recently returned home.

But on Thursday night, things fell apart after Gow told him one of the family pets -- a stray cat he had found -- had died.

"When he was told, he punched some holes in his bedroom walls because he was so distressed by it," said Gow. "So we told him, no, he can't be at home at the moment so we've made arrangements for him to board with a friend for a month."

Gow acknowledged that the $77,000 annual cost of caring for Fahlman is significant.

But she said that's probably cheaper than what it would cost society if he didn't receive help.

"The cost of housing somebody in prison is even more," she said.

cskelton@png.canwest.com

© The Vancouver Sun 2006

Full Text of Ruling