Social Assistance Amendment Bill [B5B-2010]: Departmental briefing

Meeting report

Social Assistance Amendment Bill [B5B-2010](the Bill): Department of Social Development briefing
The Chairperson noted apologies from the Deputy Minister, who was in China, and the Minister, who was chairing a Cluster Committee meeting of the Cabinet.

Mr Vusi Madonsela, Director General of the Department of Social Development, explained that the Social Assistance Amendment Bill (the Bill) had been processed by the National Assembly Portfolio Committee on Social Development in the National Assembly, and the Department of Social Development (DSD or the Department) would present the Bill in the form that it had been approved by that Committee.

He explained that although the original Bill as tabled in Parliament contained a set of clauses that dealt with the definition of disability, this had later been removed from the Bill. The DSD and the Department of Health (DoH) were bound by law to work cooperatively on the implementation of this Bill. However, the DoH was not ready to implement the provisions of the originally-tabled Bill, with the result that those clauses dealing with the disability definitions were removed.

He noted that the DSD’s briefing would focus on administrative justice issues and the right of appeal of applicants who had been unsuccessful in making applications for grants at the South African Social Security Agency (SASSA).

Mr Puseletso Loselo, Chief Director: Legal services, Department of Social Development, outlined that the presentation would deal with the purpose of the Bill, the process thus far, the current provisions of Sections 14 and 18 of the Social Assistance Act (the Act) and proposed amendments to those sections introduced by this Bill.

The Bill was published for public comment in November 2009, but there was no reaction from the public. The Bill was published again on 1 March 2010, and ten written submissions were received by the Portfolio Committee, which then held public hearings on 20 and 21 April. The National Assembly passed the Bill for submission to the National Council of Provinces (NCOP) during the second quarter of 2010.

Mr Loselo said that Section 14 (3)(b) (iii) of the Social Assistance Act provided that if an applicant did not qualify for a grant, the Agency (SASSA) had to inform the applicant of his or her right of appeal, as contemplated in Section 18 of the Act, and of the mechanism and procedure to invoke that right.

The problem with that provision as it stood was that it did not allow for the applicant or the beneficiary to be informed of his or her right to request a reconsideration, as envisaged in Section 18.

The proposed amendment contained in this Bill therefore now stated that if an applicant did not qualify for a grant, the applicant should be informed of his or her right to request reconsideration and his or her right of appeal, as contemplated in Section 18, and of the mechanism and procedure to invoke any such right

Mr Loselo then turned to the amendment proposed to the current Section 18(1) of the Act, which only permitted applicants or persons acting on their behalf to appeal against any decision of the Agency relating to any matter regulated by the Act. Beneficiaries who were receiving a grant, but whose grants had been terminated or suspended, did not, however, have the right to appeal against any decision of the Agency relating to any matter regulated by the Act. As a result beneficiaries were left with no other recourse other than to approach the courts for review. Furthermore, this section currently did not make any provision for SASSA to reconsider its decision before the applicant or beneficiary could appeal against any of its decisions relating to any matter regulated by the Act. As a result, the Independent Tribunal was clogged with unnecessary cases, and there were unnecessary costs being incurred both for litigation and consideration of appeals.

The Bill therefore now proposed that Section 18(1) be amended to insert ” beneficiary”, so as to accord the beneficiary the right to appeal against the decisions of the Agency. It also wished to insert an amendment so that a beneficiary or applicant could first request the Agency to reconsider its decision, before appealing that decision to Independent Tribunal. This involved amending the wording so that the Agency could”…after consideration of the matter, confirm, vary or set aside that decision” The words “or make any other decision which is just” would be deleted. This was to clarify the powers of the Independent Tribunal in relation to what decisions it could make. The reference to “any other decision which is just” had left much space for misinterpretation and the effect was that the Independent Tribunal had made decisions that were not in line with the intention of the legislation.

The amendment to Section 18(4) further allowed for the Independent Tribunal to consider late applications by applicants or beneficiaries, which were brought after the stipulated 90 days, as the Minister would prescribe in the regulations.

Discussion
Ms B Mncube (ANC, Gauteng) referred to Chapter 3, and indicated that the Act had referred consistently to “person” although the amendment used the terms “applicant” and “beneficiary”. She wanted to know whether this was mere semantics or whether the word “beneficiary” encapsulated more than the word “person”.

Ms Mncube asked whether there were timeframes attached to the process of the application, the response to the application from SASSA and the request by the applicant for reconsideration, so that the process should not drag on indefinitely.

Mr Loselo said that Section 18 provided for the Minister to prescribe in the Regulations how the process would unfold.

The Chairperson asked what the DSD planned to do to prevent foreign Africans from claiming social benefits to which they were not entitled.

Mr Loselo replied that no special provision would be made to prevent foreigners from claiming social benefits. The DSD depended on the Department of Home Affairs to ensure that all bearers of South African Identity Documents (IDs) held these legitimately. Once a person had a South African ID, there were no grounds on which SASSA could prevent the person from applying for a social grant.

Mr S Plaatjie, (COPE, North West) asked what the process was for lodging a complaint or requesting a reconsideration, and whether this could be done orally at a SASSA office, or in writing.

Mr Loselo said that the procedure to apply for reconsideration would be set out in the regulations. The application for reconsideration would be in writing. There would be a specific form.

Mr Selwyn Jehoma, Deputy Director General: Social Security, Department of Social Development, added that Section 5 of the Act set out the qualifying criteria. In Sections 6,7 and 8 the different categories of grants were described. Section 5(1)(c) indicated that people had to be South African citizens or had to belong to a group that was prescribed by the Minister as qualifying for social assistance, such as foreign nationals with permanent residency status. He said that he would like to brief the Committee on this at a later stage, because there had been some further developments and litigation from refugees.

He noted that currently the Act provided for only an “applicant” or a “person” to appeal. The Act did not currently provide that a beneficiary of a social grant could appeal, and the amendment was now ensuring that a beneficiary could also appeal. In the main, people appealed by way of a letter.  SASSA did not use a standard form for appeal, neither did it entertain verbal submissions.

Ms Susan Mnumzana, Chairperson of the Free State Legislature’s Portfolio Committee on Health and Social Development, asked what the effect of the proposed amendment to Section 18(3) would be.

 Ms Mncube asked how these amendments would strengthen the current practice, and how she would explain the position to her constituents.

Mr Loselo stated that he had, during his presentation, set out the challenges in the current provisions. He explained again that previously the beneficiaries of grants that had been stopped did not previously have a right to appeal to SASSA against the decision to stop the grant, but instead would have to approach a Court, and, considering that these were poor people already, would be unlikely to be able to afford this. The amendments now provided that this category could also appeal against the decision to stop a grant. In addition, the amendment to allow SASSA internally to reconsider its decision shortened the waiting period for an applicant to get a final answer, and also decreased the number of cases that would go to the Independent Tribunal. Furthermore, SASSA must now provide clear reasons if it declined a grant, which would assist the Independent Tribunal in its work.

Mr Plaatjie said that SASSA had a set of criteria by which it measured each application. This should then make it easy for SASSA to determine whether an application would be successful or not. If unsuccessful, SASSA then had to point out to the applicant the exact reasons for declining the application. He said that the process was uncomplicated, and did not have to take long. The onus thus rested on the applicant to correct whatever the shortcoming was in order to complete the application. However, he was worried that the regulations still to be prescribed by the Minister would not enable such a simple process to take place, and asked for assurance that the regulations would be in line with the procedure. He also asked whether the Select Committee had any channels should it be dissatisfied with the Minister’s regulations.

Mr Jehoma said that Mr Plaatjie raised an important issue that the DSD had also debated internally, namely, to what extent the Act itself should be used to prescribe processes. The aim of the Bill was not to prescribe processes and sub-processes. It sought to make it possible for people like beneficiaries, who were potentially excluded before from applying for reconsideration and appeal, to be allowed to do it.

Mr Loselo added that a decision had to be made on which path to follow. If the Act provided for the Minister to prescribe regulations, these regulations must be consistent with the Act. The Portfolio Committee would be briefed on the regulations, and should make input before the regulations were gazetted for implementation. That process would still unfold.

The Chairperson asked DSD to clarify the situation with the DoH and the fact that it had not been ready to implement the Bill as originally drafted. Disability was problematic already.

Mr Jehoma noted that complex methods and processes were used by officials to come to the conclusion that a person was disabled. He noted that missing documentation, such as highlighted by Mr Plaatjie, was in fact rarely a reason for an application to be declined. He said that Ms Virginia Petersen, Head of the Independent Tribunal, could confirm the complexity of the disabled declaration. In many cases a general practitioner would recommend that a person be declared disabled, yet when the doctors attached to SASSA assessed the person for disability, they would find that the person was in fact able-bodied. The fact that the criteria for disability was not standardised left too much space for individual interpretation of an applicant’s condition. The Tribunal, in many cases, would overturn the decisions by the doctors attached to SASSA. The reconsideration process to be instituted by this amendment provided an avenue for dealing with these mistakes. SASSA would set up a body of more senior officials who would then be responsible for the reconsideration process. The reconsideration would be processed by SASSA within days. It was an issue of service delivery improvement.

He explained that the DSD was still debating to what extent prescriptions for these processes should be incorporated in the Act itself. Cabinet came up with a new definition of disability in 2005. A new disability assessment tool, the Harmonised Assessment Tool (HAT) was developed by experts. This tool included a set of battery tests to determine disability. The objective was to weed out applications from people who falsely had themselves declared disabled, in order to apply for disability grants. Doctors had conceded to sometimes having declared people disabled because they were poor, down and out or because they threatened the doctor. He pointed out that during economic hard times, there were sudden upsurges in the numbers of people who applied for disability grants.

The original Bill made reference to the HAT. The DoH would use the HAT to determine who was disabled and who was not. However, DoH had indicated to the Portfolio Committee on Social Development that it did not currently have the capacity to fulfil its role in the application of the HAT.

The definition of disability in the HAT said that people with chronic diseases, whose disease could be controlled by the administration of medication, were not regarded as disabled, and should be able to work. Since 250 000 chronically ill people would fall outside the definition of disability as defined by the HAT, there had to be a socially acceptable way of effecting these changes without causing undue hardship. In addition, The DoH also would have had to deal with the chronically ill more holistically, but the primary health care system in the country was not ready for the added workload. The DoH also indicated that it was preparing to apply the Brazilian model of Primary Health Care (PHC) in South Africa. The Portfolio Committee had therefore decided that it was better to defer amendments to those sections of the Act that dealt with disability until the DoH had capacity to deal with the matter.

The Chairperson asked whether this aspect would continue as it had before.

Me Jehoma replied that the DoH was going to come up with a plan. In the meantime SASSA would make its assessment for disability more objective. A significant amount of money was being spent on training doctors to assess disability.

Mr M de Villiers (DA, Western Cape) said that the phrase “ able to do light work” caused lots of problems in the process of declaring a person disabled or not. As a public representative who was trying to assist the public in getting grants, he found that it complicated matters.

Mr Loselo responded that this should not be a problem because HAT would be applied to establish whether a person was disabled or not.

Ms Molebatsi Bopape, Chairperson, Gauteng Legislature’s Health and Social Development Committee, said that she realised that amending an Act was a strenuous undertaking. She was concerned whether policy was fully taken on board. She considered it a pity that disability had not been included, noting that there was still litigation from disabled people. She said that there had to be policies that guided the process to avoid the situation where amendments were needed every few months.

Mr Jehoma agreed that it was important to be alive to the shifts and changes in the environment and to adapt policies accordingly in order to respond to challenges.

A Member asked for clarity on the difference between the Appeal Board and the Independent Tribunal. She also asked what timeframes were attached to these processes.

Mr Loselo explained that the Social Assistance Act provided that the Independent Tribunal must be the body to consider appeals by unsuccessful applicants and beneficiaries whose grants had been discontinued. There would be no Appeals Board. The Independent Tribunal was not part of SASSA.

Ms Mncube reiterated a question from the Chairperson when the Amendment Act should come into force, and noted that the Minister must still draw regulations. She noted that Members, as public representatives, consulted with their constituents and this tended to raise hopes that the people affected would be able to appeal, yet the enforcement of such an Act often occurred only months from now. She pointed out that, within the current Medium Term Economic Framework, provinces such as Eastern Cape may well not have sufficient budget to implement the amendments.

Mr Loselo said that there was a process, and an applicant, if an application was declined, would need to find out why this was done, and assess whether there was sufficient reason to appeal against the decision. The Act was not specific about the timeframe in which the appeal had to be reconsidered. However, in terms of The Promotion of Administrative Justice Act, administrative action had to be taken within 90 days. It must, however, be borne in mind, that there were a number of cases waiting to be heard. The Independent Tribunal was busy dealing with the backlog. After that backlog had been cleared, the 90 day period would come into effect.

Mr Loselo noted that the Act itself would remain in force, and new regulations would only be required in respect of the amended sections. The amendment would not come into operation until those regulations had been finalised. The DSD hoped to bring the new provisions into effect by October or November 2010.

Ms Virginia Petersen, Head of the Independent Tribunal, said that the structure of the Independent Tribunal would change from one centralised national panel system to a provincial panel system. From 1 June 2010, the 90 day appeal came into effect. The backlog was being worked on. She reiterated that some of the cases that currently formed the backlog could probably best have been solved with a phone call to SASSA as not everything that was appealed against was necessary either a bona fide appeal, nor justified. The proposed amendments would cater for this in future. The process of clearing the backlog was making progress, and with litigious matters the likely time periods were 60 days, whilst for other cases 90 days would apply.

Mr Jehoma said a lot of the work done since the establishment of SASSA involved avoiding litigation. The reconsideration process, as well as the Independent Tribunal, were processes instituted in order to steer applicants away from litigation against the State. In Eastern Cape and KwaZulu Natal, certain lawyers had concentrated on trying to litigate against the State, making themselves wealthy in the process. There was a significant reduction in the number of cases of litigation against the State.

Mr Plaatjie cited an instance of a couple in a common law partnership, in Lichtenburg, who had four children, three of whom were epileptic and the fourth was disabled. Their mother had subsequently died. There were no documents for the children, who thus did not benefit fro support grants, grants for children in need of care, and did not attend school. Department of Home Affairs had instructed their father to seek members of the mother’s extended family to be able to register the children, who did not have the father’s surname. A social worker was working on this matter, but it was taking too long.

The Chairperson said that Mr Plaatjie, as an MP and Commissioner of Oaths, could verify an affidavit that confirmed the identities of the people and their situation, in order to enable them to obtain the necessary documentation to get access to social assistance. An MP should assume responsibility to act when becoming aware of such a situation.

Ms G Baroto (ANC, Mpumalanga) said that the burning issue was disability, and she asked what MPs could tell their legislatures about this challenge.

Ms Baroto asked if there was sufficient budget available to finance the added needs that would result from the Independent Tribunal cases being processed much faster to work away the backlog.

Ms Mncube pointed out that there were already backlogs in appeals, no doubt caused by lack of capacity, and feared that the amendments to the appeals process might not in fact worsen the situation. She asked if the practical implications of the Bill had been fully considered.

A Member from the Eastern Cape said that she was glad to hear that the Independent Tribunal was going to be decentralised. She asked who would staff them.

The same Member asked what criteria would be used to determine eligibility, and whether the means test would still apply.

Ms Petersen said that the Independent Tribunal had held an engagement with Treasury, and the resources were sufficient to implement the amendments. The Independent Tribunal was also procuring capacity. Some provincial officers, for example in the Western Cape, had been appointed. The stakeholder management personnel had been appointed, and Members could refer queries to such personnel. There was an application form and there would be no excuses for delay. The process was moving forward.

She reiterated that the Independent Tribunal changed from a centralised national panel system to a more decentralised provincial panel system. Ms Petersen had visited the MECs of the provinces and they were aware that they would need to become involved with these provincial panels. The Tribunal needed quality doctors, quality lawyers and quality members of civil society to serve on the panel. The panels were reduced in size in order to deal with the backlog. 50 doctors were involved in that process. The offices of the Tribunal operated until 10 pm. The statistics showed that from adjudication decisions per month had risen from 400 to 2000, and would rise still further, to 4000 decisions per month, to work away the backlog. The new panels in the provinces would further assist with clearing the backlog.

Ms Petersen added that in the past, the training processes and systems for training of doctors had not been standardised, but this had now been corrected. The ideal situation was to address the problem in the province where the applicant was living. Doctors were being trained to collect the supporting documentation in a systematic way and because the HAT now left little space for subjective interpretation, the outcome of medical assessments would be more uniform and consistent.

She added that there had to be a careful selection process of the doctors who were to do these assessments, because the conclusion that the doctor drew had far-reaching results for the patient. If a doctor or doctors at a certain hospital consistently made the same mistakes, the Tribunal could, through the Director General of the DSD, approach the DoH, the hospital and the doctor in order to correct the process.

The Appeals Tribunal, while assessing appeals, also had to see itself as an instrument of stakeholder engagement to assist its colleagues in SASSA. The Independent Tribunal personnel were also learning through the process.

Mr Jehoma suggested that SASSA should be invited to report to the Select Committee on its state of readiness to do the reconsideration process.

Mr Jehoma felt it was necessary to explain what had happened prior to and after the setting up of the Appeals Tribunal. Prior to this, appeals would simply stack up. Now, it was recognised that because doctors’ decisions were key to the process, about R1 million had been spent training doctors to make the correct decision.

The Chairperson reminded the presenters of the recurring concerns about disability. He was worried that the removal of the clause dealing with disability would leave a vacuum.

Mr Loselo said that there was a misunderstanding. The current Act already contained provisions for disability. The proposed amendment was a refinement only, and the fact that it had been removed due to practical considerations had not left any vacuum, but meant that the current Act remained.

The meeting was adjourned.