Regulations (on appeals process) for Social Assistance Act: briefing by Department of Social Development with Deputy Minister

Social Development

20 June 2011
Chairperson: Ms Y Botha (ANC)
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Meeting Summary

The Deputy Minister for Social Development explained that the DSD wanted to give the Committee the opportunity to comment on and make further amendments to the regulations. The Department provided a brief background on the Act and its regulations, then read out the draft regulations, and addressed concerns raised by the Committee about Regulations 2(2) that made reference to the “initial application”, 3(4) and 13(2) that prescribed decisions to be taken by the South African Social Security Agency, and Regulation 18, which provided for the Independent Tribunal to refer the applicant and beneficiary for further medical examination.

The Committee asked if the South African Social Security Agency had enough capacity to implement the changes for reconsideration of applications, how many doctors had been trained to use the Harmonised Assessment Tool (HAT) and how the DSD was going to communicate to the people who the doctors were that were trained in the HAT, why so few stakeholders in the country had made comments on the regulations and if all provinces had been given a chance to comment, whether the information was disseminated to all provinces to create more awareness, and how long an applicant would be covered by the Social Relief of Distress Grant. A Member said she had proof of instances where medical reports were conducted by doctors and the patients died two weeks later. This happened specifically in rural areas. People died even before their grants were disapproved. The Member also wanted to know if the grant would apply to people suffering from epilepsy. The Committee welcomed the 90 day period for reconsideration of applications, but wondered what would happen if the appeals process exceeded the stipulated time period. They noted that there were applicants that genuinely forgot to add important documents to their applications, especially in rural areas where there was nobody to help applicants, and wondered how this would be dealt with. The backlog was discussed. The Committee noted there were people who had been waiting for three to four years to have their appeal application finalised. Members asked if people should then rather do away with their initial appeal and start a new application.

Members were worried about the language barrier and how they were going to inform the public of the changes to the regulations. They asked what strategy the DSD had for its outreach programme to address this concern. The Deputy Minister replied that language issues were a barrier and something had to be done about it. She would inform the Minister of the problem and they would sit down and discuss the way forward.

In other matters, the Chairperson noted an invitation by the International Labour Organisation (ILO) to attend a Social Security Summer School in Italy. It was decided that if Parliament could not afford to send the entire Committee to the summer school then they would use the formula provided by Parliament, which meant the Chairperson would attend with 2 ANC Members, 1 DA Member, 1 COPE Member, and 1 IFP Member.

Meeting report

Opening Statement by Deputy Minister for Social Development
Deputy Minister for Social Development, Ms Bongi Ntuli, informed the Committee that the DSD was there to discuss the draft regulations for the Social Assistance Act of 2004 and to give Members the opportunity to comment and make further amendments to these regulations. This had to be done quickly so information about the Act could be disseminated to the people of the country as soon as possible. There was a lot of work to do, which had to be done in a short amount of time. Information had to be dispersed to people with different levels of understanding, especially those in rural areas. This was a mammoth task and the Committee had to keep in mind that the people they were servicing were poor, vulnerable and in need of the government’s assistance.

Regulations on Social Assistance Act: briefing by Department for Social Development
Mr Wiseman Magasela, Deputy Director-General: Social Policy in the DSD, stated that the presentation would be led by the DSD’s legal team.

Ms Nomsa Lekgetho, Director: Legal Services (DSD), said she would present the draft regulations and inputs received to date to the Committee. The DSD also wanted to solicit further input on the revised draft regulations to assist the Minister in finalising the regulations. She said that the Social Assistance Amendment Act came into operation on 16 September 2010. The Amendment Act provided for a mechanism for appeal by the Independent Tribunal and reconsideration by the Agency of its decisions. The draft regulations prescribed the process to be followed in both reconsiderations and appeals. During a briefing by the DSD to Parliament, the DSD promised to return and present the draft regulations to the Committee before the Minister promulgated it, so as to afford the Committee the opportunity to comment on the draft regulations. It was envisaged that the finalised regulations would have been promulgated by March 2011. The consultation process was finalised by the end of February 2011 and the draft was ready to be presented to the Committee. However, the Committee meeting that was scheduled for March 2011 was cancelled. The presentation of the regulations to the Committee, and consideration of its inputs, was the final step in the finalisation of the regulations.

The draft regulations were published for comment on 29 December 2010 with a closing date of 14 February 2011. Inputs were received from Black Sash, the Aids Law Project, the Office of the MEC: Western Cape,  Department of Social Development, and the South African Social Security Agency (SASSA). The draft regulations were revised accordingly.

Ms Lekgetho read out the provisions of the draft regulations and the public comments received and the DSD responses to these. See document [pages 8-20]. Specific comments were:

Regulation 2(2)
This regulation made reference to “initial application”. The public commented that it excluded the beneficiary that might want to appeal the outcome of the review process. The provision was revised to cater for the beneficiary.

Regulations 3(4) and 13(2)
These regulations prescribed the decision to be taken by SASSA and the Independent Tribunal upon consideration and appeal respectively. These had been removed from the regulations in response to public comment.

Regulation 18
It provided for the Independent Tribunal to refer the applicant and beneficiary for further medical examination under certain circumstances. Public comment said that the Independent Tribunal should not be allowed, under any circumstances, to seek further medical assessment of the applicant or beneficiary. The DSD responded that the regulation was intended to assist the Independent Tribunal to make a decision where the available medical reports were insufficient, contradictory or inconclusive.

Other Comments
The public commented that reconsideration of an application should only take place specifically to consider additional information, which should supplement the initial incomplete or invalid documents in the initial application. The DSD response was that consideration of new, additional information would amount to consideration of a new application.

The public said that the 90 days provided to SASSA to make its decision on reconsideration was detrimental to the applicant. They suggested that reconsideration should be decided within 30 days. The DSD explained that the 90 day period was reasonable and in line with the spirit of the Promotion of Administrative Justice Act (PAJA). However, it was possible for SASSA to finalise the reconsideration within a shorter period of time.

Discussion
Ms S Kopane (DA) asked if SASSA had enough capacity to implement the changes regarding reconsideration of applications.

Mr Bandile Maqetuka, Executive Manager: SASSA, replied that SASSA was allocated R25 million to start the process of appointing officials to help handle the reconsiderations internally. SASSA has gone a step further and established reconsideration teams in all nine provinces. Currently, there were approximately 18 teams across the country that were dealing were reconsiderations of applications.

Ms P Tshwete (ANC) commented the Committee had to postpone the meeting with DSD on the draft regulations due to the local government elections. They had had quite a busy schedule. She noted the DSD had said that doctors would be trained on the Harmonised Assessment Tool (HAT). She asked how the DSD was going to communicate to communities who the doctors were that were trained in the HAT. How many doctors had received HAT training already?

Mr Puseletso Loselo, Chief Director: Legal Services (DSD), answered that a pilot project had been undertaken by DSD on HAT training. The Comprehensive Social Security Unit had indicated that some doctors had already been trained and that they would continue to train more doctors to ensure that the correct assessments were made when patients were referred to the doctors.

Mr Magasela added that it was going to be very important for SASSA and the Independent Tribunal to interface and communicate properly with the public about there being expert doctors to assess disabilities. This would ensure a speedy realisation of service delivery. 

Mr V Magagula (ANC) said that he strongly believed that more doctors had to specialise in certain areas of medicine, especially when it came to physically and mentally disabled persons. He felt that the regulations had to be more specific about the types of doctors that had to be used for referrals.

Mr Loselo explained that when a person was referred to a doctor, s/he was referred to a specialist doctor depending on the nature of her/his illness in order for a proper assessment to be done.

Ms H Lamoela (DA) asked if the 6000 Expanded Public Works (EPW) staff were already appointed within the country and if the Committee could have a breakdown per province. In terms of the Comprehensive Security System (CSS) doing the right assessment, did DSD know that doctors had been trained last year in Stellenbosch? Some of the doctors that were doing the assessments and medical reports for applicants were not there. She had proof of instances where reports were done and the patients died two weeks later. This had happened specifically in rural areas. People died even before their grants were disapproved. She asked them to comment on this. She said that there were many people in the country that suffered from epilepsy and she had heard that specialist doctors would be appointed to report on the condition of an applicant. She asked if this would also apply to people suffering from epilepsy.

Mr Frank Earl, Acting Programme Manager: DSD, corrected the Member saying that 60 EPWs had been procured in the month of June 2010. The bulk of them were centralised within the Pretoria region, as the main backlog was centralised in Pretoria. The remainder of the EPWs were dispersed in the rest of the country. Some of the provinces such as Kwazulu-Natal, Eastern Cape, Gauteng and the Free State received more resources as they received the most appeals. The EPWs were placed mostly in the SASSA offices in provinces because they were there to assist with the retrieval and copying of the files to send to Pretoria.

He said that if it was the case that applicants died during the appeals process, then an unclaimed benefit had to be paid to the surviving spouse. The surviving spouse would have to lodge a claim with SASSA.

Mr Magasela replied that the issue of disability was very complex. Disability could be mental, physical, medical, temporary or permanent. As part of the DSD’s efforts to arrive at an understanding of a definition for “disability” that they could work with, the DSD had met with the Department of Health (DoH) and had formed a joint task team that came up with the HAT. The team consisted of medical specialists and medical professionals that worked under current prevailing South African conditions. There was also a joint study group for social development and health that looked at the HAT. Therefore, whether a person was given or denied a grant depended on the HAT. It differentiated those that were disabled from those that were not. However, there would always be specific cases and challenges that needed closer consideration. In terms of epileptic people, there were complex variations concerning the disease that had to be considered and addressed. There were epileptic people that were on medication that had very fruitful lives; however, there were people in rural areas that were epileptic, that were rendered dysfunctional because they did not have access to medication.

Ms Tshwete answered that as a nurse, the question of epilepsy depended on its severity. The majority of people that were epileptic could work even though it was a chronic disease. Most people could keep working as long as they stuck to their treatment.

Ms T Kenye (ANC) stated that she was unhappy that comments had been received from so few stakeholders. She asked if other entities in other provinces had been given the opportunity to make any input. She said that when laws or regulations were changed, the Committee was most worried about the language barrier and how they were going to inform the public of the changes. She asked what strategy the DSD had in its outreach programme to address this concern.

Ms Lekgetho explained that the draft regulations were forwarded to a number of organisations. The DSD had proof of these emails. They did not receive any input from them. The DSD even allowed Black Sash to make inputs on the regulations after the deadline had passed. The regulations were also printed in the Government Gazette in order to reach out to all the entities the DSD may have missed. Most of the issues raised by the public were covered in the regulations. The amendments spoke to the reconsideration process and the appeals process.

Mr Earl explained that the DSD was in the process of creating awareness around the appeals process. They were developing a one-page pamphlet that informed people how to appeal and the terms they had to follow for the reconsideration process. This would be done after September 2011 as the focus currently was on reducing the backlog on appeals.

Ms Lamoela stated that this was an excellent way of reaching the public; however, the DSD had to ensure that people in deep rural areas received the information as well. She asked how the pamphlet would be distributed and urged the DSD to print the pamphlet in various languages.

Ms Tshwete agreed with Ms Lamoela’s concern about the language barrier and that the DSD should print the pamphlet in various languages.

Mr Magasela assured the Committee that the person that had been the head of appeals within the DSD was now the Chief Executive Officer of SASSA. So, this person would appreciate and understand the appeals process. Communication was about allowing people to apply the information they received. The information would be made available to the public in the form of a complete package. He acknowledged the excellent work SASSA did on communication with the public through local communities and NGOs.

Deputy Minister Ntuli added that the question of information dissemination was very important, especially for rural areas and the various languages that had to be considered. The Committee and the DSD had to sit down and come up with a plan that looked at how to inform the people of the country about what they should do about appeals and applications. Language issues were also a barrier and something had to be done about it. She would inform the Minister of the problem and they could sit down and discuss the way forward.

Mr Earl replied that the DSD had regional footprints in most of the provinces. The contact details would be printed on the back of the pamphlets so people did not need to rely on the centralised appeals office in Pretoria. The pamphlet will be printed in most of the South African languages. It would be based on the language that was spoken by the majority in that province.

Mr R Bhoola (MF) noted that the medical aspect of the regulations were quite an intricate matter to deal with, especially about the different levels of medical knowledge required by the appeals board. The presenter said that it was incumbent on SASSA to ensure that medical practitioners had been trained. In view of this, there had only been inputs from entities located in one province, which made him wonder if this valuable information had been disseminated to other provinces, which would in turn disseminate the information to grassroots level to create more awareness. He also noted that there were people who were waiting for three to four years to have their appeal application finalised. He asked if these people could do away with their initial appeal and start new applications. What were the consequences?

Mr Earl replied that the 20 000 appeal backlog was based on 20 000 letter from complainants that were addressed directly to the Minister. Each letter did not translate directly into an appeal, as after the assessment it was found that many of the letters were complaints and queries. These were separated and referred to SASSA. The number of genuine appeals would be known by the end of June 2011. In some cases, the backlog was as old as four to five years. Some people had written six letters to the Minister out of frustration, which did not necessarily translate into six appeals.

Mr Bhoola said he understood what Mr Earl was saying, but if an application had not been finalised in three years and the medical condition of that applicant was severe, then the applicant was in a predicament as s/he either had to wait for the outcome of the decision of the appeal, or make a fresh application.

Mr Earl explained that where there was such a backlog, many people had gone back to SASSA to re-apply for the grant. The DSD and SASSA would make a provision to pay what was due to the applicant if they were found to be disabled.

Ms Tshwete commented that an invitation was made for the public to submit their comments about the Act in the public hearings. The Committee had listened to the submissions and noted that the majority of comments and concerns were similar. She was happy to hear about the Social Relief of Distress Grant, but wondered how long the applicant would be covered by it. 

Mr Loselo explained that the Social Relief of Distress Grant was subject to specific criteria that a person had to comply with. The Grant was given for a maximum period of six months.

Ms M Mafolo (ANC) welcomed the 90 day period for reconsideration of applications. However, she noted that they had the ability to delay the appeal time. She asked if the applicant would have to wait for another 90 days as the DSD had not stipulated how much longer the applicant would wait.

Ms Lekgetho replied that during public hearings with provincial legislatures, issues concerning the appeals process and timeframes were raised. The 90 day period for reconsideration of appeals was already stipulated in the Act. She asked Members to refer to regulation 12(g), which would lead them to regulation 16(2). The regulation spoke to the 90 day period, saying that an appeal had to be filed within a 90 day period. If the Independent Tribunal postponed an appeal, it has to postpone it to a date that was still within the 90 day period.

Ms Lamoela noted that there were applicants that genuinely forgot to add important documents to their applications, especially in rural areas where there was nobody to help applicants. She did not like the idea of including regulation 14(3), which said that “when lodging an appeal as contemplated in sub-regulation (1), the appellant must not be allowed to produce any evidence or information which was not provided to the Agency at the time of application for social assistance”. She wondered what would happen to an applicant that was not allowed to add an important document to the application once it was submitted, even though this piece of evidence could ensure that the applications was approved. How would this be specified in the regulations? Many people were going to be disqualified because of a single piece of evidence that was needed for them to get a grant.

Ms Lekgetho answered that no new information was allowed to be given to SASSA during the reconsideration period. During the initial consideration, SASSA had to base its decision on the information given to them by the applicant. They had to use the same information during reconsideration. Regulations said that the Independent Tribunal was allowed to accept any other information related to the application as long as it was not new information. “New information” should not refer to information that would allow the Independent Tribunal to consider an application as if it was now SASSA. The Independent Tribunal had to be limited to the information that SASSA had.

Deputy Minister Ntuli added that Ms Lamoela’s question referred to when important information was missing or left out accidentally from the application.

Ms Loselo replied that it would mean that SASSA has not had the opportunity to consider that new information and the applicant could be using the Independent Tribunal as a forum that accepts applications for grants, not as an entity that looks at whether SASSA made the correct decision. In this instance, the applicant should probably re-apply for a grant from SASSA with the new information.

The Chairperson thanked the DSD and the Deputy Minister for their presentation. She thought the interaction between the Committee and the DSD had been interesting and lively. The Committee looked forward to the promulgation of the regulations.  

Other Matters
The Chairperson informed the Members that she had received an invitation from the International Labour Organisation (ILO) for members to attend a Social Security Summer School in Italy from 26 September 2011 to 7 October 2011. The summer school offered participants a unique opportunity to benefit from a top-class and diversified training package on governance, financing and pension reforms and social protection. Participants would be allowed to tailor-make their own package for their two-week course by choosing from sixteen elective courses on relevant social security topics. She said that the summer school was not that expensive. If four Members went, it would cost
3000 for the first Member, 2500 for the second Member, 2000 for the third Member, and 1500 for the fourth. She thought it was important to bring this invitation to the Committee in lieu of the social security reforms that were taking place. She thought it was important for the Committee to apply to attend the summer school. She proposed that the Committee select a Member from each party to attend the summer school. She did not think that Parliament would let the entire Committee go, as they would see it as another study tour. 

Ms Kenye commented that information and education was power. The more the Committee knew, the more empowered they would be. She understood that Parliament might not have enough money to send all the Members to the summer school, but if it was possible, the entire Committee should attend.

The Chairperson stated that she would apply for the entire Committee to attend the summer school.

Mr Magagula added that if only four people were allowed to go then, then the ANC had to have the majority, which meant that at least two Members had to be from the ANC.

The Chairperson explained that there was a formula that the Committee would use to decide how many Members should attend the school. The formula said that the Chairperson should attend with two ANC Members, 1 DA Member, 1 COPE Member, and 1 IFP Member. If Parliament could not afford to send the entire Committee to the summer school then they would use the formula.


Adoption of Minutes
The Committee adopted the minutes of 9 March 2011 without amendments. They adopted the minutes of 31 May 2011 with minor amendments.

The meeting was adjourned.

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