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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
22 September 2003
SOCIAL ASSISTANCE BILL AND SOUTH AFRICAN SOCIAL SECURITY BILL: HEARINGS
The Social Assistance Bill [B57-03]
The South African Social Security Agency Bill [B51-03]
Documents handed out:
Centre for International and Comparative Labour and Social Security Law (RAU) submission
Age in Action submission
Action on Elder Abuse South Africa submission
Coalition on Social Assistance joint submission: Black Sash; Children's Institute; UWC Community Law Centre
Black Sash submission
ACESS submission on the Social Assistance Bill
Children's Institute submission on the Social Assistance Bill
Southern African Catholic Bishops Conference submission on the Social Assistance Bill
Women's Legal Centre submission on the Social Assistance Bill
The Centre for International and Comparative Labour and Social Security Law highlighted problems of definition, inconsistency and inaccurate drafting. There was insufficient coverage of non-South African citizens and a comprehensive and streamlined social assistance policy framework was lacking.
Age in Action raised concerns about whether the Bill would benefit older people. Action on Elder Abuse SA said that the Social Assistance Bill would not meet its objectives as it did not address the various problems experienced by beneficiaries.
Black Sash, the Children's Institute and the Community Law Centre at the University of the Western Cape (UWC) jointly argued that the Bills were premature and noted that neither recommendations made by their coalition nor those presented in the Taylor Committee report were taken into consideration in both the current and proposed Bills. Black Sash further reiterated the concerns of the Coalition, saying the current Social Assistance Bill did not provide access to social assistance to the most vulnerable. Black Sash also referred to cover for refugees, the Social Relief of Distress grant and adequate social assistance measures for children.
ACESS supported the extension of the child support grant to everyone under 18 with the elimination or simplification of the means test, and direct grants to child-headed households.
The Children's Institute opposed special grants for orphans - all children should be eligible for grants based on poverty, not based on being orphans. They also supported the extension of the child support grant to everyone under 18 with the elimination or simplification of the means test.
The Southern African Catholic Bishops Conference questioned the lack of opportunity provided to the Church to make input into the Bill from the start of the drafting process. They highlighted a number of perceived weaknesses in the Bill.
The Women's Legal Centre supported the joint submission and explicitly supported direct grants to child-headed households as an interim measure - though, ideally, there should be no child-headed households.
Centre for International and Comparative Labour and Social Security Law (RAU) submission
The Social Assistance Bill
Professor Marius Olivier from the Rand Afrikaans University (RAU) presented a submission based on the two Bills as published and not on further amendments. Regarding the Social Assistance Bill, there were both positive and negative aspects.
Professor Olivier highlighted problems of definition, inconsistency and inaccurate drafting as well as the narrow scope of "social assistance" as defined in Clause 1. The SA Human Rights Commission had criticised the Act for not extending social assistance to non-monetary forms of support. There was no definition of child support, social and disability grants while other grants were defined. Accessibility of grants was excluded where fully funded state institutions undertook full-time care, as was only the case with the care dependency grant (clause 7(b). "Welfare organisation" was not defined. "Child" was defined as a person under the age of 18 years, but child support was not available to children of those ages. The Bill perpetuated the distinction and inconsistency in treatment between social and other grants and there was no basis for this. References to the Minister should be replaced with references to the Administrator.
Regarding the scope of the Bill, there was insufficient coverage of non-South African residents. Clause 2 extended coverage to bilateral agreements but not multilateral agreements. There was also continued exclusion of all categories of non-citizen children, especially refugee children. Provisions of refugee conventions ratified by South Africa stated that minimum protection had to be extended to refugees in terms of international instruments. Exclusion from these benefits was therefore questionable from an international and Constitutional law perspective. The Bill made no attempt to honour obligations of the Charter of Fundamental Social Rights in SADC (August 2003). The Bill did not require reciprocity in terms of bilateral agreements. Matters regarding the coverage of non-citizens should be regulated in the legislation itself and not be left to Ministerial determination. Regarding the implementation and execution of the Bill "to the Agency or any other administrator" was too widely defined in clause 1. It was questionable whether this eliminated fragmentation of administration of the social assistance system. Clause 5(2) was inappropriate and reflected inconsistency when read with other provisions of the Bill. Clause 7 dealing with the care dependency grant (as read with clause 1) gave no effect to the Taylor Committee recommendation that the grant be extended to children with moderate disabilities. With regard to the disability grant, the 'pure' medical model and the strict employment test should take into account social and market barriers. There was continued unequal treatment in old age grants for men and women in clauses 10(a) and (b). There should a gradual phasing out of the age differential that would address the unequal treatment of men and women in the market and society. Clause 13 should be widened to allow other vulnerable groups besides welfare and certain non-profit organisations to benefit from financial awards. The Bill should regulate the issue of social relief, since it was appropriate to regulate this aspect of the social assistance system in national legislation. Regarding clause 16, bilateral co-ordination agreements could provide for cross-border payments of social grants.
Adjudication and enforcement issues were particularly pertinent in clause 18. Professor Olivier described appeal mechanisms as being unusual, inappropriate and incoherent. They were unusual since appeals were usually conducted by a tribunal regulated by statute. The ad hoc manner in which the Minister exercised discretion was inappropriate. Its incoherent was due to the lack of a systematic approach.
With regard to the Social Security Agency Bill, there was no definition of "social security" and it should be made clear if the Agency would only deal with social assistance. The Taylor Committee recommendations were again not taken into account. These suggested that the Agency included all social security programmes, act as an interface between the public and the social security system, and be regulated by a Board (for which the Bill did not provide).
Regarding enforcement of the Bill, there was no provision for resolving legal disputes except in terms of the Institution of Legal Proceedings against Organs of State Act (Act No.40 of 2002). Clause (7)(2) should stipulate that matters regarding the remuneration, benefits and allowances of Agency staff be determined by the Minister in accordance with the provisions of the Labour Relations Act 66 of 1995.
Professor Olivier concluded by stating that it was unclear whether the Bill was meant as a framework law or a detailed regulation of the relevant issues. Fragmentation had not been dealt with entirely. The Bill reflected the patchwork system of social assistance. There was little evidence of a truly rights-based approach. Ministers were granted extremely wide powers. A number of Constitutional questions also arose about whether concurrent jurisdiction and co-operative governance were indeed being practiced. A serious shortcoming was that the Bill limited the extension of grants to very restricted categories of beneficiaries. There was not a comprehensive and streamlined social assistance policy framework. The Bill was far from achieving "progressive realisation" of the right to social security and social assistance.
Advocate M Masutha (ANC) said that the Bills sought to distinguish between executive and administrative functions. The Minister provided grants and these were then administered by the Administrator. He asked whether the Professor still held that there is no role for the Minister in light of this. He asked whether an internal appeal mechanism would be appropriate with the Minister as the functionary to whom appeals were brought.
Professor Olivier answered that if the Agency took over the administration of social assistance, the Agencies themselves should handle grant applications. As far as the internal appeal mechanism was concerned, the Minister should be the last port of call concerning internal mechanisms, and then there should be access to an external mechanism.
Professor L Mbadi (ANC) referred to the presentation's claim that the scope of the definitions of grants was too narrow. A number of problems had been highlighted so he asked the presenter for possible solutions.
Professor Olivier replied that the Human Rights Commission had already highlighted the issue about four years ago. It had been made clear then that the term "social assistance" should not be limited to monetary payments. It was not his nor any other commentator's role to solve the problems. The Committee could draw lessons from neighbouring countries like Botswana.
Ms G Borman (DA) noted the Professor's reference to the Taylor Committee's recommendations. She asked whether the Bill in part took the recommendations into account to develop a Comprehensive Social Security system. She asked whether he had any difficulty with concurrent powers and whether beneficiaries would gain more from the proposed system than the current system.
Professor Olivier said that very little of the Taylor report had been taken into account. With one or two exceptions, the Bill did not represent any progress. With regard to concurrent powers, he said that there was a limited role for provinces if the Agency administered functions. There should be joint activity in this area.
AGE IN ACTION SUBMISSION
Ms Mary Turok questioned whether the recommendations of the three inquiries since 1994 had been addressed in the proposed Bill. Firstly, the Department had done a great deal of work on this, but no reference was made to norms and standards in the regulations. Other issues included that of the procurator, direct deductions and interdepartmental collaboration. The establishment of Agencies was, however, a step in the right direction. Much could be learned from the National Health Bill's handling of norms and standards, as well as intersectoral collaboration.
Ms Martha Mokholo (Deputy Director: Age in Action) reiterated that the current Bill was less comprehensive than the 1992 Act regarding norms and standards. The Social Relief of Distress grant had been dropped from the Bill and if not replaced by other measures, this could be challenged in the Constitutional Court as the removal of a right to relief. Clause 12 dealt with the Grant-in-Aid, which should be accessible to the primary caregiver on behalf of the older person. The primary caregiver should be identified on the medical certificate required when applying for this grant. Clause 13 referred to financial awards to welfare organisations and was practically identical to section 5 in the 1992 Act. It failed to address issues regarding the lack of uniformity, historical disparities and costs of caring or services to older persons. Ms Mokholo referred to clause 15(1), saying that the Bill made no provision for protection from procurators who abused their positions. Persons receiving pensions on behalf of the older person should be referred to as "deputies" and included in the definitions. The same should be the case in clause 19 dealing with people who abused their grants. Clause 20 provided for direct deductions after the full amount of a grant was received, but this was open to abuse by contractors in terms of increasing premiums without notice and forging signatures to make double deductions. With regard to Chapter Four, the functions of the Director-General should be made clearer. Chapter Five related to the Inspectorate for Social Assistance. Questions had been raised about whether this function should be carried out by the Auditor-General or the Department.
Mr Masutha said that the only person who could claim was the beneficiary. He asked what more Government could do to protect beneficiaries. The current law seemed to provide adequate protection against loan sharks.
Ms Turok was not convinced that the law adequately protected against this common practice. There was a relationship between the National Funeral Forum and the Department around this issue, but it still needed to be addressed in the Bill.
Ms Borman asked if the Bill did enough to address the problem of long queues at pension paypoints.
Ms Makholo felt that this should be addressed as part of norms and standards.
Prof Mbadi (UDM) informed the presenter that people in deep rural areas were totally opposed to deductions and preferred to make their own payments.
Ms Makholo said that deductions were still taking place in areas like KwaZulu-Natal although the only deductions allowed were for funeral schemes. However loan providers were now also effecting deductions.
Action on Elder Abuse South Africa (AEASA) submission
The Social Assistance Bill
Pat Lindgren (National Co-ordinator) stated that the Bill would not meet its objectives as it did not address problems experienced by beneficiaries. The issue of inter-Departmental collaboration was very important, especially with regards to Home Affairs documents to access grants.
Ms Lindgren presented suggested definitions for "administrator" and "primary caregiver". The application and implementation of the Act needed to clarify the position of a South African permanent resident entitled to social assistance. Referring to Chapter 2, 5(2), additional income should be assessed annually for a more realistic reflection of monthly income. Grant-in-aid should be paid to a primary care giver, and therefore the definition of "primary care giver" should be expanded to include older persons. Clause 13(a) and (b) should be broadened to include partnership between the Department and the welfare sector. Clause 15 should provide that beneficiaries be protected from procurators who abused their functions. Clause 15(1) and (2) should define "prescribed requirements" and "prescribed conditions". The legislation should also include a mechanism for accountability, termination of power of attorney and recovery of misappropriated money. AEASA questioned the cost-effectiveness of the Inspectorate. The Auditor-General, the Department or the Scorpions Unit could fulfill this function. The related clause 17(2) should be removed.
The Social Security Agency Bill
While AEASA supported the introduction of the Agency. They felt there should be a set timeframe for the transition period, and a maximum time allowed between application for and payment of grants. Failure to do so would result in increased poverty for beneficiaries.
Advocate Masutha conceded that the area of procurators was not properly regulated and needed more content. He added that the term "administrator" referred to the Agency itself. He asked whether AEASA was suggesting that there be a statutory role for the social worker to monitor the procurator's competence regarding the collection of funds. Regarding deductions, Advocate Masutha questioned whether AEASA would be opposed to the idea of beneficiaries choosing whether to have direct deductions made from grants.
Ms Lindgren answered that the procurator should be held accountable by a social worker (who would also have to be accountable). The administrator should also have another power presiding over it. Concerning direct deductions, Ms Lindgren agreed that people should have the right to choose in this respect, but that these should be regulated e.g. deductions for funeral policies should be effected by well-known organisations only.
The Chair asked AEASA what constituted the misuse of a grant.
Ms Turok agreed that a grant could be misused by someone other than the beneficiary. The concept of misusing one's own grant was outmoded. In her opinion, people had the right to spend their money in whichever way they saw fit so long as this did not lead to self-neglect.
Ms Tsheole asked if Ms Turok had considered the situation where older persons spent their grants in casinos and bottle stores.
Mr Masutha asked what Ms Turok thought about forcing a person with a gambling/drinking problem into rehabilitation, failing which they would be subject to some kind of penalty.
Ms Turok was willing to accept a compromise, but felt that casinos carried more responsibility than users.
Ms Borman commented that the abuse of the grant-in-aid worked both ways.
Ms Lindgren agreed and suggested that these grants be linked to the recipient's medical certificate.
Advocate Masutha asked whether the system was so inflexible that, on presentation of a life certificate, officials were obliged to check whether beneficiaries were deceased.
Ms Lindgren answered that perhaps fingerprints should be used in these instances. There had been many instances where people were pronounced dead, and then they had go through a lengthy process to have the 'decision' reversed. There had to be a link of some sort between the Departments of Social Development and Home Affairs to resolve this issue.
The Chairperson asked if any specific criteria should be considered when appointing procurators.
Ms Lindgren said that procurators should not have problems with drugs or alcohol because access to cash in these instances was the root problem. It should not be allowed that one person could act as procurator for six people, as was the case with shebeen owners who sometimes paid people with alcohol.
Coalition on Social Assistance submission
Ms Isabel Frye (Black Sash), Ms Solange Rosa (Children's Institute) and Professor Liebenberg (Community Law Centre - UWC) presented a joint submission to the Committee on behalf of member organisations.
Ms Frye explained that the joint submission would provide a general framework to be unpacked by the sectoral organisations. There had been two meetings between the Coalition and the Department to discuss the draft Bill, after which the Coalition drafted recommendations. These were sent to the Department, but most changes are not reflected in the current tabled Bill. The short timeframes for making submissions had been noted, and there was concern that there had to be comment without having been presented with draft regulations. The Committee was being asked to consider the fundamentals of the Agency without having been briefed on policy choices. In addition, the Cabinet had made clear its decision to finalise deliberations on the Social Security System in early 2004. It was therefore premature to be tabling the Bills.
Ms Frye referred to the recommendations by the Taylor Committee and urged the Committee to take these into consideration. The Taylor Report also referred to a package of social protection intervention. Every person should get a set of minimum income transfer to eradicate destitution and starvation. By 2015, every needy person should be getting support through either a child support grant, basic income grant or pension.
They were concerned that many overlapping policies had not yet been made or properly consulted upon due to the lack of a clear policy reform process since the Taylor Committee report. The report took cogniscence of the realities in South Africa whereas the current Bill before the Committee had made no changes from its 'pre-new South Africa' position. There was also concern around the tabling of legislation and policy reform.
Ms Rosa said that the current social security system for children was clearly inadequate. The SA Law Reform Commission (SALRC) Draft Children's Bill presented a variety of provisions to create a basic social security scheme but these provisions were left out of the Bill. A number of vulnerable groups did not have access to social assistance, including children without adult care-givers, children with moderate disabilities and those living with HIV/AIDS. Government had to fulfill its obligations to these children in terms of the Constitution. The full social security scheme for children should be set out in the Children's Bill, to be administered by the Social Assistance Bill. With respect to child-headed households, a scheme in the Bill should provide for mentors to assist child-headed households in accessing social assistance. Definitions for both "child-headed households" and "mentor" were provided on pages 9 and 10 of the submission. The scheme should be included in the Social Assistance Bill to be referred to in the Social Assistance Act, and should apply where children were too young or immature to look after other children themselves. The definition of primary caregiver in the Bill was inappropriate as it limited the role to a child of 16 years old. There was no such limitation in the Social Assistance Act and primary caregivers younger than 16 years should be able to access grants directly.
Ms Rosa suggested that the care dependency grant be renamed the special needs grant. The grant should be for children with disabilities and chronic illnesses to care for additional needs over and above basic needs. The definition around chronic illness and disability should be broadened. Intellectual and sensory disability should also be taken into account when considering the HSRC needs-based assessment tool being developed for children and adults with disabilities.
Professor Liebenberg added that certain categories of non-citizens should be included in the Bill. This recommendation was the basis of Section 27(1) of the Constitution, which gave the right of social assistance to everyone unless there was a specific restriction to citizenship in the relevant provision. Permanent residents, refugees and possibly certain categories of temporary residents, especially those who had resided in the country for a long period and had experienced difficulty in applying for permanent residence, should be catered for. Even undocumented children should qualify for social assistance benefits. This was justified on the basis of children being especially vulnerable and Article Two on the Convention of the Rights of the Child, which stated that a child should not be discriminated against on the basis of their national origin.
Page 31 of the submission dealt with the Inspectorate. It was accepted that fraud posed an obstacle to the implementation of social security benefits. The Coalition therefore supported an independent body to investigate such instances. However, clause 28(2) of the Bill provided for an investigation to be referred to the SA Police Services or the Inspectorate of Special Operations where appropriate. There was a question of overlapping jurisdiction as the broad provisions related to entry, search and seizure which could be seen as 'overkill', given that other agencies also had that jurisdiction. It was proposed that clauses 30 to 32 of the Bill be removed.
Professor Liebenberg referred to page 17 of the submission and the proposed general principles that should be inserted after the Objects clause. There should be uniformity and a rights-based approach to social assistance, given the power to be delegated to the Agency to administer social assistance. Certain key Constitutional provisions should be inserted to ensure a rights-based approach. It was vital that the Minister prescribe national norms and standards because ad hoc policy making by the Agency might ensue. The uneven application of norms and standards was a real problem in the current social assistance system, and the Bill provided an opportunity to correct this. Referring to section 27(1)(c) of the Constitution, Liebenberg pointed out that the eligibility criteria for the various grants were being relegated to Regulations. In this instance, it was vital that there was an opportunity for public comment or input from other Departments.
On pages 32 to 34 of the submission, general provisions culled from other legislation were set out to ensure rigorous parliamentary oversight of the regulations as well as opportunity for public comment. The Mashaba case challenging the Constitutional validity of the assignment of the Social Assistance Act to provinces, raised the concern that there would be a patchwork of co-existing national and provincial legislation. The Bills did not disclose a coherent approach regarding the transition from the provincial to the Agency-controlled administration of delivery. If provinces did not agree, the object of uniform norms and standards would be compromised. The Mashaba case would therefore have a big impact on how provisions were drafted.
Again, it was questioned whether it was appropriate to deal with the Bill at this time. There were a number of key policy processes being developed, particularly the national policy for comprehensive social security as recommended in the Taylor report. It was only within this context that effective legislation could be enacted.
Ms Frye added that the Coalition had made input on Social Relief of Distress as it had been removed from the Social Assistance Act. It was inappropriate for this to become a provincial function. The proposed Bill should include the automatic right to reasons for refusal. Regarding the misuse of grants, the original language enabling an administrator to suspend or redirect any grants misused was very vague and open to abuse. Page 30 made reference to the correct procedure for the suspension of social assistance.
Advocate Masutha asked whether there were any particular issues that the Coalition felt should be contained in the Bill (as opposed to regulations). Regarding child-headed households, the current Child Care Act provided that one option for children without parents was foster care. Once in foster care, the child was then entitled to the Foster Care Grant under the Social Assistance Act. He asked whether the concept of a mentor could apply in the context of the current Foster Care Grant or whether it would require changes to the existing Child Care Act.
The Chairperson asked whether the Coalition would support the concept of Adoption grants to encourage more families to adopt orphaned children.
Professor Liebenberg answered that social assistance was a Constitutional right and its inclusion would therefore be appropriate in the definition section. The section conferring this right should contain criteria and the principles should be in the legislation. The Act specified that the means test should be based on some form of objective poverty datum line, and then the amounts themselves would be prescribed in the regulations. This would change from year to year given the cost of living, etcetera.
Ms Rosa said that the current foster care system was not adequate to deal with child-headed households and there were are not enough foster placement options. Research had shown that children often opted to stay in a household with a young caregiver because they did not want to be split up from their siblings or be moved from the family home. A mentorship scheme should be considered where children had access to grants so they could remain together in their family unit. If such a scheme was put into the Social Assistance Bill, a provision should amend the Child Care Act because the current foster care system was not sufficient to cover these instances. The issue of Adoption grants could be further debated through the Children's Bill. This issue was particularly complex in terms of determining conditions and amounts to be granted.
Mr Da Camara (DA) asked whether the mentor would eventually join the family and how the situation could be monitored.
Ms Rosa answered that the adult would not necessarily have to live in the house with the children. He or she had to be flexible so that the grant was fetched on the children's behalf. The mentor could also visit on a weekly or even daily basis to provide extra support. In terms of monitoring, it was important that those appointed were not doing it for their own advantage. Only those registered with the Department should be eligible to be mentors.
Ms N Tsheole (ANC) asked whether there should be a new foster care system and about problems with the Social Relief of Distress. If it were part of the Social Security Agency, it should be determined how this would be administered. The evaluation of the social worker determined who was entitled to the grant. In response to arguments that the tabling of the Bills was premature, she asked whether the presenters felt that the current system of social service delivery required improvement. If the Bills were not passed this year, an inevitable delay would be caused by the elections and new Members of Parliament would have to acquaint themselves with the Bills. Given this situation, the Bills would very likely only be tabled in 2005. Did they feel that it was acceptable for the current situation to continue until then?
Ms Rosa said that the current foster care system should not be expanded to include orphans because orphans were not always in need of foster care. They were likely to be part of an extended family. An inequitable system could arise between orphaned children living with the extended family and poor children in need of care and support.
Ms Frye said that foster care applications also required assessment from social workers provided for by the administrator in terms of the Social Assistance Act. The same social workers would do assessments for social relief of distress. The current situation was not acceptable as there was a commitment to look at the reforms currently before the Committee. The time allocated to look at the needs within society to accurately assess the situation had not been sufficient. Implementing costly alternatives only to have them re-evaluated and the resulting confusion to beneficiaries should be seriously considered before passing the Bills.
Professor Liebenberg added that the Bills were meant to facilitate the introduction of the Agency. The outcome of the Mashaba case would determine the validity of the assignment and also clarify a number of transition provisions related to both Bills. In this sense, the Bills were premature. The Taylor Committee had intended that the Agency look at the comprehensive social security system in broad terms. The Agency as described in the Bill dealt narrowly with social assistance, and so the broader policy process around social security would need to be developed before implementing such far-reaching changes.
Advocate Masutha said that the law confining grants to citizens should be maintained until the court decided otherwise. Regarding assignment, there was to be a new law at national level within a new framework. He asked how they envisaged the transition from the current to the new dispensation.
Professor Liebenberg pointed out that certain legislation like the Refugee Act stated that there should not be any discrimination in terms of social benefits and in relation to Chapter Two of the Bill of Rights. It was premature to exclude permanent residents and refugees from the scope of the Social Assistance Bill. With regard to assignment, the outcome of the Mashaba case would resolve a number of problems on the transitional provision facilitating the establishment of national legislation. The Agency provided for other matters to be taken on, but these would be add-ons instead of broadly within the framework of a comprehensive social security system.
Ms Fatima Hassan (Treatment Action Campaign) said that, in the instance of children living with HIV/AIDS or having lost a parent to the disease, foster care and adoption agencies had difficulty in placing those children. One reason was the stigma and discrimination associated with the disease, and another was that families felt they did not have the necessary skills to deal with the children. Therefore, these two systems could not be relied upon exclusively. More often than not, these children and their siblings could deal with living with HIV/AIDS much better than a foster caregiver or adoptive parent.
Black Sash submission
The Social Assistance Bill
Ms Frye explained that recommendations for drafting had been submitted to the Department, and that the address would focus on the principles. The short period for submissions was a point of concern. The absence of formal policy threatened the soundness of reasonable governance in the absence of an open and transparent policy review. Ms Frye said the White Paper had not been revised or rewritten. Neither did it contain a plan for the relocation of delivery of social grants to an Agency. There had been suggestions that the Agency might assume functions other than those of social delivery, but the concern was around the ad hoc nature that such an incremental increase of the comprehensive social security could take.
Karen Kallmann (Black Sash) stated that the current Social Assistance Bill did not provide the most vulnerable with access to social assistance. Recommendations from the Taylor report included the adoption of a comprehensive social protection package and addressing income poverty with decisive interventions for major impacts in the short to medium term. The options for formal placements of children were inadequate and child-headed households would become commonplace due to the increase of HIV/AIDS infected adults. The Commission recommended that legal recognition be given to child-headed households as a placement option. The mentorship model mentioned should not preclude children accessing grants directly if they did not have access to an adult or organisation to do thid. Currently, the care dependency grant only catered for children with severe disabilities and did not provide for those with chronic illnesses. The purpose of the disability grant was income maintenance. The White Paper acknowledged that people with chronic illnesses had difficulty in obtaining employment. In the case of HIV/AIDS, regulations to the Act should provide that beneficiaries had to be based on clinical evaluation (rather than a CD4-count) as this remained a barrier to access.
Ms Frye continued that the Refugee Act allowed refugees full legal protection as set out in Chapter Two of the Constitution. Unless the Constitution made specific reference to citizens, the law should apply generally. The current draft was open to Constitutional challenge and therefore access should be extended to permanent residents and refugees. Ms Frye referred to page 12 of the submission dealing with Social Relief of Distress. This grant remained the main assistance available to destitute people. There was little justification for leaving this programme to the provinces, as it was not clear whether provinces had the capacity to deal with this grant. Ms Frye referred to Section 14(3)(b) of the Social Assistance Act, the Right to Reason, as a provision for substantive rights to applicants that should be included in the Act, not the regulations. Regarding deductions, cases in KwaZulu-Natal showed that deductions still took place even though the law did not accommodate them. The Minister himself had stated that such related deductions were prohibited. If administration was centralised, there was no reason not to implement this in terms of norms and standards. Section 20(3) should be amended so that the beneficiary received the full amount of the grant and that no deductions could be made.
Ms Kallmann referred to section 19 dealing with the misuse of social assistance. She recommended that a grant only be suspended if the recipient was found to be abusing, neglecting or was unable to control the grant in a lawcourt. It could not be considered "misuse" if a child support grant sustained a whole family.
The Social Security Agency Bill
The Minister, in terms of section 92(2) of the Constitution, was required to provide Parliament with full and regular reports concerning matters under his or her control. In terms of the Agency Bill, the CEO was required to account to the Minister on an annual basis.
Advocate Masutha disagreed that a general statement made in the Refugee Act could be used to amend the Social Assistance Act. The Social Relief of Distress Grant, unlike other forms of social assistance, was limited to cash benefits. He asked if it would be better if social relief was provided under Welfare Services. At this level, social workers would be better able to respond to dire situations. He asked if the delegation had considered the financial implications of having social relief administered at national level.
Ms Frye answered that it is not suggested that the Refugee Act provide any additional rights to refugees beyond those of the Constitution. There had been no justification from the Department for not extending the right to social assistance to refugees or permanent residents. Constitutional challenges were inevitable. It should be recognised that there were not millions of refugees and asylum seekers in the country. With regard to Social Relief of Distress, this grant currently filled the gap for the destitute and vulnerable. It was not reasonable that provinces rolled out this grant and social workers were required to administer other grants as well.
Ms Tsheole pointed out that the Social Relief of Distress grant was requested immediately at a specific point. She asked whether abuse of a grant was taken into consideration as well as sustainability issues relating to whether money would be available when beneficiaries arrived to collect grants.
Ms Frye said that if social relief were administered at a national level, it would be subject to the Inspectorate which would be better placed to investigate abuse and potential fraud. There was not sufficient funding for social relief of distress based on an actual understanding of the need of each provinces.
Ms Borman asked about the extent of the problem of child-headed households. It was envisaged that other organisations would make payments through the Agency. She asked whether any thought had been given to the Agency functioning within the Ministry of Social Development.
Ms Kallmann answered that little evidence was available regarding child-headed households. Non-governmental organisations directly offered their services in this respect. There was an increase in the number of orphans and also an increase in the number of children without caregivers.
Ms Frye stated that whichever Department assumed responsibility, others were still interlinked and would have a role. The recommendations of the Taylor Report should seriously be considered and not be incorporated in a piecemeal manner.
Advocate Masutha asked where one drew the line in terms of children and adults with chronic illnesses. Was the degree of ill-health/ disability considered?
Ms Kallmann answered that adults with chronic illnesses were considered unfit for employment. Grants for children with chronic illnesses should take into account the special needs of these children. In terms of the special needs grant, the needs of the child should be assessed as the basis upon which to award a grant.
Ms P Proudlock (Children's Institute) gave the presentation, accompanied by Ms Rosa. ACESS represented approximately 400 organisations working with poor children and worked towards a comprehensive social security system.
The Bill would not be a step forward unless the recommendations made at the hearings were taken into account. It could partially address the three grants recommended by the Taylor Commission: the old age pension, child support grant and the basic income grant. The Bill could address the first phase - the extension of the child support grant to all children under 18 by 2004. There was confusion around which Bill should address children's social security. Provisions had been removed from the Children's Bill for insertion into the Social Assistance Bill, but had not been inserted.
Only 23% of children in poverty were covered by the current child support grant. The phasing in of the extension to children under fourteen was not working properly because the system was complicated. Furthermore, the SA Law Commission, the United Nations Committee on the Rights of the Child, the Commission of Inquiry and all members of ACESS recommended the extension of the child support grant to everyone under 18. The means test for the grant should be abolished or adjusted to take into account factors other than income that contribute to poverty. Ms Rosa added that the means test should set a poverty threshold and take into account the number of people in the household, not just its income.
Ms Proudlock noted that 2-4% of children lived in child-headed households and needed direct access to grants if they could not access the mentoring scheme. Ms Rosa stated that 900 000 children had lost their mothers in 2002, and the figure would rise to 3-4 million by 2015. There was, however, a lack of statistics on child-headed households. With the HIV/AIDS epidemic, it was likely that more children would be orphaned. Such households could not access grants because only children living with adults could apply. Children had to be in formal foster care to receive the foster care grant, and the formal placement system was inadequate. There was a constitutional obligation to provide assistance. Child-headed households should be assisted by adult mentors where they were too young or immature to administer the grants.
Mr M Masutha (ANC) asked why the existing system could not cater for the small number of child-headed households. While HIV might make placement difficult and children's homes were not always ideal, there seemed to be reasonably sufficient placement options. What made placement impossible?
Ms Rosa replied that the current foster care system was not necessarily appropriate. Most children in child-headed households would prefer to stay with their siblings and in their communities. They preferred that the adult caregiver available come to their household. Foster care was thus not always best. Furthermore, the processes for foster care are difficult.
Mr Masutha responded that whilst he appreciated that resources had to go where they were needed, he remained concerned in this area. There was a similar debate around grants for street children - if the money went to them where they were, this would entrench a situation that was not in the best interest of the child. Were grants to child-headed households the right way to go? Could ACESS comment on the mentoring system?
Ms Rosa replied that ACESS had grappled with issues around child-headed households and had held a two-day workshop to address assistance to such households and to street children. Child-headed households were a reality. Everyone agreed that it was best to have an adult caregiver, but one could not further disadvantage children in child-headed households by refusing them access to social security. The best scheme would involve mentorship and direct access to grants. Mentoring was already taking place in KwaZulu-Natal. The practice should be entrenched legally.
Ms G Borman (DA) asked if ACESS had done anything on the costing of a basic income grant and where money for it would come from. Would the extension of the child support grant suffice in the absence of a basic income grant?
Ms Proudlock replied that ACESS saw the extension of the child support grant as the first phase, with the basic income grant to follow. It would be easier to recoup the costs of a basic income grant from taxation. Costing appeared in the Taylor Committee report and money for the basic income grant was available- it was a question of Government priorities.
Ms Rosa added that the cost of a basic income grant would be R45 billion. Half of it could be recouped through income tax or VAT. The Basic Income Grant Coalition was researching the best way to recoup the money.
The Chair asked if work had been done on the affordability of the grant.
Ms Rosa replied that there would be a financing conference in a few months to address affordability.
The Chair responded that this was a real problem. Many civil society organisations were advocating a basic income grant but government had not been able to secure results of any research into its affordability.
Ms Proudlock replied that the Committee of Inquiry had costed the basic income grant. In addition, Treasury and a number of economists were costing the grant. Affordability had to be addressed in the context of a rights-based approach - the right to a fair trial was not considered in terms of affordability. The question of rights had to be addressed first, with affordability looked into afterwards.
Mr Masutha noted that ACESS and others thought the Bill premature and preferred that the social security package was fixed before arrangements were fixed. If this approach was taken, it would result in promises being made that could not be kept. The system had to be fixed so that it could deliver on current promises before being expanded.
Ms Rosa responded that there had to be a process to 'hammer out' a package. With this policy in place, legislation could be devised that fitted the policy. The approach should not be piecemeal. If the Bill went ahead anyway, the problems in it would have to be addressed.
Children's Institute submission
Ms H Meintjes (Children's Institute) gave the presentation. The Institute has done extensive research into the needs of children who have been orphaned or who are in danger of being orphaned. They looked at grant accessibility and undertook costing exercises for various grants.
They did not support special grants for orphans - the most appropriate route to support them is the extension of the child support grant to everyone under 18 and the removal of the means test. Research showed that lack of care is not necessarily the result of the loss of parents - relatives and others tend to fill the care gap, with very few orphans ending up alone. The Institute was concerned about the single-minded focus on orphans - non-orphan children in poverty often had the same needs as orphaned children.
Entire neighbourhoods are affected by HIV through the informal support network. Whilst the country is about fourteen years away from the orphan peak, there are millions of children in compromised care because of the illness. Directing interventions based on orphanhood is mis-targeted since poverty is too pervasive. It is questionable to provide grants to orphaned children living with relatives when the same grant is not given to poor children living with their parents.
There are serious logistical problems for courts and social workers - for example, there are only three social workers in a KwaZulu-Natal rural area of over 100 000 people. Placing children in foster care unnecessarily places a burden on foster care that undermines its aim of providing for abused and neglected children.
At 100% take-up, the current system would reach less than a third of children now and less than 45% of children at the 2017 orphan peak. The current system is thus not cost-effective and is inequitable. The most cost-effective system is the extension of the child support grant to everyone under 18 and the elimination of the means test. As an alternative, the means test could be improved and simplified. Children should be supported based on poverty, not based on the fact that they are orphans.
Ms N Tsheole (ANC) expressed concern that parents would be crowded out if the state was given increasing responsibility for their children - did this not remove parental responsibility?
Ms Proudlock replied that the foster care system crowded out parents because they had to send their children into foster care so that the children could benefit from the grant. It is not that parents do not want to care for their children, just that they lacked the resources to do so.
Ms Tsheole stated that the role of relatives in supporting children had been emphasised, but relatives were no longer in a position to play the role they used to play. She had received reports that relatives were marginalizing children whose parents had died of HIV/AIDS.
Ms Meintjes responded that the safety net of relatives was stretched beyond capacity but that all children in the Children's Institute research had been taken into care by relatives or had always lived with them. Relatives needed as much support as parents did.
The Chair stated that it was then not that relatives did not want to take the children in, just that economic conditions did not allow this.
Ms Meintjes noted that there were additional problems around children whose parents had died of AIDS.
Ms Tsheole asked who would qualify for grants to relatives.
Ms Meintjes replied that there is no legal criteria for those who qualified. This was something that relatives had to agree amongst themselves. Since the foster care grant is much higher than the child support grant, there are concerns that relatives might want the child because they wanted the grant, although this is probably true of only a small number of cases.
Mr M Da Camara (DA) asked if research been done to look at the improvement for life chances of children if grants were extended?
Ms Proudlock replied that international research had shown that income transfers improved child well-being and health. The reason South Africa had so many street children and such high levels of child neglect and abuse is poverty - with better social security support, these problems would not manifest at such high levels. To put the point simply - a hungry and/or working child could not concentrate well in school and so had his/her life chances worsened.
Mr Da Camara asked if there had been studies on the cost of applying a means test and if this would affect the costing of grants.
Ms Rosa replied that, to her knowledge, no research had been done on this. She was beginning research into the matter.
Ms Proudlock stated that extending the child support grant would result in lower administrative costs than the current targeted system. Provincial officials had problems with the current system. It would be considerably easier to administer a system of grants to all children under 18.
Southern African Catholic Bishops Conference (SACBC) presentation
Mr C Chagunda (Researcher: Parliamentary Liaison Office, SACBC) presented an overall comment and did not go into technical details. The Catholic Church appreciated efforts towards strengthening the safety net through social grants. Church input during the drafting stages of the Bill would have enriched it.
The Bill failed to make adequate provision for child-headed households. It did not consider HIV/AIDS as a chronic illness and so deserving of its own special grant. People living with HIV/AIDS were only entitled to a Disability Grant if they were severely ill and in need of permanent care. This prevented them from obtaining treatment and access to healthy lifestyles. Severe chronic illness should make one eligible for assistance to care for dependent children and disability grants. The Bill failed to provide for social relief of distress. Family members should be included in the definition of foster children/parents, which would clear up confusion. The minimum age limit of 16 for access to grants should either be removed or some other way include children under 16 who were primary caregivers. The definition of procurator should make clear that beneficiaries have the freedom to choose the procurator.
No law with possible social consequences should be passed without first considering its effect on family life. Legislative reforms of social security should follow the recommended procedure, be open to stakeholder input and benefit the maximum number of people.
The Chair asked for comment on a grant to cater for specific needs of children.
Mr Chagunda replied that the Church did not want to dictate specific grants - they should be determined based on a needs assessment.
Mr Da Camara asked if the Bill provided adequately for street children. Did the SACBC have any recommendations on this? What was the impact on organisations that worked with street children?
Mr Chagunda replied that there had not been enough time to prepare for comment on the Bill. It would do an injustice to the issue to comment on it without consulting with the groups who worked with these children.
A Member noted that the submission referred to confusion around family members' eligibility for grants - could this be unpacked?
Ms Proudlock replied that the foster child grant was available to relatives but some magistrates used the discretion allowed to refuse grants to relatives.
Ms O Kasienyane (ANC) asked if the SACBC supported adoption grants to encourage this practice.
Ms Meintjes replied that there would be the same questions of equity around such grants as raised around other grants in previous presentations.
Ms Tsheole noted that the submission raised the question of people living with HIV/AIDS not being able to gain access to the Disability Grant until they were very seriously ill - did the SACBC think that they should qualify earlier? The reason for this was that many HIV positive people were able to work. One did not want people stopping work as soon as they discovered they were HIV positive.
Mr Chagunda replied that other organisations had given presentations on this issue during the morning session of the hearings.
Women's Legal Centre submission
Ms M O' Sullivan (Director of the Women's Legal Centre) gave the presentation on her Centre's constitutional work around women's issues. They supported the joint submission recommendations.
Interim measures were necessary to provide support to child-headed households. The Bill ignored such households which were among the most vulnerable. While it was not ideal to reinforce children in adult roles and living in a child-headed household was not always in the best interest of the child, grants to such households would be an interim way to deal with the reality. Such households should be supported where alternative care was not available.
Section 28(1) of the Constitution guaranteed a child the right to 'family care or parental care, or to appropriate alternative care when removed from the family environment'. Section 28(2) required that the 'child's best interests were of paramount importance in every matter concerning the child.' This suggested that child-headed households should not exist. However, there would be cases where such a household constituted 'appropriate alternative care'. Even if child-headed households were abolished in the long term, the current reality had to be addressed. Section 27 granted everyone the right to social assistance - this included children in child-headed households. Whilst a child's right to autonomy was not absolute, a child's autonomy evolved over time and is not 'magically' manifest at 18 or 16. A child that haddeveloped the capacity to care for a family was capable of determining how a grant should be utilised.
The Bill should make explicit provision for child-headed households and the written submission provided wording to do this in 'Chapter 1' of the 'Proposals' section. Excluding them would lead to a Constitutional challenge. If the Bill was passed as it stood, it would be a regressive measure. The Women's Legal Centre supported the joint submission.
Ms Tsheole noted that the submission's suggestion for rewording the Bill in its proposals included direct grants for street children. She asked that the presenter to address this.
Ms O' Sullivan replied that street children were included under the definition of abandoned children in the joint submission.
Ms Tsheole responded that although both needed care, street children lived in a different context and could easily use grants in ways that harmed themselves.
Ms O' Sullivan responded that it might be best to remove the reference to street children and find other ways to deal with them.
Ms Tsheole asked what protection impact there would be if the definition of a child by age were altered.
Ms O' Sullivan replied that the Centre had not done research into the consequent effects. However, the evolving capacity for autonomy of children was being considered in many areas. For example, the Sexual Offences Bill was considering a measure under which sexual experimentation before the age of consent would not be a statutory offence if the age gap between the people involved was no more than two years. Similarly, children were afforded considerable autonomy in decisions around termination of pregnancy. In child-headed households, the head of the household was already de facto responsible and should be assisted. She could not see any negative consequent effects.
Dr E Jassat (ANC) asked how a ten-year-old child could decide which food was nutritious. There would have to be mentoring.
Ms O' Sullivan responded that the difficulty was that mentoring was not always available. Children were already making these decisions and would not suddenly have to develop the ability to take decisions. It would not be ideal and mentors should be in place as far as possible.
Mr Da Camara understood that the pattern of HIV/AIDS impact was clustered in neighbourhoods. Was the system envisaged one of a mentor for several households? How would the system work practically? How would isolated child-headed households be catered for?
Ms Rosa replied that they had had discussions with grassroots organisations and two approaches were possible. There could be a mentor for a number of households or one for a particular household. This varied according to circumstances. Isolated households were of special concern since they would have be access grants directly since mentors were not available. Social workers would have to assess the situation.
Ms Tsheole stated that the community came together when the breadwinner died and this would be a good time for the Social Relief of Distress Grant. This grant could then fill in the gap until mentoring was set up.
Ms Rosa replied that this was an option but the grant was not in the Bill and not all provinces provided it. There would be problems if this grant ran out before a mentor was in place.
Ms T Tshivhase (ANC) stated that in rural areas, traditional leaders used to take care of orphaned children. Could assistance be given to the chiefs to aid them in this?
Ms O' Sullivan replied that the Centre had not researched this particular aspect of traditional life. They had researched traditional marriage and related issues such as inheritance. In some cases, there was good, fair support but in others there was not. Children could not be left dependent on the goodwill of their chief.
The hearing was adjourned.
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