South African Social Security Agency Bill: deliberations

Meeting report

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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
5 September 2003
SOCIAL SECURITY AGENCY BILL: DELIBERATION

Chairperson: Mr C Saloojee (ANC)

Documents handed out:
Draft Discussion Document containing Unofficial Proposals made by the Social Development Committee on the Social Assistance Bill

SUMMARY
The Committee deliberated on Clauses 1 to 16 of the Bill. Members debated the question of whether the definition of 'child-headed households' was encapsulated in the term 'primary care-giver'. Members felt that it was incorrect to place an age limit on the definition, given that so many households were headed by children younger than 16.
Members also expressed concern at the failure to provide for social relief in this Bill. They debated whether the Agency should be allowed to appoint a procurator on behalf of a severely disabled person.
Extensive discussions took place around the discontinuation of payments to persons absent from the Republic, with some members arguing that the benefits should accumulate during the beneficiaries' absence.

Discussion
Chapter 1: Definitions, Application and Objects of Act
Mr Da Camara (DA) asked if the Chair knew whether the NCOP was prepared to deal with the Social Security Agency and Social Assistance Bills.

The Chair indicated that he was unable to speak on behalf of the NCOP.

Clause 1: Definitions
Mr Krull (Law Advisor- Department of Social Development) asked for repetition of the previously proposed definition for 'child-headed households'.

Mr Da Camara responded that the definition of child-headed household should be included under 'primary care-giver'.

Mr Krull was concerned that 'primary care-giver' did not encompass 'child-headed household'. The problem could however be addressed by removing the age limit in the definition of primary care-giver or by adding a proviso that the age limit did not apply to child-headed households. In addition, one could also make provision for assistance to be provided to children who are the primary care givers.

Mr F Makiwane (Deputy Director-General) argued that from a policy perspective, children should be looked after by people who are able to do so (hence the age limit of the primary caregiver). This ensured that the State had legal recourse in the event of the caregiver failing to act in the interests of the child. The State had to ensure that money provided for the care of children was used for the intended purpose.

The Chair responded that despite age limits set by the Committee, one ha to take into account the realities. Children younger than 16 were heading households. An age limit of 16 therefore presentd a problem.

Mr Makiwane suggested that one could make provision for the Minister to grant approval in exceptional cases, but this should not be considered the norm.

Prof L Mbadi (ANC) said children as young as 14 were heading households and the entire houseold was sometimes taken over by a distant relative. One had to consider whether one would give the money to the child to benefit that specific household or to the relative (who may use it for the entire extended family).

This issue was postponed for further discussion.

Ms J Chalmers (ANC) asked why the definition of 'welfare organisation' specified older persons. Did this not apply to all service-oriented organisations?

Mr Krull agreed that it was incorrect to include older persons and agreed that it should be deleted.

Clause 2: Application and implementation of Act
Mr Krull explained that the clause (1) was drafted in this way in order to avoid getting bogged down in the question of rights and obligations of citizens.

Subclauses (2) to (6) had been deleted on the instructions of the Committee.

Mr Krull referred to the previous week's debate during which it had been decided to place a positive burden on officials where the individual could not understand his/her rights. Despite the application of Batho Pele principles and S195 of the Constitution, the drafters had further clarified the burden placed upon officials. Specific criteria were identified

Ms Chalmers was concerned about where the responsibility for social relief would lie. Would it remain with the provinces during the transitional period? She asked if social relief would be included in the objects of the Social Assistance Bill. She was concerned that the issue of social relief would in two years time still be dealt with at provincial level and still not be legislated. This was problematic, given that social relief was a fundamental part of social assistance.

Mr Makiwane said that while it was a fundamental part of social assistance, it could not be included as part of this Bill. Mr Jehoma explained that this issue had been discussed at Cabinet level, where it had been raised that provinces were best suited to deal with this issue, which by its very nature, required a great degree of discretion (unlike the case with grants where the decision was simply whether a person is entitled to the grant). This issue however remained under review by the Department.

Ms Chalmers enquired whether the Inspector would ensure that social relief at provincial level was being provided. Provinces would not always have the budget to deal with crises, which could have huge financial implications. It therefore became necessary to give national government the power to deal with these crises.

Ms N Tsheole (ANC) pointed out that social security included social distress. Since this was not an amendment, but an entirely new Act (which did not include social relief of distress), then where did provinces get the mandate to dealt with social distress matters?

Mr Krull explained that in terms of the Social Assistance Act of 1992, parts of social security had been assigned to provinces. Among those areas assigned was the authority to deal with social relief. The current proposal was that the 1992 Act be repealed. National Parliament did not have the authority to deal with provincial legislation.

Mr Da Camara was concerned about the provinces' capacity to deal with these issues.

Mr M Masutha (ANC) added that the problem was that it is difficult to determine objectively what had been assigned to provinces. One section of the Act may consist of various components. How did one split the section up to allocate certain of its provisions to provinces?

Ms Tsheole believed that this legislation should state exactly which provisions were being repealed.

Mr Krull cautioned members against violating constitutional provisions, by legislating on matters that were the jurisdiction of the provincial legislatures.

The Chair said that the Department should take note of these concerns and address them later.

Chapter 2: Social Assistance
Clause 4: Payment of social grants
Mr Da Camara asked what the difference was between 'entitlement' as opposed to 'eligibility'

Mr Krull explained that 'entitlement' implied that the person has a right while eligibility means that the right was subject to certain conditions.

Clause 7: Care Dependency Grant
Mr Da Camara referred to Clause 7 (b) and asked if this provision excluded institutions like the Cotlands Home and Amazing Grace Centre from obtaining grants.

Ms M Ramatsomai (ANC) was of the opinion that this clause ensured that Government did not have to contribute to individual children residing in institutions, where the institution was already funded by the State.

Mr Da Camara asked if the child was entitled to the grant if the institution does not receive funding.

Clause 11: War Veterans' Grant
The Chair asked if the word "and" in subclause (a) should not be "or".

Mr Krull explained that both requirements had to be present for the person to access this grant, i.e. the person had to be unable to provide for her/himself due to his/her disability and also be older than 60 years old.

The Chair argued that the current Act uses the word "or".

Mr Krull respectfully submitted that the current Act was wrong, since it referred to an additional criterion.

Mr Makiwane added that in order to access this grant one, one has to be "old and poor", since there may be war veterans who are rich.

Prof Mbadi objected to the distinction between the ages of recipients of the older persons grant as opposed to the war veterans grant. Why should war veterans get their grant earlier than anyone else?

Mr Makiwane explained that the war veterans grant had always been in existence and argued that to push the age limit back to 65 would be problematic.

The Chair asked why participants of the liberation struggle were being excluded from this grant because of the age limit.

Mr Plaatjies (National Treasury) argued that these people were covered under a different fund, which did not form part of social assistance.

Clause 12: Grant-in-aid
Mr Masutha referred to the fact that the Department had changed the phrasing of this clause and argued that changing the language could imply that the drafters intended the clause to mean something different to the clause in its original form. It could be interpreted as a change in policy.

Mr Makiwane agreed and suggested that the original phrasing be retained.

Clause 13: Financial awards to welfare organisations and persons
The Chair asked if "and persons" in the title was supposed to be there.

Mr Krull said that it should be removed.

Chapter 3: Administration of Social Assistance
Clause 14: Application for social assistance
Mr Krull explained that subclause (3) (a) dealt with the Agency's responsibility where the applicant qualified for social assistance, while (b) dealt with the steps to be taken by the Agency where the person did not qualify.

Ms Chalmers said that although the clause provides for the Agency's responsibility to inform the applicant of his/her right to appeal, this responsibility should extend to include furnishing the applicant with reasons for the refusal.

Mr Krull asked if the Committee wanted reasons to be furnished automatically or if it should only be provided if requested by the applicant.

The Chair felt that reasons should be provided automatically.

Clause 15: Appointment of procurator
Mr Da Camara asked if the beneficiary has no say as to who the Agency nominated to act on his/her behalf.

Mr Krull replied that subclause (1) referred to cases where the person is unable to make a choice.

Mr Da Camara asked how and at which stage this was decided.

Mr Krull responded that they had not intended for this to be determined in legislation.

Ms Ramatsomai cautioned drafters to phrase this clause carefully to prevent the situation where beneficiaries are forced to use dishonest family members as their procurators.

Mr Krull suggested the inclusion of the words "as far as possible", since this would also cover people whose disabilities were so severe that they are unable to express their wishes.

Ms Ramatsomai referred to the Committee's earlier visit to KZN, where they had come across severely disabled persons who did not want procurators to be appointed on their behalf.

Mr Krull repeated that he was referring to instances where the person was unable to express his/her wishes.

Ms Ramatsomai argued that it is almost always possible for a person to somehow express his/her wish.

Mr Da Camara suggested that the drafters find a way to incorporate members' concerns in the drafting of this clause. The Chair added that these concerns were a result of real experiences witnessed by the members on their visits to different areas.

Mr Krull suggested that perhaps subclause (2) could be removed altogether. He asked how members felt about allowing the Agency to assist in finding someone where the person was unable to do so.

The Chair asked what if the person was unable to communicate at all.

Mr Krull suggested that the Agency should be allowed to appoint someone in this case.

Mr Plaatjies said it is not possible to foresee and deal with every type of proble that might arise.

Clause 16: Discontinuation of payment to persons absent from Republic
Mr Krull explained that this clause had previously been reactive. This had been changed to place the onus on the beneficiary to be proactive by informing the Agency if s/he would be out of the country for more than thirty days. He also pointed out an error in (3) (d), saying that reference to "PFMA, 1996" should be replaced by "PFMA 1999".
He explained that (3) (a) provided for a 'hard approach' which members had preferred. This subclause provided that the grant should be discontinued if the beneficiary intended to be absent from the Republic for more than 30 days. Since the receipt of the grant was a Constitutional right, this provision should meet the limitations test. Members had earlier asked for a sanction to be imposed on persons who violated this subclause (in addition to the discontinuation of the payment). This was a very strong approach, and if it were to be adopted, it would have to allow for exceptions.

Mr Da Camara referred to subclause (4) and asked if the person contemplated in this section would have to approach the Agency at any particular place.

Mr Krull answered that the person would approach the agency at its offices.

Ms Tsheole had two problems with subclause (4): Firstly, the notification would be given in writing, despite the fact that a large proportion of the population was illiterate. Secondly, the requirement that notification be "in an official language" was not very helpful since the person might be notified in a language s/he does not understand.

Mr Plaatjies suggested the words "in his/her official language".

Mr Ngema (IFP) asked if payment to a beneficiary absent from the Republic was suspended until his/her return or if it was completely forfeited.

Mr Krull responded that benefits did not accumulate when a person left the country. The benefit was 'forfeited' for that period but resumed when the beneficiary returns.

Mr Da Camara asked if provision allowed for exceptions. Mr Krull replied that subclause (2) was an exception to this rule.

Mr Da Camara argued that subclause 2 did not deal with this adequately, as this clause used the phrase 'continue payment of a grant".

Mr Krull replied that the subclause provided that payment would continue despite the beneficiary's absence, owing to the fact s/he had obtained permission.

The Chair suggested that the drafters should examine the wording of the clause again to determine if it captured this adequately.

Ms Chalmers asked at which stage a beneficiary was informed that the payment of the grant had been suspended.

Mr Krull answered that once the Agency became aware of the person's absence, it would stop payment immediately, after which it would inform the beneficiary of the suspension, as well as of his/her rights in this regard.

Ms Tsheole argued that this provision could unfairly prejudice beneficiaries whose payments were not made into bank accounts. If the Agency deposited payment into a bank account, they would not know whether the beneficiary was still in the country and such person could then continue to receive payment despite his/her prolonged absence.

The Chair requested the drafters to re-examine this provision.

Mr M Masutha (ANC) asked the Department to explain whether payment was being discontinued or whether the grant itself was being discontinued. In the latter case, it was the right to the grant that was being discontinued.

Mr Makiwane said that Social Assistance is not an exportable benefit, as it was intended for residents of SA. The 30-day time limit was intended to protect the interests of those beneficiaries within SA as well as to ensure the protection of State resources.

Mr Masutha believed that this clause could have implications for clause 5, which specified eligibility criteria for accessing a grant. This clause made no reference to the fact that one had to be a resident while in receipt of this grant. They might need to include in Clause 5 the requirement that the person should be resident in the Republic in order to qualify for the grant. He suggested the insertion of "subject to the provisions of clause 16" in Clause 5. Furthermore, it remained necessary to specify whether one was referring to the suspension of the payment or the grant itself.

Mr Krull responded that this was a policy decision that could be dealt with in various ways. Suspending the grant itself implied the suspension of a Constitutional right. He would consult with the State Law Advisors in this regard. They could also perhaps introduce a sanction aimed at preventing the abuse of the fiscus. The Committee would have to guide the drafters on this provision. They also has to consider the practical implications of suspending the right, e.g. would one first take action or first inform the beneficiary. Practical issues arose in both instances. If one left the Republic, one would not always be able to respond to the notification. On the other hand, absence from the Republic implied that one was no longer entitled to administrative justice in the Republic.

Mr Krull then referred to Clause 15, explaining that the situation was different where the procurator left the country. S/he simply forfeited his/her right to act as procurator because there was no vested right.

Mr Masutha suggested that the drafters rethink the Clause dealing with discontinuation of payments. It might be necessary to allow for suspension of payment when the person left and the resumption of payment and backpay on return.

The meeting was adjourned.