Social Assistance Bill and the South African Social Security Agency Bill: deliberations

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
8 October 2003
SOCIAL ASSISTANCE BILL AND SOCIAL SECURITY AGENCY BILL: DELIBERATIONS

Documents handed out:
Summary of Public Hearings Submissions on the Social Assistance Bill
Summary of Public Hearings Submissions on the Social Security Agency Bill

Relevant documents:
The Social Assistance Bill (B57-2003)
The Social Assistance Bill (Third Draft dated 17 September 2003)
The Social Security Agency Bill (B51-2003)

SUMMARY
The Committee deliberated on the Social Assistance Bill and the Social Security Agency Bill following public hearings held on 22 and 23 September 2003. The Director-General and Department officials were available to answer queries. The meeting focused on the first 7 clauses of the Bill but members decided to continue the following day when they could proceed with the help of the State Law Advisors. Particular attention was given to the question as to whether child-headed households should be included in the Bill, with the DA arguing that it should be, since its inclusion would address a situation, which had become a daily reality. The Committee however decided that certain issues concerning children would best be dealt with in the Children's Bill. The Director-General and Department officials were available to answer queries.

MINUTES
Address by the Director General Mr Madunsela (DG) said that the 1992 Act assigning social assistance functions to provinces was currently before the court. The Department was not opposed to the assignment being declared null and void, but there was a need for co-ordination at national level. The fundamental purposes of the Social Assistance Bill were, firstly, to create the legislative framework for the Agency, and secondly, to undo the assignment of social assistance functions to provinces. The Bill was not meant to deal with policy matters, and after the release of the Taylor report, Government was preparing the framework for policy initiatives. Therefore the Bill could not overtake this process which would culminate in January 2004. Thereafter, the final decision on the Comprehensive Social Security package would be taken. The removal of the Social Relief of Distress grant did not imply a policy shift. A separate dispensation for the Social Relief of Distress grant and other interventions would be created following decisions of Cabinet. Transitional mechanisms had not been properly dealt with but the Department should explain Cabinet decisions, such as removal of the Social Relief of Distress grant. The document circulated in the meeting the previous day did not accurately reflect the Department's views. The Department would present a comprehensive response in due course.

The Chair asked when the DG had received the document referred to in his address.

The DG asked whether the document could be withdrawn so that a replacement could be submitted the following day. The Chair put the question to the Committee who then agreed to the DG's request.

Ms Borman said that the current document did not cross-reference all clauses and therefore issues could not be tied up. She was concerned about whether the Department understood the issues and suggested the Department be given some time to consolidate their responses.

Ms C Ramotsamai (ANC) disagreed and urged that the Committee proceed with discussions.

Advocate M Masutha (ANC) stated that the Department's comments should be considered informative, as they are no longer able to impact the Bill. Only Members could at that stage impact on the Bill. The Department would give input where appropriate.

Long Title and Definitions clause The Chair proceeded to ask for comments on the long title of Social Assistance Bill.

Ms N Tsheole (ANC) asked about the implication of the word "repeal" in the long title (as suggested by the Nehawu/Cosatu presentation) because it did not involve any major policy decisions.

Ms Borman asked whether this did not usually appear towards the end of the Bill.

The DG pointed out that it was unusual for "repeal" to appear in the long title. This was dealt with in section 37 of the published Bill. The long title outlined objectives while Section 37 dealt with consequences.

Advocate Masutha said that the long title simply provided an explanation of the Bill. It was critical that the objective to assign the function of social assistance to provinces be reflected. Repealing was not the primary objective of the Bill. The Committee agreed to flag the issue for later discussion.

The Director-General stated that the Presidential Proclamation could not be repealed as it was not an Act of Parliament and therefore could not be drawn into legislation.

Ms Ramotsamai noted that the definition of "primary caregiver" in clause (1) should include older persons who often look after younger children.

The Chairperson noted that Age-in-Action's definition of "primary caregiver" referred to the person looking after older persons.

Mr Makiwane said that the concept of a primary caregiver within the context of social assistance related to the Child Support Grant. Any departure from this approach would result in a policy shift.

Ms Tsheole asked about the older persons who were assisted by the grant-in-aid.

Advocate Masutha explained that a distinction should made between three concepts. A primary caregiver was used in the context of a child looking after his/her siblings. Grant-in-aid also includes regular visits by the attendant because the beneficiary, e.g. the older person was debilitated and could not look after him/herself. A procurator received the grant on behalf of the beneficiary. He asked whether it is necessary to extend the definition of primary caregiver to refer to an attendant or procurator already referred to in law.

Ms Ramotsamai said that child-headed households should be discussed. As had been noted by Acess, the Children's Bill was still being dealt with and therefore child-headed households could not be considered in isolation. The Children's Bill and the Social Assistance Bill were perhaps not consistent.

Mr M Da Camara disagreed and said that the definition of child-headed households must be included in the Bill. If it were presumed that it would be dealt with in later legislation, children would be left vulnerable in the meantime.

Ms Borman concurred and suggested that the definition be inserted in the fourth draft of the Bill.

The DG pointed that the Bill was for social assistance and so needy children would be entitled to benefits.

Advocate Masutha stated that the current Act's definition of "primary caregiver" related to a person looking after a child, and so "person" was automatically assumed to exclude "child". The Bill was more specific in that it stipulated that the age of the primary caregiver should be sixteen years or older. The rationale was that a level of maturity was reached by 16 years to enable proper care of younger children. If the age stipulated were decreased, the childcare system would be under pressure to respond to existing mechanisms.

The Chairperson asked what would happen in the case of a child with a child.

Advocate Masutha stated that the child would qualify as being in need of care.

Mr Makiwane said that the Social Assistance Bill dealt with cash transfers. Legal liability was attached at 16 years, and beyond this, the Child Care Bill should address the issue.

The DG said that younger children were at a greater disadvantage with regards to receiving grants. Young children should be fostered and so enjoy more benefits with higher transfers.

Mr Da Camara stated the reality was that many children did not get into foster homes because there were so many child-headed households in some communities. A definition for child-headed households was necessary so they could access benefits. The concept of mentors was a good idea.

Ms Ramotsamai questioned the recklessness of children with money. There had to be ways in which children could enjoy benefits without having to deal with unnecessary burdens.

The Chairperson referred to page 12 of the Acess submission and pointed out that this organisation had already proposed the inclusion of a definition for "mentor".

Ms Tsheole said that child-headed households should be included for definition but not for accessing grants on their own. A mentor must assume responsibility for child-care in a child-headed household.

The DG asked why the same could not be done by a foster parent. Courts should approve the status of foster parents and this would enable them to fulfill the necessary responsibilities. A mentor was a 'watered down' version of a foster parent since a mentor was not required to go via the court system.

Ms Borman said the problem with foster care was that families were split up, and with the concept of mentorship, the family unit remained intact. Research had shown that children preferred to stay together.

Ms Tsheole suggested that provision be made in terms of foster care for families to stay together. Intersectoral committees,including Justice officials, should confer to reach consensus on the matter. If the concept of a mentor were added to the definition of "foster care", many loopholes would result.Mr Da Camara offered a distinction. A mentor could be defined as a person looking after a number of children in different households where there was no parental figure. There could be a fast-tracking process and an interim step while the State made alternative arrangements for the children. Foster parents took the child or children into their homes on a permanent basis. Court processes for appointing foster parents were long and costly.

Advocate Masutha asked why it is so difficult to respond to the plight of the small number of child-headed households in the country. Receiving money has a responsibility attached to it, and the Act envisaged that the recipient be someone who fulfilled the parental responsibility. The court could place children as a group if it was in the best interest of the children. Regarding the concept of a mentor who administers money, he asked whether the other needs of the children were the responsibilities of the mentor. If money was just being handed out, the Department itself could fulfill that function.

The Chairperson referred to the Committee for a definition of "chronic illness".

Ms Tsheole suggested that the Committee and Department should refer to the Health Department's legislation for a suitable definition. The Committee agreed that the definition of "care dependency grant" should remain as is and not be changed to "special needs grants".

The Chairperson said that organisations had noted that all grants were not defined in clause 1. He asked whether this was a concern in terms of consistency.

Advocate Masutha stated that grants were made in terms of a particular provision. With regard to "chronic illness", he asked where one drew the line. Physical or mental disability could be as a result of injury or chronic illness. The care dependency grant covered severely disabled children

The Chairperson asked for comment around the concept of a mentor. Mr Da Camara supported its inclusion.

Ms Ramotsamai questioned the need to define "street child". Was a street child not simply a child?

Mr Da Camara held the opposite view as street children sometimes found life on the street more enticing than a life of discipline, e.g. provided by shelters. The inclusion of a definition would strengthen the hand of shelters and caregivers to gain access to grants for these children.

The Chairperson asked for comment of the Social Relief of Distress grant.

Advocate Masutha suggested that the same approach of awarding the grant in terms of a provision. Defining the "procurator" might not be necessary if the concept was used elsewhere in the Bill.

The DG stated that the Social Relief of Distress did not necessarily have to be a cash grant, but should depend on the needs of the applicant. There was a risk associated with a cash grant in this respect.

The Chairperson said the legislation was clear that the Social Relief of Distress should be a cash grant.

Advocate Masutha said that some grants were given specificity and regulations provided some flexibility.

The Chairperson referred to persons with a disability and asked for comment.

Mr Makiwane said that definitions had been considered, but that policy issues would arise if the implications of expanding the scope of the definition were not taken into consideration.

The Chairperson turned to the issue of non-citizen permanent residents accessing grants.

The DG said that the matter was currently before the Constitutional Court. The Department view was that permanent residents need not be included. The Act allowed the Minister to include others under the definition of "citizen" for the purpose of social assistance. There was already a court order granting access to social assistance to permanent residents.

Advocate Masutha pointed out this catered to certain obligations in terms of international agreements which South Africa had to honour.

The DG distinguished between different categories of permanent residents. The first was in terms of the Aliens Control Act where there were specific requirements around the immigrants' income levels and ability to support themselves. The second involved those people exempted from the requirements who were given the option to leave or stay in the country. If these people were allowed to become permanent residents, it had to be accepted that they would burden the state. Legislation allowed that unforeseen situations could be dealt with concerning these specific categories.

Advocate Masutha asked whether the Department suggested following the status quo that legislation recognised other categories by granting exemption pending the outcome of the case before the court.

The DG said that it was the Committee's decision, but such was the view of the Department.

Advocate Masutha suggested that the Committee complete its review of the definitions. The definition of "grant" would be problematic if not qualified in terms of the relevant clause of the Bill.

Mr S Jehoma (Chief Director) suggested that "social assistance grant" be inserted in its place.

Advocate Masutha answered that "social assistance" be expanded beyond a grant. The Bill referred to either "social assistance" or "grant". He proposed the same approach be taken in the current Act.

The DG pointed out that definitions in one Act could not be superimposed on other legislation, like the discretion of the Minister including other categories of people into the definition of "citizen'. The definition should be kept so that the Minister could exercise discretion.

Advocate Masutha stated that after 1 March 1996, one would have to be a citizen to qualify for a grant. Before the Act, certain people who were not necessarily South African citizens were receiving grants. Once a grant had been applied for, it could not be revoked.

After the lunch break, the discussion of definitions continued and Mr D Plaatjies (Treasury) advised deletion of the definition of the Treasury. The Chairperson agreed.

Definition of "this Act"Mr Masutha said that normally this type of definition would read: "includes any regulation made under this Act", but maybe this was a new, more fashionable, formulation. He left the decision to the State Law Adviser's discretion.

Definition of "war veteran"Prof L Mbadi (ANC) proposed substitution of "war veterans" with "military veterans".

Mr Masutha said that the purpose of social assistance was not intended to cater for Military pensions. The legislation on that issue was implemented years ago and the responsibility of continuing those benefits still remained. The policy could not be changed, hence the proposal was misplaced.

The Chairperson decided to retain the original formulation of the above definition.

Definition of "welfare organisation"Mr Madunsela (Director-General) said that the definition was not entirely helpful, because it did not distinguish between a range of non-governmental organisations rendering services, which were not of a welfare nature.

The Chairperson said that an alternative would be to add the proposed "public benefit organisations" as a third category that would qualify for support in terms of this legislation.

Mr Masutha said that the definition of welfare organisation referred to either an organisation that was registered under the Welfare Act or an organisation not registered and rendering social welfare services for non-profitable purposes. In clause 5, the Minister could provide financial awards to any welfare organisation co-ordinating organised activities for developmental social welfare services. An attempt to incorporate all the elements of a welfare organisation in the definition section would cause certain complications. There was no need for such a complex definition, as all the necessary information was in fact provided in clause 13. He recommended retaining the existing definition.

The Director-General was concerned that, in the absence of legislative framework dealing with specific matters, some cases might fall under the legislation in a way never intended. He suspected that the financial awards were not forms of social assistance, but they were rather grants assigned for organisations. He questioned the decision to deal with the issue of awards in the Social Assistance Act.

Mr Masutha said that when the 1992 Act first conceptualised social assistance, it erred by taking the concept beyond assistance to individuals in the form of cash benefits and grants, and included subsidies to welfare organisations. In the 1996 Act, a notion of developmental welfare services was inserted. The notion of including subsidies effectively was still there. The ideal situation would have been to come up with a new legislative framework to regulate financing subsidies in the form of welfare services. A whole new framework would emerge through the exercise of financing policy of welfare services seeking to balance the developmental approach and the issue of community-based organisations. He proposed to define welfare organisation as firstly, registered in terms of the National Welfare Act, secondly, rendering welfare services registered under the Non-profit Organisations Act, and thirdly, unregistered organisations that rendered welfare services. Another option would be to revert to the existing definition and add a paragraph referring to non-profit organisations registered under the Non-profit Organisations Act, and which rendered developmental welfare services. The Director-General agreed to the proposal.

Clause 2: Application and Implementation of Act

The Director-General noted that subsection (1) covered only one specific category of people and proposed drawing from the definition of a South African citizen to state that it would also apply to a group of persons who had been so determined by the Minister in terms of section 1 under the definitions.

Mr Masutha said that the definition section dealt with extending the concept of a citizen to include certain people who were not South African citizens but did, nonetheless, fall into the categories mentioned in the definition. It was stated later in the body of the Act that the person had to be a South Africa citizen, which excluded those who were not citizens but still met the criteria described in the definition. Consequently, he questioned the purpose of the entire subsection (1).

Mr Makiwane (Department of Social Development) suggested insertion of the necessary section into sub-clause (1) and deletion of the definition.

Clause 3: Objects of the Act

Mr Makiwane proposed changing "social security" to "social assistance" in subclause (e). Members agreed.

Clause 7: Care dependency grant

Ms C Ramotsamai (ANC) proposed the deletion of the word "fully". The Director-General agreed.

Members regretted that the drafter of the Bill from the Department was absent from the meeting. Without professional legal assistance, it was difficult to work with the proposed amendments.

The Chairperson suggested that the members consult with their respective Parties on the issues raised during the hearings and Committee meetings, and assist the Department by providing some concrete proposals to the amendments. The members agreed.

It was decided that the Department, with the help of the State Law Advisers, would prepare the necessary documentation covering the proposed amendments and comments made by the Committee members, so that the deliberations would proceed more smoothly next time.

The monitor had to leave the meeting at this point. Notes on the last 45 minutes of the meeting are awaited from the Secretary of the Committee.