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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
14 October 2003
SOCIAL SECURITY AGENCY BILL AND SOCIAL ASSISTANCE BILL: DELIBERATIONS
Documents handed out:
Proposed amendments to the Social Security Agency Bill (Discussion Document 2)
Portfolio Committee Amendments to the Social Security Agency Bill
Social Assistance Bill (B57-2003)
Social Security Agency Bill (B51-2003)
Social Assistance Bill (Third Draft dated 17 September 2003)
The Committee discussed Proposed Amendments to the Social Security Agency Bill and Proposed Amendments to the Social Assistance Bill. Officials from the Department and Treasury were present to give input.
Ms G Borman (DA) asked if the Department had already decided to proceed with the Bill. Advertisements for the Agency had already appeared and this indicated total disregard of Committee input.
The Chairperson urged that the Department address the question because the Bills needed to be before National Assembly the following week.
Mr F Makuwane (Department) informed the Committee that policy posts had been advertised to help deal with capacity issues in the Department. It would be irresponsible not to sufficiently increase capacity. Positions were not within the Agency, but within the Department.
Ms Borman stated that the managerial and financial posts advertised offered large salaries and advised the Chairperson to look at the advertisement.
The Chairperson noted Ms Borman's statements and turned to the issue of the Social Security Agency Bill.
Mr Makuwane proceeded to lead the Committee through the Proposed Amendments document.
Social Security Agency Bill [B51-2003] Proposed Amendments
Ms Borman noted that there is no definition for social security following the word "means" and asked as to the intended definition.
Mr Makuwane said that it referred to employers. Employees contribute towards their own wellbeing, although the only reference to "social insurance" in the Bill is in terms of the definition of "social security".
Ms Karin Booysen (Legal Advisor) pointed out that the definition of "social insurance" is necessary in the Bill because it is included in the definition of "social security" and in the long title. It is new term for the Committee to consider as there is no provision for it in the Social Assistance Bill.
The Chairperson suggested that the issue be flagged and the Committee continue through the Bill.
Mr Makuwane stated that there is a new formulation of the Objects of the Agency as requested by the Committee.
Advocate Masutha referred to the inclusion of "or other monetary benefits" to 3(a) and 3(b). This complicates matters because the Committee had agreed to define social assistance to include all other forms of social security. The addition of "or other monetary benefits" implies a new concept. It had been agreed that the Agency would pay social assistance and in future convert to a multi-purpose vehicle to cover all forms. This must be clear in the clause.
Mr Makuwane said that it must be ensured the effective payment of social assistance. "or other monetary benefits" will be removed.
Advocate Masutha asked what the intention was in adding "or other monetary benefits". He asked whether welfare service is also excluded from the concept of social security and whether subsidies are to be provided for. Subsidies did not fall under social assistance.
The Chairperson asked where the Social Relief of Distress (SRD) grant would fall.
Mr Makuwane answered that it would fall under social assistance.
Advocate Masutha pointed out that SRD is mentioned separately as if it is a completely different issue. A decision must be made on whether or not to locate SRD in social assistance.
Mr Jehoma said that the necessary adjustment could be made so that SRD is located under social assistance and then also defined itself.
Advocate Masutha pointed out that if the decision is that components of social assistance should remain at provincial level, assignment can be used to deal with it.
Mr Plaatjies said that there should be a distinction between cash support and support in-kind. The view is that it would not be advisable to extend the mandate on in-kind benefit. This issue could be revisited in the Social Assistance Bill to keep the Agency Bill as clean as possible.
Advocate Masutha voiced agreement, saying that the Agency Bill should be clinical. In the context of other social relief, social workers should go into the field to assess the needs of the people, especially those in remote areas. He asked whether regulations were clear on the need for assessment to qualify for the appropriate SRD. Would the same procedure determine whether the person qualifies for the grant applied for in the first place.
As articulated by the Committee, clause 4 is a reformulation of the functions of the Agency.
Advocate Masutha referred to subsection 1, saying that the DG had recommended that 1(a) be rephrased so that it reflects the administration of the Agency. The words "implement and execute" must be substituted with "administer". Regarding subsection 2(a), "a person or entity", this wording suggests a specific individual.
Ms Booysen pointed that the inclusion of "a" is simply a drafting principle.
The Chairperson noted that this implied that the Agency would be entering into private companies. He asked for comment from the Department.
Mr Makuwane explained that this provision would enable other Departments to be taken on board.
Ms Borman stated that it might be useful in some cases that functions be outsourced. Closing the door altogether might prove risky.
Advocate Masutha said that clause 4(a) enables the Agency to eventually assume other responsibilities besides that of social assistance and enter into agreements with other institutions to render social assistance functions effectively. This clause cannot however grant legal competence on its own without changing the relevant legislation.
Ms Booysen said that "or entity" had been removed from clause 12 for the sake of consistency.
The Committee agreed to subclause 3. Mr Makuwane explained that subclause 4 empowers the Minister to delegate functions to provinces within the context of transition.
Advocate Masutha referred to 4(b) and asked how the Minister would assign powers he did not have. He asked whether the Minister could assign his or her powers to entities outside Government. It was being assumed that an agreement alone was sufficient for the Minister to acquire a function from another Minister. The State Law Advisors should review the whole of sub clause 4.
Advocate Masutha pointed out that the same issue of conflicting laws applied here.
The word "reports" had been inserted to imply that reports could be demanded as often as was required. "Reports" would also cover all types of reports to be submitted to be regulated in terms of schedule 3A of the PMFA.
Ms Ramotsamai agreed that reporting should fall within the existing regime of creating reports for consistency. A decision on this matter should be made in conjunction with the other relevant Departments.
Ms Borman suggested a cross-reference be inserted to the PMFA.
Mr Plattjies said that the issue concerns the approval of the Minister with regard to the quality of reports. It should be made clear that the approval of the Minister should be in terms of the PMFA.
Ms J Chalmers (ANC) asked whether business plans and financial reports fall under the concept of "reports". These were usually made for future planning and not to reflect past happenings.
Mr Plaatjies explained that if it is stipulated that reports must be submitted in terms of the PMFA and then approved by the Minister, the CEO of the Agency is then responsible for compiling business and financial reports in terms of the PMFA. It is however correct that reports did not include business and financial plans.
Mr Makuwane said that the financial statements and business plans all formed part of a report in terms of the PMFA.
Mr Plaatjies asked whether the CEO holds power or authority. Power rests in the Minister and authority with the CEO.
Mr Makuwane answered that all entities refer to the power of the CEO.
Ms Booysen said that the CEO has the power to delegate.
Ms Ramotsamai (ANC) said that the term "override" implies that the Minister can dispute any decision taken by the CEO.
Ms Borman said that the functions of the Agency as they appear in on page 3 of the amendments are repeated in clause 7.
Advocate Masutha explained that clause 7 contains information pertaining to the code of conduct. Page three pertains to agreements with other service providers. He noted that paragraph (h) duplicates "without bias", a duplication of "impartial".
Mr Makuwane said that "without bias" would be removed.
Mr Makuwane said that sub clauses 7 and 8 would be removed.
Mr Makuwane said that "Funds and Business of the Agency should be read with clause 4(2)(b).
Sub clauses 1(a) and (b) are to be inserted as there might be other reports the Minister may require.
Mr Plaatjies explained that the PMFA identifies a number of different reports.
Advocate Masutha said that if "joint ventures" is removed, there is still a need for provision for "agreements" as a substitution as this is catered for under the functions of the Agency.
Mr Jehoma explained that the original proposal was that the Minister "must" make regulations. The clause now includes "may".
Mr Makuwane said that this clause provides for the transfer of social assistance administration to the Agency. It prepares the prerequisites for the Minister so that there is no malfunctioning of the administrative function. The Committee had requested that this be clearly stated in the Bill.
Ms Borman expressed concern about the staff left in the provinces after the transfer of staff to the Agency. She asked if provision is to be made for adequate staffing at provincial level.
Mr Makuwane said that these issues would be dealt with through collective agreement.
Mr Jehoma added that clause 25 provides the mechanism for the Minister to enter into a Memoranda of Understanding regarding the best ways of addressing capacity and related issues.
The Chairperson asked that the numbers of staff to be transferred.
Mr Jehoma replied that 4000 out of 12 000 were to be transferred. The bulk of staff was left in the provinces.
Advocate Masutha suggested that "after consultation with the Minister of Finance" be added as negotiating the transfer of budgets forms part of negotiating the transfer of functions. The problem is that the agreement is between national and provincial entities, but Treasury is not included. Paragraph (d) should include "for the provision of services".
Ms Chalmers said that there should be a management process to assist with the phasing in after the transfer of functions to the Agency.
The Chairperson asked whether this issue is addressed in the regulations.
Mr Makuwane stated that there were process steps to consider without which there would be serious problems.
Advocate Masutha said that national law could not be imposed on provinces, but provinces would have to co-operate for smooth transition. If the Minister attempted the Memoranda of Understanding with provinces and they refused to co-operate and undermine the objectives of the Bill, the court can rule in favour of the Minister.
Mr Plaatjies said that it is implicit in the Memoranda of Understanding that there be a phased approach with the transfer of functions. Paragraph (a) suggests that the transition process, the transfer of functions and the delegation to Agency cannot be constrained in terms of the Agency Act. Ninety percent of the budget is to be removed from provinces, not 90% of the staff. Paragraph (a) should be left as is.
Mr Da Camara (DP) referred to paragraph (d) and the welfare services aspect. At present, provinces dealt with social assistance, welfare and developmental issues. After the transfer, a vacuum would be left behind in terms of other services. This issue should be dealt with in paragraph (d).
Advocate Masutha pointed out that the word "sole" as it appears in the long title is best dealt with under objectives. It is important that it is clear that the Agency could assume greater responsibility and should be upgraded rather than dissolved and creating a new Agency. The longer the delays, the longer there would be uneven access to grants. Prioritizing might be more constitutional than being subject to constraints. He suggested that there be a resolution for government strengthens welfare service delivery in the course of implementation.
Ms Chalmers said that the Minister should go ahead and enter into a Memoranda of Understanding as this implied progress.
Advocate Masutha pointed out a difficulty in that the Memoranda of Understanding is a contractual agreement between two willing parties. If provinces choose not to enter a Memoranda of Understanding, the Minister should compel them to do so. A general point of obligation should then be created for provinces to co-operate in terms of the Constitution. This is dealt with in the Social Assistance Act and is adequate for the time being.
The Chairperson stated that because social security is part of the Social Development budget, it is almost impossible to promote developmental work. It is feared that if social security becomes the responsibility of the Agency, social development as a whole would have little meaning. There should be dialogue between provincial and national levels.
Mr Makuwane said that it is not the intention to disrupt the delivery of services at provincial level.
Mr Plaatjies pointed out that the Agency's responsibility for the payment and administration of grants had nothing to do with welfare services. The components of welfare services is shared responsibility and therefore the fiscas is obliged to invest in provinces to deliver welfare services. The Agency Bill must be a clean as possible.
Advocate Masutha said that the Department should look into the development of capacity at provincial level to provide service.
Ms Borman addressed Mr Plaatjies and asked if the capacity would be in place while financial resources were being supplied. With the supposed improvement of service delivery at a provincial level, human capacity should be taken into account.
Mr Plaatjies answered that there were a great many professional people in the welfare sector. If the function is removed from provinces, investment into welfare would be crowded out. The mandate of welfare service to the provinces must be understood and therefore there must be a thorough assessment of what is happening in the provinces.
Advocate Masutha pointed out that social and developmental workers at provincial offices would still be approached for assistance by people in the area. These workers are to be equipped with electronic equipment like laptops to locate those people in need of assistance and have them registered to receive grants.
The Social Assistance Bill [B57-2003].Proposed Amendments
Mr Makuwane proceeded to lead the Committee through the Arrangement of the Act and the preamble.
Advocate Masutha asked whether SRD forms part of social assistance in this Bill.
Mr Makuwane answered that SRD is defined separately and that there will be a cross-referencing with the Agency Bill.
The Chairperson asked whether the Agency could appoint procurators.
Mr Makuwane said that the Agency would do so on behalf of the beneficiary.
Ms Ramotsamai cautioned against corruption in the Agency with the appointment of procurators.
Advocate Masutha pointed out that the definition as it stands does not reflect the instance where the beneficiary personally appoints a procurator. The abuse of grants must also be considered. He asked who is to accept the grant on behalf of the beneficiary if the beneficiary him or herself abuses the grant.
Mr Plaatjies said that there should be a distinction between a temporary grant paid during the period of administration of the grant applied for and relief paid in cash or in-kind. The temporary grant must be paid in relation to the grant to be paid eventually.
Mr Makuwane said that the intention is not to have any policy changes. He asked whether the Department should consider a new definition for SRD.
Advocate Masutha said that the current Act does not explain the circumstances under which people qualify for a grant but this doesn't mean that there should not a policy in terms of who actually qualifies. The only issue is whether "in-kind" should be included in the definition of SRD or be left for clause 14, where "financial" should be inserted into "immediate material assistance". He asked about the rationale of "grant-in-aid" and how long it would take for SRD to be processed. There should be further information around this issue so that the correct wording can be decided upon.
Mr Makuwane referred to the definition of "welfare organization".
Advocate Masutha asked why paragraph (c) does not distinguish between registered and unregistered organizations as (c) is meant to provide for unregistered organizations in terms of (a) and (b). He advised that "which is not registered in terms of paragraphs (a) or (b)' be inserted after "an organization".
Mr Plaatjies reminded the Committee that the intent is not to address provincial responsibility elements. It had been made clear in previous discussion that existing organization receive transfers from the national budget. No legislation is necessary do this in terms of a mandate. Funds would be made available to organizations operational in the respective geographical areas.
Advocate Masutha pointed out that the Committee is meant to deal with definitions, not subsidies. The Department had been specifically assigned to look at current legislation for the payment of grants.
Mr Makuwane said that a new clause 2 had been formulated in terms of the application and implementation of the Act.
The Committee agreed to the clause.
This clause had been reformulated so that there is a distinction between the different grant types and all grants are catered for.
The new clause includes provision for the care dependency grant. If a child is fully institutionalized on a 24-hour basis, the child is not eligible for the grant.
Ms Lana Petersen (Parliamentary Officer) asked if this did not constitute double shares as a foster parent with a disabled child is eligible for both a care dependency grant and a foster child grant.
Advocate Masutha explained that the current Act provides that a disabled person receives a grant him or herself and must not be in receipt of any other grant. The clause must be reformulated so that this is clear.
Ms Chalmers (ANC) said that a severely disabled child placed a series of burdens on the family. She asked why the parent should be discriminated against when the need for a grant is very clearly there.
Advocate Masutha said that a foster child could qualify for a care dependency grant if the necessary requirements were met. If he or she does not meet the requirements, they might be eligible for a foster child grant or a care dependency grant.
Mr Makuwane said that the person or people taking care of a severely disabled child would qualify for a care dependency grant. If the child is in an institution, a subsidy from the state would cover the child.
Mr Plaatjies explained that the care dependency grant follows another grant. If the applicant qualifies for a child support grant for a severely disabled child, the parent or care-giver could apply for the care dependency grant for the necessary additional support. These were known as combination grants.
Advocate Masutha stated that applicants could not receive two grants. Only the War Veterans Grant and the grant-in-aid could operate in this manner, but otherwise administering two grants to one applicant is a violation of the law.
Mr Makuwane said that "Agency" substitutes "administrator".
Ms Chalmers mentioned SRD and the time factor with regard to paying the grant to the applicant.
Mr Makuwane said that this issue would be revisited.
Mr Da Camara said that pressures within the home should be taken into consideration. The Department should contemplate a procedure whereby the individual cases could be verified.
Ms Borman asked whether the beneficiary is covered in that he or she is not pressured into signing to receive a grant.
Mr Makuwane said that this should be considered the following day when dealing with the discontinuation of payments to beneficiaries.
Mr Makuwane stated that people outside of the Republic would be given three months before their respective grants lapse so that it did not automatically cease to be administered. It had been the Committee's feeling during deliberations that all bases be covered. Immediate discontinuation of grants infringes on the rights of beneficiaries and citizens. Grants must be protected and the onus is on the Agency to ensure this.
Ms T Tshivhase (ANC) asked if there would be any form of compensation if the beneficiary dies.
Mr Makuwane answered that this would fall under SRD.
Advocate Masutha said that regulations provide that any outstanding monies be paid to those who had taken care of the deceased beneficiary. An additional grant could be paid for funeral expenses.
Mr Makuwane said that the beneficiary had the right to change this procedure if need be.
The Chairperson referred to sub clause 6(b) and asked whether this is not a breach of administrative justice.
Mr Makuwane said that sub clause 6(b) should be read with the last provision of this section. Reasons must be made clear and the correct procedure of appeal must be followed.
Ms Chalmers asked by whose criteria the use of a grant is defined as it seems to be very general.
Mr Makuwane stated that there were conditions whereby beneficiaries could not provide for themselves and needed someone else to do so for them. If it was clear that the grant was going towards supporting the family, the onus was on the State to ensure that someone was appointed to ensure that the family benefits from the grant. Circumstances would vary according to the context in which the grant was provided.
Mr Da Camara expressed dissatisfaction that the provision remained very broad. The "misuse" could refer to anything. The focus of the child support grant should be narrow so that it was administered in the best interests of the child. This grant should be given to the primary care giver and not directly to the child.
Advocate Masutha said that the Department could intervene in a less drastic manner to pressurize a beneficiary addicted to drugs or alcohol to attend the necessary counseling or be subject to any other intervention by the Department. This would give better meaning to the word "abuse" and the Department could explore different methods of intervention and it must be made clear that "abuse" in this sense would warrant intervention.
Mr Da Camara proposed that sub clause 3 be added specific to the child support grant so that it does not impact on any other grant.
Advocate Masutha agreed, but said that this should refer to all grant types.
Ms Ramotsamai said that provisions should be tightened in the case of the child support grant so that children do not suffer when grants are abused.
Advocate Masutha suggested that a general provision be made in the regulations to allow for other interventions.
This clause had been reformulated to include Committee recommendations.
Mr Makuwane pointed out that the whole of Chapter 4 had been removed.
Ms Borman asked whether Chapter 4 would be replaced with anything new.
Advocate Masutha said that this would be unnecessary because the functions referred to those of the Minister and not the Department.
The meeting was covered up till this point only but continued until 20:00hrs.