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SOCIAL SERVICES SELECT COMMITTEE
3 August 2004
OLDER PERSONS BILL AND POLICY: DEPARTMENT BRIEFINGS
Documents handed out:
Older Person's Bill [B68-2003]
Department 11th draft of Older Persons Policy, dated 3 April 2003
Department PowerPoint presentation on Older Person's Bill
In the morning session, the Committee was briefed on the Older Persons Bill. Most of the discussion surrounded passing the Bill before costs were known, the fairness of different ages for retirement for men and women, the racial demographics of old-age homes,and the removal of the provision for an Ombudsperson.
In the afternoon, the Department briefed the Committee on key features of the evolving Older Persons Policy. A chief aim of this policy was to redirect services to previously disadvantaged older persons and to find ways of serving rural areas currently beyond the reach of NGOs and provincial departments. It was proposed that various national government departments come together to solve inter-related issues of poverty and corruption.
The Chairperson suggested that the statistics in the policy be revised and updated in order to avoid apportioning grants based on outdated information. Several Members expressed concern about whether current legislation satisfactorily protected older persons from fraud and unethical practices from employers, family members and micro-lenders.
The Chairperson announced that the Chairpersons from the Provincial Legislature had been invited to attend as they would later be conducting public hearings. She then handed over to Ms N Kela, Chief Director of Welfare Transformation Services, to brief the meeting on the Older Person's Bill.
Ms Kela related that new legislation was needed because existing laws made no provision for community-based care, and because many older persons had now become caregivers. The process of drafting new legislation from 1995 was summarised. The Bill addresses three areas: development (education, poverty alleviation and empowerment); care; and protection and safety. Mr P du Preez, State Law Advisor to the Department, then briefed the Committee on the delegation of rights and responsibilities, penalties, regulations, repeal of laws and transitional provision covered in the Bill. Ms Kela outlined the way forward in integrating various inputs after consultation, costing and public hearings.
After the presentation, the Chairperson reminded the Committee that public hearings would be held on 9 and 13 August. Permanent delegates would visit provinces to brief the Standing Committees on 25 and 26 August.
Mr M Sulliman (ANC) asked if provision had been made for the cost implications in the provinces.
Mr B Tolo (ANC) commented that the Bill was overdue and asked if it would be passed in the current session. He suggested that the section on penalties be fine-tuned to state the maximum and minimum fines and jail terms for offences. He noted that provision for the ombudsperson had been removed and said that such a function was necessary.
Mr Du Preez said that the Adjustment of Fines Act of 1991 regulated the amount of money equal to a specific period in prison. Mr Du Preez added that the Minister of Justice adjusted the amount annually. One year's imprisonment was currently equal to R20 000. The Minister wished the Bill to be passed in the current year.
Mr T Setona (ANC) asked for clarity regarding the ombudsperson's place in the structure and hierarchy and for more details on consultations and areas of controversy. Age was not only a number, but also a 'sociological' issue.
Mr Du Preez said that the office of the ombudsperson was a structure in itself. Cabinet had removed the chapter on it for financial reasons and there was widespread unhappiness about this.
Ms L Siwisa-Pemba of the Department agreed about the different sociological aspects of age. There was a case pending at the Western Cape High Court regarding the constitutionality of age discrimination. In the case of pensions, it could be argued that discrimination was positive because it increased fairness. The case might end at the Constitutional Court. The Department would welcome such a directive.
Mr M Thetjeng (DA) said that different retirement ages for men and women were unfair and would lead to challenges in the Constitutional Court. He queried Ms Kela's use of the terms "frail person" and "older person". He understood the former term meant a person in need of round-the-clock care. Ms Kela agreed but she had used the term "older person" because only older persons in need of 24-hour care were covered by the legislation under discussion.
Ms Kela commented that Members' concerns were valid. She asked what would happen, in terms of finance, if chronological age was done away with.
Mr Thetjeng reiterated that South African laws should be designed to correct the inequities of the past, for example in employment. As a man, he felt that the law was unfair. Rev E Adolph (ID) agreed that the difference was unconstitutional and discriminatory. Moreover, women lived longer.
Mr Setona said that socio-economic research was needed and equality should be defined. What was international best practice? He did not want to limit the debate to "legalistic ideas".
Mr H Govender (ANC) felt that there was no need for the matter to go to the Constitutional Court as it was a social and human rights issue. Men and women should receive pensions at the same age.
Ms B Scott (ANC - KZN) said that the Constitution did allow for fair discrimination and the state could promote the advancement of certain groups. Women had been discriminated against in the past and caregivers were mostly women. Could the fiscus afford giving 60-year-old men pensions too?
Mr Sulliman anticipated encountering similar objections to the age difference on provincial visits and asked the Department for guidance.
Mr Tolo alluded to African traditional culture and said that if he took his mother to an institution, she would think that he did not love her. What provision was there for care at home?
Ms Thuli Mahlangu (Department Director: Care and services to older persons) said community care was dealt with in Chapter 1 of the Bill. Ms Kela added that Section 2 (g-j) also highlighted some areas that catered for community-based care.
Ms Masilo asked for more input on Chapter 2 ("Ensuring an Enabling and Supportive Environment for Older Persons").
Mr Du Preez said that in terms of Section 9 of the Constitution, all citizens were equal and the State could not discriminate unfairly. The current Act was also discriminatory. According to the Department, the problem was financial and could be a valid reason for discrimination. The onus would be on the Department to prove that the discrimination was fair. The Bill of Rights allowed for fair discrimination fair.
Ms Mahlangu said that costs would also be borne by the Departments of Health, Transport and Housing. Inter-departmental consultations were taking place and not yet complete. Ms Kela said the Bill needed to be costed and provinces should cater for the costs in their budgets, so that the overall impact on the budget could be determined.
Mr Du Preez said that when the Bill was submitted to Cabinet in 2003, the retirement ages were equal. There had been a provision for an ombudsperson and care for frail persons of any age as well as a consultative forum on ageing. The Cabinet had instructed that all of these should be removed because of Treasury cost concerns.
Mrs J Vilakazi (IFP) was for the retirement age to be 60 for men and women for reasons of equity.
Suraya Williams, the Parliamentary Officer of Commission on Gender Equality was invited to address the Committee on the issue of discrimination in the pension qualifying age. She said that fair discrimination sometimes led to equality. In the past, the Constitutional Court had ruled that equality did not necessarily mean uniformity. With regard to international trends, older persons in rural areas in Brazil, for example, got pensions at a younger age than urban dwellers. In South Africa's past, women were more oppressed than men. Research conducted by the Medical Sciences Research Council indicated that older women were often primary caregivers, especially since the advent of HIV/AIDS. A grandmother's pension more often provided nutrition for grandchildren than a grandfather's.
Mr Thetjeng suggested that equality was the most important principle and suggested that if finance was the barrier to its implementation, the changes could be phased in. Mr Setona said that research into the local context was needed. Brazil's policy was based on Brazilian material conditions. He acknowledged that there were social imbalances based on gender, but felt that the Department was "expedient" in granting pensions at different ages. Research should inform the Committee as to whether the fiscus would accommodate pensions at 60 for men and women and would show that women were still discriminated against. The Committee should be responsible and pass affordable legislation.
Ms Kela said the Department should be able to argue for its approach at any level. They had conducted research and could motivate the decision. Both the Cabinet and the Treasury had requested different ages.
Mr Sulliman said that management boards of old-age facilities were slow to transform and sometimes charged levies to bar access to various groups. He was not sure that the Bill addressed this problem. Would local government have a place on such boards?
Ms Mahlangu answered that the Department had developed models to fast-track transformation in this sector. There were still blockages that the Department should audit. Many older persons, however, did not want to go to homes because their children cared for them, and they wanted to use their pensions for the welfare of their families. Ms Kela added that most facilities were run by NGOs. The Department had developed a policy document that addressed funding for all services and specified issues that the Department wanted to address. The Department would not finance 'untransformed' institutions. Local government's role would be addressed in the regulations.
Mr Tolo asked how Parliament could pass the Bill if costing was not complete. He was worried because if the Bill was passed in 2004, it should be implemented in 2004. However, the Medium Term Expenditure Framework was far advanced. The Chair shared this concern.
The Chairperson asked if the Department regularly monitored community-based organisations and NGOs. Ms Kela said that it was policy to follow up, although this had not been adequately addressed in the past. The Department was also investigating evaluation processes Stakeholders had been consulted and the Committee could be updated. There were many organisations in rural areas that were not funded.
Regarding concerns about passing the Bill before costing, she appealed for the two processes to run concurrently. Most services were already in place and only needed restructuring. The Department had made representations to Treasury to take note of the financial implications of the Bill and to make provision for its implementation. The Committee would not be "signing a blank cheque".
Mr Govender suggested that the Office of the Director-General was inaccessible to people in rural areas. (The Bill said that older persons in need of care should be brought to the attention of this Office.)
Ms Kela said that the issue of access to the Director-General had been delegated to provinces and to social workers and community developers at local level. The Department needed to put mechanisms in place to provide access via these people. In terms of the Child Care Act, anybody aware of child abuse had to report it to the authorities. That obligation was not explicit in the Bill and related to the debate around the ombudsperson. Mr Du Preez added that delegation from the national to provincial level, and then to social workers, was detailed in Chapter 4.
Ms D Kgomose (ANC) asked whether funded NGOs had been given reporting guidelines. Ms Kela answered that the policy document on funding covered that and was being consulted on. When the policy was finalised, it would be simplified, translated and disseminated.
Mr Sulliman said that clause 17, subsection (2) said that a person whose name appeared on a register of persons convicted of the abuse of an older person, would be barred from owning or managing a care facility. If such a person was convicted; one should not simply write a name in a register. Ms Kela pointed out that the process for conviction was outlined in the previous clause.
Mr Setona asked which facilities envisaged in the Bill did and did not already exist exist. He also asked for clarity about why the Bill said that the Minister "must prescribe national norms and standards" in Chapter 2 Clause 3, subsection 2, and that the Minister "may prescribe conditions for the use of a subsidy". Mr Du Preez explained that the Minister had discretion to prescribe conditions if needed.
Rev Adolph reiterated concerns about fiscal and budgetary implications. Mr Du Preez said that the Minister wanted the Bill enacted by the end of November, but assured the Committee that operationalising it could take three to five years.
Mr Govender said that persons convicted of the abuse of an older person should not only be barred from owning or managing a facility, but also from being employed at one. Mr Tolo remarked that the clause excluded the possibility of rehabilitation. Ms Kela said that the Department had not formulated a position on that aspect of rehabilitation. The profession was generally a proponent of the possibility of rehabilitation, but there was concern about placing older persons at risk. Ms Mahlangu said that the purpose of the clause was to protect older persons and that the risk was real.
Mr Thetjeng said that older persons should not be forced to retire if they wanted to work. Mr Tolo said that the Committee should revisit labour law as the Bill could not override it on this issue.
Ms Vilakazi asked whether the right of an older person living in a facility to appoint a representative applied only to people of status. Ms Kela explained that all residents in an old-age home should have somebody representing them on the home's management board.
After the lunch break, the Committee was briefed by a Department delegation of Ms T Mahlangu, Chief Director: Welfare Transformation Services; Ms N Kela, Chief Director: Welfare Transformation Services; Ms L Pemba, Legal Services; and Ms L Pieterson, National Ministry.
This delegation reported that the 2002 Madrid Document provided three key policy guidelines: to empower older persons to develop socially and intellectually; to reduce public misperceptions of age; and to encourage older persons to eat nutritiously and pursue an independent lifestyle wherever possible.
Ms Mahlangu said that the greatest task of the Committee was to protect older persons from various unethical sellers of schemes and products ranging from funeral services and exorbitant micro-lending facilities, to hazardous foodstuffs. Frequent restructuring of policy would be required to address demographic transitions and anachronistic definitions of older persons. This had expensive ramifications.
The Chairperson thought it was government policy to grant South African citizenship status to persons living in South Africa for over five years. She asked whether it was Department Policy to subsidise older persons classified as 'indigent'. A policy was urgently required to deal with hawkers, some of whom were selling medicines out of the back of cars.
Ms B Scott (ANC - KZN) expressed her concerns at the 'yawning gap' between policy aims and the Department budget. She estimated that 95% of the undertakings would not be realised due to budgetary constraints.
Mr M Thetjeng (ANC, Limpopo) noted that elements of privatisation might be required for certain policy aims. He asked that a policy be drafted requiring social security institutions to reimburse pensioners deceived into joining funeral schemes to qualify for their grants. He recounted a case of a blind woman who had been told that her grant would be withdrawn if she did not have a funeral policy. The provincial department had not allowed her son to cancel a payment out of her grant to the policy. The SA Social Security Agency (SASSA) should be mandated to deal with hawkers crowding pension pay points.
The Chairperson responded that financial institutions could not rescind stop orders issued out of pension funds. Perhaps a solution was to disallow deductions from the pension fund altogether. Mrs Mahlangu explained the Old Persons Policy was being altered to solve this problem.
Ms H Lamoela (DA, Western Cape) asked whether it was already illegal to have state subsidised accounts deducted to pay micro-lending facilities.
Ms Pemba said that the Social Security Act did not outlaw deductions to pensions. This should be raised with the Minister. Ideally the pensioner should first receive his/her full pension before making cash payments to micro-lenders or hawkers.
Mr Ginindza (ANC, Mpumalanga) said employers were also responsible for defrauding pensioners. There had been regular instances of employers holding onto older person's ATM cards and issuing pensions out of those pensioners' personal savings.
Ms N Kela stressed the importance of mechanisms to educate older persons about their property rights. It was difficult to draw a line between fair and foul contracts. Older persons should be empowered to make their own decisions where possible. How far would certain restrictions go toward reducing this opportunity? The departments should take responsibility for illegal contracts using pensions funds. The Committee should re-examine the definitions of illiteracy and capacity to enter legal contracts.
The Chairperson responded that the policy was perhaps too broad. It sometimes overlooked definitions and its data appeared to be based on outdated 1996 statistics. It would be too costly to remove all foreseeable obstructions to effective administration. However, there should be no reason to be guided by misleading statistics.
Ms L Pemba raised the issue of micro-lenders withholding older persons' identity documents. Mr T Setona (ANC, Free State) stated that micro-lenders were the responsibility of the Department of Trade and Industry. (DTI). There appeared to be excessive concern about 'crosscutting and overlapping' issues shared by other departments. It was too costly to take on board the many other problems not specific to this department.
The Chairperson agreed and said people would not be able to vote without an identity document. It was illegal to confiscate a person's ID document.
Mr J Thlagale (UCDP, North West) said that the defrauding of grants and pensions occurred within the family unit. For instance, an irresponsible grandchild could direct a grandparent to take out a loan. The Chairperson responded that this did not constitute abuse or fall foul of the law.
Mrs J Vilakazi (IFP, KwaZulu-Natal) mentioned that in many cases, grandparents were compelled to use micro-lending facilities to pay grandchildren's schoolfees. The pension paypoints had become something of a social hangout and it would be difficult to remove loiterers and hawkers.
Mr Setona said that transport was critical to the welfare of older persons, many of whom had to travel long distances to pension pay points. What financial support was available for older persons with regard to health care and transport?
Ms L Pieterson advised that the Committee read the Policy carefully to become more sensitive on what entailed abuse. The practice older persons taking out micro loans reflected a lack of access to credit. Banks and financial institutions were not accommodating the poor and the elderly sufficiently.
The Chairperson agreed and added that one could not deny micro-lenders their jobs. As most of the Members were new to the Department, it would be wise for them to carefully read over the Older Persons Bill and Policy.
Mr Thetjeng acknowledged that free trade could not be restricted. Locations of paypoints should be carefully strategised by provincial departments as transport was costly.
Ms Masilo asked whether hawkers and micro-lenders could be redirected from the pension paypoints to other locations along older persons transport routes.
Ms Pemba said that Social Assistance Act regulations should apply to the rates charged by micro-lenders. It was the responsibility of service providers to ensure paypoints were protected in accordance with the Act.
Ms Mahlangu said that the Indigence Policy should be redrafted to provide clearer definitions on who qualified for grants, with a mandate that local government implement the policy. The Chairperson replied that the Indigence Policy was being implemented nationally.
The Chairperson suggested that another Committee meeting be called with Treasury and Department policy consultants.
The meeting was adjourned.
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