Older Persons’ Bill: hearings

Social Development

29 August 2005
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Meeting report

Chapter 6

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
30 August 2005
OLDER PERSONS’ BILL: HEARINGS

Chairperson:
Ms T Tshivhase (ANC)

Document handed out:
Older Person's Bill [B68 - 2003] as tabled
Older Person's Bill [B68B - 2003] with amendments made by the National Council of Provinces
Submission by the Cape Jewish Seniors Association
Submission by Ikamva Labantu
Submission by the Commission on Gender Equality
Submission by Black Sash
Submission by Highlands House
Submission by the Joint Forum for Policy on Ageing
Comments on Older Persons Bill (Version B68-2003) together with Proposed Amendments
Submission by the SA Human Rights Commission
Submission by Action on Elder Abuse
Submission by the SA Council of Churches

SUMMARY
During these public hearings on the Older Persons Bill, the Joint Forum for Policy on Ageing reported that only Mauritius, Mali, Mozambique and Tanzania had a national policy on ageing in Africa. Over 60% of older persons were women and they suffered multiple disadvantages. The impact of HIV/AIDS on older persons had not been given enough attention and the situation was the worst in rural areas. Abuse and neglect of the elderly was common in residential homes, hospitals, within families, in pension queues and government offices, but there was no coherent plan to address this abuse.

The Commission on Gender Equality (CGE) stated that while the objects of the Bill were far-reaching, the content of the Bill was disproportionately focussed on the regulation of care institutions as well as mechanisms that dealt with abuse. The impact of HIV/AIDS increased the responsibilities of older persons to look after grandchildren and extended family members. Institutional care did not accommodate these people.

Black Sash was disappointed that the Bill had not been publicly discussed in the Eastern Cape to ensure that all provincial nuances were captured. The definition of ‘older persons’ differentiated between men and women between the ages of 60 and 64, and was discriminatory as women enjoyed more legislative protection in terms of access to care facilities and programme benefits. Black Sash was opposed to any deductions from social grants as proposed in the Draft Social Assistance Act Regulations, and they supported the establishment of an inter-departmental body to facilitate the implementation of the Bill.

Highlands House raised the issue of consent. They were concerned that if the Bill were to insist on demographic representivity, it would violate the rights of its residents. The Cape Jewish Seniors Association (CJSA) suggested a few definition additions to Chapters one, two, three and four.

Ikamva Labantu submitted that programmes needed to be geared towards the development and enhancement of income-generating activities. In many cases, older persons were the sole breadwinners and were productive members of their communities. Non-governmental organisations and government social workers had to form a partnership to address the interventions against abuse of older persons.

The SA Human Rights Commission (SAHRC) said that the age differential was not supported by any of the key sector role players. Each time the term ‘older person’ was used, discrimination occurred and could be challenged in court. It proposed that the age of 60 be used. The greatest concern of participants at the workshops was how the programmes in Chapter one would be implemented. The forum was important as it ensured that these programmes became a reality. The SAHRC did not support registers as they created a ‘false sense of security’.

Action on Elder Abuse South Africa (AEASA) said that co-operation between government departments was of vital importance. The Bill in general lacked timeframes. While common law gave children a legal and moral responsibility to look after their parents if they were financially able to do so, the AEASA suggested that this be included in the Bill as failure to do so was tantamount to elder abuse.

The SA Council of Churches (SACC) said that the actions needed to be mainstreamed into the work of other departments. The private sector should to be urged to take the process on board, especially when the transformation and experience that older persons brought to economic and labour markets was reviewed.

Members of the Committee said that the Committee had to re-look at older persons’ policies and that the Bill was too over-loaded for it to be implemented properly. They asked how the programmes in Chapter One could be made a reality. They noted that the Bill lacked detail in many areas, especially regarding the register. Due to this some Members were surprised that the National Council of Provinces had passed the Bill.

MINUTES

Submission by the Joint Forum for Policy on Ageing
Ms M Turok, JFPA Deputy Chairperson, said that the world population was ageing and some experts predicted that within 50 years, there would be more people over the age of 60 than under 15. The Madrid Plan of Action and the African Union Plan of Action had been adopted in 2002 where the signatories, including South Africa, had committed themselves to promoting societies for all ages including older persons. To date, only Mauritius, Mali, Mozambique and Tanzania had a national policy on ageing. In South Africa, the Constitution and the Bill of Rights provided equal protection but did not cover the rights of older persons specifically. The South African population was ageing faster than anywhere else in Africa. Some researchers predicted that by 2025, older persons would form the largest group of the population. This had implications for the economy and services.

Over 60% of older persons were women, and they suffered multiple disadvantages with old age. They had less land, less education, were less likely to be employed or have assets. The 2001 census found that 43% of older persons had no education compared to 18% in the adult population as a whole. 70% had no electricity, 30% had no piped water and 54% had no phones. About 28% of African elderly were disabled compared to 10,5% of white elderly.

The impact of HIV/AIDS on older persons had not been given enough attention. The burden of care-giving that the epidemic had brought to older persons came at a time when many needed care themselves. Migration and urbanisation had weakened the traditional family and many older persons found themselves isolated. Official emphasis was on keeping older persons in their communities but few services such as day-care, meals on wheels or home help were in place to assist them. The situation was the worst in rural areas.

Residential homes were largely divided on racial lines, with the majority of white homes in urban areas. The budget for the care of older people had declined over the past seven years but 78% of the funds spent on the aged went to subsidising homes. However, less than 3% of older persons were in homes. In 2001, the Ministerial Committee had found that abuse and neglect of the elderly was common in residential homes, hospitals, within families and in pension queues and government offices. There was no coherent plan to address this abuse. Ms Turok proposed a new programme to facilitate the training of a new category of workers to respond to the needs of older persons in rural areas in the light of the shortage and poor training of social workers.

Submission by the Commission on Gender Equality
Ms J Pitso-Seroke, CGE Chairperson, said that while the objects of the Bill were far-reaching and sought to deal with the plight of older persons, the actual content of the Bill made very little reference to many of those objects. The content of the Bill was disproportionately focussed on the regulation of the institutions of care for older persons as well as mechanisms that dealt with the abuse of older persons.

She proposed that the application of certain rights needed to be specifically adapted in order to be responsive to the needs of older persons. She was concerned that the Bill only stipulated the rights of those in facilities while the majority of older persons lived in communities. The Bill could benefit from a specific section at the beginning of the Bill that stipulated the rights of older persons.

The impact of HIV/AIDS increased the responsibilities of older persons including looking after grandchildren and extended family members. Institutional care did not accommodate these people. The high unemployment rate and poverty forced older persons to feed their families with their pension grants. If they were in institutional care their families would be destitute. She concluded that Government had to rise to the challenge to ensure that the rights and dignity of all older persons were advanced and protected.

Submission by Black Sash
Ms E Wessels, the National Advocacy Manager, commended the Department with the introduction of the Bill. However, Black Sash was disappointed that the Bill was not publicly discussed in the Eastern Cape to ensure that all provincial nuances were captured in the Bill. The number of older persons in South Africa was increasing due to the improved quality of life of people. At a vulnerable stage of their lives, older persons had to face the reality of discriminatory government policies, poor service delivery and unfair administrative justice practices.

Black Sash saw that the definition of ‘older persons’ in the Bill differentiated between men and women between the ages of 60 and 64 years old. This amounted to discrimination as women enjoyed legislative protection in terms of access to care facilities and benefits from programmes which men did not enjoy. About 30% of men earned no income that rendered them equally vulnerable as women of the same age. Black Sash supported a social net that was as wide as possible, given the high levels of unemployment, HIV/AIDS and poverty.

Black Sash was opposed to any deductions from social grants as was proposed in the Draft Social Assistance Act Regulations. In the event that this objection was not considered, they proposed that such deductions by the Minister should not exceed 10% of the grant for burial schemes and this had to be stated in the Regulations. The Department of Trade and Industry was in the process of finalising the Credit Law Review process. Black Sash supported free debt counselling, the exclusion of emergency loans and the capping of interest.

They supported the establishment of an inter-departmental body to facilitate the implementation of the Bill as its scope and content cut across Departments and did not relate to the roles, responsibilities and resources of the Department of Social Development.

Discussion
Ms H Bokopane (ANC) said the Bill was too over-loaded for it to be implemented properly. She asked how effective these additional community-based workers would be if they did not have specialist skills.

Ms Turok replied that what was needed was a hierarchy of need. There had to be an identification of the needs that were most pressing and solve them first before moving on to others.

Ms Pitso-Seroke replied that the CGE had received many complaints about the age issue. The CGE had recommended that the age be set at 60 for both sexes.

Ms T Mahlangu, Department of Social Development: Head of Older Persons, said that they intended to introduce caregivers who were given stipends. They were also going to use the facilities that existed to aid the Department’s outreach programme.

Ms H Weber (DA) commented that all the presentations had been good. The law that children had to look after their parents had to be strengthened in the Bill. She agreed that older persons were exploited by money-lenders and those offering funeral policies.

Adv M Masutha (ANC) said that it would be interesting to get a full international audit on the matter of gender age distinction to get a fuller picture of the issue. He asked how much work Black Sash had done in this regard to analyse what other countries had done. He asked Black Sash what deductions they wanted to be allowed and why. He wanted to know which specific Departments should be included in the inter-governmental team, and in what areas.

Ms Pitso-Seroke replied that for example, the Department of Home Affairs had a role in facilitating the availability of identity documents, and the Department of Health had to provide geriatric care. And just as children had specific courts to ensure their protection, the Department of Justice could establish special courts for older persons.

Ms Wessels replied that the age distinction must be removed as men’s access to services and programmes was restricted. The Bill did not give them much protection if it remained. It was important to see what other countries did, but the South African reality had to be considered. The programmes set the boundaries of which services had to be prioritised and where other Departments could be brought in to help. Mr N Mafongosi (Black Sash Advocacy Co-ordinator) said that many problems would be created if there were carte blanche on how much could be deducted from older persons’ grants.

Ms Pitso-Seroke replied that what the rest of the world did was not always the best practice. The CGE had arrived at the decision to recommend that the age be set at 60 based on the constitutional right of equality. The CGE also looked at the Public Service Act which provided for retirement at 60 years of age for both men and women. The Madrid Plan of Action recognised an older person as being 60 years old also. It was detrimental to men to delay their protection by five years.

The Chairperson said that the presenters had submitted their concerns but they needed to provide more suggestions for the Committee to consider.

Ms J Chalmers (ANC) asked how the programmes in Chapter one would be made a reality. She asked Ms Turok to expand on the idea of a new category of workers.

Ms Turok replied that categories of workers that worked within communities were required. These people did not have to have specialist training, only some basic training.

Submission by Highlands House
Mr E Osrin, a member of the board of trustees at Highlands House, raised two issues. Section 9(4) said that subject to a court order "no older person may be admitted to a facility without his or her consent." The Bill did not make it clear whether the punishment was levied against the facility or the admitting officer. There were many cases where the older persons were not able to consent to their admission due to medical conditions such as Alzheimer’s disease or senile dementia. Mr Osrin suggested that the section be amended so that those older persons who were capable of giving their consent had to give it before their admission.

The second area of concern was Section 9(1) that prohibited any facility from unfairly discriminating against any older person on the grounds of race; sex; gender; pregnancy; colour; age; religion and culture amongst others. Highlands House only admission condition was that the applicant must be Jewish. If it were forced to replace this requirement with one to consider demographic representivity, it would violate its rights and those of its residents to the freedoms of religion, association, cultural life, religious practice and to form a religious association.

Submission by the Cape Jewish Seniors Association
Ms D Sochen, the Director of the CJSA, suggested a few definition additions to Chapters one, two, three and four.

Submission by Ikamva Labantu
Ms E Fitzgerald, the Development Assistant, said that programmes for older persons needed to be geared towards the development and enhancement of income-generating activities as they were in many cases the sole bread-winner and were productive members of their communities. Programme and service funding had to be focussed on the development of and sustainability of day-care centres for seniors. She noted problems in using multi-purpose facilities such as poor security and being forced out of venues when other activities took place. There was confusion about how elders would access "basic and affordable accommodation." She asked what mechanisms were in place to see if this had been done. Non-governmental organisations and Government social workers had to form a partnership to address the intervention of abuse of older persons.

Discussion
Ms C Dudley (ACDP) asked if the previous presenters could comment on the age distinction and what recommendations they wanted to suggest to the Committee.

Ms Fitzgerald replied that Ikamva Labantu wanted to see more affordable accommodation, and wanted subsidised day-centres for old persons to go during the day so that they were not lonely.

Ms Sochen replied that there were many persons in her organisation who were older than 65 years of age and wanted to carry on working.

Ms H Bokopane asked Highlands House about alternatives to getting a court order if this was not good enough. She foresaw a situation where older people were shipped to old-age homes when their children were tired of them

Mr Osrin replied that children brought their parents to homes when they were demented or had Alzheimer’s disease and the old person was not capable of consenting. A court order was not necessary and unnecessarily costly in such cases where the person was clearly not of sound mind. Highlands House had a medical panel to make this determination.

Ms Weber asked what the attitude was of the children who placed parents in the residential home in terms of their duty of care.

Mr Osrin replied that the attitude was good, they came and visited, and they acted as watchdogs for their parents.

Ms Mahlangu added that the consent requirement also protected the service provider where they had been accused of abuse. They can protect their methods by pointing to the consent they had been given.

Submission by the SA Human Rights Commission
Ms J Cohen, the SAHRC Parliamentary Officer, said that the Commission had hosted a series of provincial workshops on the Bill and obtained the input of over 300 role-players. The age differential for pension was not supported by any of the role-players. She proposed that the age of 60 be used.

Ms Cohen said that the greatest concern of participants at the workshops was how the programmes in Chapter one would be implemented. The forum was important as it ensured that these programmes were made into reality. A programme that dealt with the impact of HIV/AIDS on older persons was needed. Very few older persons lived in old age homes yet the Bill had a preoccupation with facilities. A more community-orientated approach had to be infused into the Bill. The Bill had to be reorganised to reflect a developmental approach towards ageing.

She saw the greatest challenge being the implementation of the Bill. Some of the procedures in Clauses 14 and 15 had been in the statute books since 1967 but the SAHCR had never met anyone who could tell them about them being used. The mandatory reporting clause was controversial also. How would it be implemented? The SAHCR did not support registers as they created a false sense of security.

She concluded by saying that legislation was not everything. It provided a framework, a commitment from Government and obligations that certain things would happen.

Submission by Action on Elder Abuse
Ms P Lindgren, Director of the AEASA, said that due to the possibility of a generation lost to AIDS, many older people could not rely on their families taking care of them. They had to raise second families on their social pensions. Elder abuse was rife in both urban and rural communities, a fact borne out by callers to Halt Elder Abuse Line and by the Ministerial Committee on Elder Abuse of 2001. The Bill did not take cognisance of older persons in rural areas when the reality was that the majority of older persons lived within communities, with their families or alone. Co-operation between Government Departments was of vital importance if the Bill was to achieve its aims. The Bill in general lacked timeframes.

Ms Lindgren made a number of suggestions. Clause 12 of the Bill had to appear at the beginning of Chapter two and that Clause 18 had to be brought forward to the beginning of Chapter three. The AEASA supported placing a responsibility on persons to report the abuse of older persons but suggested that mandatory reporting be confined to categories of abuse. Older persons in rural areas needed to be considered. Section 16 stipulated that the Director-general must be notified. Who represented this person in rural areas? She said that while the common law gave children a legal and moral responsibility to look after their parents if they were financially able to do so, the AEASA suggested that this be included in the Bill as failure to do so was tantamount to elder abuse.

Submission by the SA Council of Churches
Mr K Vermeulen, in charge of the Parliamentary Office of the SACC, commended the Department for developing legislation that sought to assign the process of care and protection of older persons. However, the Bill needed to reflect the participation of other Governmental and societal stakeholders further and later down the line. The action on ageing needed to be mainstreamed into the work of other Departments. The private sector had to be urged to take the process on board especially when the transformation and experience that older persons brought to economic and labour markets was reviewed. The SACC suggested that a National Forum of Older Persons be established for the implementation of action on the ageing. This would relieve the Minister from taking the sole responsibility for action on ageing.

A point of concern for the SACC was that a breach of the law was handled by the criminal justice system. The victim of abuse might feel as though they were a victim all over again in a court. As a dispenser of wisdom and one with immeasurable experience, the role of the older person in such conflict situations raised options for alternate dispute resolution mechanisms such as community based systems of justice such as inkundla and/or lekgothloa.

Discussion
Adv Masutha asked the SAHRC how it had used the powers given to it by the Constitution to address some of its concerns with Government Departments. He did not agree with the AEASA that focus needed to be taken away from the regulation of facilities. He did agree though, that in some areas, this Bill contained some of the same limitations that the old Bill had.

Mr Manthata, SAHRC Commissioner, said that they produced a report that requested the Government to establish an inter-departmental task team. The SAHRC had received no response on this call. Ms Cohen said in support of the SAHRC’s role, that this Bill had been work-shopped, and they had taken the Bill to the people.

Ms Lindgren replied that she did say that there should not be regulation of facilities in the Bill, but there had to be concern on older persons in the communities, and on the monitoring of these areas.

Ms Bokopane asked the SAHRC and the SACC for its input on the Highlands House presentation in terms of their wanting to keep a home only for the use of one religious group, and the constitutional implications thereof. She also asked the SAHRC to comment on the age distinction.

Ms Cohen replied that the issue of voluntary associations was a large one and had garnered many complaints. The SAHRC had instituted a public enquiry and would not comment until the report of that enquiry was released. Regarding the age distinction, there was a difference in that debate and the debate in the Bill itself. With reference to the Bill, the SAHRC did not see how the distinction would pass constitutional muster.

Ms Weber asked if the SAHRC or the SACC had received any complaints about situations where two pensioners had married and then had their pensions halved. Mr Vermeulen said that they had received such complaints.

Mr M Waters (DA) noted that the Bill lacked detail in many areas, especially around the register. He was surprised that the National Council of Provinces had passed the Bill.

The meeting was adjourned.

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