Older Persons Bill: briefing

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
9 September 2005
OLDER PERSONS BILL: BRIEFING

Acting Chairperson: Ms H Bogopane-Zulu (ANC)

Documents handed out
Older Person’s Bill [B68B – 2003]
Submission on Older Persons Bill
Joint Forum for Policy on Ageing (see Appendix)

SUMMARY
The Committee's concerns about the Bill were noted, including the quality of the Bill, its apparent focus on facilities at the expense of community based care, and the lack of a co-ordinating strategy. It was proposed that a single Register of Abusers be developed, building on the Register established under the Children’s Bill. There were also technical concerns on the constitutionality of the Bill, given the pension age differentiation for men and women.

The Department of Social Development and the State Law Advisor noted the concerns raised. A matrix was being drawn up, and this should highlight the shortcomings and gaps in legislation surrounding older persons. The Department and the State Law Advisor would consult on a framework for a revised Bill, and present this to the Committee on Wednesday 12 October 2005. The Department noted that it was unfortunate that the high-quality submissions had not been received earlier, either at the drafting stage or during the National Council of Provinces process.

MINUTES
The Chairperson noted the Committee’s concerns on the Bill, namely the quality of the Bill, the fact that it regulated facilities without taking cognisance of the number of older persons not in facilities, the assumptions made, and the fact that the headings did not speak to the content. Civil society had also noted shortages, and the lack of a co-ordinating strategy. It was debatable whether the issues of older persons could be regulated in the same way as those of children. The legality of institutions had been raised, with the allocation of subsidies. Based on these challenges, the Department had been called to give an indication of the way forward.

Ms T Mahlangu (Department Director: Older Persons) noted and appreciated the concerns raised. The time allowed for the Department to present a comprehensive report was, however, too short. The Department was considering rewriting the Bill, with a more community-based focus. The elements were in the Bill, but had not been effectively arranged.

The issue of the Register of Abuse had to be revisited to ensure clarity, and the Department would look at the provisions for a Register as contained in the Children’s Bill. In terms of health, because of the Health Bill, it was important to engage the Department of Health and collaborate on services. It was also necessary to look at other legislation in terms of definitions, particularly in respect of the definitions of abuse and caregivers.

There had been a suggestion that some chapters at the beginning of the Bill be moved, and the Department was trying to see how the content of the Bill could speak to the headings. It might also be necessary to add more definitions, as there was a concern that the wisdom and expertise of older persons had not been highlighted. The changing role of the older person in terms of HIV/AIDS would also have to be noted. Attention would have to be paid to the regulations in respect of social workers, and the monitoring aspects of the Bill.

It was not certain that some of the issues raised could be legislated for, but the Bill might need to indicate this. Other Departments would have to be involved. The way in which the Bill had been costed, had addressed community programmes and development, but the drafting had unfortunately not shown this. The Department was in the process of developing a matrix to identify and address the gaps in the legislation.

Mr P du Preez (Legal Services, Social Development) remarked that the public hearings had made it very clear that major changes were needed to the Bill. There needed to be a shift from institutional care to community based care, and the definitions would have to be revisited. In respect of the issue of the 60/65 year difference, this was the status quo in the Department. At one stage, the Minister had been asked whether it was possible to change these ages for the purposes of this Bill, and he had replied in the negative. The National Treasury should be involved, as they were apparently working towards equalisation. The quality of submissions to the public hearings was very impressive, and it was surprising that these submissions had not reached the Department at the drafting stage or while the Bill was with the National Council of Provinces (NCOP).

Mr G Hoon (State Law Advisor) noted that, in terms of the Bill, the State Law Advisor merely looked at the constitutionality and style of the Bill. The Bill had been certified with the qualification that it was not possible to certify its constitutionality because of the age differentiation. The State Law Advisors would draft whatever they were requested to draft.

Discussion
Ms H Weber (DA) noted that the Register was a major cause of problems. There should just be one Register (for children and older persons abuse). An abuser was an abuser, and it would be appropriate to see a Register of abusers.

The Chairperson supported the aspect of a single Register, and suggested that the Department look into this when they re-drafted the Bill. They should be creative in creating a link with the established Register in the Children’s Bill. The Bill could not stand alone, but should cross-refer to other relevant legislation.

Ms Weber suggested that home-based caregivers should not concentrate on one thing only, such as HIV/AIDS, but should also be trained on how to handle older people. The training needed to be holistic. The Chairperson agreed.

Ms Weber suggested that centres be established for older persons, where the older person was brought to the centre in the morning, fed and then taken home at night.

Ms Weber suggested a need to look at the removal of older people to old-age homes. She had had to deal with two cases recently, and, in one instance, if she had followed the route stipulated by law, the person would have died in a cockroach-infested environment. Another old lady refused to go to an old age home. These situations should also be examined.

The Chairperson shared the sentiment, but remarked that her understanding was that the law would only come into play when the person objected to being removed.

Mr L Nzimande (ANC) agreed with the observations and concerns raised, and wondered how to proceed in terms of the process. It appeared that the Department wished to re-draft the Bill. Was the meeting proceeding on the basis of this sentiment, or simply responding generally to the submissions?

The Chairperson reiterated the importance of interdepartmental co-ordination. There also needed to be a link created between guardianship and kinship. It was also important to clarify what the Bill sought to do.

The Chairperson emphasised that the Committee was very sceptical of Regulations and delegated legislation in general.

It was important to recognise that there were differences between white and black older persons. The Bill had to recognise and provide for those differences.

Mr Nzimande referred to the State Law Advisor’s statement in respect of the technical constitutionality of the Bill, and proposed that the Committee request an opinion from the Parliamentary Legal Office. In view of the fact that there was now talk of re-drafting the Bill, would there be problems since the Bill had been passed by the NCOP? This might have implications for the original Bill.

The Chairperson emphasised the need for interaction with the Master’s Office. Part of the resistance on the part of older persons was the removal from their own hard-earned property. The Committee needed an understanding of the process. The Department should be given a mandate to revisit the Bill.

Ms F Batyi (ID) proposed that the Department also address ways in which payment could go to the people, rather than people having to queue in halls. The Chairperson suggested that this might fall under the aspect of general safety and security.

Mr du Preez proposed that the drafters revert to the Committee after the constituency break, and a meeting was scheduled for Wednesday 12 October 2005.