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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
31 January 2006
OLDER PERSONS BILL: DEPARTMENT BRIEFING ON PROPOSED AMENDMENTS
Documents handed out:
Department’s Proposed Amendments to the Older Persons Bill [B68B-2003]
Department’s Proposed Arrangement of Sections: Older Persons Bill
The Department briefed the Committee on the process for amending the Older Persons Bill [B68B-2003], and presented its proposed amendments. The Department drafted the amendments in response to public hearings on the Bill held by the Committee in August 2005. The amendments incorporated new definitions and a new chapter on community-based care services.
The Department’s Legal Drafter then presented the proposed amendments to the Committee clause by clause. The Committee focused its discussion on the amendments to current clauses 1 ("Definitions");2 ("Programmes for development of older persons");5 ("Prohibition on operation of unregistered facilities"); and 18 ("Older person in need of care and protection"), as well as on the proposed new clauses 8 ("Rights of older persons") and 15 ("Community-based programmes for older persons").
Members were concerned with the Bill’s definition of "abuse", and whether this term covered the situation of older persons who were compelled to care for their grandchildren. They contended that the right of older persons to participate in community services should not be limited to volunteering. The Committee also suggested technical changes to the amendments to Clause 2 and the new Clause 15.
Ms N Kela (Department Chief Director: Transformation Services) outlined the process for amending the Older Persons Bill [B68B-2003]. After the National Council of Provinces (NCOP) accepted the Bill, comprising four chapters, on 23 June 2005, it was presented to the Committee for consideration. The Committee had convened public hearings on the Bill on 30-31 August 2005, which led the Department to draft a new framework for the Bill, comprising six chapters, that incorporated issues raised in the hearings. The Department presented the redrafted version of the Bill to the Committee on 12 October 2005.
The Department’s proposed amendments to the Bill incorporated new definitions and a new chapter on community-based care services that redressed the emphasis of the Bill on residential care services. The amendments also addressed the conditions for consensual and compulsory admission of older persons to residential facilities, and the regulation of social services professionals working with older persons.
The Department had consulted with other departments in formulating the amendments to the Bill. Some departments, such as the Department of Health, co-operated in this process, while the Departments of Sport and Recreation, Arts and Culture, Transport, and Local and Provincial Government, failed to respond. The Department assumed that other departments were satisfied with the contents of the Bill, and had formulated the technical amendments.
Mr P du Preez (Department Legal Drafter) reiterated that the Department drafted the technical amendments to the Bill in response to both the public hearings and meetings with the Committee in October and November 2005. However, the Department’s proposed amendments were not yet finalised. The amendments included the insertion of 14 new clauses and the re-arrangement of other clauses (for example, the current Clause 5 would become Clause 17). A new Chapter 1, providing for objects, implementation, application and general principles, was adapted for the Bill from the Children’s Act, and a new Chapter 3 on community-based care and support services, was included.
Ms H Weber (DA) commented that the definition of outreach programmes to older persons should be clarified in the Bill, as she was aware of a case in which a social welfare officer proposed the building of a home for abused children on the same premises as a frail-care institution as part of an outreach programme. The Bill should give specifications for each outreach programme. The failure of the Department of Transport to collaborate in the formulation of amendments to the Bill was a problem, as public transport services to older persons should be improved.
Ms Kela explained that community institutions organised outreach programmes to older persons. The Bill indicated the norms and standards for outreach programmes, but could not include the specifications for each programme.
Advocate M Masutha (ANC) requested that the Department highlight the differences between the Bill and the proposed amendments. Ms Kela replied that these differences would be highlighted in a clause-by-clause presentation of the amendments by Mr du Preez.
Advocate Masutha noted that the Department had made improvements to the amendments which did not appear in the document, ‘Proposed Amendments to the Older Persons Bill [B68B-2003]’.He suggested that the Bill’s current definition of "abuse" to include "the violation of an older person’s rights enshrined in Chapter 2 of the Constitution" was too broad, as not every infringement of the Bill of Rights was equivalent to abuse. The inclusion of "financial harm" in the definition of "abuse" was also questionable, as the Social Assistance Act protected older persons against the abuse of their grants, while the National Credit Bill protected older persons against financial exploitation. In the formulation of the amendments to the Bill, the Department should guard against regulating the social services sector.
Ms L Pemba (Department Director: Legal Services) confirmed that the regulations attached to the Social Assistance Act provided for the protection of grant recipients, including older persons.
Advocate Masutha referred to the new definition of "day care" as "a service provided by a caregiver to an older person in the home of the older person and includes social, recreational, and health-related activities". He asserted that the phrase "in the home" was ‘an essential qualification’, and enquired whether this denoted older persons living at home only, or included those in residential facilities who could access day-care services.
Ms Kela clarified that the definition of "day care" referred to able-bodied older persons living at home who sought access to these services. Older persons in residential facilities had 24-hour access to day-care services.
Advocate Masutha observed that the definition of "rehabilitation" was new, and that rehabilitation programmes should be offered by the Department of Health and should include the provision of assistive devices to older persons.
Ms M Gumede (ANC) urged that a type of abuse not included in the Bill’s definition of "abuse" occurred when older persons were compelled to look after their grandchildren. How could the Department help older persons in situations where they were left with grandchildren with only their older persons’ grants to support them, while the children’s parents were still alive?
Ms Kela responded that the Department faced the task of determining whether older persons who were caring for their grandchildren in the absence of the children’s parents saw themselves as victims of abuse. If they did perceive themselves as victims of abuse, and the children’s parents were incapable of caring for their children, the Department could provide alternative placement for the children according to the Children’s Act. According to the Maintenance Act, fathers of children cared for by older persons could be compelled to provide financial support for their children.
Advocate Masutha noted that the Children’s Act addressed child abuse as an offence that required the institution of criminal proceedings. However, the Children’s Act used the concept of "a child in need of care" to refer to a child whose circumstances required social intervention such as alternative placement. The Older Persons Bill should adopt the concept of "a child in need of care" to address cases in which older persons were compelled to care for their grandchildren. These cases could not be defined as abandonment, as the children were not deprived of care, and therefore they should be addressed through social interventions rather than criminal proceedings.
Advocate Masutha observed that the Maintenance Act primarily addressed the situation in which a mother claimed mutual duty of support for her children from their father. The Committee should determine whether the Act also provided for grandparents seeking to claim mutual duty of support for their grandchildren from the children’s parents.
Advocate G Hoon (State Law Advisor) suggested that the situation of older persons compelled to care for their grandchildren could be addressed by the expansion of Clause 18(5) of the Bill, "an older person in need of care and protection". Ms I Sekawana (Department Deputy Director: Care and Service to Older Persons) contended that the Children’s Act made provision for this situation.
Ms Gumede enquired whether grandparents had an obligation to care for their own grandchildren. Advocate Masutha explained that, in common law, the duty of support extended between grandparent and grandchild, and was applicable in situations where parents were incapable of supporting their children. The point of contention was whether grandparents who were caring for children, whose parents were capable of supporting them, should have the legal power to claim financial assistance from the parents.
Mr J Sibanyoni (ANC) responded that grandparents who consented to care for their grandchildren should be able to claim maintenance from the children’s parents. Ms Pemba added that Clause 18 of the Bill provided for social workers, in co-operation with the Department’s Director-General, to take action to protect older persons who were caring for their grandchildren.
Advocate Masutha agreed that the Department’s Director-General was able to bring a child seen as "a child in need of care" before the Children’s Court to argue for alternative placement. If the child was being cared for by a grandparent, the outcome of the case would depend on the magistrate’s sympathy to the older person. However, the magistrate could rule that the child should remain with the grandparent according to the principle of the Child Care Act that children should remain in their families as long as possible.
Advocate Masutha concluded that the Older Persons Bill should address the situation of older persons who were caring for their grandchildren from the viewpoint of older persons’ obligations and rights. The Bill should provide for interventions such as interdicts and supervisory orders rather than criminal prosecution.
Advocate Masutha referred to the new Clause 2(c), which stated that one of the objects of the Bill was "to shift the emphasis from institutional care to community-based care in order to ensure that an older person remains in his or her residence for as long as possible". He pointed out that the word "residence" was problematic as it included frail-care institutions. The Bill should allow older persons to remain within their communities for as long as possible, and therefore the word "residence" should be replaced by the terms ‘home’ and ‘within their community’.
Mr du Preez referred to Clause 5(1), which stated that frail-care facilities maintained by the state were not required to be registered. He recalled that at a previous meeting, Members indicated that state facilities should be registered.
Advocate Masutha noted that Clauses 6-11 provided for the regulation of frail-care facilities. He expressed concern that state facilities could not be made to comply with norms and standards if they were not registered. The Department should require state facilities to be registered, yet should differentiate between measures taken against state facilities and measures taken against private facilities for non-compliance with norms and standards.
Mr du Preez pointed out that Clause 3 stipulated that facilities established by provincial legislatures should comply with norms and standards. Advocate Masutha conceded that Clause 3 required both state and private facilities to comply with norms and standards. Ms Kela added that Clause 10, "Monitoring of registered facilities", should be extended to include procedures for monitoring state facilities.
Advocate Masutha referred to the new Clause 8(1)(a), "an older person has the right to participate in community services and serve as volunteer in any position appropriate to his of her interests or capabilities". He enquired what the rationale behind this right was, and why it emphasised volunteering rather than income generating activities. Ms Gumede asked whether older persons were permitted by law to augment their older persons’ grants of R780 per month by doing domestic work.
Ms Sekawana stated that the rationale behind Clause 8(1)(a) was to change the perception of older persons within communities and to prevent discrimination against them. The Clause aimed to acknowledge the skills and wisdom possessed by older persons and to allow these to be developed.
Ms Kela explained that Clause 8(1)(a) did not exclude older persons from participating in income-generating activities. However, older persons were required to declare any income they received before they received their social security grants, as these grants were calculated on a sliding scale.
The Chairperson queried whether older persons were required to declare the income they received from government institutions through their participation in development projects. Ms Kela replied that the participation of older persons in development projects initiated by government did not compromise their capacity to receive older persons’ grants. Ms Pemba added that older persons were required to declare any income they received on the application form for the older persons’ grant, and the income threshold for receipt of the grant was R2 300.
Advocate Masutha concluded that Clause 8(1)(a) should include the right of older persons to participate in the broader social and cultural life of their communities, and should not limit their activities to volunteering.
Ms Kela referred to the new Clause 8(1)(b), "an older person has the right to participate in the design and implementation of policies that directly affect his or her well-being". She queried whether the Committee had accepted a proposal in a previous meeting to delete this clause. Advocate Masutha answered that Clause 8(1)(b) remained. Ms Sekawana argued that the clause should be retained as older persons should be allowed to participate in the formation of policies that affected them so that they could express their needs.
Ms Kela was concerned that the scope of Clause 8(1)(b) was too wide and could lead to possible litigation. The implications of the words "directly affect" should be clarified, and the participation of older persons in policy formation should be provided for in specific areas.
Advocate Masutha cautioned that any interpretation of Clause 8(1)(b) suggesting that older persons could usurp the powers of the Executive to form policy, would be invalid, as it would be contrary to the Constitution. The Constitution provided for a system of participatory democracy whereby civil society was consulted by government during processes of policy formation.
Mr du Preez referred to Clause 15, "Community-based programmes for older persons", and subsection (1)(a), "The Minister may, in consultation with any relevant Minister, develop any programme referred to in subsections (2) and (3)". He commented that paragraph (a) would be revised, as the Minister should not be given the responsibility of developing these programmes.
Advocate Masutha said that Clause 15(1)(a) should be amended as the collaboration between the Minister and other Ministers could be inter-sectoral. Collaboration should not be confined to Ministers, but should include municipalities, and therefore the phrase ‘other government functionaries and institutions’ should be added to subsection (1). Mr du Preez accepted this proposal.
Ms Gumede asked whether older persons were required to pay for community-based care services or whether the government funded these services. Advocate Masutha replied that, according to the Social Assistance Act, a portion of an older person’s grant could be deducted by a community-based care facility. He suggested that the principle of reciprocal duty of support that required parents of children living in institutional care facilities to support their children financially, should be applied to the children of older persons living in community-based care facilities.
Ms Weber asked whether the Bill should stipulate the maximum amount that could be deducted by a community-based care facility from the grant of an older person who was living there. Advocate Masutha answered that the Social Assistance Act legislated on this matter. The Older Persons Bill should stipulate that retired professionals should contribute a portion of their pensions to the frail-care services used by them.
Ms Gumede asked how the Department could intervene in cases where older persons abused themselves as well as the services provided for them by government. Ms Kela responded that Clause 18(2) allowed any person to report "an older person in need of care" to a social worker. The social worker could then provide protection through, for example, the administration of the older person’s income.
Ms Gumede enquired whether the Bill addressed a situation in which a younger person was living with an older person in order to take advantage of the older person’s grant. Mr du Preez indicated that Clause 18(5)(f) defined an "older person in need of care and protection" as "one who lives in circumstances likely to cause or be conducive to seduction, abduction or sexual exploitation".
Ms Sekawana said that Ms Gumede’s example raised the problem of self-determination, and the Department would not be able to intervene unless the older person laid a criminal charge against the younger person. Ms Kela added that Clause 18(5)(f) would apply to this situation in cases where it could be proved that the older person was not in ‘a right frame of mind’ when he or she decided to live with the younger person.
Advocate Masutha explained that if Ms Gumede’s example referred to domestic violence, a remedy could be found in the Domestic Violence Act. However, it could refer to sexual exploitation (according to Clause 18(5)(f)), whereby consensual sexual relations were conducted in the context of unequal power relations.
Ms Gumede asked whether the Bill could pronounce on the conduct of an older person and a younger person who decided to live together. Advocate Masutha responded that if two adults entered into a consensual relationship, the age difference between them was ‘immaterial’. The law could not be the custodian of morality per se.
The meeting was adjourned.