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PORTFOLIO COMMITTEE ON WELFARE
9 FEBRUARY 1998
SOCIAL SECURITY SERVICES INVESTIGATION BY PUBLIC SERVICE COMMISSION
Its presentation will shortly be made available here. Here is the executive summary of the report:
PUBLIC SERVICE COMMISSION
INVESTIGATION: SOCIAL SECURITY SERVICES
1. DESCRIPTION OF SOCIAL SECURITY
Social security (as used in the context of this report) refers to the provision of non-contributory and means-tested benefits by the State to people with disabilities, elderly people, war veterans and unsupported parents and children who are unable to provide for their own minimum needs. Benefits are primarily provided in the form of social grants.
2. PROFILE OF SOCIAL SECURITY SERVICES
Social security is currently one of the most important poverty alleviation programmes of Government. For the 1997/98 financial year an amount of R1 433 billion has been budgeted for the payment of social grants. This represents 7,6% of the total national budget. A total in excess of 2.8 million social grants are paid to the various categories of beneficiaries in terms of the Social Assistance Act, 1992. The large number of people whose very existence to a great extent depends on these grants, has given the social security function a very high public profile.
3. ROLE OF THE PUBLIC SERVICE COMMISSION
The Public Service Commission is in terms of the Constitution, 1996 charged with, among others, the responsibility to investigate. monitor and evaluate the organisation and administration of the Public Service. It also has the responsibility to propose measures to ensure effective and efficient performance within the Public Service. It was against this background that the Public Service Commission was approached by the Department of Welfare for advice and assistance with regard to various matters pertaining to the rendering of social security services.
4. SCOPE OF THE INVESTIGATION
The Commission's investigation covered all areas and functions within the current social security system as executed at both the national and provincial levels of government. The topics addressed can be categorised as follows, namely -
4.1 macro-organisation arrangements, referring to the division of functions and responsibilities between the national and provincial levels of government;
4.2 micro operational systems and processes. which include the functional and computerised processes in terms by which the payment of grants is administered;
4.3 internal control measures aimed at minimising fraud and corruption; and
4.4 all support functions related to the service, i.e. human resource management, finances, logistics and information technology support services.
5. METHODOLOGY USED IN THE INVESTIGATION
In conducting the investigation, the Public Service Commission endeavoured to be as inclusive as possible. It consulted widely with officials at the grassroots operational and top management levels, as well as with relevant political office bearers to obtain their inputs. This was done by means of in loco investigations, personal interviews, meetings, workshops and questionnaires. Reports of previous related investigations were also studied for background purposes.
6. EXISTING MODEL FOR SOCIAL SECURITY SERVICES
The existing model for the delivery of social security services is primarily derived from the Social Assistance Act, 1992 and accompanying Regulations. The administration of the Act was assigned to the provinces with effect from 1 March 1996. In practice certain national policy matters are dealt with at the national level by the Department of Welfare, while the actual delivery of the service falls within the ambit of the various provincial governments and their administrations. Draft legislation in the form of the Welfare Laws Amendment Bill is currently being considered in terms of which the Minister for Welfare and Population Development will again be made responsible for the administration of the Act, but empowered to delegate powers and functions to the provinces. Chapter BI provides a detailed explanation of the existing arrangements.
7. IDENTIFIED PROBLEM AREAS
During the investigation numerous problems were identified within the social security system. Apart from the current macro-organisational arrangements that could be seen to impact negatively on the system, a number of problems were also identified in respect of the operational processes and computerised system, as well as the human resources, financial, logistical and information technology support systems. Certain problem areas identified point to shortcomings in the system that are currently exploited to defraud the system. Some of the identified problem areas can only be addressed in the medium to longer term. However, certain issues are of immediate concern and require attention as soon as possible by both the national and provincial levels of government
8. MAIN PROPOSALS
8.1 The Commission considered various models pertaining to the macro-organisational arrangements between the national and provincial levels of government. In this regard a hybrid model is favoured.
8.2 It is proposed that a hybrid macro-organisational model which provides for the following, be considered:
8.2.1 National legislation.
8.2.2 Policy issues to be addressed at national level.
8.2.3 Executive functions to be dealt with at provincial level.
8.2.4 Monitoring, evaluation and inspection by the national Department of Welfare of -
(a) adherence to policy;
(b) application of policy; and
(c) the performance of the system.
8.3 It is further proposed that a political decision be taken on a preferred financing option. (Implementation of the bulk of the proposals in the report, however, is not dependent on a decision on or implementation of a specific financing option.)
8.4 The proposed hybrid model and the other models that were considered, as well as possible financing options, are described fully in Chapter B3. Chapter B2 provides an overview of the various matters to be taken into account when considering the various models.
8.5 In order to enhance service delivery, the Commission proposes a range of measures to improve the efficiency of current operational systems and processes including the computerised system currently in use. Detailed findings and proposals are contained in Chapters Cl and C2 of the report. Findings and proposals. specifically with regard to internal control measures aimed at, among others, curbing fraud and corruption and enhancing the security of the computerised system, are summarised in Chapters El to E3.
8.6 Proposals to improve the rendering of support services pertaining to the social security system are detailed in Chapters Dl to D3. These include the following:
8.6.1 Human resource management
(a) That the organisation and establishment of the national Department of Welfare be restructured to provide inter alia for the -
(i) co-ordination and allocation of the total budget for social grants;
(ii) coordination and rendering of support in respect of the system of payment of grants, human resources, provisioning administration and information technology; and
(iii) establishment of an evaluation unit
(A proposed organisation structure is attached as Annexure W.)
(b) That the organisations and establishments of the provincial social
security components be restructured in order to -
(i) separate functions to eliminate possibility of fraud and corruption;
(ii) provide an appropriate post establishment;
(iii) empower persons to enhance efficiency and effectiveness;
(iv) provide sufficient information technology support services;
(v) manage service providers effectively;
(vi) vest accountability and responsibility in key administrative role players; and
(vii) establish an internal audit unit.
(Draft organisational structures will be developed for consideration.)
(c) That staffing be enhanced by means of, inter alia, proper career pathing and training.
(d) That special attention be given to staff morale and work ethics.
(e) That a human resource plan be formulated and implemented for each provincial administration and that it be co-ordinated at national level.
(f) That a co-ordinated national training programme be launched to train personnel at national and provincial levels.
8.6.2 Finances: That -
(a) coordination between national department and provincial administrations be enhanced;
(b) management information systems be established; and
(c) cost calculations be improved.
8.6.3 Logistical matters: That -
(a) an accommodation upgrading strategy be formulated for each province and co-ordinated at national level; and
(b) a transport upgrading and cost efficiency strategy be implemented by the provincial administrations and co-ordinated at national level.
8.6.4 Information technology support services: That -
(a} an information technology upgrading programme be implemented and coordinated at national level;
(b) efficient support services be established at national and provincial level;
(c) a helpdesk be provided to users;
(d) service level agreements be established; and
(e) information technology contracts be carefully managed.
8.7 All the proposals contained in the report are listed in Chapter Fl for ease of reference.
9. EXPECTED BENEFITS
The implementation of the proposals contained in the report will in the short term require that nominal additional expenses will have to be incurred. This will be necessary to build the organisational and human resource capacity at both the national and provincial levels to adequately deal with the social security function. However, as the implementation of the proposals takes place in practice, significant benefits will be derived: Fraud and corruption will be minimised resulting in financial savings; more streamlined operational systems will be in place; a better geared support services infrastructure will be in place; and in general personnel will be better trained and better equipped to deliver quality services.
A detailed implementation plan will have to be formulated with the purpose of ensuring that the implementation of the proposals takes place in a well planned and synchronised manner within reasonable time frames. In this regard the capacity at both national and provincial levels of government should be established to manage and monitor the implementation process. Special attention should be paid to bridging the gap between the current and proposed systems/processes. Suggestions with regard to implementation and the way forward are discussed in Chapters F2 and F3. A draft implementation programme setting out the activities to be undertaken to implement the more than 120 proposals contained in the report, as well as possible time frames, has been compiled and is attached as Annexure AA.
Adoption Centre of Child Welfare Societies
SUBMISSION TO THE PORTFOLIO COMMITTEE ON WELFARE ON THE ADOPTION MATTERS AMENDMENT BILL
FROM: ADOPTION CENTRE OF CHILD WELFARE SOCIETIES
1. GENERAL REMARKS
We, the stakeholders on the attached list would like to convey our appreciation for the Bill which fully incorporates the central concepts which we had proposed for this legislation -namely (a) that rights for unmarried fathers to be notified or and/or involved in decisions about adoption proceedings should not be automatic but should depend on their having actively taken responsibility for their children concerned, and (b) that provision be made for fathers to register their paternity and acceptance of the responsibilities of parenthood with the Department of Home Affairs, and to inform the Department of any change of address. We thank the legal drafters and all concerned in the development of the Bill for incorporating these concepts, thus providing the framework for a system based first and foremost on the right of children to be settled in a secure family environment, while also taking into account the acutely vulnerable circumstances of most women who are seeking adoption of their children.
A national information campaign to inform fathers of their right to register paternity and thus ensure that they will be consulted with regard to adoption proceedings is believed to be very important and we would urge that an interdepartmental strategy be devised for this purpose. Our own and, we believe, many other NGO's will be happy to assist with such a campaign.
We have developed some recommendations as to how the provisions concerning adoption could be improved, and some organisations among us have also made suggestions concerning the issue of legal representation of children which is dealt with in the same Bill.
2. COMMENTS ON PROVISIONS REGARDING ADOPTION
The definition of an "accredited social worker", while not being considered ideal by all stakeholders, is a definite improvement on the present situation, as regards building in protection of the interests of children for whom adoption is under consideration as well as their biological and adoptive parents.
The exclusion from the definition of a "natural father" of situations where there is no relationship between the partners is welcomed. However the reference to a "love relationship" is regarded as problematic - it is likely to be very difficult to establish the nature of the relationship at the time of conception, or to say that in the absence of love rather than other motivations for sex, a father should not have any rights. It is suggested that the clause be worded to exclude fathers where conception has occurred through rape, incest, prostitution or artificial conception using donor sperm.
The proposed section 18(4)(d), providing for a father to register paternity and make details of his whereabouts known in order to qualify for the right to be consulted about an adoption, is strongly supported.
The substitution of "or" for "and" to allow for adoption in cases where parents have abandoned the child or disappeared is welcomed. There remains a need for the courts to receive clear guidance as to when a child can be considered to have been abandoned -perhaps this can be achieved in the regulations. At present commissioners vary in their approach to this issue. Some require a year or more of "searching" by the police for abandoning parents before they will allow adoption to proceed. Such "searches " are generally meaningless - the police do not have the resources to carry them out, and they simply issue a document at the end of this period to confirm that they have not found a mother who has e.g. left her child at a hospital or railway station and thus clearly shown a desire for someone else to care for her child. There is a need to guard against situations where members of the community claim that a child was abandoned with them while they do in fact know where the parent are. Again, this should be covered in appropriate regulations.
It is suggested that the envisaged clause 19 (b)(vii) should read : "who, in the case of a child born out of wedlock, has failed to acknowledge himself as the father of the child as envisaged in section 19A(2).... " It may in some cases be difficult to prove to the court's satisfaction that a father has refused to acknowledge paternity.
The provision in the proposed 19(b)(ix)(bb) to allow for a finding on balance of probabilities in connection with rape of or assault on the mother is welcomed - this will provide a means of dealing with such situations without involving the child in the endless delays surrounding criminal proceedings, and should reduce the risk of secondary abuse of the mother which is inherent in such proceedings. However it is suggested that a time limit be set for the commissioner to rule on this issue, so as to prevent unnecessary delays in securing the child's future.
Section 19A is in general welcomed in that it provides the father who accepts responsibility for his child with a means of asserting rights commensurate with such responsibility, without depending on information provided by the mother for this purpose. It also makes it clear that he must provide notification of change of address, thus preventing the wastage of time and resources on tracing fathers who have disappeared. An additional clause (d) is recommended in section 19A, to read as follows: "provided that the consent of the father shall be dispensed with if he is not offering to care for the child himself." The basis for this recommendation is that the father should not be in a position to block an adoption and thereby cause a child to have to remain e.g. in an institution or indefinite foster care or e.g. to send the child to friends or relatives in a distant area without himself having any day-to-day responsibility for the child's upbringing.
There is a need to clarify the period of time within which the father will be required to respond to notification. It is recommended that this period be limited to fourteen days, so as not to delay matters for the child. lt will be necessary to spell out very clearly in the regulations how notice is to be served, so that unnecessary delays do not occur during this process.
There is support among stakeholders for the contention within the single fathers' lobby that a father should not have to adopt t his own child to acquire guardianship of him or her [19A(i)(c)]. It is however recognised that in terms of our broader legal system this is the only way to confer full parental rights without requiring the father to approach the high court with its prohibitive costs. It is believed that this issue should be further addressed in the process of developing comprehensive children's legislation, and also in the development of the Family Court system.
The provision for a social workers report on the father's involvement with the child to be taken into account [section 19A(2)(c)] is welcomed, as is the implication that the father should have the benefit of social work services including counselling where possible. There is however a need for clarification as to whether there is a legal obligation on the part of a social worker to report to the court his acknowledgement of paternity and active involvement with the child if these apply, especially if information in this connection has been given to her in confidence.
There is concern about the fact that the proposed amendment to section 11 of the Births and Deaths Registration Act would require the father to apply to the High Court for redress if the mother refuses consent to his registration of paternity. This court is inaccessible to the vast majority of people; in addition its procedures tend to be extremely lengthy, and this would cause protracted delays during which a child would be left in limbo while the mother and alleged father fought this issue to its conclusion. We would suggest that in the case of a dispute the children's court be empowered to immediately order tissue tests, and also to make a ruling as to whether these should be paid for by either party or carried out free of charge at a state facility. There is also a need to provide that the Department of Home Affairs must inform a commissioner who requests information in terms of section 19A(3) that a father has attempted to register his paternity and a dispute is in process, so that the particular children's court handling the adoption application can either take responsibility for settling the issue of paternity itself, or else liaise with the children's court which has been approached by the father if he has made application in another district. It is further proposed that a mechanism for mediation and/or counselling be put in place to address disputes of this kind - e.g. the children's court could request a social worker other than the person dealing with the adoption application to assist the parties to reach agreement if possible. The court should then be required to give due consideration to the report of that social' worker.
There is some concern about delays which may occur in the process of registering paternity with the Department of Home Affairs or because a father delays registering paternity. In the draft Amendment Bill submitted earlier this year by the present group of stakeholders, the following approach was suggested:
"To ensure that the natural father is notified of and has the opportunity to be heard in adoption proceedings, registration of paternity and formal acceptance of responsibility shall occur within 14 days of the birth of the child, or in the case of a child already born at the time of promulgation of this Act, within 21 days of such promulgation. Provided that where the above procedures are undertaken at a later stage, the father will retain the right to be notified and heard if his details have been registered by the Department of Home Affairs .... by the time that an application to adopt is received by the children's court." We request that such a framework be adopted either within the Adoption Affairs Amendment Act itself or the regulations; also that when the Births and Deaths Registration Act and its regulations are amended to accommodates the new provisions, requirements be built in for registration processes to occur within a prescribed time frame, with the child's need to settle in a permanent family environment and proceed with normal bonding and development being held paramount The danger of damage to the child's development must be seen as the first and foremost danger to be avoided in designing and implementing the new system.
The repeal of Section 6 of the Natural Fathers of Children Born out of Wedlock Act is supported and welcomed. We would however urgently request that, where a natural father makes application for custody, access or guardianship of a child in terms of section 2 of that Act, and that child is in the custody of adoptive parents, the high court be bound to expedite the proceedings so as to avoid the child, the prospective adopters and all concerned being caught up in lengthy litigation which prevents the child from being settled in permanent care with the necessary speed, and creates unnecessary anxiety for prospective adopters in the community.
3. COMMENTS ON PROVISIONS REGARDING LEGAL REPRESENTATION FOR THE CHILD
There are some typographical errors and gaps in the wording of some clauses in the proposed section 8A and their meaning is not entirely clear. Overall it would seem to improve matters somewhat by directing the Commissioner to the most accessible Legal Aid office rather than the Legal Aid Board. However it is becoming increasingly clear that there is a need for a carefully designed system going far beyond the issues dealt with in section 8A, not only to provide for appropriate legal representation for child, but also to generally govern the conduct of lawyers in the children's courts.
There are at least three broad areas of concern to be addressed:
(a) Time is of the essence in making decisions about children.
Especially in the case of babies and toddlers, the postponing of decisions for weeks and months and sometimes even years on end can have disastrous effects, because these delays are happening at times which are highly sensitive in terms of bonding and the development of the capacity for healthy human relationships. It is being found that, where adults are hiring lawyers to represent them in court, there is a tendency for the lawyers for the different parties to play protracted "games" involving endless postponements, thereby keeping children in situations of uncertainty which are highly detrimental to them. Many commissioners are intimidated by lawyers and some are ignorant about matters of child development, the dynamics of abuse etc. In some courts the proceedings begin to revolve around the degree to which each lawyer is able to intimidate the commissioner, and the best interest of the child become secondary to these antics.
(b) It is essential that whoever represents the child is truly committed to this responsibility and is not being manipulated by other agendas.
The point was made when the 1996 Bill was drafted that allowing the commissioner to approve the appointment by a parent of the child's legal representative is a recipe for a dangerous conflict of interests - many children are before the children's court precisely because it is alleged that their parents have abused them. Such parents may nevertheless make a favourable impression on the Commissioner who may agree to allow them to appoint the child's representative. Another scenario which is emerging is where a lawyer for an interested party (e.g. someone who wishes to foster a child without there being sufficient grounds to remove the child from the parents) announces himself/herself to be the child's legal representative, and is allowed by an intimidated commissioner to proceed accordingly.
(c) The position of the social worker and his/her agency require due protection if they are to fulfil their protective functions with regard to the child.
As matters stand the commissioner may deny the agency the right to have a legal representative in court, the lawyer may dispute the competence of the social worker to conduct psychosocial assessments and generally "trash" the contents of his/her report without there being anybody in court to ensure that evidence which bears on the safety and wellbeing of the child is given due weight. This is an especially dangerous scenario where inexperienced or unassertive commissioners are involved.
It is recognised that the task of designing a court system which is properly designed and equipped to promote the best interest of the child is a highly complex one. Certain provisions in this respect will probably have to await the completion of the task of comprehensive redrafting of children's legislation. Certain provisions could however be built into the present Act which would so somewhat improve matters.
It is proposed as follows:
- That clause 8A(3) of the present Act, giving the right to a parent to appoint the child's legal representative, be deleted
- That a two-week time limit be set in terms of which the Legal Aid office must if approached by the children’s court, appoint a representative for the child. This takes into account the fact that a Children's Court Enquiry is normally supposed to be finalised within six weeks of being opened
- That the Children's Court be bound to refuse any application for postponement of an enquiry which does not directly revolve around the best interests of the child. Hence, the fact that an adult party's legal representative is going on holiday, or the fact that the adult wishes to change his/her representative (sometimes for the umpteenth time) will not be grounds for postponement.
- That it be clearly stipulated that the employer organisation of a social worker presenting evidence in the children's court is entitled to legal representation if any other party has such representation.
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