Regulations to the Older Person’s Act: briefing by Department & South African Older Persons’ Forum submission

Social Development

19 February 2008
Chairperson: Adv M Masutha (ANC)
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Meeting Summary

The Department of Social Development reported on the processes followed and current status of the draft Regulations to the Older Persons’ Act. The Department was still receiving input from a number of stakeholders and interested parties and had decided to extend the deadline for public comment.

The Chairperson of the South African Older Persons’ Forum submitted detailed comments on the shortcomings of the draft Regulations and pointed out the many technical errors still contained in the document. The lack of regulations for chapter 1 and the weaknesses of the regulations for chapters 2, 3, 4 and 5 were discussed. The Forum felt strongly that the needs rather than the means of older persons were considered. Monitoring of the actual services provided was considered to be very weak, Government subsidies were far too low and the level of service provided in rural areas was inadequate. The composition of Residents’ Committees in the Act did not ensure that residents were adequately represented.

Although not required to approve the Regulations, Members retained oversight accountability. Members’ questions referred to the composition of the Department’s task teams, the nature and extent of the different levels of service offered by the Department, the opportunity for stakeholders to provide further input on the proposed Regulations, and the Department’s plans for implementing the provisions of the Act and for monitoring the facilities and services provided to older persons. Questions were asked about the costing of services and the regulation of admission to homes to prevent opportunity for discrimination. Members agreed that the service provided by the Department should be based on the need rather than the ability to pay of an older person. Examples of unacceptable conditions in homes and the lack of support from local government were given.

Meeting report

 

The Acting Chairperson, Mr B Solo (ANC) advised that the Chairperson was delayed but was expected to arrive later. Mr Solo commented that there was a great deal of interest in this particular legislation. However, Regulations were delegated legislation and as such, the Committee played no decision-making role. The purpose of the meeting was for the Committee to be briefed by the DSD on the progress made in the finalisation of the Regulations to the Act, to obtain information on the services provided for older persons and to receive the comments of the SAOPF on the draft Regulations.

Ms Henriëtte Bogopane-Zulu (ANC) questioned why this meeting was being held as the Regulations were still open for public comment. Members were pressed for time and she felt that the Regulations should only be presented to the Committee once all input from the stakeholders was incorporated.

Mr Solo conceded the point made by Ms Bogopane-Zulu and said that the Committee had an agreement with the DSD to discuss the issues arising from the public comments as they arose.

Mr Louis Nzimande (ANC) felt that although the Regulations were delegated legislation, they formed part of Members’ oversight responsibilities and that it was important that Members received information timeously. The Committee may not have another opportunity to discuss the matter again.

Ms Winkie Direko (ANC) suggested that the meeting proceed without further debate.

Mr Solo agreed and requested a summary of the inputs that had been received from the public to date.

Briefing by the Department of Social Development (DSD)
Ms Thuli Mahlangu (Director, Care and Services to Older Persons: Department of Social Development) briefed the Committee on the background, the processes that were followed, the issues that were submitted, the current status and the challenges in finalising the Regulations to the Act (see attached document). It was expected that the proclamation process would commence in March 2008.

A service provider was appointed in December 2006 and the first draft Regulations were developed. Eighty delegates attended a national stakeholder workshop that was held in February 2007. Task teams were formulated with specific areas of expertise. Provincial workshops were held in all the provinces between March and July 2007. Stakeholders submitted input to the various task teams and the second draft of the Regulations was published for public comment in November 2007. Although many organisations and individuals had provided comment, the DSD received many requests to extend the deadline to allow additional input.

The issues that were raised included the requirement for monitoring tools, the fact that Government would provide services only at the most basic level, that the cost of such basic services was very high, that service level agreements with service providers needed to be drawn up, that it was necessary to ensure consistency in the use of terminology and to ensure alignment with other applicable legislation. The application form for registration of service providers was ambiguous. The interventions included in the three levels of services as opposed to other professional interventions were unclear.

Challenges included the fact that not all issues could be dealt with by regulation - some were matters of policy. Examples were the amount that may be deducted from a person’s old age pension by a residential care facility, implementation of the Act by provinces, uniformity of subsidies from provinces and the different needs and priorities of provinces.

Mr Solo suggested that the SAOPF make their submission before the meeting was opened for discussion.

Submission by the South African Older Persons’ Forum (SAOPF)
Ms Mary Turok (Chairperson, SAOPF) presented the Forum’s comments and recommendations to the Committee (see attached document). The draft Regulations still contained many technical errors. There were no regulations pertaining to Chapter 1 of the Act, which deals with the implementation of the Act. There were no guidelines for the level of subsidies or awards contemplated in Chapter 2. The lack of services in rural areas and the roll-out of services in under-serviced areas were not addressed. With regard to Chapter 3, the Forum recommended that the concept of a “minimum acceptable level of service” should be applicable rather than the concept of “basic needs for survival”. Clause 6 of Chapter 3 and the norms and standards listed under Appendices A and B must be aligned.

Access to the different levels of service must determined by the level of need and not the level of ability to pay for the service and the reference to “means” in clause 6 was confusing and should be removed. Norms and standards should be focused on the basic and tertiary service levels rather than on the luxury or higher end facilities.

The Forum felt that monitoring in general was very weak. Monitoring was critical, particularly where vulnerable older persons were being cared for in homes. Chapter 4 does not include minimum norms and standards for the admission of persons to care facilities regardless of racial origins or ability to pay. Government subsidies were too low and there was a great need for abused and neglected pensioners to be allowed urgent admission to a home or care facility.

Under the Regulations, smaller Residents’ Committees were stacked in favour of management and staff and residents were in the minority. The number of meetings that must be held was not specified in the Regulations yet the committees had many responsibilities under the Act.

Chapter 5 needed to be strengthened and the strategies for enforcement of the Act must be included in the Regulations.

In conclusion, Ms Turok referred to the many guidelines that had been published but she was unsure how the guidelines fitted into the Regulations to the Act.

Discussion

Mr Solo welcomed the Chairperson, Adv Michael Masutha, to the meeting. He thanked Ms Turok for her submission and suggested the DSD took note of the constructive comments that were made. He said that the level of service from state employees and their attitude towards the public was unacceptable. People were very angry about the lack of service from civil servants and cited examples of the inability of the Police and Home Affairs to deal with simple matters. He became very passionate about the terrible service rendered to poor people and said that the way they were treated was disgusting and a complete disaster.

Ms Myrtle Christian (a member of the public and the Chairperson of a Residents’ Committee) applauded Mr Solo’s comments.

The Chairperson introduced himself and apologised for the delay in his arrival. He said that, because of a very tight legislative program this year, it was not certain that there would be another opportunity to consider the Regulations again this year. Later in the meeting, he remarked that it was likely that Parliament would be adjourned in August 2008 to allow Members to prepare for the upcoming elections. He opened the floor to questions.

Mr Nzimande remarked that the DSD’s presentation focused on the processes that were followed for drafting the Regulations. He asked for further details of the composition of the various task teams that were mentioned. He wanted to know if there would be another opportunity for the stakeholders to engage with the DSD once all the submissions had been considered. He requested more information about the costing of services as it would appear that the Department intended to render only the most basic level of service because of affordability issues. He noted the SAOPF’s concern that the basic level of service the DSD intended to offer did not meet the scope of services outlined in the Act. He noted that the deadline had already been extended, that the problems with terminology in the Regulations still needed to be addressed and that there was uncertainty about how a number of issues would be handled by the Department. He asked what the DSD’s human resources strategy was for implementation of the Act and the Regulations.

Mr B Mkongi (ANC) asked for clarity on the relationship between the needs and means of older persons. He questioned whether it was necessary to regulate the more expensive facilities if a person can afford to live there. He was concerned about the lack of norms and regulations governing the admission of persons to a facility as that might create an opportunity for discrimination on the basis of colour or disability even if a person can afford to live there. He asked how Government could intervene if admission to facilities was not regulated. He agreed with Ms Turok on the composition of Residents’ Committees and felt that residents should be adequately represented to avoid their opinions and wishes being overridden by a majority of staff and management representatives. He agreed that the minimum number of meetings to be held by a Residents’ Committee should be regulated to avoid dysfunctional committees continuing to exist. He wanted to know what Ms Turok meant by her comment that “this committee doesn’t like mechanisms”.

Ms J Semple (DA) thanked the presenters for their submissions and remarked that Ms Turok in particular appeared to have thoroughly scrutinised the Regulations. She said that the bad technical composition of the Regulations was totally unacceptable and requested that the Department ensure that it did not happen again. She noted that Ms Mahlangu had listed nine bodies who had commented on the draft Regulations but felt that this number was not sufficiently representative. She asked what was being done to obtain a broader outlook from the public and what the deadline was for making public submissions. She agreed that broader monitoring was necessary and if monitoring was only done on a financial basis, this was not acceptable. She wanted to know what was being done to avoid the situation that action was only taken once an incident was reported. She was disturbed by the low levels of service and said that it appeared that service levels were based on means with the result that the poorest people received the least service yet those were the ones who needed it the most.

Ms H Weber (DA) suggested that the number of representatives on the Residents’ Committees should be pro-rata to the number of residents in a home. She agreed with Ms Turok’s comments about the lack of service in rural areas. She related her own experience of a home she was running for 40 elderly people who had been dumped there by the Police and who had nowhere else to go. The local municipality was not supportive and evicted the people living there, resulting in the death of two of the residents. Although they were allowed to re-occupy the premises, the municipality now wanted to use it as a training centre. She said it was an example of an uncaring Government towards the plight of the destitute elderly. The home was being run on a shoe-string and social workers’ recommendations had no correlation to what the residents actually wanted and needed.

The Chairperson asked if the Department had responded to the SAOPF and the other stakeholders who had made submissions. Merely following processes was not enough and substantive issues had to be dealt with. He pointed out that the Portfolio Committee’s approval of the Regulations was not mandatory but although not required by the Act, implementation of the Act and the Regulations formed part of the Committee’s oversight responsibilities.

Ms Mahlangu took note of the concerns that were raised by the Committee and the SAOPF. She said that the DSD was still in the process of formulating the Regulations that will allow the implementation of the Act.

Ms Mahlangu explained the three levels of service contemplated. The preventative level was intended to ensure that elderly persons functioned as independently as possible. The intermediate service provided support to the elderly within the community. The continuous service provided care for those persons who were no longer able to care for themselves. The services offered were based on the needs of the community, not on the means or ability of people to pay. She explained that the unit cost of the most basic level of service (i.e. the provision of protection, shelter and food) that the Government would provide in terms of the budget available, was calculated as R1,788 per individual. Provinces however did not contribute equal amounts per person. The Department expected that each facility should calculate a similar unit cost of R1,778. The unit cost for community or integrated community based care was calculated as R264 per individual. The calculation of the unit costs was based on the most basic needs only and did not include non-essential extras, such as excursions or entertainment.

Ms Mahlangu said that the Department wanted more communities and stakeholders to come forward and had tried to popularise the Act through the radio and other media so that people became aware of their rights and what the DSD aimed to do. Within the limitations of their budget, the Department attempted to reach rural communities and had rented a truck for this purpose.

Ms Mahlangu explained that the Department endeavoured to ensure that services were accessible and affordable by all that needed them. The DSD was however unable to reach private, exclusive retirement villages and did not specify admission to those facilities. The focus was on setting norms and standards that were applicable to the minimum basic level of service that the Government provided to those elderly persons who were too frail or otherwise unable to take care of themselves.

Ms Mahlangu said that older persons must be represented on Residents’ Committees and be allowed to participate in the running of facilities. It was important that older persons were treated with dignity and respect by officials and the Department was challenged to ensure that the delivery of services was adequately supervised. She said that the DSD was aware of a lack of resources and the human resource policies included a retention plan for social workers.

The Chairperson said that the Members’ questions on the issues of costing were not adequately answered. His understanding was that the provision of services was included in the provincial budgets and he wondered what influence the Department had in this respect and how it managed the expenditure by the provinces. He recalled that the Bill started in the National Council of Provinces (NCOP) and that at the time the Committee felt that the original text of the Bill did not significantly change the status quo. A number of suggestions were made and it was considered that more work needed to be done. He remarked that the composition of Residents’ Committees was specified in the Act and that a legislative amendment would therefore be necessary to change this provision.

Ms Nomathemba Kela (Chief Director: Social Welfare and Transformation, DSD) explained that the Regulations were still a work in progress. As comments were gathered, they were incorporated in the document. It was intended to edit the document, address the technical errors and align the regulations with the Act once all input had been incorporated.

Ms Kela agreed with the principle that high-level services should not be regulated and said that the DSD focused on providing basic services that would meet the needs of people, within the resources available. She explained that National Treasury requested that the costing exercises were done for both the basic and medium levels of services. The level of services provided was dependent on what the country can afford and it was this level of service that had to be regulated. The costing exercise was needs-driven and quite comprehensive. Both scenarios were considered and the cost-drivers for each type of service were determined in order to calculate the cost of the service per person. She said that the costing was done before the report was presented to the NCOP and the Portfolio Committee.

Ms Kela recalled that the original Bill made no provision for community-based services but this was subsequently included in the Act.

The Chairperson remarked that the Portfolio Committee considered Government policy to have been more comprehensive than the Bill. The Committee had recommended that responsibility for the care of older persons be more community-based as well as the responsibility for the funding of such care revert back to the provinces.

Ms Kela explained that the cost of residential, community-based, outreach and home-based care was taken into account in addition to the cost of personnel to provide service delivery. The exercise was therefore more comprehensive than before. The DSD recently re-assessed the costing that was done to determine if the costs were still applicable and she offered to provide the Committee with the results if required.

Ms Kela explained that until the Act was passed, the Department did not know what services were needed. The DSD was currently engaged in setting norms and standards for the delivery of services in terms of the Children’s Act as well as the Older Persons’ Act. The Department was undertaking time and motion studies but was not yet in a position to determine how many social workers and other professionals were required to deliver the necessary services. It was necessary to first determine the scope of service delivery in each area, who was best placed to provide it and how long it takes to deliver each type of service. She offered to make a presentation on this subject to the Committee.

Ms Kela advised that the Draft Social Services Professions Bill was currently open for public comment. The Bill made provision for the registration of all social services professionals and was expected to facilitate better management of social services personnel. A code of ethics for social services professionals was being developed, with input from the Council of Social Service Providers. She conceded that the lack of service provided by Government employees would take time to correct.

Ms Kela explained that although the Heads of the Social Services Departments agreed on priorities, there was little correlation to the priorities of the provinces. The financial and other resources that were made available by the provinces were not in line either. In the case of the Older Persons’ Act, funds were in fact made available to the provinces but the Department have not seen an improvement in the level of service delivery and lacked the resources to monitor the situation. The DSD had however implemented a departmental quality assurance program.

Ms Kela said that social workers worked mostly with children and were involved in court work to such an extent that little application was given to older persons and victims of substance abuse. The latter were mostly left to the non-governmental organisations (NGOs) to deal with. She admitted that support and funding for the NGOs were inadequate and hoped that by basing future requests to National Treasury for more funding for the NGOs on published norms and standards backed up by research, would be more successful. She noted the SAOPF’s comments in this regard.

Mr Nzimande asked for responses to his earlier question about future opportunities for stakeholders to interact with the DSD and to his request for further clarity on the task teams that were appointed to deal with the Regulations.

The Chairperson reiterated that the meeting was not a formal public hearing and that the approval of the Committee was not required for the publication of the Regulations. He explained that the system where Parliament was required to approve Regulations before publication was not yet in place. He said that the ball was therefore in the hands of the DSD to get the Regulations published and suggested that the Department speed up the process. The Bill was passed in 2006 but the Regulations were still outstanding, resulting in delays in the implementation of the provisions of the Act.

Before excusing himself and handing over to Mr Solo, the Chairperson explained that the Committee would be focusing on the Substance Abuse Bill as well as technical amendments to three other Bills. He outlined the Committee’s commitments for the rest of the year and the planned visits to Brazil, Cuba and Canada.

Ms Mahlangu explained that the task teams were multi-disciplinary and involved other Government Departments, civil society and private service providers. As far as possible, the Human Sciences Research Council (HSRC) was involved. The Department of Health was represented on all the task teams.

Ms Kela explained that currently, the Department provided funding only to those organisations that provided the most basic of services. When a request for funding was received, the Department sent a team to do an evaluation and consider the funding needs of the facility. The DSD was able to purchase beds for those facilities and thereby created access for people who had no means.

In response to the questions about discrimination in admission of people to facilities, Ms Kela explained that legislation was clear on prohibiting discrimination on the basis of race, colour, creed, etc. A person’s freedom of association must however also be respected and a person cannot be prevented from choosing to go to a facility of their choice that was not funded by Government, for example a Jewish old age home.

Ms Direko asked whether the DSD provided a subsidy and if so, what channels had to be followed to apply for a subsidy.

Ms Kela explained that a person would normally apply for admission to a facility and the application would be referred to the DSD who would then get in touch with the nearest home. A team screened the application before a person was placed in a facility and subsidised.

Ms Direko said that she received many requests for assistance for people who do not qualify for grants but did not know where to refer them to.

Ms Kela said that the subsidy was not enough and a person was expected to pay in a portion of their upkeep. The challenge was to ensure that everyone received the care they needed, regardless of ability to pay.

Ms Direko asked what about people who had not yet reached the pensionable age but who were destitute and in desperate need of care.

Ms Kela confirmed that the subsidies were available for all indigent people, not just for the elderly.

Mr Solo remarked that a directory of the available Government services and who to contact was very necessary. He expressed shock at the low standards in some Government facilities.

With Mr Solo’s permission, Ms Christian then addressed the meeting. She said that as an eighty-year-old, she was the oldest person present at the meeting. She explained that it was not easy for older persons to deal with younger people in official positions and often did not receive the attention and respect they deserved. She said that older persons need the consideration of people who honestly cared about them. She had been involved in the Act since its inception and hoped to still be alive when it was finalised. She was concerned by the number of older persons who turned to alcohol and substance abuse as a result of the stress and abuse that they were subjected to. She felt that young people tried to work out what was best for older people but it was very important that more elderly people were involved and that their contribution was valued.

The meeting applauded Ms Christian after her statement.

In response to Mr Nzimande’s questions, Ms Kela confirmed that once all the comments were incorporated, workshops would be held to present the Regulations. The Regulations may be amended after publication.

Ms D Morobi (ANC) asked if the Department had data on all the homes in South Africa. She recently visited three homes that were in very bad condition and one of the homes did not even have toilet facilities. The local Council was aware of the dire condition of the homes but was unwilling to correct the situation. She invited the DSD to visit these homes with her.

Ms S Rajbally (Minority Front) was concerned about homes where residents were expected to pay their full pension over to the home and were left with no funds for personal expenses. She felt that the amount a home was allowed to retain should be regulated.

Ms Kela noted Ms Morobi’s comments and said that arrangements will be made to visit the homes she referred to. She agreed with Ms Rajbally that the amount deducted from pensions should be regulated.

Mr Solo suggested that the lack of co-ordination between the DSD and the local council highlighted by Ms Webber’s problem was a matter for an intervention.

Ms Turok pledged the SAOPF’s commitment to improve the lot of all older persons and said that the Forum will continue to work with the DSD.

Ms Kela agreed to provide the Committee with the information about the Department’s services that was requested. She said that she would arrange for copies of all the DSD’s policy documents to be circulated to the Committee.

Mr Solo and Ms Direko thanked the presenters and other participants at the meeting.

The meeting was adjourned.

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