General

PROPOSED AMENDMENTS TO THE OLDER PERSONS BILL [B 68-2003] NCOP Select Committee Social Services: 1^st Negotiating mandates
Revision 1 of 17 August 2004.
Affected Section	Province	Proposed Amendment	Discussion
General	Northern Province	1. Bill should provide for developmental care in residential facilities and provision of funding. It should also provide for extension of services and build-in support systems e. g. Home based care. 2. Bill should introduce tax breaks for older persons. 3. When closing down an institution, the manager should ensure that elderly who resided in his or her care is well placed in another institution.
	Mpumalanga	Bill does not directly address the plight of older persons in rural areas.
	KZN	1. "registered" to be inserted before "facility" wherever it appears in text. 2. Bill lacks a clause setting out the scope and purpose of the Bill for better understanding by means of an introduction.3. Bill lacks a general clause (in Chapter 2) providing for the establishment of facilities by the Minister and the payment of subsidies to registered facilities.
	WC	1.Bill fails to address service delivery to older persons in rural areas. Need to unpack "rural areas". Lacks provision to coordinate activities. Appropriate programmes at all levels, access to community-based service for elderly. 2.Contents of bill described as "narrow". 3. Concerns on real transformation of old-age homes and monitoring thereof. Specify intervals of inspections to old age homes in law. 4. Support an Ombudsman as mechanism for reporting abuse. 5. 60/65 age issue on positive discrimination in favour of women needs to be justified and understood. 6. Provision for pension to cover spouses who lost partners before they could qualify for grant. 7. Forced retirement of older persons. 8.Abuses of older persons/pension grant abuse/micro lenders. 9. Bill does not cover new funding policy/ Welfare financing policy and the subsidization of old age homes. 10. UN Declarations and resolutions not covered by Bill. 11.Rights of officials as signatories for emergency medical treatment.	Scope of Social Assistance Act and means test applies to individuals only, benefits not transferable to estate of 3^rd party. Private Pensions act administered by Finance. Labour Law regulated. Inter-sectoral policy issue. Awareness and focus on rights of older persons, Social Assistance Act on monitoring, 3^rd party deductions. Compare to provisions on children’s bill.
	North West (received 16:30 pm on 23 August 2004)	Need for ombudsman. Reporting abuse is a social responsibility by citizens, who monitors? Role of MEC/ Minister should be clear. Three spheres of government should be considered. Indigent policy vs Older Persons Bill and Local Government. Age difference for both male and female is considered as discrimination. Funding of registered old age homes. Human Resources: Social workers capacity and numbers to be strengthened Costing of budget. Financial implications
1 (definition of "abuse")	Mpumalanga WC KZN	Definition should be broadened to include other kinds of abuse. Definition to be included and specify abuse of each kind. "abuse" means a single or repeated act or lack of appropriate action, which causes harm or distress to an older person, including, but not limited to physical, psychological, financial, material, or sexual harm or neglect, and includes the violation of an older person’s rights enshrined in Chapter 2 of the Constitution;
1 (definition of "facility")	KZN	‘‘facility’’ means a building or other structure [managed] maintained or used mainly for the purpose of providing accommodation, housing and community–based care and support services to older persons, and includes a shelter but does not include a private residential home accommodating fewer than seven older persons for reward or a luncheon club or a building or other structure in or on which home-based care is provided;
1 (definition of "luncheon club")	KZN	"luncheon club" means a club which provides a meal to an older person on or more days of the week at a [small] charge;
1 (definition of "older person"	Limpopo, *Gauteng,* Northern Cape, Mpumalanga	Definition discriminates in terms of gender.
1 (definition of "owner")	Mpumalanga Free State	Definition should make reference to juristic persons. Delete definition of owner and insert definition of "operator"	Disagree - "person" includes juristic person (see section 2 of the Interpretation Act, 1957 (Act No. 33 of 1957)
1 (definition of "person")	Limpopo KZN	Insert definition of "person" to cover abuse by juristic persons. "person" includes a legal person, an unincorporated voluntarily association and a trust	Disagree - see section 2 of the Interpretation Act, 1957. "Person" already includes legal person and unincorporated voluntary association - see above. However, could insert " 'person' includes a trust;"
2(1)(a)	WC Free State	On page 4, in line 21, to omit "may" and to substitute "must". Specify ministers to be consulted. Explain role of social worker. On page 4, in line 22, to omit "subsection (2)" and to substitute "subsection (3)".	Obligation to develop programmes implied.
2(1)(b)	KZN Free State	The word "support" is vague and should be more specific. On page 4, in line 24, before "support" to insert "financial". Insert new subclause (2): The Minister may, in consultation with any other relevant Minister, support any person who runs programmes contemplated in subsection (3).
2(2)	KZN Free State	On page 4, in line 25, after "at" to insert "the support and development of older persons, including but not limited to" On page 4, in line 25, to omit "The programmes referred to in subsection (1) are programmes aimed at" and to substitute "The aim of programmes referred to in subsections (1) and (2) include"
2(2)(b)	Limpopo KZN	On page 4, in line 28, to omit "all levels" and to substitute "facility level". The reference to "decision-making process at all levels" is too vague and should be more specific.
2(2)(d) and (i)	KZN	The words "and urban" should be inserted after "rural"
2(2)(l)	Limpopo	On page 4, in line 46, to omit paragraph (l).
4(3)	Mpumalanga KZN	A month's notice for withdrawal of subsidy by MEC is insufficient. Department should ensure that this clause is not inconsistent with PAJA in so far as procedures and time frames are concerned.
5	Mpumalanga	No provision for registration of already existing facilities.	See clause 23(2).
5	Free State	Omit "own" in subclauses (1)
5(4), (5) and (7)	KZN	Since these subclauses deal with the issue of amendment or cancellation of a registration certificate, and for the sake of a more logical structure and arrangement of sections and their contents, it is suggested that they be removed from the existing clause 5 and be inserted under a separate clause 6: "Amendment or cancellation of registration certificate". Such a new clause would have to incorporate subclause 5(8) as well, and clause 20(a) would have to contain a reference to the new clause too.	It is a drafting issue and it is debatable whether or not the moving of the provisions to a new clause would create a more logical structure. Clause 5 deals with all the issues in respect of registration of facilities. Those include amendment and cancellation of the registration certificates.
5(4) and 5(5)(b)	KZN	The Department needs to ensure that these clauses are not inconsistent with the provisions of the PAJA, 2000, in so far as procedures and time frames are concerned.
6	Mpumalanga	No rational connection between the requirement for notification and the purpose it seeks to achieve.
6(1)(c) and (3)	KZN and Mpumalanga	The Department needs to justify the cut-off for regulation of accommodation in private residential homes for reward at seven older persons. Any facility owned, managed or operated for reward should be regulated by the Bill.
7	Free State Mpumalanga	Omit "owner" and substitute "operator". Although clause provides for closure of a facility, it does not make provision for the transfer of residents to other facilities.
7(3)(c)	KZN	The rationale for these provision is unclear. The provisions may also be unconstitutional as an infringement of property rights or alternatively an unconstitutional expropriation. Furthermore assets may be acquired partly with Government funds and partly with other funds. Assets may also be acquired with the income of proceeds of assets initially acquired with Government funds, and these seem not to be included.
8	KZN	The establishment of resident's committees may be problematic in so far as there is no clear distinction between governing bodies required in terms of legislation, e. g. the Companies Act, 1973 in the case of section 21 company and resident's committee. There may be a conflict particularly between clause 8(3) and other legislation such as the Companies Act, 1973. Furthermore, the word "reside" in clause 8(1) has not been defined. This means that a facility providing temporary accommodation would similarly have to set up a resident's committee, and this may be impractical.
9	Free State	Insert new subclause (4): "No person may be admitted to a facility without his or her consent". On page 7, in line 10, after "reasons" to insert "in writing". On page 7, in line 11, after "(1)" to insert "or (4)".	Agree - see annexure A.
9(1)	Limpopo	On page 7, in line 4, to omit "a" and to substitute "an older".	Agree - see annexure A.
10	KZN Mpumalanga	The purpose of the monitoring system should be stipulated, as well as the remedies where the results of the monitoring process show that norms and standards are not being complied with. Provision should further be made for the monitoring person to inform the affected institutions of the results and findings of any monitoring, with a corresponding right of the institution to respond or take remedial steps before any action is taken as a result of the results and findings. Provisions too restrictive and does not allow a social worker to monitor a facility out of own accord.
10(1)(a)	KZN	On page 7, in line 15, to omit "registered".	Disagree - Only registered facilities and places can be monitored. It would be unconstitutional to enter an unregistered facility or place without being in possession of a warrant. Clause 14 provides for entry with a warrant.
10(1)(b)	Free State	On page 7, in line 17, after "person" to insert "cared for or".	Agree - see annexure A.
10(3)(b)	Free State	On page 7, in line 31, after "person" to insert "cared for or".	Agree - see annexure A.
11	KZN	On page 7, in line 34, to omit the first "of" and to substitute "or owner of, or the person who operates,". On page 7, in line 43, to omit first "of" and to substitute "or owner of, or the person who operates,". On page 7, in line 45, after "manager" to insert ", owner or operator".
12	WC	On page 8, in line 4, after "facilities" to insert "and communities", to accommodate those old persons who reside in their own homes. This will require "community" to be defined in the bill.	Chapter 3 provides for the protection of older persons. However, section title 12 only refers to "Rights of older persons in facilities".
12(c)	Limpopo	On page 8, in line 7, after "possessions" to insert "that will not infringe the rights of others".
12(i)	KZN Northern Province	Time period is unreasonable vis-à-vis older persons. Ensure that clause is not in conflict with PAJA. On page 8, in line 14, to omit "30 days' " and to substitute "3 months' "
13	Northern Province	On page8, in line 16, to omit "an offence" and to substitute "a criminal offence".	Disagree.
14 (not 13)	Mpumalanga	Provision should allow other people who have an interest in protecting older persons to make statements to trigger the procedure under this clause.
14(1)	KZN Free State	Provisions of clauses 14 and 15 should apply to all instances of abuse of older persons and not merely in those instances listed in clause 14(1)(a) and (b). On page 8, in line 20, to omit "a statement under oath" and to substitute "an affidavit".	Agree - see annexure A.
14(3)	Free State	On page 8, in line 37, to omit "a statement under oath" and to substitute "an affidavit".	Agree - see annexure A.
16(1)	KZN Mpumalanga WC	Obligation to notify should extend to all persons who witness abuse of older persons and not only to those who examine, attend or deal with older persons. Clause must make it possible for a person who is aware or has knowledge of abuse to immediately notify the DG even if the person did not examine, attend or deal with older person. Bill should specify the process of urgent removal of older persons where abuse is reported. Shelters for older persons, woman and children	Link shelters and provisions to the Domestic Violence Act and illustrate coverage to elderly.
17(1)(a)	KZN	The clause creates a procedure whereby a person's rights may be adversely affected, but without due process being followed.	Disagree - the registering of these notifications does not have any consequences. Only the rights of persons whose names appear in the register contemplated in paragraph (b) are adversely affected.
17(1)(b)	KZN	The register must be publicly accessible.
17(2)	Free State Limpopo and KZN WC	On page 10, in line 13, to omit "own,". Extend prohibition to prevent persons whose names appear on register from being employed at a facility or from rendering a service at facility. On page 10, in line 13, after "facility" to insert "and not to be employed".	Condemnation for life? Rehabilitation clause? Time limited of x number of years.
18(1)	KZN	Omit "person who is involved with an older person in a professional capacity and" and substitute "profession health care provider"
18(4)	Gauteng	On page 10, from line 22, to omit "Director-General or the social worker concerned" and to substitute "Head of Department or a delegated official including the police".
18(5)	KZN	(5) An older person who is in need of care and protection [is] includes but is not limited to one who—	Disagree - the Bill must make it clear when an older person is an older person in need of care and protection. If it doesn't, the DG or social worker may arbitrarily decide when an older person who doesn't comply with the requirements of subsection (5) (a) to (i) is an older person in need of care and protection.
18(5)(a)	KZN	(a) has his or her income, assets or old age grant taken against his or her wishes, or who suffers any other financial abuse;
18(5)(b)	KZN	(b) has been removed from his or her property against his or her wishes or has been evicted from any property lawfully occupied by him or her;
19(2)	Limpopo	Should provide the Minister powers and functions to develop policy on theses aspects and the MECs powers to implement this Bill.
19(5)	Gauteng KZN	Delegation should be to Head of Department and not to the provincial Director-General. Delegation of powers by national Director-General to provincial Director-General in not constitutional.
21(1)	Gauteng	On page 11, in line 38, to omit "may" and to substitute "must/should".
22	Limpopo	Clause should be deleted.	Agree - see annexure A
23(1)(a)	KZN	Repeal whole of Aged Persons Act, 1967.	Agree - see annexure A
24	Free State	On page 12, in line 36, to omit "2003" and to substitute "2004"	Agree - see annexure A