PRESENTATION TO THE PORTFOLIO COMMITTEE ON THE INITIATION
OF PROPOSED AMENDMENTS TO THE REGULATIONS OF THE SOCIAL ASSISTANCE ACT NO. 59 OF 1992
27 SEPTEMBER 2000
Purpose
To brief the Portfolio Committee on the factors and issues that calls for amendments to the Regulations of the Social Assistance Act No.59 of 1992.
Background Several pieces of legislation and regulations governed social assistance provision prior to 1992. The system was archaic, fragmented and discriminatory. In South Africa we had 14 different social security systems. The 1992 Social Assistance Act was the first attempt at reforming the Social Pensions Act of the old dispensation. This was an attempt by the regime to remove discrimination and the administrative barriers created by apartheid.
The 1996 Amendments to the Social Assistance Act were designed to bring delivery in line with a democratic system and with the Constitution. However, these were not comprehensive and several unconstitutional provisions still exist that calls for a review. Current legislation contains inconsistencies, is not comprehensive and integrated, and is outdated and limited in effectively addressing the challenges that confront social assistance delivery and grant administration. While the Ministerial Committee of Inquiry into a Comprehensive Social Security System will look at the system as a whole, certain short term measures are required to bring the Department up to speed in the provision of social assistance delivery.
The Social Assistance Act is an assigned function to the provinces. Only the regulations are a national competency.
Steps taken to address the problems
The Department of Social Development convened a Task Team consisting of representatives from the nine provinces, and their legal advisors to look at the existing legislation and regulations. They also brought on board several academics, experts in social security and the legal sphere. The objective: to review existing legislation and provide recommendations to the Department. These would be to look at the gaps, inconsistencies, overlaps, duplications, etc. that exist in social assistance provision.
The way forward would be twofold:
1) Short term measures
In the short term, the existing Task Team would look at what can be done to address the weaknesses, inconsistencies, and administrative barriers in the existing legislation and regulations. This in itself would take some time to complete and the Department is realistic in that completion will take place next year, so that a proposed Bill of amendments will only be available in 2001. These short term measures are merely to remove constraining factors towards administrative justice and remove the incentives created by the Act that enable unscrupulous individuals to enrich themselves at the expense of the poor and the vulnerable.
Consultation has been carried out with several stakeholders while this Committee was briefed on the motivation for the proposed amendments.
2) Long term measures In the longer term, the Ministerial Committee of Inquiry into a Comprehensive Social Security System will look at the social security provision on the whole and present the Minister and Cabinet with proposals on a comprehensive system of social assistance and social insurance provision (White Paper for Welfare objectives). The Committee's recommendations will deal with social security in a more comprehensive manner, looking at international best practice and sustainability of the system. The Act however, has to be reformed in light of the various initiatives in progress. This is a longer-term process
Proposed areas for Amendments
1. The Disability Grant There are several problems in the administration of the disability grant namely:
(a) The definition of disability is broad in interpretation and narrow in scope.
(b) It is a medical model. The availability of medical officers to assess disability is scarce and almost non-existent in rural areas.
(c) The assessment process is duplicatory and expensive. A medical officer provides a medical report that must be confirmed by a pensions medical officer.
(d) There are no uniform objective assessment procedures. Assessment of disability is highly subjective and varies from one medical officer to another.
(e) There is a great deal of bribery and corruption in the issuance of reports.
(f) Medical Officers complain of threats to their lives if they do not issue favourable reports.
(g) There is lack of uniformity in the application of the means test.
(h) The distinction between temporary and permanent disability is that temporary disability is for 6 and 12 months respectively.
(i) The administrative processes for reviews and appeals against suspensions are not specified.
Proposals Regulation to be aligned with a more developmental approach to empowering people with disabilities to become self-sustaining.
The development of a clear definition of disability with the emphasis on the social model is an ideal.
The implementation of uniform transparent assessment procedures is a prerequisite for improved administration.
The normative processing period should not be longer than 35 days for an outcome. Review of the means test.
2. Care Dependency As with disability with adults, the problems with care dependency are as follows:
(a) The definition of care dependency" is not clear, hence the lack of uniformity and subjectivity in the assessment of a care dependent child.
(b) Theassessment criteria for disability of children are based on the medical model. The assessment process is the same as it is for adults.
(c) There is lack of uniformity in the application of the means test.
The South African Law Commission is in the process of reviewing this regulation whilst developing a protocol on rights for children.
Proposals Regulation 5amendments to be in line with the proposals from the SA Law
Commission, the Commission of Inquiry and the Task Team for a Strategy on
Children.
3. Old Age Pensions The problems experienced with the administration of old age pension are:
1. the administration of the means test, and
2. the issue around inequality of treatment between males and females
Proposals Regulation 13 - Consideration is given to eliminating the Asset Means Test. Further discussions and exploration is required in respect of the differences in the pensionable age of males and females.
4. The Child Support Grant The Child Support Grant unlike the other (grants mentioned is a delegated function to the provinces. Its provision is incorporated in the Welfare Laws Amendment Act. It must be brought in line with the same procedures as the other grants. Provision is made only for children under 7 years of age.
Proposals Amendments were made to the regulations relaxing the requirements for the Child Support Grant on the 25 June 1999. Whilst the amendments restrict the maximum number of children qualifying for CSG to six children under seven years of age, Regulation 3 can be interpreted as making provision for more than six children. Regulation 14 (1) should include the Child Support Grant.
Regulation 16 - An Amendment to be made so that the "care giver's income and not the household income" is stated for the purpose of the regulation.
Other areas presenting problems are related to administrative interpretation of terminological differences such as clarity around what constitutes a "household", "personal income" etc., which are not in line with amendments to the regulations promulgated on the 26/6/99.
Interim measures must be put in place to address the needs of vulnerable children over 7 years of age.
5. Foster Care The Foster Child Grant is a provision created for the protection of all children in terms of the Child Care Act. It is not an income benefit for vulnerable children. However with the phase out of the State Maintenance Grant, people are exploring the Foster Child and Care Dependency Grant as options to maximise benefits. Both these grants are financially more attractive than the CSG.
Proposals Regulation 10 (1) and 10 (2) to be amended to prevent families who do not apply within six months of the court order for the Foster Child Grant from losing this valuable source of income.
A proposal from the task team is considering equal amounts of all the various grants for children so that perverse incentives are not created to break up families.
6. Social Relief of Distress Current legislation is inadequate to address the need to provide relief of distress on as temporary basis, thereby leaving many individuals destitute. A comprehensive policy of Social Relief of Distress must be developed.
7. General Applications of the Act References have been made to procedural inadequacies and administrative problems surrounding the application and processing of social grants. To promote administrative justice and improve the administration the following general amendments across all grant types are proposed.
Proposal Regulation 11 - accrual of benefits to be effective from the date of application for a grant and not the date of approval, thus preventing applicants being financially disadvantaged from delays in processing of applications.
Regulation 29 (3)(4) and (5) will be deleted to improve administrative efficiency.
Regulation is required to guide the process of reviews and suspension of grants.
The Department is investigating the standardisation and simplification of the application form. process and information to beneficiaries.
Conclusion A general overview of the Social Assistance Act No. 59 of 1992 indicates that social assistance provision in South Africa is lacking in respect of being comprehensive and integrated. It is in conflict with the Constitution and the Administrative Justice Act.
The Department of Social Development is committed to the development of a comprehensive social security system that will ensure that the indigent does not fall through the cracks of the social safety net. This will require a review of the current regulations governing social assistance provision.