Submission on the

Social Assistance Bill

18 September 2003

The new Social Assistance Act will have a critical role to play in giving effect to the constitutional right to have access to social assistance in terms of section 27 of the Constitution. The Social Assistance Act provides for old age pensions, the child support grant, disability grants and emergency cash relief for people in desperate need. It is therefore very important that the affected stakeholders are given the opportunity to provide input into the legislative process. We would therefore like to express our views in relation to the Bill.

In particular, given the high rates of child poverty, illness, abuse and death in South Africa; it is very important that children’s rights to social assistance (grants) are adequately provided for in the new Act. The Alliance for Children's Entitlement to Social Security (ACESS), an alliance of over 400 children’s organisations from across South Africa, would like to submit their views and recommendations on the Bill based on the widespread experience and understanding of children’s issues held by the membership of ACESS.

The key issues which ACESS would like to address are:

• The extension of the Child Support Grant to all children under 18 years.
• A mechanism for child-headed households to have access to social assistance through a mentorship scheme
• Besides the mentorship scheme, children who are in fact primary care-givers of themselves and other children, should be able to access the Child Support Grant directly.
• Redefining the eligibility criteria for the care dependency grant which will allow for children with moderate disabilities and chronic illness to qualify, including children with HIV/AIDS.
• The reintroduction of social relief of distress as an emergency grant for people who are in desperate need.
• Ensure strong mechanisms of accountability over the Agency.
• Delay the consideration of the structure of a Social Security Agency to deliver social assistance and/ or social insurance until final decisions have been taken on a comprehensive social security system.

ACESS is also part of broad coalition of civil society organizations who are presenting a joint submission on the Bill, including COSATU, NEHAWU, TAC, Black Sash, the South African Council of Churches and others. This coalition of organizations made substantive recommendations for reform of this Act in January 2003 to the Department of Social Development, but these recommendations were not taken into account by the Department when they drafted the Bill and the organizations are therefore asking Parliament to ensure the necessary amendments are made to bring the Act in line with the Constitution and to make it an Act that will prevent poverty.

Please see our comments below on the tabled Social Assistance Bill. Deletions are indicated with strikethrough and additions are underlined. Where possible (time allowing) we have given motivations for our suggested re-drafts.

After looking at all the evidence, the Taylor Committee proposed that South Africa should create a comprehensive package of ‘social protection’.

The COI talks about a package of social protection interventions and measures. The notion of a package is emphasised as it is not desirable for a person to have to choose between basic needs. For example, a poor parent should not be expected to have to choose between feeding the family or sending their children to school. Both are basic needs that must be provided for by the package of comprehensive social protection.

The Taylor Committee Report looked at addressing income poverty - a situation where people have no income or insufficient income to meet their basic needs – and recommended three universal cash grants:

• Basic Income Grant (BIG)
• Child Support Grant (CSG)
• State Old Age Pension (OAP)

The Report recommends that everyone must get at least a certain minimum income transfer to reduce or eradicate destitution and starvation. This would mean that all people would get an income transfer, whether it be through the vehicle of the CSG, BIG or OAP. The bottom line is that eventually (by 2015) everyone should get basic income support through one of the three grants.

In addition, people with special needs should also be provided for in the social security system. ‘Special needs’ refers to people with disabilities and children in compromised home environments. The Committee proposes that the adult disability grant, care dependency grant and the foster child grant should remain and be reformed in order to enable more children in need to benefit from them. All three grants should continue to be targeted grants which would mean that they would continue to have eligibility criteria.

The Committee proposes a phased in approach for the Comprehensive Social Protection package. It stresses that first priority must be to address income poverty by ensuring that poor people have access to a minimum level of income. The Committee proposed a timetable for a programme of phasing in universal social assistance:

The Taylor Committee Report into a comprehensive social security system was considered in public hearings held by the Portfolio Committee on Social Development held in November 2002 and June 2003 and by Cabinet in July 2003. However, many of the overlapping policy decisions regarding social security broadly, and specifically in relation to children, have not yet been made or properly consulted upon. This is largely due to the fact there has been no clear and transparent policy reform process subsequent to the release of the Taylor Committee Report. The Social Assistance Bill therefore does not make any substantive moves towards the recommendations set out in the Taylor Committee Report.

We submit that the deliberations on the Social Assistance Bill must be seen in the light of the comprehensive approach as recommended by the Taylor Committee. The Taylor Committee Report took cognisance of the socio-economic realities in South Africa but the Social Assistance Act does not flow from this research and consultation and makes no changes from its pre-new South Africa approach. The future stability and prosperity of our nation depends upon the formulation and implementation of a comprehensive social protection programme that can effectively eradicate extreme poverty, diminish economic inequality and lay the foundations for broad-based development.

The result of these shortcomings is that the following groups of vulnerable children have no access to social assistance despite clearly being vulnerable and in dire need of support:

• Poor children between the ages of 9 and 18 years, who are cared for by their biological or by other care-givers. In the context of the AIDS pandemic increasing numbers of children are likely to be in the care of people other than their biological parents;
• Many poor children between the ages of 0 and 18 years whose caregivers do not pass the means test. The means test does not take account of the number of people living off the income or the extra vulnerabilities faced by the family such as HIV/AIDS. Furthermore, the means test threshhold has not increased since 1998 despite increases in inflation and the cost of living;
• Children without adult caregivers (children living in child headed households and streetchildren);
• Children with moderate disabilities and chronic illnesses who need assistance;
• Children living with HIV and AIDS.

These shortcomings need to be addressed through legislative amendments so as to ensure that the government fulfills its obligations to children under the Constitution.

1. SUGGESTED AMENDMENTS TO THE SOCIAL ASSISTANCE BILL

By December 2002, roughly 900 000 children under the age of 18 in South Africa were estimated to have lost a mother, the majority of these to HIV/AIDS, and that figure is expected to rise to roughly 3 million by the year 2015, in the absence of major health interventions.

There is no comprehensive national data on the prevalence of child-headed households at this point in time. On the basis of their national household survey on HIV/AIDS, the Human Sciences Research Council (HSRC) argues that:

Other studies also provide anecdotal data of the existence of child headed households in South Africa.

The lack of statistical evidence and probable low incidence of child-headed households should not, however, detract from the fact that child-headed households exist. Furthermore, in the context of increasing numbers of orphans as the HIV/AIDS pandemic progresses, it is likely that South Africa will face increasing numbers of children living without adult caregivers. This recognition is important in order to guide equitable, appropriate and effective responses of support.

Children living in child-headed households and on the streets are particularly vulnerable without the care and support of parents or substitute parents, and require extra support to meet their various basic needs, including financial, emotional, psychological, health, education etc. We are particularly concerned with support (financial and otherwise) to children within the context of living without adult care-givers.

Of particular concern is that children who live without adult caregivers – as so called ‘child-headed households’ or on the streets - are currently not able to access financial support from the government, in the form of social grants, for the following reasons:

• In practice, only children living with an adult primary care-giver can apply for a Child Support Grant (CSG);
• Children must be placed in formal foster care in order for the Foster Care Grant (FCG) to be payable; and
• Formal placement options for children in need of care and protection are inadequate, and not always appropriate, to cater for orphaned children.

Under the Constitution, the State is obliged to provide social security to everyone, including social assistance if they are unable to support themselves and their dependants. In addition, the State has a responsibility to children who are orphaned and have no parental care. The Government thus has an obligation to provide social assistance to these children, via a mechanism that is practical, reasonable and appropriate.

One of the ways, we recommend, is the mentorship scheme proposed in the SALRC draft of the Children’s Bill. This scheme should apply to children where it is not in their best interest to be living in a child-headed household without adult supervision, and where a potential adult mentor is available. Essentially, child-headed households could be assisted by mentors, as required and available, (individuals working in NGOs or CBOs and other responsible individuals) to provide the necessary adult supervision in the application and spending of the grant. However, it is important to stress that children who are in fact performing the function of primary care-giver should be able to claim and access the CSG on their own behalf and on behalf of children in their care. The mentorship scheme should only kick in when children are too young or immature to perform the functions of a primary care-giver, or where there are no adult mentors available in the community.

1. Direct access for children who are primary care-givers

Currently, many children who are looking after other children in so-called child-headed households, as de facto primary care-givers, are not able to access social assistance due to Departmental policy that only people with ID documents can apply for social assistance on behalf of children in their care. Children can only get ID’s from the age of 16, hence the effective exclusion of children under that age from accessing social grants on behalf of children over whom they are the primary care-giver.

This discriminatory practice is arguably unconstitutional and the Minister is thus obliged to provide a mechanism for these particularly vulnerable children (living in child-headed households) to be able to access social assistance for the siblings that they are looking after. One such mechanism, as recommended below, is an adult mentorship model whereby a responsible adult or organization is designated a ‘mentor’ over these children and is able to obtain the grants on behalf of children in a child-headed household. It is submitted that this scheme should apply where the child head of the household it too young or immature to look after other children without external adult support. An assessment of the situation should be made by a community or state social worker and recommendations made to appoint a mentor.

In circumstances where the child is old enough and sufficiently responsible to continue to play the role of primary care-giver, and where there is no adult mentor available, these child-heads should be able to access grants directly if they are de facto the primary care-givers of other children, irrespective of their age. Thus should be no specified limitation on the age of a primary care-giver.

We submit that both options should co-exist as many child headed households may not have access to an adult, or organization, who can provide mentorship and the law must be flexible enough to ensure that these children can access assistance in these circumstances. Children living in child-headed households are particularly vulnerable and need to be adequately supported with financial assistance from the state, irrespective of whether there is an adult to supervise them or not. The Constitutional Court has said in key decisions that a reasonable plan or programme designed to increase access to socio-economic services requires inbuilt flexibility to ensure responsiveness to differing and changing circumstances and contexts. The Constitutional Court in Grootboom has also stated that a programme for the realization of socio-economic rights must:

"be balanced and flexible and make appropriate provision for attention to… crises and to short, medium and long-term needs. A programme that excludes a significant segment of society cannot be said to be reasonable."

In Grootboom, the court also held that:

"[t]o be reasonable, measures cannot leave out of account, the degree and extent of the denial of the right they endeavour to realize. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realization of the right."

Recommended amendment to definition:

"primary care giver", means a person older than 16 years, whether or not related to a child, who takes primary responsibility for meeting the daily care needs of that child;

2. Reintroduction of Social Relief of Distress

It is distressing to note that no mention is made in this Act of the important benefit of Social Relief of Distress. The Government is obliged under the Constitution, and as per the principles laid down in Grootboom, to ensure that their programmes provide immediate relief for the most vulnerable in society. This is what the Social Relief of Distress benefit was intended for but now it has been removed from the Bill. This is arguably an infringement of the constitutional right to social assistance, particularly the requirement that programmes must provide short-term relief for those in desperate need and living in intolerable conditions.

In practice, this means that the system must urgently assist those persons whose need is most pressing.

The determination of "desperate need" must be determined by policy, accordingly we submit that this must urgently be determined by the Minister and defined in the Act. It is not appropriate to leave such a fundamental policy decision to the discretion of officials.

In addition, this benefit must be available and granted immediately, without all the bureaucratic hindrances attached to the other grants, as it is aimed at people in ‘desperate need’.

We bring to the attention of the Committee an application that has just been launched by the Legal Resources Centre on behalf of destitute people living in North west Province who have been unable to access Social Relief of Distress. A copy of the Notice of Motion is attached as Annexure 1 to this submission. The application calls specifically of the National Minister and the MEC to devise and implement a programme for the provision of social relief of distress as envisaged by the Social Assistance Act that will enable them to:

• receive and process applications for social relief of distress on the same day of receipt of the application,
• identify those applicants, in addition to the categories referred to in regulation 26(1), who qualify for the exceptional relief referred to in regulation 26(3) of the regulations under the Social Assistance Act,
• dispense with social worker reports in cases for first-time applicants falling under regulation 26(1)(a), (b) and (h) of the regulations under the Social Assistance Act and
• pay or otherwise provide the first instalment of social relief of distress on the date of application to persons who qualify for social relief of distress.

The removal of the right to apply for the financial award of social relief of distress is extremely problematic. For thousands of people living in distress it provides a lifeline, albeit very limited. To dismiss the grant as a provincial function will be to condemn many people to the non-uniform vagaries of certain provinces. There are differences in approaches to eligibility for the grant and budgeting in each province. In some provinces, officials regularly deny the existence of the benefit and informed caregivers who approach the officials with the National Department’s official publications which refer to the grant, are informed that it is not available. Removing the grant from the Social Assistance Act and relegating it to the provincial sphere will mean that there will be no uniform application of policy and little monitoring of the grant or development of eligibility for it. Some provinces may even decide not to have it at all. There will be no uniform application of policy and little monitoring of the grant or development of eligibility for it. This could be a remarkably regressive step for which no real explanation has been given as is required where people’s rights are regressively limited. According to the Constitutional Court, retrogressive measures are prima facie in violation of the duty of progressive realisation. Although the social relief of distress grant was never a social assistance grant in classification, it is statutorily created in the current Social Assistance Act and through practice has become a social assistance grant. It would certainly constitute a ‘measure’ in terms of s 27(2) of the Constitution for progressively implementing the right to social assistance in s 27(1)(c).

In addition, in order for the ‘social relief of distress’ benefit to fulfil its intended purpose in providing relief to people in desperate need, it needs to be immediately available upon request. We have received information that people are waiting for months for social relief of distress and that is completely counter to the intended purpose of this benefit.

1. Redefining the Care Dependency Grant

We recommend that the focus of the disability grants should be on the needs of disabled adults and children and not on how dependent they are on care, therefore we suggest a change to the name of the ‘care dependency grant’ to that of ‘special needs grant’ as recommended by the South African Law Reform Commission in their Draft Children’s Bill. Furthermore, it is submitted that children and adults should not be treated differently and having different names for a disability grant for adults and one for children does not make sense.

We recommend that the focus of the Special Needs Grant should be on the needs of disabled children and not on how dependent they are on care. With respect to the removal of the requirement that the child be receiving permanent care, it is submitted that this should not be a pre-condition as many children do not have access to permanent care.

If the disability needs to be severe to create an entitlement to the grant, it is submitted that these requirements preclude children from getting the grant due to problems of definition and measurement of severity. This requirement also excludes children with moderate disabilities who may have high needs. Social assistance to children with disabilities should be determined by a needs test, which considers the extra needs and cost incurred by the child due to his or her disability. The HSRC is currently developing a needs-based assessment tool for children and adults with disability for the Department of Social Development. It is therefore critical that the definitions for children and adults with disability should be amended to fit the framework of a needs-based assessment.

We also recommend that the disability or chronic illness need not be permanent in order to satisfy the eligibility criteria for the grant, but that in the context of treatment being available for certain conditions, children may only have special needs in respect of their disability or chronic illness for a limited period of time. Again, the assessment as to whether the grant is made temporary or permanent and the length of the time period for a temporary grant should depend on the special needs that the child has and may have with respect to that disability or chronic illness, as recommended by the Taylor Committee Report.

1. he or she is a parent, primary care giver or foster parent of a child who requires and receives permanent care or support services due to his or her has a physical or mental or intellectual or sensory disability or chronic illness; and
2. the child is not cared for on a 24 hour basis for a period exceeding six months in an institution that is fully funded by the State.

"care dependent child child with a disability" means a child who requires and receives permanent care or support services due to his or her temporary or permanent severe physical, or mental, intellectual or sensory disability or chronic illness, including HIV/AIDS;

1. Application of Act to refugees and permanent residents

The Act must be applicable to refugees as well. In recent decisions the Courts have taken the view that, unless the relevant provision indicates that a constitutional right is available only to citizens, it is available to everyone (see Tettey & Another v Minister of Home Affairs & Another 1999 (3) SA 715 (D) @ 729 and Patel & Another v Minister of Home Affairs & Another 2000 (2) SA 343 (D) @ 349).

In addition, in terms of Article 2 of the Convention on the Rights of the Child (ratified by South Africa in 1995), a state party to the Convention may not discriminate against or deny any of the rights in the Convention (including social security) to a child due to the child's national origin.

Suggested amendments:

2. (1) A person who is not a South African citizen has the same rights and obligations in terms of this Act as a South African citizen if an agreement, contemplated in section 231(2) of the Constitution, between the Republic and the country of which that person is a citizen makes provision for this Act to apply to a citizen of that country who resides in the Republic. Notwithstanding the provisions of any such agreements a person qualifies for social assistance in accordance with the provisions of this Act, if such person is a permanent resident, or has lived for a minimum of five years of his or her adult life as a temporary resident in the Republic of South Africa or if such person is the spouse or life partner or dependant on such qualifying permanent or temporary resident. The same rights shall be enjoyed by the child, spouse or life partner of such permanent or temporary resident.

Suggested insertions:

Insert new section 2. (2)(a) and (b)

(2) (a) Notwithstanding the provisions of subsection (1), the provisions of this Act will apply to all refugees in accordance with the provisions of Section 27(c) of the Refugees Act, 130 of 1998 and in further accordance with Article 24(1) of the 1951 United Nations Convention and Protocol relating to the Status of Refugees and Article 22 of the Universal Declaration of Human Rights. The same rights shall be enjoyed by the child, spouse or life partner of such refugee.

(b) In addition to subsection (2)(a), this Act shall further apply to all children who are dependant on refugees and asylum seekers, or who have entered South Africa as undocumented children.

Eligibility for social assistance

6. A person is entitled to the appropriate social assistance grant if he or she —

(a) is eligible in terms of sections 2(1), 6, 7, 8, 9, 10, 11 or 12;

(b) is resident in the Republic at the time of making the application;

(c) is a South African citizen, or a refugee, or a child, spouse or life partner of a refugee, or a child who is dependant on refugees and asylum seekers, or an undocumented child, or is a member of a group or category of persons prescribed by the Minister, with the concurrence of the Minister of Finance, by notice in the Gazette;

(d) complies with any additional requirements or conditions prescribed in terms of subsection (2).

 

2. Administration of Social Assistance

0. Application for Social Assistance

Many applicants for social assistance are sent backwards and forwards from social services offices to produce various documents required for their application. Sometimes these documents are not those specifically listed and this is confusing for applicants. Thus the requests for additional information for the purposes of assessing potential beneficiaries should be limited by allowing only those documents that are ‘reasonably necessary’ in order for the administrator to consider an application. This will prevent the many cases of applicants being sent back and forth unreasonably, to produce various documents.

Furthermore, in terms of the principles of administrative justice, applicants for social assistance are entitled to reasons in writing for their failure to apply for social assistance successfully as well as the relevant appeal mechanisms. In our experience we have found that many people are turned away from social services offices and have their applications turned down without so much as an explanation as to why their application has been unsuccessful, nor are they told of the appeal mechanisms which they are entitled to make use of.

Suggested amendments:

14. (1) Any person who wishes to apply for social assistance contemplated in sections 6 to 12 must do so in the prescribed manner.

(2) In considering an application made in terms of sub-section (1), the administrator may conduct an investigation and request such additional information, as is reasonably necessary to consider the application].

(3) (a) If the applicant qualifies for social assistance in terms of this Act, the

administrator must authorise the rendering of the relevant social assistance.

(b) If the applicant does not qualify for social assistance in terms of this Act, the Agency must in writing at the applicant’s address or other point of contact stated in the application inform the applicant thereof as well as of his or her right of appeal contemplated in section 18 and of the mechanism and procedure to invoke that right –

(i) that he or she does not qualify for social assistance in terms of this Act;

(ii) the reasons why he or she does not so qualify; and

(iii) as of his or her right of appeal contemplated in section 18 and of the mechanism and procedure to invoke that right.

 

1. Appeal

1. If an applicant disagrees with a decision made by an administrator in respect of a matter regulated by this Act, that person or a person acting on his or her behalf may, within 90 days of his or her gaining knowledge of that decision, lodge a written appeal with the Minister against that decision, setting out the reasons why the Minister should vary or set aside that decision.
2. The Minister may, after considering the appeal and the administrator’s reasons for the decision -

(a) confirm, vary or set aside that decision; or

(b) appoint an independent tribunal to consider the appeal in accordance with the prescribed conditions, and that tribunal may, after consideration of the matter, confirm, vary or set aside that decision or make any other decision which is just.

3. Any decision taken by the Minister or an independent tribunal must be communicated to the applicant or beneficiary, as the case may be, in writing, together with adequate reasons in writing.

1. Misuse of social assistance or foster care allowance

We are concerned by the inclusion of the section on misuse in the draft bill. If the misuse of a grant can result in the suspension of the grant, which in effect results in the severe limitation of a constitutional right, the term "misuse" needs to be narrowly defined in terms of objective criteria. Furthermore, a transparent and administratively fair procedure, that allows for the beneficiary to state their side of the story, needs to be prescribed.

Suspension is an administrative action that would materially and adversely affect the recipient’s rights. According to the provisions of the Promotion of Administrative Justice Act 3 of 2000, such a step would have to be preceded by adequate notice to the person of the nature and purpose of the proposed administrative action, as well as a reasonable opportunity to make representations. Once the decision has been taken, the recipient must be given a clear statement of the administrative action; adequate notice of any right of review or internal appeal (where the latter is applicable) and adequate notice of the right to request reasons. The further assistance provided for in subsection 3 must also be considered by the Department. Should the Bill make provisions for the suspension of any grant, we recommend that an appropriate definition of suspension needs to be included in the Bill to ensure that the requirements of administrative justice as provided for in the Constitution and the Promotion of Administrative Justice Act be met.

We welcome the provision whereby a person may be appointed to receive the grant on behalf of a beneficiary, such as a child, but recommend that this be done before such grant is suspended. If this procedure is not followed, the child ends up being disadvantaged due to an adult’s "transgressions".

19. If a beneficiary, a procurator, mentor or primary care-giver or an applicant misuses a grant, an administrator may -

1. Restrictions on the transfer of the rights and payments of social assistance

When the primary care giver of a child dies, the grant is terminated, and the child, already traumatized by the death of his or her caregiver, is further traumatized when his or her basic needs are not met due to the stoppage of the grant. The new adult care giver has to reapply for a new grant and the child loses the benefit of social assistance during this period. The Act needs to provide a procedure for insuring that child beneficiaries are not disadvantaged through stoppage of their grants when the adult receiving the grant on their behalf dies. This is a major problem for the many children losing their parents and care givers to AIDS related illnesses, violence and the other leading causes of death in South Africa.

1. Mechanisms of accountability over social assistance administration and delivery - Inspectorate for Social Assistance

We support the setting up of an independent body to monitor and deal with problems arising from the administration and delivery of social assistance under a new Agency, however we are concerned about the costs of setting up an Inspectorate, and suggest that the Committee insist on seeing the costing of the Inspectorate before approving the Bill. In addition, the model of the Inspectorate as proposed by the Bill needs to be much more carefully considered in order to find the most appropriate mechanism. A system that is adopted whole-scale from the model in the Police Services Act, is not necessarily appropriate to the quite different nature of social assistance administration and delivery. Hence the wide powers of search and seizure seem particularly inappropriate in this Bill. Other models should be looked at in other countries.

We therefore recommend the whole-sale removal of sections 30 to 32.

In addition, there is potential ambivalence between the stated independence of the Inspectorate from the Department and the Agency as provided for in clause 25(1) and the provisions for final responsibility over the Inspectorate to be exercised by the Minister in clause 25(4). The extent of the Minister’s control over the Inspectorate should be clarified in the Bill and we submit that the Committee clarify whether the Minister should have the power to direct the Inspectorate to terminate any particular investigation.

2. General

1. CONCLUSION

We recommend that the Portfolio Committee reject the Social Assistance Bill and South African Social Security Agency Bill at this point in time and call on the Committee to encourage the Executive to engage with the Taylor Committee Report in order to formulate a Comprehensive Social Security Policy whereafter the drafting of comprehensive social protection legislation will be appropriate.

However, if the Bills are to passed, we request that our comments, based on our experience of the administration of social assistance on the ground, are taken into consideration in order that the shortfalls in current social assistance may be effectively addressed.