Black Sash is a joint author of a main submission by a number of civil society organisations. We would like in addition to make the following submission arising from our specific work in assisting people to access their social assistance. This work has been assisted in part from a legal opinion received from an Advocate at the Cape Bar. This submission will address in the main the Social Assistance Bill, but we will also refer to certain provisions of the South African Social Security Agency Bill.

We further wish to record that we acknowledge that the current legislative reforms before the committee speak to an earnest desire of the Minister and the Department to improve on service delivery of social assistance. As our submission will indicate however, we do not believe that the process for the current bills can provide for the required remedies for the problems.

Black Sash welcomes the decision of the committee to invite public comment on the two bills. However we must record our concern about the shortness of the period for the submission of written submissions to the committee – namely 4 days. This has not allowed for adequate preparation by interested parties to thoroughly research their positions, thus reducing the benefit of such briefings for the Committee. Although various draft bills have been made available, the published bills contain a number of fundamental departures from these previous drafts, including the inclusion of the Inspectorate in the Social Assistance Bill. Furthermore, the short period for preparation of submissions has meant that organisations that have members and constituencies spread throughout the country have not had adequate time to seek contributions from such members, many of whom would have important contributions to make given their daily interactions with front desk welfare officials.

We trust that the public will be given opportunity to make further and better submissions to the Select Committee of the National Council of Provinces when that Committee considers these Bills. However we also encourage the Committee to call for elaboration on any of the points raised in these two days of public hearings where it is clear that further research would increase the Committee’s capacity to deliberate on the bills.

The integrity of the process of deliberation of the bills before the committee must not be compromised by constraints which prevent it from proper consideration and consultation.

Black Sash has raised this concern before the Committee on diverse occasions. In our view it threatens the soundness of reasonable governance for departures in policy to be made in the absence of an open and transparent policy review. The introduction of the Agency, and at the 11^th hour, the Inspectorate, and the omission of provision for Social Relief of Distress as a national function all speak directly to this. The White Paper of the Department of Social Welfare has not been revised or rewritten. This White Paper contains no plan for the relocation of delivery of social grants to an Agency. Neither is there any mention of this in the Department’s ten point plan.

Suggestions have been raised, starting with the very name of the Agency, that this will gradually assume functions beyond the delivery of social assistance, including other social security functions. This speaks to a radical departure from current policy, both in terms of formal delivery responsibilities between diverse departments, and potentially about the future for a comprehensive social security. The Committee has on a number of occasions asked the officials of the Departments of Social Development and Finance for clear indications of future policy in this regard, but the answers given have at best been unclear, if not inconsistent. Should the Departments indeed be anticipating an expansion of the use of the Agency to deliver, and/ or administer other social security payments, this would require consultation with these other departments involved. Briefings by such departments to this Committee would assist the Committee in their consideration of the current bills. The Committee is being asked to deliberate on the size and shape of a vehicle for delivery without being fully briefed about the nature of the cargo the vehicle will have to carry. Interrogation of policy around such substantive issues should precede the adoption of a vehicle that may deliver this, in order to avoid the introduction of costly steps that may in future have to be undone.

Furthermore in the absence of clear directing policy, we do not believe that it is possible for either the executive, the legislature, the judiciary or civil society to be in a position to assess the reasonableness of the laws and programmes against constitutional requirements, as set out in the seminal case of Grootboom.

Furthermore, if passage of the South African Social Security Agency Bill is to be seen as the commencement of a process of implementation of certain recommendations of the Taylor Committee Report, we appeal to the Committee to continue to monitor such policy deliberations and to encourage that they occur in an open and transparent manner.

This committee has an onerous obligation before it – namely to consider the legislative bills that regulate the award and delivery of social assistance to the most poor and vulnerable – people who will never have access to Parliament to address this Committee.

The committee’s dedication to date on these bills with which they are currently seized speaks to their commitment to realise this obligation.

The constraints within which the Committee is working are daunting, and this speaks not only to time frames. These broader constraints must not be allowed to override the Committee’s work. On a number of substantive issues that the Committee has questioned the department about in the recent briefings, it appears as if certain issues are considered to be a fait accompli – that there is no room for manoeuvre. We do not believe this to be harmonious with the constitutional role and obligations of Parliament.

The right of access to social assistance for those who are unable to support themselves and their dependants enshrined in section 27 of our constitution is a right that is subject to progressive realisation within available resources.

One of the issues of greatest concern with regards the current Social Assistance Bill is that the Bill does not address the needs of many people in South Africa who are "unable to support themselves and their dependents" in any way. The Social Assistance Bill has a critical role to play in giving effect to the constitutional right to social assistance and therefore needs to address the policy gaps that leave the most vulnerable without any state support or protection. However, the bill does not address the needs of child-headed households; children living with HIV/AIDS (see section on care dependency grant); refugees; people living in destitution who fall between the ages of 14 and 60/65; people living in households where no-one is receiving a grant or where no-one in employed. In reality this means that those who are most vulnerable are unable to access social assistance.

Treasury and the Department of Social Development have referred in various briefings to the current large extension of the existing social security safety net. However on closer examination, this extended safety net in large appears to entail ensuring that all people who currently comply meet the eligibility requirements actually receive their grants, as well as to extending the child support grant which is currently available to very poor children under 9 years old. That still leaves a gaping hole in the safety net. The report of the Committee of Inquiry into a Comprehensive Social Security (the Taylor report) reported that at the time of their deliberations, available social assistance in reality only closed the poverty gap by 23% due to low take up of grants. Further analysis indicated that if all targeted people received their grants, this would still only close the poverty gap by 36%. In addition, the Taylor Committee found that of the poorest 23.8 million people in this country, which reflects the half of our population that live in poverty, 11.8 million were living in households that had no access to social assistance. Half of the poor in other words live in households that have no access to social assistance.

To address the gaps in the current provisions of social assistance, the Taylor Committee proposed the adoption of a comprehensive social protection package (CSP). The committee noted "it is not acceptable to ask a poor parent to choose between attaining a certain level of household income or sending their child to school, though this is not an uncommon choice in reality".

The Taylor Committee identified a specific set of interventions, including universal income support, that should comprise the basic CSP package. These appear in Table 7 of the Committee Report, a copy of which is annexed hereto. The Taylor Committee recommended that some of these measures be universally available, while others will only be available to those who meet certain eligibility criteria.

The report of the Taylor Committee emphasised that decisive interventions to address income poverty can make a major impact in the short to medium term: "Income poverty measures are easier to roll out in the short term than more infrastructural and institutional intensive ‘capabilities’ and ‘asset’ poverty programmes." It is therefore critical to expedite such interventions.

In the light of such strong recommendations, we believe that the decision to leave the one financial award currently available to the destitute to address short term income poverty to the provinces to administer is disturbing for the reasons set out below.

We now turn to consider textual amendments to the provisions of the Social Assistance Bill.

We recommend below in our comments on Chapter 3, Clause 14(a) that children acting as primary care givers in child-headed households be able to access social assistance. This definition will accordingly be required for the implementation of that clause.

This definition is required if people living with chronic illnesses are to be considered eligible for the care dependency grant/special needs grant or the disability grant which we call for in our comments on Section 2 below.

"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

In the current legislation there is no age restriction on a primary care giver although in practice one can only receive social assistance if one has an ID document which is attained when one turns 16. By limiting access to people aged 16 and above one is discriminating against children who are younger than 16 but who in reality are caring for themselves and other, younger children and who are consequently unable to access social assistance for themselves or those children. These children are extremely vulnerable and there is a constitutional obligation to protect them in terms of Sections 27 and 28 of the Bill of Rights, and Section 9 of the Constitution which prohibits unfair discrimination on the basis of, inter alia, age.

We recommend that the regulations make provision for all primary care-givers irrespective of age to access the social assistance they are entitled to. Identification in the form of birth certificates as well as other forms of identification, including school reports and baptism certificates, could be provided for.

For reasons set out below we do not believe it is reasonable to leave the administration of Social Relief of Distress to provincial departments. It should fall under national control and be subject to national norms and standards and thus needs to be incorporated into the Social Assistance Bill.

The Constitution allows the right of access to social assistance to "everyone" –in other words this is not a right limited to citizens, as for instance Section 22 is. Furthermore, Section 27(c) of the Refugees Act 130 of 1998 states that "[A refugee] enjoys full legal protection, which includes the rights set out in Chapter 2 of the Constitution". This is because South Africa is a signatory of the 1951 United Nations Convention and Protocol relating to the Status of Refugees, which requires that refugees be granted the same rights to social security as citizens of the country. This Act should thus apply to all refugees and the same rights should be enjoyed by the child, spouse or life partner of such refugee. In addition, we recommend that the Act should further apply to all children who are dependent on refugees and asylum seekers, or who have entered South Africa as undocumented children.

In terms of Article 2 of the Convention on the Rights of the Child (ratified by South Africa in 1955), 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.

Many fear that if social assistance were available to refugees and asylum seekers we would be accommodating millions of non-citizens. However, according to the UNHCR, there were 23 000 recognised refugees and 52 500 as asylum-seekers in South Africa in 2002.

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).

"Where the Bill of rights draws a distinction between those rights exercisable by a citizen and those that are to be enjoyed by all individuals, it says so. Accordingly individuals are referred to as 'every citizen', 'every person', 'everyone' etc,." Mthiyane J in Tettey & Another v Minister of Home Affairs & Another, and

"In my view aliens have the same rights under the Constitution that citizens have unless the contrary emerges from the Constitution". Booysen J in Patel & Another v Minister of Home Affairs & Another.

The legal opinion we obtained on this question advises that as a result of the above obligations on our country, and as a result of the wide right of access provided for in the constitution, accordingly the relevant part of clause 5 (c) would infringe the constitution.

This committee cannot be asked to pass legislation that they know to be unconstitutional. We are not aware of any representations that have been made to justify the limitation of this right to citizens by the Department to the Committee.

Similarly we argue that this right of access to social assistance must be extended to permanent residents. The current definition of "citizen" includes non-citizens who were formally in receipt of social assistance prior to the promulgation of the Social Assistance Act which introduced the requirement of citizenship. We call for this retrogressive step of limiting social assistance to citizens to be reversed.

"care dependency grant" should read "special needs grant"

A person is, subject to section 5, eligible for a care dependency grant special needs grant if -

Currently the care dependency grant benefits only severely disabled children who are permanently at home, and does not cater for the many others with milder disabilities, or those in day care facilities. There is no provisioning at all for children with chronic illnesses, including HIV/AIDS. These children have many additional needs and expenses and caring for them constitutes a large burden on the family resources. Eligibility criteria should be determined by the need resultant from the particular disability or illness, and not depend on the nature or severity of the disability or illness.

The While Paper for Social Welfare in Chapter 8, Section one, notes "the difficulties of coping with chronic diseases can also lead to increased economic and psychological stress for parents and children".

A person is, subject to Section 5, eligible for a disability grant, if he or she –

(a) has attained the prescribed age; and

The purpose of the Disability Grant for adults with disabilities is income maintenance for persons who cannot provide for themselves due to the disability.

The White Paper for Social Welfare acknowledges in Chapter 8, Section 4 that "People with chronic illnesses also experience difficulties in obtaining employment" and that chronic illnesses "impact on the individual and family’s capacity to function optimally". They recommend "social relief will be provided to support individuals and families".

In the case of HIV/AIDS the Regulations to the Act must provide that eligibility for the disability grant should be based on a clinical evaluation rather than a CD4 count. Requiring a CD4 count is problematic for two reasons. First, limiting access to a Disability Grant to those with a particularly low CD4 count of 50 means that all people living with HIV/AIDS will already have experienced significant illness (such as severe and extended opportunistic infections) before they are able to access social assistance. Second, the requirement of a laboratory test often excludes those who would indeed qualify for the Disability Grant because they are simply not able to access the CD4 count test. For many, the very process for determining eligibility becomes a barrier to access.

Therefore all adults with HIV/AIDS who are either at Stage 3 or 4 of the illness (according to the World Health Organisation classification)—which includes those with symptomatic HIV infection as well as people with AIDS should be able to access the Disability Grant. This would mean that the Disability Grant covers those whose chronic illness is negatively affecting their capacity to work or discharge their social functions, including caring for their children who would otherwise be orphaned, leading to further social and financial costs to society and the state. It also means ensuring access to resources for those who are the stage of their illness where they have the possibility of staving off further progression to stage 4, meaning that further incapacity is avoided.

A clinical examination should serve as the criteria for a disability grant for other chronic illnesses as well such chronic obstructive airway disease, congestive cardiac failure or ischaemic heart disease (angina).

It is important to remember in considering the current bills that in the constitutional court case of Grootboom, the court provided us with certain constitutional requirements to be met by all state policies aimed at the progressive realisation of socio-economic rights. The court held that in assessing whether the state has fulfilled its positive obligations to realise socio-economic rights, the court will evaluate the ‘reasonableness’ of the measures adopted by the state to give effect to the rights. The following principles are key elements of the reasonableness test:

• The relevant programme must be a co-ordinated, comprehensive programme, which is capable of facilitating the realisation of the right in question;
• The programme must include measures to provide immediate relief for those in desperate need and living in intolerable conditions or crisis situations. In other words, the State may not neglect to respond to immediate needs in favour of longer-term strategies.
• The legislation, policies and programmes adopted must not only be reasonably formulated, they must also be reasonably implemented.
• Access to the right should be progressively extended both to a larger number and to a wider range of people; legal, administrative, operational and financial hurdles should be examined and, where possible, lowered over time.
• The availability of resources will be an important factor in assessing the reasonableness of the resources adopted by the State to realise socio-economic rights.

In terms of Section 7(2) of the Constitution, the state is compelled to take positive "legislative and other measures" to assist people to access their rights. We believe that the absence of provision for national control and development of the relief afforded by Social Relief of Distress fails to comply with the second and third points of the above grounds.

In the past we have voiced our concern to the Department of Social development that the current eligibility is too narrow to meet the needs of all who are living in distress. We have been involved in a process that was considering how the current eligibility can be extended. However, Social Relief of Distress remains currently the main assistance available to people in distress – those immediate needs that the co-ordinated, comprehensive programme must address and it must be capable of reasonable implementation.

Currently the committee is being asked to deliberate the South African Social Security Agency Bill. In the Department’s own Agency Policy Position Paper presented to the Committee, the justification for the radical adoption of a centralised agency is that:

"There are severe weaknesses in the management and administration of social grants."

Accordingly, the national department has sufficient concern about the ability of provinces to distribute social assistance in a coherent and uniform method, to the extent that they have designed a central agency to take over those functions, and yet they suggest that the only programme of the department that provides for the needs of the most vulnerable, namely Social Relief of Distress, be left to the provinces to continue to administer.

The Legal Resources Centre last week launched a challenge in the High Court of Bophutatswana as a result of the province of North West’s failure to design and implement a coherent programme for Social Relief of Distress. In a supporting affidavit, the budgets and actual expenditure of the various provinces of Social Relief of Distress was set out.

Administration of Social Relief of Distress is currently under the control of the provinces. These tables suggest that there is no current evidence that it would be reasonable to decide to leave the administration of Social Relief of Distress to the provincial departments.

Black Sash earnestly requests the Committee to take a position that Social Relief of Distress must be a national function that is housed with social assistance, that the national department is seized with developing and furthering policy to extend its application, and that the Agency be seized with its distribution, given that many of the front line officials who are currently in the employ of the provinces to take grant applications will be moved over to the Agency’s employ in any event.

We believe that failure to do this will open the Department to certain court challenges based on the reasonablness of their policies, and potential retrogressivity.

The South African Law Commission noted that the options for formal placement of children in need of care and protection are inadequate to cater for the massive numbers of children who will be affected by the AIDS pandemic. The Commission pointed out that child-headed households will become a familiar phenomenon owing to the increase of HIV/AIDS infected adults. The Commission therefore recommended that legal recognition be given to child-headed households as a placement option for orphaned children in need of care.

In order to provide support to child-headed households, the Commission also recommended that:

• legal recognition be given to schemes in terms of which one or more appropriately selected and mandated adults are appointed as ‘household mentors’ over a cluster of child-headed households by the Department of Social Development, a recognised NGO or the court;
• the proposed ‘household mentor’ may not make decisions in respect of the child-headed household without consulting the child at the head of the household and without giving due weight to the opinions of the siblings as appropriate to their age, maturity and stage of development;
• the proposed ‘household mentor’ be able to access grants and other social benefits on behalf of the child-headed household; and
• the proposed ‘household mentor’ be accountable to the Department of Social Development or a recognised NGO or the court.

We recommend that provision for the recognition of mentors may be facilitated through the insertion of legislative recognition through the amendment in the Social Assistance Bill of the Child Care Act 74 of 1983. We would be prepared to assist the Department with the drafting of such provisions.

It must be noted that the mentorship model does not preclude children accessing grants directly if they do not have access to an adult or organisation who can provide mentorship. There are children that do live alone and are primary care givers as the example below shows and it is essential that these children access the social assistance they are entitled to.

This clause is wide open to subjective interpretation which could be to the detriment of people who depend on their ability to access social assistance. We therefore recommend that the only time a grant is suspended is if the beneficiary, procurator, mentor, primary care giver or applicant is convicted in a court of abuse and/or neglect or of not being able to control the grant. We also recommend that prior to action being taken, the matter be referred to the administrator for a full investigation of the matter prior to effecting any suspension. In addition, the suspension must be carried out in a fashion that is consistent with the requirements of administrative justice provided for in the Constitution and in the Promotion of Administrative Justice Act 3 of 2000. What is important to note is that the state old age pension is considered to be one of the most effective forms of social assistance because it is used to sustain entire households. In the case of other grants, such as the child support grant, it must be acknowledged that poor children live in poor households and therefore it is likely that the grant will be used in assisting to sustain the whole family, which cannot be defined as ‘misuse’.

We welcome the amendments made by the Committee in their deliberations contained in the Draft Discussion Document containing proposals made by the Social Development Committee of 9 September 2003 to section 14(3)(b), and we ask that such proposals be incorporated into the final bill. It is important to note that this is not a new departure – the current Regulation 25(2) to the Social Assistance Act provides:

Given that such a provision provides for substantive rights to applicants, it should be contained in the body of the Act, and not the regulations.

We are strongly opposed to deductions of any nature at any point in the payment of grants by the state or their payment contractors. This Committee has in the past called certain of the private payment contractors to brief the committee on account of the numerous accounts of fraudulent deductions presented to members of the Committee. Payment contractors charge the end receiver of the deduction a fee for such deduction, in addition to the high fees paid by the department for delivery of grants. However, the payment contractors do not appear to take any responsibility for the bona fides or actions of the companies using the deduction facilities. The current abuses and fraudulent deductions that have been witnessed in various provinces, including Kwa-Zulu Natal, will continue as long as deductions are allowed, whatever the semantics of the formulation of the action of payment suggests.

The Department has in the past attempted to outlaw the deduction facility, and on 3 October 2001 in Parliament the Minister stated his position clearly that the practice of automatic deductions for insurance policies, micro-loans or any other such matter is expressly prohibited in response to a question tabled by the Chair of this Committee.

However for a number of reasons, including the reluctance of certain provinces to implement a decision of the national minister on an issue pertaining to the administration of social assistance, this was not implemented. Given that one of the stated rationales of the Agency is the ability to enforce national norms and standards, we call on the committee to ensure that this position of the minister finally be respected by amending section 20(3) to read as follows:

We wish to place before the Committee a concern raised by counsel in the legal opinion sought on the current bills.

Ministerial accountability for the exercise of powers and performance of functions assigned by the President is firmly established in the Constitution (section 92 (2)) which requires members of Cabinet to, inter alia, "provide Parliament with full and regular reports concerning matters under their control" (section 92 (3)(b)).

The Agency would be subject to the principles applicable to public administration, among which is the requirement of accountability (section 195 (1)(f)).

In terms of the South African Social Security Agency Bill, the Agency would, "subject to the direction of the Minister of Social Development ("the Minister"), be managed by a Chief Executive Officer ("the Agency CEO") appointed by the Minister (clause 6 (1)(a)). It is explicitly provided that the Agency CEO would be "accountable to the Minister and must report to him or her on the activities of the Agency" (clause 6 (2) of South African Social Security Agency Bill).

In addition, the Agency (through the Agency CEO) would be required, each financial year, to submit to the Minister for approval, "an annual report on its activities and a statement of its income and estimated expenditure for the following financial year" (clauses 11 (1) and 6 (1)(b) of the Bill ).

It is important that there be direct and proper accountability for the important functions and powers exercised by the Agency in implementing the constitutional right of access to social assistance. While it is clear from the above that some lines of accountability from the Agency CEO to the Minister are drawn in the Bills, these are thin and for the following reasons, raise concerns about the extent to which they provide for proper accountability.

No specific measures are indicated for the Minister’s "direction" of the management of the Agency. If the Minister is to "direct" the activities of the Agency, the Minister should be explicitly empowered to:

• override decisions of the Agency CEO;
• give directions as to how decisions should be made in

implementing policy;

• call the Agency CEO to account for not following directions.

Furthermore, although the Agency CEO is required to compile an "annual report" for approval by the Minister, there is no provision for more regular and effective reporting which would enable the Minister properly to monitor all aspects of the Agency’s activities and to enforce the implementation of the relevant policy. The provision for reports by the Agency CEO to the Minister on the activities of the Agency may be interpreted as requiring nothing more than the annual report referred to above. Only if there is more substantial accountability from the Agency to the Minister, can the Minister meaningfully account, via Parliament, to the public. In order that the Minister is able to furnish "full and regular reports" to Parliament on the administration of social assistance grants, there should be provision for full and regular reports by the Agency CEO to the Minister.

We have recently learned that in the United Kingdom a similar decision was made and implemented in the early 1990’s to move the administration of social assistance outside of the department of social security, and an agency known as the Benefits Agency was established. We believe that in the past four years, this step was undone and the administration of social assistance was moved back into the Department. Unfortunately, given the time restraints for the research for this submission, despite our best endeavours, we have been unable to access any documentation of this decision, or reasons therefore. An advisor to the British Department of Works and Pensions has undertaken to revert to us when he returns to the United Kingdom at the end of September 2003. We suggest that the Committee calls for further investigation into the reasons for such a reversal of policy to enable us to learn from international experiences rather than duplicating costly mistakes ourselves.

We recommend that the portfolio committee reject the Social Assistance and South African Social Security Agency Bills at this 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 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.