KwaZulu-Natal= s main concern regarding the Older Persons Bill [B68-2003] is the National Department of Social Development= s failure to cost this legislation. At a national NCOP briefing on this Bill on 3 August 2004 the National Department of Social Development indicated that a detailed costing exercise on the Older Persons Bill had not yet been performed. The provinces were presented with a scoping exercise of the fiscal and budgetary implications performed by Mr Conrad Barbeton of Cornerstone Economic Research cc. In this paper it is stated that:

Thus, the paper focused on identifying the intergovernmental fiscal implications and budgetary implications taking into consideration: fiscal risks; administrative costs and cost drivers; institutional arrangements; and delegation / assignment of functions to provincial / local government. It was not, however, intended to supply the actual cost information on these implications.

As a result of this scoping exercise certain key financial risks were identified, and removed from the original version of the Bill which had been tabled with Cabinet in July 2003. These included:

• the removal of the establishment and funding of an ombudsman;
• the retention of the differentiated old age definition for men and women, who, in the case of a male, is 65 years of age or older and, in the case of a woman, is 60 years of age or older;
• The limitation of the definition of A frail persons@ to mean an older person, and not as originally stated to extend to all frail persons of whatever age, excluding children;
• the removal of the establishment and funding of the National Consultative Forum on Older Persons.

What remains of great concern is that the vast remainder of the Bill has significant cost implications for both National and Provincial Government, yet the extent of these budgetary implications, and the extent of the unfunded mandate to provinces in terms of the increased demands by the bill on provincial resources for health care workers and social workers, remains unknown. It is the firm view of KwaZulu-Natal, that until such costing exercise has been performed, it is premature to table this legislation in NCOP, and it is with this consideration in mind that KwaZulu-Natal does not approve the Bill.

Some of the outstanding areas that have been identified, but not limited to, that require a detailed costing exercise, taken directly from the scoping exercise performed by Cornerstone Economic Research cc., include:

• the appointment of additional social service professionals to render the registration, inspection and monitoring services required by the Bill;
• the establishment and funding, or the payment of subsidies, to organisations established or supported by the Minister in terms of section 4 of the Bill;
• provision and resourcing of additional facilities and services for the care of the older persons in section 5 of the Bill;
• the payment of subsidies to the organisations involved in providing facilities and services to older persons as envisaged in section 5 of the Bill;
• the cost of extending frail care in facilities;
• the establishment and operation of a register of facilities providing services to older persons;
• the establishment and operation of a register of persons unfit to provide care to older persons;
• the additional judicial responsibilities associated with holding enquiries into the accommodation or care of older or frail persons, and the abuse of older persons;
• the possible increase in the number of court actions due to the nature of the rights granted by the Bill, the extended definition of facilities and the proposed admissions procedures;
• the funding of basic health services;
• responding to decisions made with respect to older persons in need of care;
• whether the statement of objectives as set out in the Bill, increases the likelihood of litigation succeeding against the state for failing to take some action or to provide certain services. The possible fiscal risks and other cost implications with the presence of such general principles need to be evaluated so an informed decision can be taken as to whether such principles should be included, and if so, what they should cover;
• similarly, the extent the Bill proposes to extend or add to the rights that older persons have already in terms of the Constitution. Where the right has been extended this will increase the explicit and implicit fiscal and financial obligations of the state;
• an official assessment tool for admissions, an admissions policy, an admissions panel and an appeal procedure are introduced into the admissions policy. If these policies are to be provided by the Department, the costs of drafting and providing such policies or tools must be accounted for, the extra cost of monitoring compliance must be factored in and the costs in state resources, such as courts and court staff, must be accounted for taking into account the risk of challenges both to the policies and to the decisions made as a result of or counter to the policies; and
• in order to evaluate the full fiscal and budgetary implications of the Bill it is necessary to have access to the proposed regulations that the Minister intends issuing.

Notwithstanding the above-mentioned comments on the need to cost the Older Persons Bill prior to tabling, KwaZulu-Natal would like to make recommendations with regard to specific clauses in the legislation, with due cognisance that the implications of certain of these recommendations may have further fiscal implications for the state.

1. "abuse"

The definition is inadequate and not specific enough. It is proposed that it be amended as follows-

"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;"

2. "facility"

As a general comment, the inclusion of ‘community-based care and support services to older persons’ is noted in the definition of ‘facility’, yet scant reference to community-based care is made elsewhere in the Bill. It is recommended that greater emphasis is placed on community-based care because: it is preferable for older persons to live in their communities and/or with their families, of whom they are familiar; and ultimately community-based care takes much of the burden of the care of the aged from the state and places it in the hands of communities. This practice needs to be actively encouraged. It is acknowledged, however, that by bringing such services within the ambit of the Act means that organisations rendering such services would have to be registered and monitored and would have to submit reports – all of which have added financial implications for the state.

Furthermore, to avoid a possible conflict with clause 5(1)(a), which provides that no person may own, manage or operate a facility unless it is registered, it is suggested that the word ‘managed’ be substituted for the words ‘maintained or used mainly’.

Finally, there does not appear to be a rational basis for the exclusion of a private residential home if it accommodates fewer than seven older persons for reward. The Department needs to justify this cut-off number.

 

 

It is thus proposed that the definition be amended as follows-

"facility" means a building or other structure [managed] maintained or used mainly for the purposes 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;

It is further proposed that the word ‘registered’ be inserted before the word ‘facility’ wherever it appears in the text.

3. "luncheon club"

The use of the word ‘small’ in the definition is inappropriate, as it is an undetermined and relative concept and may cause interpretational difficulties.

It is recommended that the definition be amended as follows-

"luncheon club" means a club which provides a meal to an older person on one or more days of the week at a [small] charge;

4. "older person"

• prior to 1994 women were discriminated against far more than men, therefore the age differentiation will attempt, to a certain degree, to balance the discrimination of the past;
• women are the primary care-givers in society therefore, female older persons will invariably have more dependents than older men. The age differentiation acknowledges this reality; and,
• if the age differentiation between females and males was removed from this legislation, this could result in a legal challenge against other legislation, e.g. the Social Assistance Act, 1992, where the age differentiation exists because the state cannot, at present, afford to reduce the pensionable age of men.

1. "person"

1. General

2. Clause 2(1)(b)

The word ‘support’ is vague and should be more specific, e.g. ‘financial support’, if that indeed was the intention.

3. Clause 2(2)

As a full list of the contemplated programmes is provided, it will be restricted to those listed. It is suggested that the introductory phrase in line 25 be amended as follows –

"(2) The programmes referred to in subsection (1) are programmes aimed at the support and development of older persons, including but not limited to – "

4. Clause 2(2)(b)

1. General

The Bill lacks a general clause providing for the establishment of facilities by the Minister and payment of subsidies to registered facilities.

2. Clause 4(3)

The Department needs to ensure that this clause is not inconsistent with the provisions of the Promotion of Administrative Justice Act, 2000, in so far as procedures and time frames are concerned.

3. Clause 5(4), (5) & (7)

Since these sub clauses 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 entitled –

"Amendment or cancellation of registration certificate".

Such a new clause would have to incorporate sub clause 5(8) as well, and clause 20(a) would have to contain a reference to such new sub clause too.

The remaining sub clauses under clause 5 would also have to be renumbered, as well as the rest of the Bill.

4. Clause 5(4) and 5(5)(b)

The Department needs to ensure that these clauses are not inconsistent with the provisions of the Promotion of Administrative Justice Act, 2000, in so far as procedures and time frames are concerned.

5. Clause 6(1)(c) & (3)

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.

6. Clause 7(3)(c)

The rationale for these provisions 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 or proceeds of assets initially acquired with Government Funds, and these seem not to be included.

7. Clause 8

The establishment of residents’ 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 a section 21 company and a residents’ 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) (line 33) has not been defined. This means that a facility providing temporary accommodation would similarly have to set up a residents’ committee, and this may be impractical.

8. Clause 10(1)(a)

Delete the word ‘registered’ before ‘place’ in line 15 as follows-

"(a) visit and monitor a registered facility or any other [registered] place where an older or frail person is cared for or accommodated;"

9. Clause 10 generally

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 furthermore be made for the monitoring body/person to inform the affected institutions of the results and findings of any monitoring or investigation, with a corresponding right of the institution to respond or take remedial steps before any action is taken as a result of the monitoring findings.

10. Clause 11(1), (2) & (2)(a)

1. Clause 12(i)

It is proposed that the time period is unreasonable vis-à-vis older persons. The Department needs to ensure that this clause is not in conflict with the provisions of the Promotion of Administrative Justice Act, 2000, insofar as procedural and substantive lawfulness and fairness are concerned.

2. Clause 14(1)

As a general comment, it is proposed that the provisions of clause 14 & 15 apply to all instances of abuse of older persons, and not merely in those instances listed in clause 14(1)(a) & (b). The headings of clause 14 & 15 should then be suitable amended.

The procedures should also apply to any person who abuses an older person, and should not be confined to persons who accommodate or care for older persons.

The provisions should also enable older persons themselves, their families or any interested person to lodge a complaint, and not only a social worker or a professional health care provider.

3. Clause 16(1)

The obligation for notification should extend to all persons who witness abuse of older persons and not only to those who examine, attend or deal with older persons.

4. Clause 17(1)(a)

This clause creates a procedure whereby a person’s rights may be adversely affected, but without due process being followed, in particular the principles of just and fair administrative action. The clause assumes that every notification received by the Minister has merit or is correct. This assumption is not warranted. The entire process involving the keeping of registers must be revisited.

5. Clause 17(1)(b)

The register contemplated in clause 17(1)(b) must be publicly accessible.

6. Clause 17(2)

The prohibition in this clause should be extended to prevent persons whose names appear in a register from being employed in a facility or rendering a service at a facility.

7. Clause 18(1)

The words ‘person who is involved with an older person in a professional capacity and’ in line 15 should be deleted and substituted by the words ‘professional health care provider’.

8. Clause 18(5)

The introductory phrase in line 25 should be amended as follows-

"(5) An older person who is in need of care and protection [is] includes but is not limited to one who –"

9. Clause 18(5)(a)

This clause should be amended as follows-

"(a) has his or her income, assets or old age grant taken against his or her wishes, or who suffers any other financial abuse;"

10. Clause 18(5)(b)

1. Clause 19(5)

The delegation of powers by the national Director-General to the provincial Director-General is not constitutional. Provincial Directors-General are not accountable to the national Director-General, but to the provincial MEC’s. The relevant line of delegation should be from the national Minister to the provincial MEC’s to the provincial Directors-General.

2. Clause 20

The Bill follows a paradigm that is too punitive. It adequately provides for penalties and other punitive measures, but does not cater for restoration or building developmental capacity. However, such alternatives would have to be costed before they could be considered.

3. Clause 23(1)(a)