BLACK SASH SUBMISSION TO THE MEMBERS OF THE PORTFOLIO COMMITTEE ON
SOCIAL DEVELOPMENT ON CURRENT SOCIAL SECURITY CHALLENGES, LOOKING AT THE
SOCIAL ASSISTANCE ACT, 2004 (ACT NO.13 OF 2004) REGULATIONS.
The Black
Sash welcomes the opportunity to make presentations to the portfolio committee
on the current social security challenges. We have previously expressed
concerns with regard to social grants delivery. Thus, we hoped that the
establishment of the Social Security Agency and the proclamation of the Regulations
of the Act will substantially solve some of the service delivery challenges,
including:
·
Poor management and development of human resources;
·
Inadequate infrastructure;
·
Staff shortages
·
Regulatory barriers to access such as means-testing;
·
Fraud, exacerbated by the outsourcing of delivery to private
companies;
·
Lack of binding norms and standards;
·
Lack of public education and information on social grants
and eligibility criteria.
The high
levels of poor delivery of social grants frustrate the real essence of
providing social security as means to alleviate poverty. For us we believe that
the new Social Assistance Act of 2004 and its Regulations has a critical role
to play in giving effect to the constitutional right to social assistance in
terms of section 27 of our Constitution.
Having
noted the above we would like to confine our presentation today on the proposed
Social Assistance Act regulation of which a number of civil society
organisation have expressed concern about the lack of consultation or the
complete ignorance of public submission done early last year.
a) Persons eligible for an Older Person’s Grant,
a) Regulation 2(2)(b) states that a person is eligible for an older
person’s grant if she or he, in addition to being in compliance with
sub-regulation (1), is a South African citizen or is a permanent resident in
the Republic. Accordingly the Social Assistance Act, 2004 under the definition
of a South African Citizen (b) states that, a member of a group or category of
persons determined by the Minister with the concurrence of the Minister of
Finance, by notice in the Gazette. We submit therefore that regulation 2 (2)(b)
should include the same as stated in the Act.
We further note with concern the non-referral to someone who is a
permanent resident or a member of group or category of persons determined by
the Minister with the concurrence of the Minister of Finance in other various
regulations dealing with eligibility for social assistance such as regulation
3,4,5,6,8 and 9. We submit that this requirement should be included under these
regulations as well.
b) Further the above should be read and considered when a procurator is
appointed. Accordingly regulation 26(1)(b) states that the agency or
beneficiary must only nominate or appoint, respectively any person as
procurator, if that person is a South African Citizen. Noting the definition of
a South African Citizen in terms of the principal act provision to assist a
member of group or category of persons as determined by the Minister should be
created.
Regulation 4(1)(b) states that a
person is eligible for a CSG in respect of “a maximum of six children, if the
children in respect whom the application for the grant is made are not the said
person’s biological or legally adopted children.”
It is our
submission that in the absence of a policy basis in terms the 1997 White Paper
and no mention of such in the primary Act, we do no understand the rationale
for the restriction. If a restriction to a number of non-biological children
per care-giver were to be put in place, it would be unclear as to why there
should be “a maximum of six children” and not lesser or more in addition, the
rising number of children that the aged care-givers tend to look after as a
consequence of HIV/AIDS must be taken into account.
c)
Eligibility on Care -Dependency Grant
Regulation
6
a) In
terms of the Social Assistance Act, 59 of 1992 the definition for care
dependency child states the child is eligible for CDG is between one and
eighteen years. However the new Act 13 of 2004 speaks of a child who requires
and receives permanent care due to his or her mental or physical disability.
This would mean a child refers to child from birth to eighteen. Having said that we are too aware of the
fact that some officials of the department continue to refer to the provision
of the 1992 act as the applicable one.
We would like therefore that clarity is provided on this matter and
officials are informed accordingly.
Accordingly
the child should be eligible for the Care – Dependency Grant in terms of the
principal Act.
b)
Regulation 6(1) states that, A primary care giver is eligible for care
dependency grant in respect of a care dependent child. Our experience has been
that a parent and a foster parent would be turned away by the department
official simple because they are not stated as eligible persons. To avoid
confusion and for the sake of clarity we ask the department to insert the words
parent and foster parent as person eligible for care dependency grant as it was
suggested in the draft regulation circulated for public comment.
Noting that permanent resident or a member of a group
or category of person determined by the Minister with concurrence of the
Minister of Finance would be eligible to receive social grants it is only logic
that provision to allow such documents as carried by such person are mentioned
in the regulations. The Black Sash is too aware of incidents where refuges or
asylum seekers have been turned away at various government institutions for not
in possession of South African identity documents.
The Black Sash welcomes the attempt to provide for administrative
justice principles, which have been lacking in social assistance delivery by
including the provision for the Agency to notify the applicant of the refusal
of a grant application within a reasonable period. However we believe that this
sub regulation is wide and would be subject to abuse and lead to different and
arbitrary interpretation especially of what a reasonable period is. We
therefore recommend that this regulation be tightened and there be a clear
distinction between a processing time and notification of an outcome.
The Black Sash would like to suggest the following new sub-regulation
(1) be inserted
(1)
The Agency
must “approve or refuse an application within a period of not more than three months
(or 90 days) from receipt of the application”. The existing sub-regulations to
be renumbered accordingly.
(2) The Agency
must, on approval of a grant application, inform the applicant in writing in
the language of preference of the applicant, of such approval and the date on
which such approval was granted.
5.Appeals
Regulation 18
a)
The Black Sash notes that upon Appeals beneficiaries who wish to embark on the
process are faced with enormous challenges such as understanding the procedure
to be followed due to being functionally illiterate or ignorance. Many would
appeal on grounds that are not necessarily reasons for rejection, for an
example on Disability Grant application rejection would based on medical ground
and the appeal would be based on social grounds. Client would state that he is
old and can’t find work.
Having
noted the above the principle act section 2(3) and the draft regulations
circulated for public comment in terms of section 18(2) states that the agency
must offer all reasonable assistance to a person, who, due to his age,
disability or inability to read or write is unable to understand, appreciate or
exercise his or her right, duties or obligations in terms of this act, in the
official language of the Republic which she or he is likely to understand. This should also be provided in terms of
these regulations.
b) The
Black Sash welcomes the provisions of introducing independent tribunals
to consider appeals as a positive step especially when there are instances of
backlogs. Having said that we are
concerned about the lack of defining who will compose this independent
tribunal both in the principal act and the proposed regulations having such
important powers to confirm vary or set aside the decision or any other
decision, which is just.
We further
recommend that this independent tribunal be set on permanent basis rather than
being appointed at ad hoc basis, as this is normally the case.
c)
Furthermore regulation 18 gives the tribunal 30 days to dispose an appeal.
However the regulations remain silent on how long the Minister can take to
dispose an appeal when he does it himself. The principal act states that
Minister can dispose an appeal himself. Our experience has been that applicants
lodge an appeal within the required time, the Minister takes more than a 3
month to consider the appeal and such an out come reaches or is communicated to
the applicant after another three months.
Our
recommendation therefore is that the Minister should be given a month (30days)
to dispose an appeal after it was lodged and communicate his decision within 10
days thereafter. This is not new as it
was suggested in the previous second draft regulations sent by the department
for public comment.
Whilst the
Black Sash welcomes the appointment of procurators to assist beneficiaries in
collecting the grant and the appointment to be done by the Agency or
beneficiary such can be cumbersome for the Agency resulting into delays in
beneficiary receiving the much needed grant. In order to deal with this local
Magistrates or social workers in the employment of the Department must be
allowed to nominate or appoint a procurator to assist the beneficiary in the
prescribed manner.
Secondly
we remain concerned about the Agency appointing procurators in the wake of
fraud allegedly perpetrated by welfare officials and would strongly suggest
that the Agency does not appoint any procurators.
The Black
Sash further submits that the age limit in terms of this regulation should be 16years
of age instead of 18years of age. A recognisable number of children between the
ages of 16 and 17 are capable of taking care of grant beneficiaries and can
act as diligent procurators. In families where grandparents are left with such
grandchildren they remain the confidant of such grandparents.
Regulation 28
The draft Regulations seeks to define conditions in
relation to the citizens’ right to access to social grants. In this regard,
regulation 28 reintroduces
the paternalism similar to that encoded in the Social Assistance Act of
1992. It makes access to the CSG conditional on the child having
accommodation, fed, clothed, schooling for those at a school going age, the
Agency having reasonable access to them and the dwelling in which the child
resides.
As
the Black Sash and other civil society organisations, we believe that this is a
departure from the Constitution’s section 27, which entrenches social
assistance as an entitlement for those eligible, i.e. citizens without any
income or who are dependent.
In any case, these requirements
are largely dependent on government’s practical commitment in the fulfilment of
the Constitutional mandate in terms of the delivery of amenities or socio-economic
rights for poor households.
·
It is unclear as to
what is meant by “accommodation” when many children live in poor households
that form part of the Department of Housing’s estimated 2,4 million households
lacking proper shelter.
·
When all parents are required
by government to ensure that their children receive health care and
immunization, it is unclear as to why this should be related to the CSG. In any
case, many citizens receiving grants live in areas where there is a lack of
access and poor provision of health care.
·
Many caregivers of
children eligible for CSG live in households that rely on social assistance and
do not have enough resources.
For us
some of these conditions remain exclusionary and would deprive many eligible
caregivers who rely on social grants to provide for their children.
7.
Conditions under which deductions may be made directly from Social Grants
Regulation
38
The Black Sash is strongly opposed
to deductions of any nature at any point in the payment of grants by the state or
by the Agency. The Department has in the past attempted to outlaw the
deductions facility and on 3 October 2001 in our National 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. We remain frightened by the concept of deductions raising its ugly
head even if such deductions are done with the written approval of the
Minister. The recent court cases brought in the Umtata district area bare
testimony to the ill-fated approach of allowing deductions. This can no longer
be ignored. In fact in both cases in the Eastern Cape it was the provincial
department of social development that brought cases against CPS regarding these
deductions.
In the event of non-consideration of our objection to the above we would
support the recommendation that such allowable deductions by the Minister
should not exceed 10% of the grant amount for burial schemes only.
In conclusion.
These
Regulations embody the principles of administrative justice as enshrined in our
Constitution. Achieving administrative justice has been a mammoth task for the
department when providing social assistance. We are optimistic though that
through these regulations administrative justice will be achieved. However
without a firm commitment on the part of the Department of Social Development
and the Agency to utilise and implement these regulations with the
recommendations we have made in a fair and just manner, better delivery of
social assistance and insurance for the needy and poor will not be achieved.
Further
such a commitment would be meaningless if we do not have institutional
capacity, strong management and leadership, good service delivery systems
backed up by a good administration system and proper monitoring systems.
Prepared
by 18 August 2006
N.
Mafongosi – Advocacy Coordinator
THE BLACK
SASH
ADVOCACY
UNIT
12 PLEIN
STREET
CAPE TOWN
8001