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.  

 

AD CHAPTER 1

 

1. Eligibility For Social Assistance

 

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.

 

b) Eligibility for a Child Support Grant

 

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.

 

2. Regulation 10- Documents to accompany applicants for social grants

 

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.

 

4. Notification of outcome

Regulation 12

 

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.

 

 

6. Appointment of Procurator

Regulation 26

 

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.

 

 

6. Special conditions regarding Child Support Grant

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