Social Assistance Bill and the South African Social Security Agency Bill: deliberations

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
9 October 2003
SOCIAL ASSISTANCE BILL AND SOUTH AFRICAN SOCIAL SECURITY AGENCY BILL: DELIBERATIONS

Chairperson: Mr E Saloojee

Documents handed out:
The Social Assistance Bill (Fourth Draft - awaited)
The Social Security Agency Bill (Fourth Draft - awaited)

Relevant documents:
The Social Assistance Bill (B57-2003)
The Social Security Agency Bill (B51-2003)
The Social Assistance Bill (Third Draft dated 17 September 2003)

SUMMARY
The Committee continued deliberations after the fourth drafts of both Bills were made available. Mr Etienne Geldenbloem from the Department of Public Service Administration spoke on human resource concerns and Mr Mark Sweet (NEHAWU) raised other concerns in an impromptu address

MINUTES
Interaction with the Department
The Chairperson informed Members that the fourth draft of Bills had been made available. The Department would respond to public hearings recommendations, while the Department of Public Administration (DPSA) would provide input on human resources issues.

The Director-General (DG) added that the Department would also comment on Agency staffing issues.

The Chairperson referred to page 26 of the Agency Bill (third draft) and noted that the section "Information to be furnished to the Agency" was underlined.

Advocate M Masutha (ANC) said the idea was that the Agency dealt with all administrative matters. All references to "Minister" in the Bills were substituted by reference to the Agency.

The Chairperson asked who would determine the scope of "all relevant information", as the Minister had originally prescribed.

Mr F Makiwane (Department) said that this should be read with clause 2 where the Minister held executive authority.

Ms C Ramatsomai (ANC) said it should be rewritten to reflect this. The Chairperson suggested that the Department come back to the Committee on the issue.

Advocate Masutha said that new unlimited access to information by the state had to be avoided. All relevant information to determine the eligibility of an application had been prescribed in the regulations. The word "prescribed" was limited because it was linked to regulations.

The DG said that the word "relevant" was limited to information necessary for the applications for social grants. The information relevant to the application was referred to in the discussed document.

Advocate Masutha said that the phrase should be reformulated because various other issues were involved.

Mr Makiwane said that in clause 22(2), administrative functions were supposed to be carried out by the Agency. Reference to the Minister substituted reference to the Agency. Clause 23(d) stated that the Agency would have people carrying out functions on its behalf. Chapter 4 had been deleted because the Minister's functions could not be set out in this legislation. A new Chapter 4 would be introduced on the Inspectorate for Social Assistance.

Presentation by the Department of Public Service and Administration Mr Geldenbloem informed the Committee that Government was developing a framework for public service, including public service entities. These were currently being reviewed by the DPSA and Treasury as stipulated in Schedule 3A of the Public Management Finance Act (PMFA), under which the Agency would also fall when the Bills were passed. The aim was to develop a unified public service, but this was difficult as there were a number of corporate forms. Research had shown that non-common entities benchmarked human resource structures on the public service. The DPSA thought there should be closer alignment between non-common and larger entities. It had to be allowed that entities like the Agency were specific-based. DPSA's Minister determined human resource policy, core benefits and remuneration structures. In terms of current labour legislation, there was sufficient provision to provide for recognition of trade unions and registration with the Department of Labour. The Agency model envisaged a structure for employee organisations, developing a code of conduct, providing for discussion and collective bargaining.

Discussion
Advocate Masutha said that the primary objective was to improve the quality of service to beneficiaries. The Committee had received complaints about poor service at paypoints and therefore a new and efficient administration with a new ethos had to be introduced. He asked how the Committee could assist in ensuring that the necessary systems were put in place. The Agency should degenerate into a low-level delivery entity.

Mr Geldenbloem explained that when staff were transferred or appointed, they were only public servants in terms of the Agency Bill. The most suitable provisions of the Public Service regulations could be made applicable to the Agency. These could then be changed to allow for service delivery. Once the Agency was established, it would evolve through better human resources system practices. Employee organisations could also be represented in the Agency. There would be consultation process before both Ministers approved the concept.

Advocate Masutha (ANC) asked whether the Committee should prescribe how human resource issues were set out for the Agency in terms of norms and standards. Policy provision for a regulatory code had to be developed between DPSA, the Department of Social Development (DSD) and trade unions. He also asked whether certain objectives should be specified in negotiating the policy.

Mr Geldenbloem that a Human Resources Subcommittee under the Steering Committee was currently dealing with this. The Labour Relations Act was consulted to ensure that everything in respect of practices, process and labour law, was covered.

Mr Makiwane asked whether the Committee would endorse the Public Service code of conduct and make it applicable to the Agency.

Mr Geldenbloem suggested that the Committee agree to either refer to the Public Service code in the Bill or list the criteria in the Bill.

Mr S Jehoma (Department) said that the Agency was a specific institution and it would be problematic if decisions on its operation were made elsewhere.

Advocate Masutha said that Committee suspicions of the Public Service framework not being applicable to the Agency had been confirmed. The matter could not be left to chance. It could state that the Minister had to determine an appropriate code of conduct in consultation with the DPSA Minster and the CEO of the Agency. The best elements of what the DPSA had developed, would then be included. The opening of subclause 3 had to then provide for the code of conduct.

The Chairperson introduced Mr Mark Sweet from NEHAWU, asking if the Committee would agree to hear his address. Members answered in the affirmative.r Sweet cautioned the Committee in handling an issue of such material interest. Processes developed now should not have regrettable consequences. DPSA should have been present from the beginning as it was clear that it had an obligation as signatory to inform DSD that it would enter into discussions. The people affected had not been consulted and this was a serious breach of a contractual obligation. A notice of dispute had already been served. Support had been indicated for integration of the DPSA at public hearings because the work done in this Department impacted on DSD. Mr Sweet voiced support for reviews of public entities. The Minister had said that some would merge, close down or expand. Processes had to allow that work was completed so that there could be evaluation prior to legislation. The public hearing submission from COSATU and NEHAWU recommended that workers should be seconded from the public service. Both organisations had presented a number of options from their side, but the Department did not see its way clear on these options. The arbitrator would certainly comment on the serious contradictions by the Department. Problems encountered by DSD and DPSA were not exclusively human resource-based. It was unfortunate that proceedings would continue when Agency workers had not had the opportunity to negotiate their positions. He urged that current legislation apply during the transition.

Fourth Draft of the Social Assistance Bill

The Chair asked the Department to lead the Committee through the Bill.

Advocate Masutha referred to words defined in Chapter 1 of the fourth draft. He mentioned the words "disability grant", saying that clause 4 made reference to a "social grant for disabled persons". This paragraph would have to be reformulated into three separate paragraphs. The concept of a social grant related to income replacement after retirement as a result of age or disability. He asked whether policy issues would arise around the nature of a grant.

Mr Makiwane noted that the same applied to the "older person grant". The definition of "welfare organisation" was more complete because it included all organisations within the welfare ambit.

The Chairperson reminded him that the Committee spoke from a developmental standpoint.

Advocate Masutha said that the aim was, firstly, to recognise welfare organisations and secondly, to isolate those organisations registered in the NPO Act that generally provided welfare services. The current definition of "welfare organisation" did not qualify in this case.

The Chairperson asked about appeal procedures.

Advocate Masutha said that, regarding the delegation of functions, it should be made clear that the Agency was responsible for the administration of social assistance in terms of Chapter 3 of the Bill and functions were delegated to it in terms of section 29.

Ms Ramatsomai referred to the Social Relief of Distress grant, saying that it meant provision of immediate assistance in monetary terms or in-kind. Assistance should not limited to money but include food, shelter and medical assistance.

Mr Da Camara proposed that child-headed households be defined to include households where a parent or primary caregiver was terminally ill or had died, no adult lived with the children and where the child had assumed the role of the primary caregiver.

Ms Ramatsomai said this issue had been discussed at length and she wondered if there was any point in including the definition. Problems could arise with handing money over to a child. The foster parent agreement covered this aspect and there was no need to include a definition.

Mr Da Camara said he would raise the issue again at the formal stages of adoption.

Mr Makiwane asked whether the grants of subclause 4 should be split for the sake of consistency.

Ms Ramatsomai suggested that 4(f) be added to include the Social Relief of Distress grant.

Advocate Masutha said that, in the event of the delegation of the Social Relief of Distress grant to provinces rather than to the Agency, the Constitution could facilitate re-assignment back to provinces.

Mr Makiwane referred to subclause 7, mentioning that the word "fully" had been removed.

Mr Da Camara asked whether the institution would now forfeit access to the grant.

Ms Ramatsomai said it had been agreed the previous day that the interest should be that of the child. All needs should be met by contribution to the livelihood of the child, and this need not imply full funding.

Mr Makiwane moved to clause 13(2) dealing with financial awards, saying that three years was problematic because there had to be an indication of what would happen during that time.

Advocate Masutha qualified that all issues related to welfare organisations were assigned so that welfare services were financed at provincial level. Clause 13(2) should be retained and made part of provincial legislation.

The Chairperson asked on what basis the national structure would operate.

Advocate Masutha said that if it was found to operate best at provincial level, the clause could be assigned and be relocated.

Mr Makiwane asked that the Committee provide guidance with regard to the Social Relief of Distress grant.

The Chairperson asked which context to use for the Social Relief of Distress grant.

Mr Makiwane stated that the grant was administered from the date of approval, but a grant was necessary in the interim between application and approval. The waiting period varied from grant to grant, but should not exceed 3 months.

Mr Jehoma said that even if payment was effected within 30 days, it had to be remembered that the person was destitute at the time of application.

Mr Makiwane led the Committee through clauses up to 20 of the fourth draft of the Social Assistance Bill, which was the point the Department had reached in the re-drafting process. The drafters were almost ready with the next document.

The Committee Secretary said that these documents would be distributed the following week.

Advocate Masutha said that clause 20 reflected the sentiments expressed in the previous day's meeting. The intention was to protect beneficiaries subjected to exploitation. A number of provisions had to be revisited. He referred to 20(3), saying that beneficiaries had to receive the full grant before any other person could exercise any right over it.

Mr Makiwane referred to page 26 dealing with deductions, pointing out that the Minister could prescribe deductions if it was in the best interests of the beneficiary. Needs changed over time. He suggested a window period, instead of outlawing the concept completely.

Advocate Masutha argued that if subsection 1 was violated, the Minister had to forthwith terminate the grant. This would punish and not protect the beneficiary.

Fourth Draft of the Social Security Agency Bill: Clause by clause discussion Long titleAfter the lunch break, Mr Makiwane pointed out that the Committee previously agreed on replacement of the wording "social security" with "social assistance". He also suggested the addition of "sole" and "eventually" so that the Long title read: "To provide for the establishment of the SA Social Security Agency to act eventually as a sole agent for the administration and payment of social security."

Mr Masutha said that in the short-term, the Bill provided for payment of social assistance. In the long-term, it was intended to assume responsibility for a broader social security provision. The Long Title should then incorporate both cases. The Chairperson agreed.

Definition of "social security"Mr Makiwane read out the new definition of social assistance that "includes social assistance, social insurance and social relief of distress". The Chairperson agreed.

Clause 4: Functions of AgencyMr Makiwane said that the expended wording of subclause (1), listing all of the appropriate sections, would be simplified into stating "Chapter 3". The new formulation of the clause would read: "The Agency had to implement and execute Chapter 3 of the Social Assistance Act and any delegated task in terms of that Act". The Chairperson agreed.

In subclause (2), there was a replacement of "any service provider" to "a person". The Chairperson agreed.

Clause 6: Functions of Chief Executive OfficerIn subclause (b), "a business and financial plan and an annual report" was replaced with "reports".

Mr Jehoma said that "for approval by the Minister", should also be deleted.

Ms Tsheole proposed the addition of subclause (7), stating that the Minister could override the decisions of the CEO. Mr Makiwane agreed.

Clause 7: Staff of the AgencyTo avoid repetition, the last part of subclause (1) was deleted. The new formulation would read: "The Chief Executive Officer must, subject to subsection (2), employ members of staff of the Agency."

Mr Geldenbloem (Department of Public Service and Administration) proposed replacement of "the Minister of Social Development and Minister of Finance would co-determine the following" with "in consultation with the Minister". He also suggested replacing "benefits" with "conditions of service" in subclause (2)(b).

Ms Tsheole reiterated that "core" was removed from sub-clause (2)(b). The Chairperson agreed.

Clause 11: Reporting and auditA new subsection was added: "(b) Notwithstanding subsection (1), the Agency had to submit in addition to its annual report, such further reports as the Minister may require".

Clause 12: Joint venturesThe title of the clause was changed to "Agreements" and the wording joint venture" in the body of the clause was also changed to "agreement".

Mr Masutha suggested addition of a phrase "or entity" after "any person" to include other cases such as partnerships. Mr Makiwane agreed.

Clause 20: General offencesA new subsections was inserted: (3) Any person who falsely claims that he or she was authorised to charge or collect on behalf of or by direction of the Agency, was guilty of an offence". The Chairperson agreed.

Clause 21: PenaltiesA maximum period of imprisonment was expanded to 15 years. The Chairperson agreed.

Clause 22: RegulationsSubclause (b) was deleted. The Chairperson agreed.

An additional clause, for the time being called "X" (see the Bill), would remain as is unless other proposals of improvement were voiced.

The Committee meeting was adjourned until Tuesday, 14 October 2003.