Enhancing Social Assistance Appeals Process: Independent Tribunal Framework

1. PART 2 Independent Social Assistance Appeals TribunalSection 18,SAA,2004 THE NCOP PRESENTATION ( 20 May 2008

2. Presentation Overview • Background 2. The legislative framework 3. The proposed amendments • The benefits derived from the amendments. • The administration and service delivery model • Progress on the establishment process 7. Conclusion

3. 1. BackgroundAs part of our comprehensive mandate to alleviate poverty, an array of social assistance grants is provided to over twelve million beneficiaries, which effectively translates into almost twenty five percentage of the country’s population.

4. Background (cont)1. The Constitution of the Republic the right to have access to social security, including, if they are unable to support themselves and their dependants.2. The provision of social assistance places an obligation on the state to take reasonable legislative and other measures, within its available resources, to achieve a progressive realisation of such constitutional rights.

5. 2. The legislative framework • The promulgation of both the Social Assistance Act (SAA), 2004 and the South African Social Security Act (SASSA), 2004, provides a legislative framework for the establishment of key social security institutions namely • The South African Social Security Agency (SASSA) has been established as national state Agency, primarily to ensure effective management, administration and payment of social assistance grants. It became operationally effective as from 1 April 2006.

6. The legislative framework • The Independent Appeals Tribunal is currently being established in terms of section 18 of the SAA, 2004, as an institution to process and manage (adjudicate) social assistance appeals. • Whilst the establishment of the Agency has been fully actualized in every sense, the establishment of an Independent Tribunal has been amplified as a priority mandate derived primarily from the Constitution and the Social Security Legislation provisions as well as other related legislation that seeks to promote the following:

7. The legislative framework • the right to just administrative action which is attained through compliance with a number of elicited standard procedures and guidelines when decisions are taken by respective administrators. (The promotion of the Administrative Justice Act) the Act further promotes that people (beneficiaries), reserve the right to review and appeal decisions made.

8. The legislative framework • the right of access to information provides for beneficiaries to have access to information held by the state. In a quest to protect their constitutional rights.

9. 3. The proposed amendment • The proposed amendment • The current legislative framework that governs the Independent Tribunal as an institution of government to consider and process social assistance appeals is detailed hereunder:

10. The proposed amendment • The proposed amendment • The current legislative framework that governs the Independent Tribunal as an institution of government to consider and process social assistance appeals is detailed hereunder:

11. The proposed amendments • Section 18(1) of the SAA, 2004, provides that “if an applicant disagrees with a decision that was made by the Agency, in respect to any matter regulated by this Act, that person or persons on his or her behalf may within 30 days of his or her gaining knowledge of that decision, lodge a written appeal with the Minister against that decision setting out reasons why the Minister should vary or set aside that decision.

12. The proposed amendments Further more, in terms of section 18(2) the same Act, that: • “The Minister may, after considering the appeal and the Agency’s reasons for the decision- • (a) confirm, vary or set aside that decision; or • (b) appoint an independent tribunal to consider the appeal in accordance with such conditions as the Minister may prescribe by notice in the Gazette, and that tribunal may, after consideration of the matter, confirm, vary or set aside that decision or make any other decision which is just.

13. The proposed amendments • The proposed amendment seeks to legislate the establishment of an Independent Tribunal as a quasi administrative institution that provide social assistance appeals services with a view to enhance the constitutional right of access to social security.

14. The proposed amendments • It is therefore proposed that section 18 of the principal be amended as follows: by the substitution for subsection (2) of the following subsection: • ‘‘(2) The Minister may [, after considering]— • (a) upon receipt of the applicant’s written appeal and the Agency’s reasons for • the decision, [— • (a)] confirm, vary or set aside that decision; or • (b) appoint an independent tribunal to consider [the] an appeal contemplated in • subsection (1) in accordance with such condition as the Minister may prescribe by notice in the Gazette, and that tribunal may, after consideration

15. The proposed amendments after consideration of the matter, confirm, vary or set aside that decision or make any other • decision which is just.’’; and • (b) by the addition of the following subsection: • ‘‘(3) If the Minister has appointed an independent tribunal in terms of subsection (2)(b) all • appeals contemplated in subsection (1) must be considered by that tribunal.’’

16. 4.The benefits derived from the proposed amendments 4.1 The administrative appeals process and mechanism provided in the proposed amendment of section 18 of the Social Assistance Act seeks to provide for an establishment of an independent institutiondedicated primarily to consider and adjudicate social assistance appeals as a mechanism that enhances the right to access social assistance as a socio-economic right.

17. 4.The benefits derived from the proposed amendments 4.2 Within a context of constantly escalating basic food prices, rising interest rates, the scourge of chronic diseases as well the deeply entrenched structural poverty and inequality; the Independent Tribunal seeks to bring about and administrative review mechanism that is underpinned by the following key principles

18. 4.The benefits derived from the proposed amendments • Procedural fairness and objectivity in appeal decision making process; • Accessible services often customised in terms of appellant’s requirements, or barriers that may include language, culture as well a need for administrative assistance; • A comprehensive approach to consider unique social, economic and medical factors affecting the appellants; • An adjudication function that utilises a two-pronged approach i.e. administrative/document review or oral presentation (appellants invited to interface with the Tribunal members.

19. 4.The benefits derived from the proposed amendments • A fair review by authorised, independent and highly esteemed practitioners enlisted from the legal, medical and social sectors of the community. They constitute an independent tribunal or panel, duly appointed and assigned by the Minster (thus locating the function and related activities to duly authorised members as opposed to discretionary administrative authority often exercised by administrators/front line officers). • A mechanism for a speedy resolve /non- protracted adjudication service at no cost (in contrast to overtly long and costly judiciary review systems). • Nationally regulated standardised administrative procedures and guidelines that would ensure consistency in decision making and invariably reduce the risk of litigations.

20. 5.The administrative and service delivery model The independent tribunal institution currently being established is constituted as follows: • The Appeals Enterprise, which is the core adjudication unit responsible for appeals resolution. Some of the activities would include appeals verification, case analysis and adjudication through a two tier system. The first tier would largely be based on document review and information validation, and would be managed trough full time highly specialized Appeals Officers managing administrative process leading up to adjudication

21. 5.The administrative and service delivery model • The second tier would comprise of a cluster of tribunal panelists (non-employees) that would then preside on all appeals including complex disability related cases. These panelists are enlisted from professional fields including legal (49),medical (35), and members of civilsociety (23) with good community standing. This brings a total of 107 independent tribunal members available on specific assignments depending on their availability which is managed through the scheduling. • The Appeals Enterprise Corporate Support would largely provide for business policy framework, operations and administration support, including standards and guidelines. • The Appeals Business Process and Information Management mainly focuses on the information management, data registry and workflow management and would require a capability and functionality that would be compatible to SASSA ICT framework.

22. 5.The administrative and service delivery model In giving effect to the adjudication mandate, independent tribunal is designed to follow two approaches in considering an appeal: • the oral hearing, wherein an appellant would be invited to present his/her case before the tribunal, or; the document review, this would entail administrative and procedural review based on the available factual evidence

23. 5.The administrative and service delivery model • Significant progress has been made in respect of the establishment process and the adjudication process has commenced using a centralized model at national level for the current financial year with plans to decentralize the function in all provinces over the MTEF period.

24. 2. The Independent Tribunal Adjudication Function –Road Map TRANSITION (DSD/SASSA COLLABORATION) 1/04/06 - 31/03/09 POST TRANSITION 1/04/09 - SASSA ADMINISTRATIVE ROLE DSD ADJUDICATION ROLE • Established Appeals Tribunal • Organizational Component (DPSA) • Funds Flow (NT) • Ministerial Determination (s13(1)(a)(b) • SASSA to provide administrative role, provide access to appellants: • Regional Office • District Offices • Local Offices • Adjudication function • Pre-adjudication assessment • Adjudication by appointed tribunal members • Document and oral approaches CHALLENGES • Financial constraints to decentralize in 2008/9 • Infrastructural and structural outlay SAA, 2004 as amended SAA, 2004 Legislative Mandate

25. 6. Progress on the institutional business process and model

26. 3.1. SASSA/DSD Collaboration SASSA Process/QA & refer to DSD Advocacy Groups/Law firms Application Verification Approval Payment Decline and Automatic Appeal • SASSA Regions • Customer Care • Capture • Forward to HQ • SASSA HQ • Quality Assurance • Electronic Forwarding • Referral to DSD • DSD • Appeals Service Centre Individuals APPEALS TRIBUNAL CENTRE Referral to DSD Appeal Officer: Medical Appeals Registry/data office Case Management Office Appeals Adjudication Appeal Officer: Legal Appeal Officer: Policy Referral Vary, set aside, payment • CASE INTEGRATION BY CMO Referral PANEL commissioners) SECRETARIAT Judicial Review

27. 3.2.Proposed workflow processes SASSA/DSD COLLABORATION (15/02/08 – 31/03/09) A PROCESS DSD NATIONAL APPEALS TRIBUNAL SASSA HQ (QA) REGIONAL Receive pre-adjudication info & forward REIMBURSE APPELANTS ACCESS TO APPELANTS Case Management and analysis B PROCESS ADJUDICATION Appeal Officers Panels Secretariat DISTRICT Receive pre-adjudication info & escalate C PROCESS LOCAL Help Desk Distribute appeal forms Guidelines & escalate Develop Supply forms, guidelines ADMINISTRATIVE ROLE ADJUDICATION ROLE

28. APPEALS SERVICE DELIVERY MODEL PRE- ADJUDICATION ACTIVITIES CASE ANALYSIS SASSA/IT DATA/INFO UNIT Registry Call Centre MEDICAL ASSESSMENT LEGAL ASSESSMENT Referral back for info DECISION TO APPELANT SASSA ADJUDICATION APPROACHES Regional District Local Referral loop ?Effect payment DOCUMENTARY REVIEW Panel Decision Confirm, Vary, Set aside, Any just decision CASE MANAGEMENT OFFICE APPELLANT REPRESENTATIVE or QUALTY ASSURANCE • Appeal Officer: Medical • Appeals Officer: Policy • Appeal Officer: Legal ORAL HEARING PAJA s7(2) JUDICIAL REVIEW

29. 3.4. Progress DSD/SASSA adjudication roles DSD APPEALS TRIBUNAL ADJUDICATION CHIEF APPEALS OFFICER APPEALS OFFICERS (EMPLOYEES) REGIONAL APPEALS TRIBUNAL APPEALS OFFICER ENLISTED PANELLISTS TRIBUNAL PANEL TRIBUNAL PANEL TRIBUNAL PANEL TRIBUNAL PANEL • COMPOSITION OF TRIBUNAL PANELS • LEGAL ADVISOR • MEDICAL ADVSIOR • MEMBER OF THE CIVIL SOCIETY

30. 7. FUNCTIONAL READINESS

31. Progress at National Office. • Currently acquiring office space for the National Office. • Standard Operating Procedures finalised. • Minister has appointed members in terms of section 18 of Social Assistance Act, 2004. • A total number of 105 panel members were appointed. • Legal practitioners – 47 • Medical practitioners – 35 • Civil Society – 23 • Assignment will be administratively managed for both pre-adjudication and adjudication responsibilities

32. CONCLUSION The NCOP to note and support as follows: • The proposed Social Assistance Amendment Bill 2. Progress in respect of the establishment process.

33. THANK YOU