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DRAFT REGULATIONS ON THE SOCIAL ASSISTANCE ACT, 2004

This presentation outlines the purpose, background, and revised draft regulations of the Social Assistance Act, 2004. It also seeks further inputs to assist in the finalization of the Regulations.

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DRAFT REGULATIONS ON THE SOCIAL ASSISTANCE ACT, 2004

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  1. DRAFT REGULATIONS ON THE SOCIAL ASSISTANCE ACT, 2004

  2. PRESENTATION OUTLINE • Purpose • Background • Revised Draft Regulations • Conclusion

  3. PURPOSE • To present the draft regulations and inputs received to date; and • To solicit further inputs on the revised draft regulations to assist the Minister to finalise the Regulations.

  4. BACKGROUND Social Assistance Amendment Act, 2010: The Amendment Act, 2010 came into operation on 16 September 2010. The Amendment Act provides for mechanism for appeal by the Independent Tribunal and reconsideration by the Agency of its decisions. The draft regulations prescribes the process to be followed in both reconsiderations and appeals. 4

  5. BACKGROUND CONT… The Minister of Social Development is empowered by the SAA, 2004 as amended to prescribe regulations in respect of section 18(1A). During Parliament briefing by the DSD on the Amendment Bill, the department promised to return and present the draft regulations before the Minister can promulgate so as to afford the committee an opportunity to comment on the draft regulations. 5

  6. BACKGROUND CONT… • It was envisaged that the finalised regulations will be promulgated by March 2011 for the Department to implement the amendment Act. • The consultation process was finalised by end of February 2011 and the draft was ready to be presented to the committee, but the Committee meeting which was scheduled for March 2011 was cancelled. • The presentation of the regulations to the committee, and consideration of inputs from this committee is the final step in the finalisation of the regulations.

  7. BACKGROUND CONT… • The draft regulations were published for public comments on 29 December 2011 for public comments with a closing date of 14 February 2011. • Inputs were received from, among others, • Blacksash; • Sec 21 Aids Law Project; • Office of the MEC: SD Western Cape (Ps P. de Lille); • SASSA • All inputs received were considered and the draft regulations were revised accordingly.

  8. PROVISIONS OF THE DRAFT REGULATIONS • Regulation 1: Definitions • Regulation 2 (1): “An applicant, …, who disagrees with the decision by the Agency may apply to the Agency in terms of section 18(1) of the Act requesting the Agency to reconsider its decision …” • Regulation 2 (2): “A reconsideration contemplated in sub-regulation (1) must be lodged with the Agency by hand, post, fax or electronic mail;and must, …, be accompanied by all documents contemplated in regulation 2 (4) (2)(a) to (d)…”

  9. PROVISIONS OF THE DRAFT REGULATIONS CONT… • Regulation 2(3) &(4): “An application contemplated in sub-regulation (1) must be based on the same information which was supplied to the Agency…; and must be accompanied by: (a) any document provided by the Agency as proof of receipt of an application for social assistance; (b) a copy of a letter of rejection or approval, by the Agency, of an application for social assistance; (c) any other relevant document in relation to the application; and (d) In the case of a person applying on behalf of the beneficiary or applicant, a copy of the power of attorney or proof of his or her appointment by the applicant or beneficiary to act on his or her behalf.”

  10. PROVISIONS OF THE DRAFT REGULATIONS CONT… • Regulation 3 (1): “The Chief Executive Officer of the Agency or his or her delegate must, subject to sub-regulation (3), assign such number of officials as may be necessary to consider applications contemplated in regulation 2” • Regulation 3(2): “An official contemplated in sub-regulation (1) must occupy a position that is higher in rank to that of the official or officials who considered the application in respect of which the applicant is requesting reconsideration” • Regulation 3(3): “An official contemplated in sub-regulation (1) shall consider an application contemplated in regulation 2 sitting alone.”

  11. PROVISIONS OF THE DRAFT REGULATIONS CONT… • Regulation 3(4):“The Agency must, within 90 days of receipt of an application contemplated in regulation 2 and after consideration of the application- (a) uphold the application; (b) dismiss the application and provide reasons thereof …or. (c) Vary the Agency’s decision” • Regulation 3(5): “The decision and reasons thereof contemplated in sub-regulation (4) must be communicated, within the period stipulated in sub-regulation (4), to the person referred to in regulation 2(1)… Provided that if the Agency fails to reconsider its decision within the stipulated period of receipt of such an application, the Agency is regarded to have dismissed the application…” • Regulation 3(6):“An applicant or beneficiary may, by means of a written notice, at any time prior to the hearing of the re-consideration by the Agency, withdraw such application for re-consideration.

  12. PROVISIONS OF THE DRAFT REGULATIONS CONT… • Regulation 4:“The appointment of members to the Independent Tribunal, to consider appeals as contemplated in section 18(1A) of the Act must be done in accordance with the terms and conditions the Minister may determine” • Regulation 5 (1): “The Independent Tribunal considering an appeal, subject to sub regulation (2) and (3) is constituted by: (a) a legal practitioner who must act as the chairperson; (b) a medical practitioner as an assessor; and (c) a member of civil society.” • Regulation 5(2): “A medical practitioner may only form part of the IT in respect of an appeal on disability, care dependency, war veteran’s or grant-in-aid grant”

  13. PROVISIONS OF THE DRAFT REGULATIONS CONT… • Regulation 5(3): “A member of civil society may only form part of the Independent Tribunal in respect of an appeal against the decision of the Agency relating to a social relief of distress grant” • Regulation 6: Provides for Qualifications and experience of the legal practitioner • Regulation 7: Provides for Qualifications and experience of the medical practitioner • Regulation 8: Provides for Qualifications and experience of the member of civil society.

  14. PROVISIONS OF THE DRAFT REGULATIONS CONT… • Regulations 9,10 & 11: Provides for Roles and Powers of the IT members during consideration of an appeal. • Regulation 12: Provides for the Powers of the IT which includes among others, the power to: • Request more information from the Appellant or the Agency or from any institution; • Postpone the appeal to a later date; • Refer the appellant for a second and independent medical examination; • Regulation 13: Provides for Ethical conduct of members of IT.

  15. PROVISIONS OF THE DRAFT REGULATIONS CONT… • Regulation 14: Provide for the lodging of an appeal to the IT. • Regulation 14(3):“When lodging an appeal as contemplated in sub-regulation (1) the appellant must not be allowed to produce any evidence or information which was not provided to the Agency at the time of application for social assistance. • Regulation 15: “The Independent Tribunal may, upon application for condonation by persons contemplated in regulation 14(1), condone an application for appeal lodged after a period of 90 days upon good cause shown”

  16. PROVISIONS OF THE DRAFT REGULATIONS CONT… • Regulation 15(2): provides that the IT in considering condonation application will determine factors such as: (a) the reason for the delay; (b) Whether it is in the interest of justice that condonation be granted; and (c) if there are reasonable prospects of success. • Regulation 16(1): “An appeal contemplated in regulation 14 (1) must be conducted: (a) in the absence of the applicant or beneficiary; and (b) by means of consideration of documentary evidence submitted by the Agency and the applicant or beneficiary.

  17. PROVISIONS OF THE DRAFT REGULATIONS CONT… • Regulation 16 (2): “An appeal must be finalised within a period of 90 days from the date on which the appeal was received by the Independent Tribunal.” • Regulation 17: Provides that the IT, may, after consideration of the appeal confirm, vary or set aside the decision of the Agency. • Regulation 18: “The IT must, where it is unable to make a decision due to the insufficiency, inconclusiveness or contradictory nature of the information contained in a medical report provided by the Agency or the applicant or beneficiary refer the appellant to a second and independent medical examination or opinion”

  18. PROVISIONS OF THE DRAFT REGULATIONS CONT… • Regulation 18(10): A medical examination referred to in this regulation must be based on and relate to the appellant’s medical condition as it had been at the time when the application for a grant was rejected by the Agency. • Regulation 18 (11): Where the medical report as contemplated in sub-regulation (1) concludes that the applicant or beneficiary, as at the time of rejection of the application for the grant, had a disability, the Independent Tribunal must uphold the appeal

  19. PROVISIONS OF THE DRAFT REGULATIONS CONT… • Regulation 19: Provides for Receipt of an appeal, acknowledgement and request for further information • Regulation 20: Provides for the communication of the decision and reasons thereof by the IT to an applicant or beneficiary and to the Agency… • Regulation 21 (1): The IT must, upon receipt of the application which does not constitute an appeal remove the matter from the schedule if it was already scheduled and notify the appellant that such an application does not constitute an appeal and the reasons thereof…; • Regulation 21(2): “The Independent Tribunal shall not be obliged to consider an application as contemplated in sub-regulation (1)”

  20. PROVISIONS OF THE DRAFT REGULATIONS CONT… • Regulation 22: “An appellant may, by means of a written notice, at any time prior to the finalisation of the appeal by the IT, withdraw such an appeal …” • Regulation 23: “A copy of the appeal documents, including notification of decision, record of proceedings and copies of the Agency’s file should be retained by the IT for a period of five years from the date of communication of the decision on the appeal.” • Regulation 24:In the event that any legal notice or litigation, in connection with any matter prescribed in these Regulations and the 2008 Regulations, is contemplated, service of such notice must be addressed to the Chief Director Legal Services for DSD.

  21. COMMENTS RECEIVED CONT… • Regulation 2(2): made reference to “initial application” • Comment: this excludes beneficiary who may want to appeal the outcome of the review process • Response: this provision was revised to cater for the beneficiary. • Regulation 3(4) & Regulation 13(2): prescribes decisions to be taken by SASSA & Independent Tribunal upon consideration and appeal respectively Response: Removed

  22. COMMENTS RECEIVED CONT… • Regulation 18: Provides for the Independent Tribunal to refer the applicant and beneficiary for further medical examination under certain circumstances. • The Independent Tribunal should not be allowed under any circumstances to seek further medical assessment of the applicant or beneficiary. • Response:This is intended to assist the Independent Tribunal to make a decision where the available medical reports are insufficient, contradictory or inconclusive.

  23. COMMENTS RECEIVED CONT… • Comment: Reconsideration of an application should only take place specifically to consider additional information which should supplement the initial incomplete or invalid documents in the initial application. • Response: Consideration of new additional information would amount to consideration of new application.

  24. COMMENTS RECEIVED CONT… • Comment: The 90 days provided to SASSA to make its decision on reconsideration is detrimental to the applicant. Reconsideration should be decided within 30 days. • Response: The 90 days period is a reasonable period and it is in line with the spirit of PAJA, which provides for in section 5 (2), the administrator to, within a period of 90 days…). • SASSA can actually finalise the reconsideration within a shorter period of time.

  25. We Thank You

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