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EXPLANATORY MEMORANDUM
JUAN CARLOS I
KING OF SPAIN
To all those who read and understand this Act.
Be it known that Parliament has passed and I have signed into law the following Act:
EXPLANATORY MEMORANDUM
1º
Care for dependent persons and the promotion of their personal autonomy is one of the main challenges faced by social policy in developed countries. The challenge is none other than to care for the needs of these people, who because they are in a particularly vulnerable situation, require support in order to carry out the essential activities of daily living, attain a greater degree of personal autonomy and be able to fully exercise their citizen rights.
In October 2003, the Plenary Session of the Congress of Deputies passed the Renewal of the Toledo Pact with a 3rd Additional Recommendation that stated: «it is therefore necessary to configure an integrated system to address the phenomenon of dependency from the perspective of globality and the Committee considers that urgent regulation is required, including the definition of dependency, the current status of its coverage, the challenges that are expected and the possible alternatives for protecting such dependency».
The acknowledgement of the rights of the dependent persons has been highlighted by several documents and decisions made by international organisations, such as the World Health Organisation, the Council of Europe and the European Union. In 2002, under the Spanish Presidency, the European Union decided on three criteria to govern the dependency policies in the member States: the universality, high quality and sustainability in time of the systems that are deployed.
The conclusions of the Report by the Sub-Committee on the study of the current status of disability, on 13th December 2003, coincide regarding the need to configure a comprehensive system to address dependency from a global perspective with the active participation of society as a whole.
In Spain, demographic and social changes are leading to a gradual increase in the dependent population. On the one hand, it is necessary to consider the important growth in the population aged over 65 years, which has doubled in the last 30 years, going from 3.3 million people in 1970 (9.7 percent of the total population) to more than 6.6 million in the year 2000 (16.6 percent). To this, we have to add the demographic phenomenon known as «ageing of ageing», i.e., the increase in the sector of the population aged over 80 years, which has doubled in just twenty years.
Both of these issues outline a new reality for the elderly population, which leads to dependency problems in the latter stages of life for increasingly large numbers of people. Moreover, several studies highlight the clear correlation existing between age and situations of disability, as is evident from the fact that more than 32 per cent of people aged over 65 years have some form of disability, whereas this percentage drops to 5 per cent for the rest of the population.
Both of these issues outline a new reality for the elderly population, which leads to dependency problems in the latter stages of life for increasingly large numbers of people. Moreover, several studies highlight the clear correlation existing between age and situations of disability, as is evident from the fact that more than 32 per cent of people aged over 65 years have some form of disability, whereas this percentage drops to 5 per cent for the rest of the population.
According to the 1999 Disabilities, Impairments and Health Status Survey, 9 per cent of the Spanish population has some disability or limitation that has caused, or may cause, dependency for activities of daily living or a need for support towards personal autonomy under equal conditions. For this group, the recently ruled Act 51/2003, of 2nd December, on Equal Opportunities, non-discrimination and universal accessibility for the person with disabilities.
2º
Attending to this sector of the population has therefore become an unavoidable challenge for the public powers, requiring a response that is firm, sustained and adapted to the current model of society. It must not be forgotten that up to now, it has been the families, and especially, women that have traditionally taken on the care of the dependent persons constituting what has been referred to as «informal support». The changes in the family models and the gradual incorporation of almost three million women into the job market in the last decade introduce new factors in this situation, which mean that it is indispensable to review the traditional care system in order to ensure adequate capacity to care for the people in need of such assistance.
The text of the Spanish Constitution, in articles 49 and 50, refers to the care of disabled and older persons and to a system of social services promoted by the public powers for the welfare of citizens. If in 1978 the fundamental elements of this model of the welfare state focussed, for all citizens, on healthcare protection and the Social Security System, the social development of our country since then has given fundamental importance to the social services, mostly organised by the Autonomous Communities, in special collaboration with the third sector, as the fourth pillar of the welfare system, in care for the dependent population.
On behalf of the Public Administrations, the needs of the older persons and in general, of those that are affected by dependency, have been catered for up to now essentially at Autonomous Community and local levels, and in the context of the Concerted Plan on the Basic Benefits in Social Services, in which the General State Administration also participates and at state level, the Plans of Action for Disabled and Older Persons. On the other hand, the Social Security System has been taking responsibility for some elements of care, both in the care for older persons and in situations linked to disability: major invalidity, third-party benefits in non-contributory invalidity pensions and family benefits for dependent children, as well as social service benefits in re-education and rehabilitation for persons with disability and care for older persons.
It is an undeniable fact that the entities in the third sector that work in the area of social work have been participating for years in the care of the dependent persons and supporting the effort of families and local corporations in this regard. These entities form an important social network that prevents the risks of exclusion of the affected people.
The need to guarantee citizens and the Autonomous Communities themselves, a stable framework of resources and services to care for the dependent population and the progressive importance of this care have led the State to intervene in this field with the regulation contained in this Act, which configures it as a new form of social protection and extends and complements the protective action of the State and of the Social Security System.
It is now necessary to configure a further development of the country’s social services to extend and complement the protective action of this system, strengthening the progress of the model of social State that is consecrated in the Spanish Constitution, strengthening the commitment of all of the public powers in promoting and providing the necessary resources for setting up a social services system that is of high quality, driven by the best public interests and fully universal. In this regard, the System of Care for Dependency is one of the fundamental instruments for improving the situation of social services in our country, responding to the need for care in situations of dependency and the promotion of personal autonomy, quality of life and equal opportunities.
3º
This Act regulates the basic conditions for the promotion of personal autonomy and care for dependent persons by means of the creation of a System for Autonomy and Care for Dependency (SAAD), with the collaboration and participation of all of the Public Administrations.
The main aim of the System is to guarantee the basic conditions and predict the levels of protection to which this Act refers. To this end, it serves as a common ground for the collaboration and participation of the Public Administrations and to optimise the available public and private resources. Thus, it configures a subjective right that is based on the principles of universality, equality and accessibility, developing a comprehensive support model organised on three administrative levels for the citizen, who is acknowledged as a beneficiary that participates in the System.
In this regard, the State’s exclusive competence for regulating the basic conditions that guarantee the equality of all Spaniards in the exercise of their rights and in compliance with their constitutional rights (article 149.1 SC), justifies the regulation by this Act of the basic conditions for the promotion of personal autonomy and care for dependent persons through the creation of a System for Autonomy and Care for Dependency with the collaboration and participation of all of the Public Administrations, and with full respect for the competences that the latter have assumed in the area of social assistance, on the basis of article 148.1.20 of the Constitution.
The Act establishes a minimum level of protection, which is defined and financially guaranteed by the General State Administration. Moreover, as a second level of protection, the Act contemplates a regime of cooperation and funding between the General State Administration and the Autonomous Communities, with conventions for the development and application of other benefits and services that are contemplated in the Act. Finally, the Autonomous Communities shall be able to develop an additional third level of protection for citizens, if they deem it to be opportune.
The very nature of the purpose of this Act requires the commiment and combined action of all of the public powers and institutions, which means that coordination and cooperation with the Autonomous Communities is a fundamental element. Therefore, the Act establishes a series of mechanisms for cooperation between the General State Administration and the Autonomous Communities, including the creation of the Territorial Council of the System for Autonomy and Care for Dependency. It shall be responsible for developing, by means of agreement between the administrations, the functions of agreeing on a framework of interadministrative cooperation, the intensity of the services in the catalogue, the conditions and amount of the financial benefits, the criteria for the participation of the beneficiaries in the cost of the services or the scale for assessing the situation of dependency, aspects which should allow for the System to be deployed at a later stage through the corresponding agreements with the Autonomous Communities.
Building on the framework of competences, the intention is therefore to develop an innovative, integrated model based on interadministrative cooperation and respect for competences.
Funding shall be determined by the number of dependent people and by the services and benefits foreseen in this Act, which means that it shall be stable, sufficient, sustained in time and guaranteed by the co-responsibility of the Public Administrations. In any case, the General State Administration shall guarantee funding to the Autonomous Communities for developing the minimum level of protection for the dependent population that is described in this Act.
The System shall cater equally for all dependent citizens. The beneficiaries shall make a financial contribution to the funding of the services on a progressive basis according to their economic ability, considering the type of service that is provided and the cost of it.
The System shall guarantee the participation of the entities that represent the dependents persons and their families in its consultative bodies.
The participation of the beneficiaries in the system shall also be acknowledged, as well as the complementarity and compatibility between the different types of benefits, in the terms that are defined in the implementing rules.
4º
The Act is structured in a preliminary title; a first title with five chapters; a second title with five chapters; a third title; sixteen additional provisions; two transitory provisions and nine final provisions.
Its preliminary title sets out the provisions that refer to the purpose of the Act and its guiding principles, the rights and duties of the dependent population and the holders of such rights.
Title I configures the System of Care for Dependency, the collaboration of all of the Public Administrations in the exercise of their competences, by means of the various levels of protection in which the benefits and services are organised on an administrative basis. The necessary cooperation between Administrations is materialised by the creation of a Territorial Council of the System, in which the Local Corporations may participate and the approval of a framework of inter- administrative cooperation to be developed by Conventions with each of the Autonomous Communities. Title I also enumerates the benefits of the System, the catalogue of services, the degrees of dependency, the basic criteria for assessment of dependency and the procedure for acknowledgement of entitlement to the benefits.
Title II regulates the measures for ensuring the quality and efficiency of the System, with quality plans and assessment systems and special attention to the training and qualification of professionals and carers. This same title also regulates the system of information on dependency, the Consultative Committee of the system in which the social actors shall participate and explains that the consultative bodies that have already been created, the State Council for Older Persons, the National Council for Disability and the State Council of Non-Governmental Social Work Organisations are given the status of consultative bodies.
Finally, Title III regulates the rules on infringements and sanctions linked to the basic conditions for guaranteeing the rights of dependent citizens.
The additional provisions introduce the necessary changes in the state regulations, derived from this Act. Thus, there are references to Social Security for non- professional carers, the Natural Persons’ Income Tax Act, the regulations on disability, major invalidity and the need for third-party assistance, as well as an explanation of the modifications that are necessary for regulating private coverage for situations of dependency.
The first transitory provision regulates the State’s financial participation in commissioning the System in a transitory period until the year 2015, in accordance with the schedule of the calendar of application of the Act that is contained in the first final provision.
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