The Appeals Process

Based on the contribution of Anne Yuille, as amended by Genevieve Bolton, Executive Director/Principal Solicitor of Canberra Community Law and current to January 2018

Administrative Review

Most administrative decisions of Housing ACT may be appealed. Reviewable decisions (see clause 30 of the Program) include:

• Refusal of application for housing assistance or transfer;
• Removal of applicant’s name from the Applicants Register or refusal to restore the applicant’s name to the Register;
• Refusal of a particular category of Housing Needs;
• Refusal of rebate or other decision related to rebate entitlement.

The non-reviewable decisions all relate to applications. They are:

• Decisions made by the housing commissioner “in his or her absolute discretion”:
• waiver of eligibility criteria on the grounds of hardship (see clause 10 of the Program);
• the provision of early housing assistance in extreme circumstances outside of the normal assessment processes, including the provision of a tenancy to an occupant following a tenancy breakdown;
• the provision of a “specified dwelling” (a dwelling which may be difficult to let);
• the provision of a “special needs dwelling” to a special needs applicant (see clause 19 of the Program).
• Decisions in which transfer is required by Housing ACT on the grounds of the physical condition of the dwelling, or in the interests of community harmony, or for the purpose of renovation or disposal of the dwelling (see clause 28 of the Program).
• A decision under clause 20 (4) of the Program that the eligibility criteria and the normal assessment processes do not apply to transfer applications which will result in transfer to a dwelling with fewer bedrooms.

Reviewable Housing ACT decisions are subject to an internal review process in the first instance and may then be appealed to the external review body which is the ACT Civil and Administrative Tribunal (incorporating the former ACT Administrative Appeals Tribunal). The time limit for both internal and external review is 28 days from the date of receipt of the decision, though both Housing ACT and the ACAT may allow an extension of time in certain circumstances.

Internal Review

Under clause 31 (4) of the Program:

At present, there continues to be a 2 tier internal review process. In the first tier the request for review is considered by a senior manager who may vary or affirm the decision. If dissatisfied with the outcome, the appellant may request that the decision be referred for second level review. The decision may then be considered by a body called the Housing Assistance Tenancy Review Panel (HATRP) comprised of senior Housing ACT officers. The HATRP makes a recommendation that is contained in a more detailed written report. The decision is then made by the Director of Housing who may affirm or reject the recommendation of the HATRP.

Decisions from both tiers must be given to the appellant within 28 days of the making of the decision, but no time frame is given for the decision-making process.

External Review: the ACT Civil and Administrative Tribunal (ACAT)

There is an application form for review of decision by the ACAT. This may be obtained from the Registry or online at www.acat.act.gov.au.

There is a filing fee of $338 for applications for review of Housing ACT administrative decisions, though applicants may seek waiver of the fee and this will generally be granted to a person on a low income.

The Tribunal’s powers and procedures are set out in the ACT Civil and Administrative Act 2008 (the ACAT Act).

The ACAT will notify Housing ACT of the application for review of decision and Housing ACT will have a period of time, generally 28 days, in which to provide the documents relating to the application, including the reasons for the decision. These documents are sent to the applicant and a Directions Hearing date is set down. This is a relatively informal process to discuss the best way to proceed with the matter depending on the issues involved. Generally at the Directions Hearing, ACAT will set down a timetable for the matter. This will usually include setting a date for the preliminary conference, setting dates for the filing of witness statements, witness list and a statement of facts and contentions and a second directions hearing in the event that the matter is not settled. A preliminary conference is a relatively informal opportunity for the parties to come together to discuss the appeal in the presence of an ACAT Member. The Member’s role at this conference is to help the parties identify the issues in dispute and explore options for resolving the dispute by agreement without the need for a hearing.

If the matter is not settled, a second Directions Hearing will be held to check that all the material has been filed and the matter is now ready to proceed to hearing.

The hearing is relatively informal and the Tribunal Member will generally assist to guide unrepresented applicants through the process. The proceedings are generally open to the public and are tape-recorded, though a hearing may be held in private and publication of evidence may be restricted if the Member is satisfied there is sufficient reason for this.

The Tribunal may give the decision orally at the end of hearing but will more often reserve the decision and issue it in writing at a later date.

Appealing an ACAT decision

An appeal may be made against an ACAT decision within the ACAT itself and the appeal may be made on a question of fact or law. The ACAT has an appeal president who may dismiss the appeal or may appoint an appeal tribunal to review the decision. The appeal tribunal must include a presidential member and must not include the tribunal member who made the original decision.

Appeal to the Supreme Court

A decision of the appeal tribunal, including a decision to dismiss an appeal, may be appealed to the Supreme Court. This appeal too may be made on a question of fact or law, but the Supreme Court must grant leave to appeal before the appeal can be heard. An appeal to the Supreme Court must be lodged within 28 days of the decision of the appeal tribunal. Unlike the ACAT, the Supreme Court is a jurisdiction in which costs are usually awarded against an unsuccessful party.

Review of tenancy matters

Resolution of tenancy disputes is achieved by application to the ACAT, but some tenancy matters may be reviewed first by Housing ACT’s internal processes. Examples of these are market rent increases (see Market Rent Increases), termination of the tenancy by the lessor (see Termination by Housing ACT), and Tenant-Responsible Maintenance Debts.

Tenant-Responsible Maintenance (TRM) debts

Under the RTA tenants are liable for the cost of restoring damage caused intentionally or negligently by themselves, other occupants or visitors. They are not liable for the cost of restoring damage caused by those on the property without the tenant’s permission.

It is Housing ACT’s practice, if not policy, to raise as debts the costs of a great many repairs that may be lessor-responsible maintenance where the deterioration has arisen from normal usage by the tenant and the passage of time – fair wear and tear. It is also common for the tenant to be charged for repairing a lock that has been broken during a burglary or a window broken by vandals. When a tenancy ends, a debt (sometimes very large) may be raised on the basis of the work that needs to be done prior to re-letting the premises, with insufficient consideration of whether the vacating tenant caused damage.

All such charges may be reviewed. If the tenant or former tenant is not satisfied with the outcome of the internal review, the matter may be determined in the ACAT. Either party may make the application to ACAT. In practice, it is not common for an application to be made unless the alleged debt is very large, in which case Housing ACT may apply, or the alleged debt is a barrier to future housing assistance and the tenant applies on the basis the ACAT may resolve the dispute in her/his favour.

An application for resolution of a tenancy dispute attracts a fee. Currently fees range from $72 (for an application in which the amount in dispute is less than $2000), $150 where the amount in dispute is between $2001 to $25 000 to $538 where the amount in dispute is more than $25,000. People on low incomes may seek waiver of the application fee.