Public Rental Housing in the Act

Contributor: Anne Yuille

Currency of information: November 2009

Introduction

The history of public housing in the ACT is markedly different from that elsewhere in Australia in that public housing was a fundamental part of the development of the national capital. The construction of housing by government was essential to accommodate public servants, business people and community workers who were willing to make Canberra their home.

By the late 1950s 84 per cent of Canberra houses had been built by the government. It was not until 1972 that the number of privately built dwellings in the ACT was greater than the number of government-built dwellings. It remained part of the vision for Canberra that its public housing would be spread fairly evenly throughout the city and its suburbs.

Living in public housing was the norm in the 1950s and 60s for workers and their families in all walks of life. Restricting eligibility for public housing to people on low incomes came much later in the ACT than in other jurisdictions. Now, in the ACT as in other jurisdictions, the majority of pubic housing tenants are in receipt of Centrelink benefits and the vast majority pay a rebated rent.

In recent years some public housing stock has been transferred to community housing providers to set up and manage tenancies based on similar eligibility criteria and the same principle of income-based rent. "Social Housing" is the umbrella term for both public and community housing.

Public housing in the ACT is provided and managed by Housing and Community Services ACT (colloquially known as Housing ACT), a branch of the Department of Disability, Housing and Community Services which is responsible for a wide range of service delivery and policy functions in the ACT.

As noted in Chapter 55 - Residential Tenancy Law, all tenancies in the ACT are governed by the Residential Tenancies Act 1997 (ACT) (the RTA). This Act applies to both public housing tenancies and private tenancies and includes a standard form of residential tenancy agreement containing prescribed terms.

Public housing tenancies are also governed by the Housing Assistance Public Rental Housing Assistance Program 2008 (No. 1) (the Program).This is a Disallowable Instrument made under the Housing Assistance Act 2007. Chapter 55 - Residential Tenancy Law provides a useful introduction to Housing ACT tenancies at Housing ACT Tenancies.

This discussion of public housing law is structured in the following sections:

• The application of the Residential Tenancies Act and the Housing Assistance Public Rental Housing Assistance Program. This section briefly outlines the application of the RTA, which is examined in detail in Chapter 55 - Residential Tenancy Law, and focuses on the Program which determines the administrative processes governing Housing ACT tenancies and applications for housing;
• Applying to Housing ACT. This section examines the administrative processes governing applications to Housing ACT for housing and transfer, and the effect of debt from a previous tenancy.
• During the Tenancy. This section discusses the application of the Program during the tenancy to matters of rent and rent rebate, changes in the household, market rent increases, and transfer.
• The Appeals Process. This section deals with internal and external review processes in relation to decisions made under the Program, including refusal of application, waiting list category, cancellation of application, refusal of rebate or review of rebate. It deals with applications to the ACT Civil and Administrative Tribunal in respect of both administrative decisions and tenancy decisions of Housing ACT.
• Termination of Tenancy. This section examines the matters particular to Housing ACT tenancies in relation to termination of tenancy by the lessor, including security of tenure, reasons for termination, and appeals.

TheApplication of the Residential Tenancies Act and the Housing Assistance Public Rental Housing Assistance Program

The Residential Tenancies Act 1997 (ACT) (the RTA) applies to all tenancies in the ACT and governs all contractual matters in relation to public housing tenancies. The Standard Terms, of which there are currently 100 comprising the Schedule to the RTA, set out the obligations of lessor and tenant in respect of maintenance of the premises, rent and other costs, rent increases, access and termination.. Some of the terms currently have no application to public tenancies -- for example, payment of a bond is not required by Housing ACT.

The obligations of Housing ACT as lessor and the obligations of Housing ACT tenants are the same as for private lessors and tenants, but for two exceptions. The first exception is in relation to the imposition of the first rent increase in a public tenancy. Clause 36 of the standard terms allows the titular head of Housing ACT, the Commissioner for Social Housing, to increase the rent less than 12 months into the tenancy, providing 12 months has elapsed since the last rent increase for the premises. This provision is to enable Housing ACT to standardise the timing of rent increases across all their tenancies. In recent years rent increases have been imposed annually in September or October in respect of most Housing ACT properties. The second exception arises at s 15(5) of the RTA which enables "the housing commissioner" to make the repayment of a debt from a previous tenancy a condition of a new tenancy. This provision is dealt with more fully at Standard Terms.

Housing ACT's obligations to maintain the premises and conduct repairs are precisely the same as for a private or community lessor, and the tenant's obligations to take reasonable care of the premises and pay the rent on time are the same as for any other tenant.

What differentiates a public tenancy is the regulatory framework for the administration of public housing, which sits alongside the RTA and, to an extent, interacts with it.

The Scope of the Housing Assistance Public Rental Housing Assistance Program

The object of the Program is "to provide assistance to eligible people in the Territory who are most in need". Housing in the form of a long term tenancy is provided to those who meet the eligibility criteria and, in general, it is provided sooner or later on the basis of an assessment of need, in conjunction with the availability of suitable dwellings.

The current program comprises 34 clauses setting out the requirements of applications for housing, the provision of housing, the provision of rent rebate, and review of decisions. There are also a number of Determinations and Operation Guidelines which are Notifiable Instruments made under the Housing Assistance Act 2007 . These detail the procedures in relation to such matters as assessment of category of need, transfers, and the calculation and reassessment of rent rebate. In addition, there are internal policy documents for the guidance of Housing ACT officers.

The legislation is available at www.legislation.act.gov.au. Policy is available from the Department of Housing and Community Services website at www.dhcs.act.gov.au/hcs/policies.

Applying for Housing

A standard Registration form is used for all applications for housing assistance, including transfer applications. Housing ACT has produced a kit which includes the form, a checklist of documents required, some fact sheets and other useful information including a map of Canberra showing the four areas into which the ACT is divided for the purposes of the applicant's nomination of preferred area(s) of residence.

The application may be posted to or lodged by hand at the Applicant Services Centre in Housing ACT's Belconnen office. An applicant may book an appointment time for interview by an assessing officer, a process which is not compulsory but which generally assists to ensure that all necessary documentation has been provided and to give the assessing officer a fuller understanding of the applicant's needs.

If approved, the application will be placed on a Register as at the date the application was received. The first step in the assessment process is whether the applicant meets all the Eligibility Criteria. The second step is an assessment of need for the purposes of determining into which category of waiting list the application will be placed.

Eligibility Criteria

Clause 9 of the Program sets out the eligibility criteria as follows:

1) An applicant is eligible for rental housing assistance if the applicant satisfies each of the following criteria --

a) each applicant is in Australia lawfully;

b) each applicant's presence in Australia is not subject to any time limit imposed by law;

c) each applicant is resident in the Territory and has been so resident for a period of six months immediately before the assessment date;

d) each of the applicants is at least 16 years of age;

e) none of the applicants has any interest in residential real property in Australia;

f) the combined value of assets of the applicants is not more than the asset eligibility limit;

g) if the household is 1 person only, the person's weekly income is not more than 60% of AAWE;

h) if the household is made up of 2 persons only, their combined weekly income is not more than 75% of AAWE;

i) if the household is made up of more than 2 people, the weekly income of the applicants plus 10% of the combined weekly income of all other independent people in the household is not more than 75 % of AAWE plus 10% of AAWE for each person in the household in excess of 2 people.

1A) However, if the household is made up of only a sole applicant and one or more dependent children, the following criteria are substituted for subclauses (1) (h) and (i)--

a) their combined weekly income is not more than 75% of AAWE plus 10% of AAWE for each dependent child; and

b) for paragraph (a), unless the housing commissioner decides otherwise in particular circumstances, "dependent child" means a child under 18 years of age who is part of the household of a sole applicant and in relation to whom the applicant receives or is entitled to receive dependent child payments as defined in clause 25; and

c) for paragraph (a), "combined weekly income" is the weekly income of the applicant plus 10% of the combined weekly income of all other independent people in the household (if any).

For the purposes of cls 9(1)(h) and 9(1A), Housing ACT periodically publishes updated Housing Income Barriers setting out the income ceilings for applicants in the single and family categories. At October 2009 the income ceilings are:

• $554 gross per week for a single applicant;
• $692 gross per week for a family of two or joint applicants;
• $692 plus $92.00 for each additional person in a family of three or more.

What constitutes income is set out at cl 11 in terms that mirror the definition of income under the Social Security Act 1991 (Cth). It should be noted that cl 11(2) provides for the exemption of income "that the housing commissioner determines is not income for the person for this program", and Housing Assistance Public Rental Housing Assistance Program (Exempt Income and Assets) Determination 2009 (No 3) sets out exempt income and assets for the purposes of the Program. For example, Family Tax Benefit (Part B) is exempt income, as is a resident's Youth Allowance where this is the young person's sole income.

Clause 12 sets out the process for determining weekly income. This is generally the higher of two figures: the average gross weekly income of the applicant for the 26 week period before the assessment date, or the person's gross income for the week immediately before the assessment date. There is some discretion to disregard both figures depending on the circumstances of the case (for example, a significant change in income which would not be reflected using either of the above methods of calculation).

For the purposes of cl 9(1)(f) the asset eligibility limit is set at $40,000 in the absence of any Determination.

The Housing Commissioner has discretion to disregard any of the eligibility criteria apart from the minimum age requirement at cl 9(1)(d). The exercise of the discretion is tied quite specifically to certain circumstances. Regarding a time limit on an applicant's presence in Australia (cl 9(1)(b)), the housing commissioner may decide "that a certain time limit imposed by law is not relevant to eligibility". The exercise of this discretion has enabled refugees on Temporary Protection Visas to qualify for housing assistance.

Similarly, an interest in residential real property (cl 9(1)(e)) does not apply to property in which an applicant has an interest if "the housing commissioner decides it is not reasonable for the applicant to live in the property" on certain specified grounds, including pending action under the Family Law Act 1975 (Cth).

Clause 10 provides a more general discretion under the heading HARDSHIP:

If the housing commissioner is satisfied that, relative to the circumstances of eligible applicants generally, an applicant is suffering severe hardship that cannot be alleviated by any other means, the housing commissioner may, in his or her absolute discretion, disregard any criteria mentioned in clause 9 (other than paragraph 9 (1) (d)) in deciding whether the applicant is eligible for assistance.

The inclusion in the 2008 Program of the phrase "relative to the circumstances of eligible applicants generally" has the effect of limiting the exercise of this discretion. A decision under cl 10 is not reviewable.

Needs Categories

The Needs Categories and the criteria for allocating an application to a particular category are set out in Housing Assistance Public Rental Housing Assistance Program (Housing Needs Categories) Determination 2007 (No 1).

There are three categories: Standard, High Needs and Priority. An approved application will be placed on the waiting list in the Standard category, unless the applicant is able to demonstrate a more urgent need.

To be placed on the High Needs waiting list an applicant must demonstrate "significant needs that cannot be resolved by any reasonable means other than the provision of public housing within a reasonable time frame".

To be placed on the Priority list an applicant must demonstrate "exceptional, urgent and critical needs that cannot be resolved by any reasonable means other than the early provision of public housing".

Allocation to the Standard or High Needs categories is made by the assessment officer and team leader. Allocation to the Priority category is a decision of a committee called the Multi-Disciplinary Panel (MDP), following a recommendation by the assessment team. It is necessary to satisfy the MDP that:

• the applicant has a range of complex needs with significant risk factors (or a single, extremely critical risk factor) that will be substantially alleviated by the provision of housing;
• the private rental market is unaffordable for the applicant because rent would be more that 50 per cent of the household income; and
• the applicant has a capacity to live independently and sustain a tenancy.

No more than 150 applications will have Priority status at any one time and an offer of housing is made on a needs basis rather than in the chronological order of assessment date used for the other two categories.

A time frame of 90 days is set for allocating housing to applicants in the Priority category, although, since early 2009 when economic conditions led to a large increase in Priority applications, allocation in this time frame has not been guaranteed.

Other Applicant Entitlements

Remaining registered

Whether the applicant is anticipating a long wait to be offered housing (the Standard list) or a shorter wait (the Priority list), the applicant must meet the eligibility criteria throughout the waiting period. An applicant's eligibility and needs category may be reassessed at any time by way of a written request for information to be provided by a stated date (cl 14). The applicant's name may be removed from the register if he/she fails to respond to the request for information or fails to accept an offer of housing (cl 17).

Two offers

Irrespective of the category, an applicant is entitled to two offers. When a property becomes available and is identified as appropriate for a particular applicant, it is deemed to be an offer when the applicant is invited to view the property. If it is established the property did not meet the identified needs of the applicant, the offer may be withdrawn and two offers remain available to the applicant.

Type of accommodation and bedroom entitlement

A single applicant is entitled to a bedsit or one bedroom dwelling. For a single person with a child or a couple with a child the entitlement is two bedrooms. A couple with two children will be entitled to a three bedroom dwelling, as will a single person with three children as it is expected that two children of the same gender will share a bedroom, unless there is a large difference in age. The bedroom entitlement criteria are fairly rigidly applied, though there is a discretion to allocate an extra bedroom in certain demonstrated circumstances; for example, a disability which makes it imperative for a child to have her/his own bedroom, or an extra bedroom is needed to accommodate a regular carer or a child/children on regular overnight contact visits.

Some public housing is designated for particular groups of people; for example, Aged Persons Units for applicants aged 65 and over, Older Persons Flats for applicants aged over 50, and some modified dwellings for people with disabilities.

Otherwise, the need for a particular type of dwelling (for example, low density complex, or no stairs, or an enclosed outdoor space) is determined by the provision of medical or other evidence as to the particular needs of the applicant.

Initial rent

When an offer of housing is made and the applicant signs a tenancy agreement, the requirement to pay initial rent is waived under cl 27 of the Program. Initial rent is rent for the remaining part of the week in which the tenancy agreement is signed, plus one full fortnight.

This provision does not apply where the applicant is transferring from one Housing ACT tenancy to another.

Rent only is payable in respect of Housing ACT tenancies; bond is not a requirement of these tenancies.

The effect of debt from a previous tenancy

Clause 19(8) of the Program allows Housing ACT to refuse assistance to an applicant if that applicant owes a debt or has breached a term of a previous tenancy agreement with Housing ACT. This provision only comes into effect at the point the assistance is to be provided and does not affect the right to apply for housing and be registered on a waiting list. In practice, debts owed or past breaches are raised at the time of application in order to give the applicant an opportunity to repay a debt or demonstrate their capacity to sustain a new tenancy well before the point of allocation.

The housing commissioner has a discretion to make an offer of housing despite a debt or past breach. The discretion is more likely to be exercised in cases where there is a history of regular repayments towards the debt or the impact of refusal would cause significant hardship - for example, homelessness.

Where a debt is statute-barred or expunged by bankruptcy, the power to refuse assistance will be invoked on the basis of a breach of a previous tenancy agreement and the applicant will be encouraged to enter into a "voluntary" repayment plan. In some cases this may have the effect of reactivating a statute-barred debt and an applicant should seek legal advice before entering into any repayment arrangement.

At any stage a person may seek review of a debt arising from a previous tenancy -- see Review of tenancy matters.

In some circumstances it is appropriate to seek waiver of a debt. Whilst Housing ACT's Vacated Debt Unit deals initially with an application for debt waiver, the decision-making power rests with the ACT Department of Treasury. There is no transparent policy in relation to waiver and decision-making has tended to be very slow.

Another method used by Housing ACT to recover debt is to make the repayment of the debt a condition of a new tenancy agreement -- see Endorsed Terms.

Transfers

An application by an existing Housing ACT tenant for transfer to a different dwelling is subject to exactly the same processes and considerations as any other application for housing assistance. However, there are some additional provisions in the Program governing transfers.

Management-initiated transfer

Clause 28 of the Program empowers Housing ACT to require a tenant to transfer to an alternative dwelling in situation where:

a) The physical condition of the dwelling occupied by the tenant is likely to cause serious harm to the health and safety of the household or the public; or

b) A member of the household should be transferred in the interests of community harmony.

The power is broad, but infrequently used.

Transfer may also be required for the purpose of repair, renovation, disposal or redevelopment. This is a ground for termination of a periodic tenancy under the Standard Terms of the RTA, but Housing ACT will transfer rather than evict a tenant in these circumstances, providing the tenant remains eligible for housing assistance.

Transfer to a dwelling with fewer bedrooms

Where a tenant applies to transfer to a smaller dwelling, the eligibility criteria set out in cl 9 and the provisions relating to needs categories and waiting lists do not apply, on the basis that such transfer promotes the efficient use of housing stock (cl 20).

Mutual exchange

Where two tenants wish to swap dwellings an exchange of tenancies can be approved by Housing ACT, providing that both households remain eligible for housing assistance and both are entitled to the house size to which they wish to swap. The exchange will also be subject to an inspection of each property and the requirement that neither tenant is in rent arrears. Housing ACT holds a register of applicants seeking to exchange dwellings. This is updated on a fairly regular basis but no other assistance is provided to promote mutual exchange.

During the Tenancy

Standard Terms

A Housing ACT tenancy is subject to the same Standard Terms of the RTA as all ACT tenancies. These terms regulate the rights and obligations of lessor and tenant in respect of quiet enjoyment, including the care, repair and maintenance of the premises, payment of rent, inspection, and how and when the tenancy may be terminated. This chapter will not address these as they are covered at During a Tenancy. In this chapter discussion will focus on those aspects of tenancy which are particular to public housing.

Endorsed terms

Additional terms may be added to the Standard Terms but if an additional term is inconsistent with the Standard Terms, the inclusion of the term must be endorsed by the ACT Civil and Administrative Tribunal (ACAT) through a joint application by lessor and tenant. An example of an endorsed term that may be sought by Housing ACT is a requirement that the tenant make payments towards a past debt. Ordinarily, s 15 of the RTA provides that only rent and bond shall be consideration for granting a tenancy, but s 15(5) allows the housing commissioner to require payment of an outstanding amount from a previous tenancy, providing this term is endorsed by the ACAT under s 10 of the RTA.

While the ACAT may refuse to endorse a particular inconsistent term, in practice endorsement is done in chambers, not by hearing, and there may be little examination of whether the term is unreasonably onerous or whether the debt to be repaid has been proven.

A Housing ACT Tenancy Agreement incorporates an attachment called "Housing Commissioner's Additional Terms" containing 15 additional terms. Some of these terms may be inconsistent with the Standard Terms and, if they are not endorsed terms, they may not be valid.

Calculation of Rent

The rent for every Housing ACT rental property is set on the basis of "market rent" which is periodically reassessed (generally once a year). Most tenants do not pay market or "full" rent because they have an entitlement to rebated rent. Under the rent rebate system, rent is based on 25 per cent of household income, irrespective of the size or quality of the dwelling itself. For example, the market rent may be $360 per week but for a tenant whose sole income is a Centrelink benefit of $480 per fortnight, or $240 per week, the rent payable will be $60.00 per week. Tenants generally pay rent fortnightly. Many Housing ACT tenants elect to pay rent by way of Centrelink direct deduction so that there is an automatic and regular pattern of correct payment on the tenant's fortnightly payday.

Clearly for tenants on such a low income rebated rent is essential for survival in the current rental market. For other tenants -- for example, a family which includes two adults in employment -- 25 per cent of household income may equal or be greater than the market rent in which case no rebate is payable. An obvious but important benefit of the rent rebate system for tenants is that a decrease in income generally results in a decrease in rent.

What is income for the purposes of rent rebate?

Income is defined in cl 11 of the Program in terms that mirror the definition in social security law: essentially "personal earnings, valuable consideration, profits or any other amounts ... earned, derived, received or become entitled to". Some classes of income are, however, exempt for the purposes of eligibility for housing assistance and rent calculation and these are set out in a Determination under the Program. They include Carer Allowance, Pensioner Education Supplement, Large Family Supplement, Family Tax Benefit Part B, and Youth Allowance payable at the single, at-home rate to residents in the premises who have no other form of income.

Conditions of rent rebate

The conditions of rent rebate are set out in cls 25 and 26 of the Program. Rebate is usually granted for a period of six months (though in some cases the period is 12 months). In order to conduct a rebate assessment Housing ACT generally requires the completion of a Rebate Application form and a statement of income for the preceding 26 weeks. For tenants whose sole income is Centrelink benefits, it is sufficient to provide an authority for Housing ACT to obtain an income statement directly from Centrelink.

The rebate ceases at the expiry of the six month period unless the requisite information is provided and a new grant of rebate is approved. If the rebate expires or is cancelled market rent is charged to the tenant's account and in many cases rent arrears accrue as a result. The housing commissioner has the power to backdate a grant of rebate in certain circumstances, allowing market rent charges to be replaced by rebated rent charges where, for example, a tenant has failed to apply for rebate by the due date because of illness. Conversely the commissioner has the power to disallow a grant of rebate where, for example, a tenant fails to declare a source of income for a period.

In addition, entitlement to rebate ceases where a tenant sublets the premises, stops living there or is absent without the consent of the commissioner or is absent for more than three months. The commissioner has a discretion to consider the circumstances of each case.

Changes in household composition or income

Tenants are required to notify Housing ACT when an additional resident and/or income comes into the household. Providing the tenant notifies at the time of an increase in income (for example, a pay rise) Housing ACT's policy is to allow the current rebate to run its term before factoring the increase into the rent calculation. If, however, the tenant experiences a significant reduction in income during the rebate period, an immediate reassessment can be done to prevent financial hardship. Where an additional resident brings an income into the household or an existing resident gains an income, the policy is to reassess the rebate with effect from the date of that change.

Visitor or resident?

As for private tenants, Housing ACT tenants have a right of quiet enjoyment and exclusive use of their homes, including the right to have guests. At the point at which a guest becomes a resident, that person's income affects the tenant's rebate entitlement and Housing ACT must be notified. There is no specified time period, rather it is a question of the intentions of the parties and the relationship to each other and the dwelling. For example, a family member may come from overseas and stay for several months and remain a visitor, while the domestic partner of a tenant is likely to be a resident as soon as s/he moves in.

Gaining employment after a period of unemployment

Where a tenant gains employment after a period of unemployment, the existing rebate is extended for a further six months from the date the employment started. This policy takes account of the additional expenses of commencing employment.

No income

There is a minimum rent charge of $5.00 per week even in circumstances where a tenant has no income. If the loss of income is the result of incarceration or entering a residential rehabilitation or mental health facility for an extended period, rebate is generally approved for the payment of minimum rent for a period of up to six months. There is a discretion to extend the grant of rebate on this basis in certain circumstances.

Not claiming Centrelink

Where a tenant chooses not to claim Centrelink benefits and has either no income or an income less than the relevant Centrelink benefit, Housing ACT is enabled by cl 11(3) of the Program to deem the tenant to be in receipt of the relevant Centrelink income on the basis that this income is reasonably available to the tenant. The rebated rent is then 25 per cent of the deemed income.

Market Rent Increases

The law governing market rent increases is covered at Rent - Increases and Reductions and applies to public housing tenancies. Eight weeks notice of a rent increase must be given in writing and rent increases may not be at intervals of less than 12 months. There is, however, specific provision in the RTA allowing Housing ACT to do a rent review in a new tenancy within less than 12 months, in order that Housing ACT may conduct rent review of all its properties at the same time each year, usually around September/October. Reviews generally result in an increase in the market rent. This may not affect most tenants who are in receipt of a rebate, and for some tenants the increase will result in a small rebate entitlement.

Seeking review of rent increase

A tenant who is affected by a market rent increase, or may be in the future, and believes the increase is excessive may seek internal review by Housing ACT in the first instance. If the tenant is dissatisfied with the outcome of that review, s/he may then apply to the ACT Civil and Administrative Tribunal (ACAT) for review in accordance with Part 5 of the RTA (see Rent - Increases and Reductions) Note that application for ACAT review should be lodged no later than two weeks before the date the rent increase is due to come into effect, though the Tribunal may hear a late application, lodged before the increase comes into effect, where there are special circumstances.

Whilst in the past, Housing ACT's market rents have been somewhat below the level of rents commanded in the private rental market, in recent years substantial rent increases have been introduced on most properties. A good deal of Housing ACT's stock is quite old and deteriorating. A Housing ACT tenant may be of the view that the condition of the dwelling does not justify the rent increase sought. Maintenance and repair of Housing ACT properties has long been a bone of contention.

A note on rent reduction

ACAT's power to order a reduction in the rent payable is also contained in Part 5 of the RTA. A tenant may seek a reduction in the rent by way of compensation for loss of amenity or quiet enjoyment or use of part of the premises arising from the lessor's failure to maintain or repair in accordance with the Standard Terms. In the case of a Housing ACT tenant who is in receipt of a rebate, the Tribunal has found that the "rent payable" is the rebated rent (Irena Peters v Commissioner for Housing for the ACT (2006)). The Tribunal also found that awarding a rent reduction of a rebated rent may result in an inadequate award of compensation and the Tribunal may use an alternative power (s 83(d)) to compensate the tenant.

Tenancy Breakdown

"Tenancy breakdown" is the term given at cl 19 of the Program to the circumstances in which a tenant is no longer living at the dwelling but one or more occupants remain in the dwelling. The circumstances include the death of the tenant, or the tenant going into institutional care, or the tenant being prohibited by court order from living at the dwelling. In some cases the tenant will simply wish to give up the tenancy in order to live elsewhere. In such circumstances Housing ACT may transfer the tenancy to the remaining occupant(s). The exercise of this discretionary power will depend on a number of factors, including the length of time the dwelling has been the occupant's home. In general Housing ACT will be reluctant to grant tenancy of the dwelling to the remaining occupant(s) if the size of the dwelling is beyond the entitlement of the occupant(s). In those circumstances, "some other available dwelling" may be provided to the remaining occupant(s).

The Appeals Process

Administrative Review

Most administrative decisions of Housing ACT may be appealed. Reviewable decisions (cl 30) 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 (cl 10);
  • 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 (cl 19).
  • 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 (cl 28).
  • A decision under cl 20(4) 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 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

Housing ACT has a two-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. Clause 31(6) of the Program provides that "if the affected person is aggrieved by the decision" at this level of review the person may lodge a further request for review and this request must be lodged within 28 days.

Under second tier review, the decision is considered by a body called the Housing Assistance Tenancy Review Panel (HATRP) comprised of senior Housing ACT officers. The HATRP decision is contained in a more detailed written report.

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)

The amalgamation of a number of specialist tribunals in 2008 under the umbrella of the ACAT arose from considerations of economic and administrative efficiency. There are some concerns that this may be at the expense of judicial efficiency since matters are now heard by Members who may not be specialists in the particular jurisdiction.

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 no filing fee for applications for review of Housing ACT administrative decisions. The Tribunal's powers and procedures are set out in the ACT Civil and Administrative Tribunal 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 Preliminary Conference date is set down. This is a relatively informal process in which the parties meet in the presence of a Tribunal Member to discuss the appeal. The Member's role is to help the parties to identify the issues in dispute and provide options for resolving the dispute without the need for a hearing.

If the matter is not settled, a Directions Hearing will be set down to establish time frames for the provision of the applicant's Statement of Facts and Contentions, witness statements and list of witnesses the applicant intends to call. The respondent -- Housing ACT - is also given a date by which to lodge their Statement of Facts and Contentions.

The matter is then set down for 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 may be 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 (discussed at Market Rent Increases), termination of the tenancy by the lessor (discussed at Termination of Tenancy), 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) is often raised on the basis of the work that needed to be done before re-letting the premises, with little or no consideration of whether the vacating tenant caused damage.

All such charges may be reviewed. Review of TRM debt where the tenancy is continuing is generally done by the Housing Manager in conjunction with a Tenancy Team Leader. Post-tenancy TRM debt review is generally conducted by the Vacated Debts Unit.

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 common for no 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 $57.00 (for an application in which the amount in dispute is less than $1,000) to $221 (for an application for termination and possession where no bond has been lodged at the Office of Rental Bonds). People on low incomes may seek waiver of the application fee.

Termination of Tenancy

The termination of a Housing ACT tenancy by either party is governed by the Standard Terms of the RTA and the powers of the ACAT at Part 4 of the RTA. These provisions are discussed at Ending a Tenancy and ACT Civil and Administrative Tribunal.

In addition, there are certain processes and considerations particular to the termination of Housing ACT tenancies, discussed below.

Termination by the Tenant

As all Housing ACT tenancies are periodic, a tenant may terminate the tenancy by giving three weeks notice. Housing ACT has its own Notice of Intention to Vacate form for this purpose. The tenant is required to leave the premises in substantially the same condition and substantially as clean as at the commencement of the tenancy, subject to fair wear and tear. Housing ACT will generally conduct a pre-vacation inspection once the tenant has given notice, and always when the tenancy is ending because of transfer. The Housing Manager will identify cleaning and repairs they believe need to be done before the tenant returns the property to Housing ACT. As many Housing ACT tenancies last many years, in some cases upward of 40 years, there may be no record of the property's original condition and limited records of the tenant's request for repairs and lessor's maintenance. In these circumstances the objective requirements may be difficult to determine, and dispute is common.

It is also important for the tenant to return the keys to Housing ACT to clearly mark that the tenant no longer has possession of the property from a particular day and time. It is sometimes several days before Housing ACT conducts a post-vacation inspection of the premises and a vacant property may be vulnerable to break-in or squatting.

Termination by Housing ACT

The principal of security of tenure still underpins Housing ACT tenancies to a large extent. It is rare for Housing ACT to use the "no cause" provision in the Standard Terms (clause 94). Generally the only circumstances in which Housing ACT may use this provision are in relation to cl 28 of the Program which requires the tenant to move to another dwelling for reasons of safety or community harmony. If the tenant refuses to move, Housing ACT may issue a 26 week Notice to Vacate.

Apart from the decision to sell or redevelop the premises -- and in many instances this decision will be made only when the tenancy has ended -- the reasons for termination by Housing ACT will be alleged breach of the tenancy agreement by the tenant.

In some instances the breach will be evident: failure to pay rent, for example. In other cases, whether or not there is a breach by the tenant is very much a question to be determined by reference to evidence.

Non-payment of rent

In accordance with the Standard Terms, if a tenant is seven days or more in arrears of rent, Housing ACT may issue a Notice to Remedy giving seven days for the arrears to be paid. If the tenant fails to pay the arrears, on or after the eighth day Housing ACT may issue a Notice to Vacate giving 14 days, and, if the tenant fails to vacate, Housing ACT may apply to the ACAT for a Termination and Possession Order (TPO).

In practice the Housing Manager will endeavour to establish the cause of non-payment or underpayment of rent and will encourage the tenant to enter into an arrears repayment arrangement. Given the low incomes of many tenants, repayment of rent arrears can only be by instalments. A Notice to Vacate on the grounds of rent arrears is not usually issued if the tenant is making regular payments of rent plus an arrears component.

If and when a Notice to Vacate is issued on the grounds of non-payment of rent, a letter accompanies the Notice advising the tenant s/he may seek review within seven days. As with internal review of administrative decisions, the matter will be considered first by a senior manager who may uphold the appeal and, if not, the matter is generally forwarded to the second tier of review, the HATRP, whether or not the tenant requests further review.

Underlying problems experienced by the tenant may be picked up at the HATRP review: for example, arrears arising from loss of rebate, which may be addressed administratively, or a health issue affecting capacity to pay, which may be addressed by referral to support services.

Generally, Housing ACT will seek to recover outstanding rent without seeking eviction. At s 49 of the RTA the ACAT has the power to make a Conditional Termination and Possession Order (CTPO) which allows the tenancy to continue on condition of payment of rent and arrears in accordance with the orders. In order to make a CTPO the Tribunal must be satisfied that the tenant is "reasonably likely" to repay the arrears and pay rent as it falls due, and the tenant must undertake to do so. If the tenant fails to comply with a CTPO, Housing ACT may apply to the Tribunal for a warrant of eviction.

The current policy of Housing ACT in relation to rent arrears is that eviction is the last resort. The Tribunal has tended to be reluctant to evict Housing ACT tenants, particularly where there are children involved, because of the detrimental effects of homelessness for people on low incomes who may have no other housing options. This concern is balanced by consideration of the public purse and eviction may be the final outcome for persistent non-payment of rent.

Breach other than non-payment of rent

If Housing ACT wishes to seek ACAT orders under s 48 of the RTA, in respect of a breach other than non-payment of rent, they must issue a Notice to Remedy giving the tenant 14 days to remedy the breach. If after 14 days there is no remedy, or the breach is not capable of remedy, a Notice to Vacate giving 14 days may be issued. As with rent arrears, Housing ACT gives the tenant a right to seek review within seven days of the issue of the Notice to Vacate, and the internal review follows much the same path.

The kinds of breaches for which Housing ACT seeks ACAT orders include:

• Failure to provide access for inspection;
• Failure to take reasonable care of the premises;
• Making an unauthorized alteration to the dwelling; and
• Causing or permitting nuisance and/or interfering or permitting interference with the quiet enjoyment of neighbours.

"Nuisance" applications are particularly problematic because there may be little or no evidence of the alleged breach. There is no provision in s 48 for "Conditional Orders" equivalent to the provision in s 49. However, since mid-2008 an amendment to s 48 has empowered the ACAT to make a TPO if the ACAT has previously made an order for performance of the tenancy agreement -- that is, an order requiring the tenant to comply with the terms of his/her agreement -- and the ACAT is subsequently satisfied that the tenant has breached that order. It has become the practice of Housing ACT, in response to a complaint about a tenant's behaviour, to issue a Notice to Remedy and then apply to the ACAT for a "General Order" requiring the tenant to remedy the breach, and an order for compliance with the tenancy agreement. In some cases such orders may be sought and obtained, often ex parte, with little or no evidence presented to the Tribunal. The Tribunal may set the matter down for full hearing or invite the parties to settle the matter by consent. While the tenant may make no admission of breach and the ACAT may refuse to make an order for remedy of breach, it is not uncommon for the Tribunal to make orders by consent that the tenant is to comply with the tenancy agreement. It is a relatively small step from such an order to an application for Termination and Possession based on an alleged breach of that order. It should be noted that the Tribunal must be satisfied not only that a breach has occurred but that the breach justifies the termination of the tenancy.

Having regard to the challenges facing some public housing tenants -- including limited literacy or education, non-English speaking backgrounds, cultural alienation, poverty, mental health issues, other disabilities, and a preponderance of tenants with some or all of these problems in high density complexes -- it is not difficult to see how a neighbourhood dispute may be a slippery slope to eviction.

Housing ACT has made some investment in policies and staffing to find alternative approaches to eviction action in relation to disputes between neighbours but this remains a vexed area for both lessor and tenants.

Contacts, Links and Resources

ACT Civil and Administrative Tribunal www.acat.act.gov.au

ACT Commissioner for Sustainability and the Environment www.envcomm.act.gov.au

ACT Human Rights Commission www.hrc.act.gov.au

ACT Ministerial Advisory Council on Ageingwww.dhcs.act.gov.au/wac/ageing/advisory_council_on_ageing

ACT Ombudsman www.ombudsman.act.gov.au

ACT Shelter www.actshelter.net.au

ACT Tenants Union www.tenantsact.org.au

Aged Care Standards and Accreditation Agency www.accreditation.org.au

Association of Public Housing Tenants (02) 6262 6472

Australian Human Rights Commission www.hreoc.gov.au

Canberra Connect www.canberraconnect.act.gov.au

Department of Families, Housing, Community Services and Indigenous Affairs www.fahcsia.gov.au

Early Morning Centre www.canberracityuca.org.au/html/early_morning_centre.html

Havelock Housing Association www.havelock.asn.au

Housing ACT www.dhcs.act.gov.au/hcs/public_housing

Office of Rental Bonds www.ors.act.gov.au/rentalbonds

Real Estate Institute of the ACT www.reiact.com.au

Street Law www.streetlaw.org.au

Welfare Rights and Legal Centre www.welfarerightsact.org.au