Aboriginal Housing Office v Cargill

[2019] NSWCATCD 45

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Aboriginal Housing Office v Cargill [2019] NSWCATCD 45
Hearing dates:	18 April 2019
Date of orders:	30 May 2019
Decision date:	30 May 2019
Jurisdiction:	Consumer and Commercial Division
Before:	J Millbank, Senior Member
Decision:	Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, orders published on 30 May 2019 are amended on 19 June 2019 to read as follows: 1. The tenancy is terminated immediately.  2. The order of possession is suspended until 1 July 2019.
Catchwords:	RESIDENTIAL TENANCY – Breach – Criminal Offence - Social Housing
Legislation Cited:	Anti-Discrimination Act 1977 NSW Residential Tenancies Act 2010
Cases Cited:	Orr v NSW Land and Housing Corp [2018] NSWCATAP 237
Category:	Consequential orders (other than Costs)
Parties:	Aboriginal Housing Office (Applicant) Alana Cargill (Respondent)
Representation:	Solicitors: Department of Family and Community Services – Legal Service Brach (Applicant) Eastern Area Tenant’s Service (Respondent)
File Number(s):	SH 18/47811
Publication restriction:	Nil

REASONS FOR DECISION

1. On 18 April 2019 I heard an application for termination by Aboriginal Housing Office under s 91(1) of the RTA on the basis that the tenant had caused or permitted illegal use of the premises.

2. I found that the breach was proved and gave brief written reasons at that time. Those reasons will not be repeated here except to note the following: the tenant was convicted of using the premises for growing and selling cannabis in concert with her partner. The tenant is currently in gaol as a result of the conviction but is pursuing an appeal. She is an Aboriginal woman and has lived in the property for much of her life.

3. At issue was whether termination of the tenancy was mandated by s 154D(1) of the RTA.

4. The tenant’s advocate argued that s 154D(3)(b) applied. Further written submissions were permitted to address this issue, namely whether the tenant was a person with a disability within the meaning of the Anti-Discrimination Act 1977 NSW (ADA) and if so, whether the Tribunal should be satisfied that the termination order would be “likely to result in undue hardship” being suffered by the tenant.

5. If the Tribunal were satisfied that s 154D(3) were applicable the decision on termination would then be discretionary not mandatory. If so then it would also require consideration of s154E factors.

6. The tenant’s evidence included brief reference to the fact that she has Turner’s syndrome, which has affected her fertility.

7. The tenant’s advocate submitted Federal Court authority Munday v Cth (2014) 226 FCR 199, that this condition had been considered to meet the definition of disability in the ADA. The applicant conceded in written submissions that it accepted that Turner’s syndrome fit within the ADA and therefore within s 154D93)(b).

8. The live issue was therefore whether there was any basis upon which the Tribunal could form a view that the termination of the tenancy would be likely to result in undue hardship.

9. The tenant’s submissions were that: 1 she would find it difficult to receive an intensive correction order if successful on appeal on the basis that such an order requires a fixed address; 2 she had lived in the premises since she was 4 and had strong ties to the local community in particular as an Aboriginal woman; 3, her local area is where her doctors are located and she may need increased access to them if her condition worsened, and 4, her infertility meant a special connection with her pet animals which reside at the property.

10. The applicant argued that the hardship must be linked to the disability and posed that the purpose of the provision was to protect vulnerable people from the operation of the mandatory termination provision.

11. The applicant relied upon Orr v NSW Land and Housing Corp [2018] NSWCATAP 237 to contend that’s 154D(3) meant hardship that is “excessive in the circumstances”.

12. The applicant argued that there was no evidence to demonstrate that the tenant was currently receiving treatment connected with the disability or that it impacted upon her ability to obtain employment or otherwise limit her day to day activities.

13. The tenant argued that no narrow construction of hardship should be taken to limit it to the context of the disability.

14. Having considered the materials provided by the tenant I am unable to find that she is likely to suffer undue hardship as a result of the termination of the tenancy. The impact upon the tenant’s chance of receiving an intensive correction order are an unavoidable but also foreseeable effect of a termination provision that is linked to a criminal offence, and so cannot be regarded as excessive or unusual.

15. I accept that the tenant has a strong connection to the house and to the area and that such connection is even stronger by reason of her aboriginal identity. Likewise I accept that her attachment to her animals is even stronger by reason of the impact of her disability upon her fertility.

16. However these impacts are not so severe or excessive as to rise to the level of ‘undue hardship’ in the RTA. They are likely to be hardships, but they are hardships of such a nature as is routinely contemplated by this kind of termination of a social housing tenancy.

17. I find that the tenant can pursue re-housing of her animals. Indeed as the tenant and her partner are both currently incarcerated this is something which must have been done in any event, and so cannot be seen to result from the tenancy termination.

18. I find that upon release from prison the tenant can pursue housing options in the area that enable her to access her medical and social support systems.

19. As I find that the termination is mandatory, no consideration of s 154E factors is required. Had they been considered they would still not have assisted the tenant.

20. I am also aware that if termination orders were not made in these proceedings, the tenancy would still be in danger of being terminated for further breach being lack of occupancy while the tenant remains in prison.

21. As the tenant is not in a position to effect removal of her belongings, I have suspended the operation of the vacant possession for 4 weeks to enable her to arrange for this to be done on her behalf.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 19 July 2019