Ahmed & Ahmed v Commissioner for Social Housing (Administrative Review) - [2015] ACAT 74

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

AHMED & AHMED v COMMISSIONER FOR SOCIAL HOUSING (Administrative Review) [2015] ACAT 74

AT 19 of 2015

Catchwords: ADMINISTRATIVE REVIEW – social housing – needs categories – transfer application – need to accommodate disability

Legislation cited:

ACT Civil and Administrative Tribunal Act 2008 (ACT) s68
Housing Assistance Act 2007 (ACT) ss 17, 18, 19, 20

Subordinate
Legislation: Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) cl 4 ‘rental housing assistance’,13, 30, 32

Housing Assistance Public Rental Housing Assistance Program (Housing Needs Categories) Determination 2011 (No 2)

Tribunal: Ms W. Corby – Senior Member

Date of Orders: 3 November 2015

Date of Reasons for Decision: 3 November 2015

ACT CIVIL & ADMINISTRATIVE TRIBUNAL AT 15/19

BETWEEN:
SALEH AHMED & AMINA AHMED
Applicants

AND:
COMMISSIONER FOR SOCIAL HOUSING
Respondent

TRIBUNAL: Ms W. Corby – Senior Member

DATE:3 November 2015
ORDER

The Tribunal Orders that:
1.Pursuant to section 68 of the ACT Civil & Administrative Tribunal Act 2008 the Respondent’s reviewable decision dated 30 January 2015 is set aside.
2.The Tribunal makes the substitute decision that the Applicants’ transfer application, approved with effect from 15 September 2014, is placed on the Priority Housing list.

………………………………..
Ms L. Crebbin – General President
for and on behalf of
Ms W. Corby – Senior Member

REASONS FOR DECISION

Saleh and Amina Ahmed (the ‘Applicants’) are tenants of a social housing property (the ‘property’). On 20 October 2014 the Commissioner for Social Housing (the ‘Respondent’) approved with effect from 15 September 2014 the Applicant’s application to transfer to another 4 bedroom social housing property in the Tuggeranong or Woden area of the ACT (the ‘transfer application’).
The Respondent allocated the approved transfer application to the High Needs Housing list (the ‘allocation decision’). The Applicants say that they meet the criteria for the Priority Housing Needs Category and so their transfer application should be allocated to the Priority Housing list. The Applicants sought internal review by the Respondent of the allocation decision. On 30 January 2015 the Respondent made a decision denying the Applicants’ request to allocate their transfer application to the High Needs Housing list (the ‘reviewable decision’). The Applicants have applied to the ACT Civil and Administrative Tribunal (‘ACAT’) for review of the reviewable decision.
In these reasons for decision, when referring to the Member who heard the matter, the term ‘Tribunal’ is used.

The hearing

The matter was heard on 18 and 19 September 2015. At the end of the second day of hearing the Tribunal reserved its decision. These are the Tribunal’s reasons for the decision and orders.
The Applicants both attended at the hearing, were self represented and gave oral evidence.
The Applicants were supported at the hearing by Hermarnee Perry from ACT Disability, Aged and Carer Advocacy Services (‘ADACAS’). Although Ms Perry has experience working with people with disabilities, her role at the hearing was primarily to provide support to the Applicants. Ms Perry did not play an active role in the hearing although she did give some oral evidence about her attendance at the property where the Applicants live.
The Respondent was represented by Linda Hann from the ACT Government Solicitor’s Office. She was instructed at the hearing by Andrew Roylance who is Senior Manager Housing Initiatives in the Respondent’s office. Mr Roylance gave some oral evidence during the hearing.

Information considered by the Tribunal

In making the decision the Tribunal took into account the following documents and information.
The oral information and evidence provided by, or on behalf of, the parties at the hearing.
The documents filed by the Respondent, being those documents that the Respondent says were relevant to the Respondent’s reviewable decision (the ‘T Docs’). When referring to specific T Docs the Tribunal will identify the T Docs by reference to page number/s (e.g. T Docs 1-3).
The written and oral submissions by or on behalf of the parties which were filed in ACAT or made during the hearing including:
a) The Respondent’s Statement of Facts and Contentions filed 3 September 2015; and
b) The Respondent’s Further Documents (‘RFD’) filed 3 September 2015.
The medical and other documentary information which was tendered at the hearing as Exhibits:
(a)Exhibit A1 – Occupational Therapy Relocation Report – prepared by Teresa Carr (Occupational Therapist) dated 11 July 2014;[1]
[1] T Docs 42-44
(b)Exhibit A2 – Dr Gamal Helmy Referral of Saleh Ahmed for Physiotherapy dated 8 August 2014;
(c)Exhibit A3 – Laura Granger (Occupational Therapist - Therapy 4 Kids) (NDIS Service Provider) home and needs assessment dated 20 July 2015;
(d)Exhibit A4 – Plan of dual occupancy premises – Block 25 Section 234 in Gowrie, ACT;
(e)Exhibit A5 – Report of Anna Everett (Senior Occupational Therapist – Sydney Children’s Hospital) dated 14 July 2015;
(f)Exhibit A6 – Letter from Dr Kate McCallum dated 15 May 2015;
(g)Exhibit A7 – Bundle of 19 photographs taken by Applicant and filed 7 September 2015;
(h)Exhibit A8 – Dr Hugo Sampaio (Paediatric Neurologist) report to GP dated 24 April 2014;[2]
(i)Exhibit A9 – Statement by Amina Ahmed (Applicant) filed 31 July 2015;
(j)Exhibit A10 – Statement by Saleh Ahmed (Applicant) filed 31 July 2015;
(k)Exhibit R1 – Occupational Therapy Home Assessment by Teresa Carr dated 28 September 2011;[3]
(l)Exhibit R2 – Statement of Leanne Broad (Occupational Therapist) dated 2 September 2-15 (filed 3 September 2015); and
(m)Exhibit R3 – Request for Disability Modifications dated 16 January 2012.[4]

Legislative context
[2] T Docs 20-21
[3] RFD5 26-30
[4] RFD5 25

For ease of reference the specific provisions referred to in these reasons for decision are set out in the attached schedule.
The Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) Disallowable Instrument DI2013-52 (the ‘Program’) is an approved program pursuant to the Housing Assistance Act 2007 (the ‘HA Act’).[5]
[5] HA Act section 19
The Program applies to an application for rental transfer from one to another public housing dwelling as if it were an initial application for public housing assistance.[6] A program may include the kinds of assistance provided, the criteria for providing assistance and how the Respondent’s decisions under the program may be reviewed.[7] The Respondent may delegate his/her functions to a public servant.[8]
[6] the Program clauses 20 and 4 and the definition of ‘rental housing assistance’
[7] HA Act section 18
[8] HA Act section 17
The Respondent must determine ‘needs categories’ and ‘criteria for the allocation of needs categories to applications for housing assistance’. The Respondent must allocate a needs category to every application for housing assistance.[9]
[9] the Program clause 13 and the HA Act section 20
The relevant categories are set out in the Respondent’s determination Housing Assistance Public Rental Housing Assistance Program (Housing Needs Categories) Determination 2011 (No 2) Notifiable Instrument NI2011-507 (the ‘Categories Determination’)
The Categories Determination identifies three categories and the applicable criteria for each category. The categories are Priority Housing, High Needs Housing and Standard Housing. As noted above, the Applicants’ transfer application was allocated to the High Needs category.
A decision allocating a needs category to a rental transfer is a reviewable decision under the Program.[10] If the Respondent receives a request for review the Respondent may refer the request to, in this case, the Housing Assistance and Tenancy Review Panel (‘HATRP’) for recommendations. The Respondent may accept, vary or reject HATRP’s recommendation.[11] The Applicants may apply to ACAT for review of the Respondent’s decision to accept, vary or reject the HATRP recommendation.[12]
[10] the Program clause 30(1)(d)
[11] the Program clause 30(3)(b)
[12] the Program clause 32
When considering an application to review a decision of this kind the Tribunal ‘stands in the shoes’ of the reviewable decision maker. The Tribunal can exercise any function of the decision maker for the purpose of making the decision. The Tribunal must by order confirm, vary or set aside the reviewable decision. If it sets aside the decision the Tribunal must either make a substitute decision or remit the matter to the decision-maker for reconsideration and the Tribunal may make directions or recommendations relevant to the decision to be made.[13]

The reviewable decision - background
[13] ACT Civil & Administrative Tribunal Act 2008 section 68

In this matter the Applicants’ application for rental transfer dated 9 September 2014 was received by the Respondent on 15 September 2014.[14] In the application the Applicants sought an urgent transfer because one of their 3 children has a disability and is confined to a wheelchair. They advised that their current dwelling did not meet his needs or accommodate the equipment he needs to use. They sought to have their transfer application allocated to the Priority Housing list.
[14] T Docs 12-19
The Respondent approved the application on 20 October 2014 (the ‘original decision’). The Respondent allocated the transfer application to the High Needs Housing list for a 4 bedroom house in Tuggeranong or Woden.[15]
[15] T Docs 38
The Tribunal notes that because of the Applicants’ circumstances the Respondent, by a separate decision on 20 October 2014,[16] also exercised the discretion[17] to approve a transfer to a 4 bedroom property notwithstanding that, given the composition of the family, only a 3 bedroom property would otherwise have been approved.
[16] T Docs 36-37
[17] pursuant to clause 21 of the Program
On 28 November 2014 the Applicants sought review of the allocation decision.[18] They asserted that the property they live in does not meet their needs because:
(a) the bathroom needs modification to accommodate their son’s wheelchair and to enable use of a commode in the shower; and
(b) the hallway and bedrooms are not big enough to accommodate or enable him adequate mobility with his wheelchair.
[18] T Docs 45-46
The request for review was referred to HATRP. HATRP considered that:[19]
(a)the original decision was correct;
(b)no additional information had been provided to support review of the original decision;
(c)the property the Applicants reside in is a ‘Universal Class C’ property which can be modified to meet the Applicants’ son’s needs; and
(d)there could be a wait of ‘a number of years’ before a transfer to a 4 bedroom ‘Universal/Adaptable Class C’ property would occur and so the proposed modifications would be a quicker solution.
[19] HATRP report T Docs 47-54 at [54]
HATRP recommended that the request for review be denied and that, with advice from an occupational therapist, the necessary modifications to accommodate the Applicants’ son’s needs should be identified and carried out ‘with some urgency’.

Evidence

Medical and other expert evidence
(a) Therese Carr – Occupational Therapist

‘Occupational Therapy Home Assessment’ dated 28 September 2011 (Exhibit R1) - Ms Carr was the Applicants’ son’s occupational therapist in 2011. Ms Carr conducted a home assessment at the property on 1 September 2011 shortly after the Applicants’ family moved into the property. Ms Carr made the following comments/recommendations:
(a)The assessment is based on the assumption that the Applicants’ son will reside in Bedroom 1 which has an ensuite. At the time the Applicants’ son used a manual wheelchair, although he was waiting to receive a motorized chair. The Applicants’ son relied on his parents to assist him with all personal care, transfers and to assist him with activities of daily living.
(b)Modifications were needed to front and back door access to allow wheelchair access. These were regarded a ‘P2’ – semi-urgent modifications i.e. modifications that need to be completed in 3 months.
(c)Modifications were needed to the ensuite bathroom shower, shower taps and hose, floor and toilet. These were described in the report as ‘P1’ – ‘urgent’ - and therefore needed to be completed ‘as soon as possible’.
(d)Following email correspondence between the Respondent and Ms Carr in January 2012[20] Ms Carr agreed that, rather than moving the taps in the ensuite shower, installation of a second hand-held shower hose hook may be sufficient, and this ‘amendment’ to her Assessment of 28 September 2011 is noted on page 4 of her report.[21]
(e)On 30 September 2011 the Respondent requested that their contractor undertake the ‘Disability Modifications’ as set out in Ms Carr’s 28 September 2011 Assessment.[22] On 16 January 2012 the Respondent sent a further ‘urgent’ request to undertake the ‘Disability Modifications’ enclosing Ms Carr’s 28 September 2011 report with the ‘amendment’ in relation to the installation of a hand-held shower hose hook instead of moving shower taps and hose.[23]
[20] RFD4 pages 23 – 24
[21] Exhibit R1 – RFD5 page 28
[22] RFD3 page 22
[23] RFD5 page 25
Ms Carr’s Occupational Therapy Relocation Report dated 11 July 2014.[24] Ms Carr prepared this Report in relation to the Applicants’ transfer request. Ms Carr notes that the Applicants’ son’s mobility and function will continue to decline. In the ‘report’ – which is a form – Ms Carr notes that:
(a)The Applicants’ family needs a 4 bedroom property with wheelchair access and adequate ‘circulation spaces’ and ‘doorways’ are ‘essential’ to accommodate wheelchair turning;
(b)the bathroom should either be ensuite or close to the Applicants’ son’s bedroom; must include a hobless shower with appropriate tapware/hose, have sufficient space for carer to assist and for use of wheelchair and mobile hoist, preferably have a toilet in bathroom with sufficient ‘clearance’ to enable use of mobile hoist for transfer; have a wheelchair accessible basin;
(c)the bedroom should have sufficient ‘circulation’ space; and
(d)the kitchen should have part of a bench lowered for wheelchair use and access to fridge.
[24] Exhibit A1 T Docs 42-44
In February 2012 the Respondent emailed Ms Carr advising that the Applicants would not permit access to the premises so that the contractors could undertake the bathroom modifications. Ms Carr undertook to speak to the Applicants[25].
[25] RFD6 page 30A
In October 2012 the Respondent emailed Ms Carr about an ‘alternative’ proposal in relation to ‘shower’ modifications – namely installation of a ‘wedge’ to allow wheeled access to the shower. On 11 October 2012 Ms Carr suggested that this would not facilitate access for a carer and would be only a ‘very temporary’ solution.
(b) Dr Kate McCallum
Dr McCallum is a general practitioner. Dr McCallum did not inspect the property where the Applicants live. In her letter of 15 May 2015 [26] she supports the allocation of the Applicants’ transfer application to the Priority Housing list. Dr McCallum recommends that the family reside in a property which has an adequately sized and appropriately modified bedroom and bathroom to accommodate the Applicants’ son’s care and an electric wheelchair, allows commode or wheelchair access to the shower, a hoist and has a wider hall to enable use of hoist and wheelchair. She notes that lack of space in the bathroom for a hoist or shower commode puts the Applicants and their son at risk of injury.
(c) Laura Granger – Occupational Therapist with Therapy 4 Kids
[26] Exhibit A6 filed in ACAT by the Applicants on 31 July 2015
Therapy 4 Kids is the Applicants’ son’s National Disability Insurance Scheme (‘NDIS’) service provider. Ms Granger has conducted a home assessment at the property. In her report of 20 July 2015[27] Ms Granger makes the following comments/recommendations:
(a)The Applicants lift their son to and from wheelchair, bed, toilet and shower. The Applicants’ son will get bigger. It is necessary that the family is able to use a hoist in several rooms in order to assist with transfers.
(b)The Applicants’ son needs a ‘tilt in space shower commode’ to assist with independence in shower and use of toilet;
(c)Both of the showers at the property have a ‘threshold’ and cannot accommodate a shower commode chair (a shower stool is used currently) there is not enough room in the main bathroom for the hoist or maneuvering the wheelchair; and
(d)There is limited circulation space at the property including the hallway.
[27] Exhibit A3 filed in ACAT by the Applicants on 31 July 2015
Ms Granger recommends either:
(a)that the Applicants’ son move to the main bedroom (Bedroom 1) with ensuite. The bedroom could accommodate an ‘adjustable’ bed and a desk.
i. The ensuite would need to be modified.
ii. The Applicants would need to move to another bedroom and share use of the main bathroom with their other children. The Applicants’ son would still have limited access in the hallway.
(b)that the Applicants’ son move to Bedroom 2. The bed, currently in Bedroom 2, that would need to be moved may not fit in either Bedroom 3 or 4.
(c)Bedroom 2 could not accommodate a desk as well as the adjustable bed – currently used by the Applicant’s son – as this would limit circulation space. The built-in wardrobe in Bedroom 2 would need to be reduced in size and this would further reduce the limited storage in the property.
(d)Ms Granger concludes that the Bedroom 2 option is preferred. She says that ideally the family would live in an open plan house where their son’s bedroom could accommodate adjustable bed, hoist, desk and wheelchair. The bathroom would need to accommodate use of commode and hoist. The property would need to have sufficient built-in storage so that items can be stored to ensure maximum floor space.
(d)Anna Everett – Senior Occupational Therapist (Sydney Children’s Hospital
Ms Everett’s letter dated 14 July 2015 is written in support of the Applicants’ transfer request.[28] Ms Everett has not been to the property. Ms Everett makes the following comments/recommendations:
(a)that the toilet ‘room’ at the property is too small and the current manual process used to transfer the Applicants’ son to and from wheelchair to toilet presents risk of injury to both the child and his parents;
(b)the same manual transfer process has to be used in the shower with the same risk of injury. There is insufficient room for a commode chair and the Applicants’ son says he feels uncomfortable and unsafe on the shower stool which is currently used. Ms Everett expresses concern that if either or both of the Applicants sustain an injury then commercial carers may need to be engaged;
(c)Ms Everett noted that the ‘manual’ transfer process has to be undertaken at least 6 times every day;
(d)Ms Everett concludes that the toilet needs to be in the bathroom and the bathroom needs to be modified to create enough circulation space and access to accommodate use of wheelchair, hoist and commode chair. Because the Applicants’ son requires longer time in the bathroom it would be ‘beneficial’ to the family if they had more than one bathroom;
(e)the Applicants’ son needs his own bedroom which needs to be larger than normal. There needs to be enough space around the bed to enable access on both sides by carers. He needs an appropriately modified desk and storage space for his belongings;
(f)Ms Everett agrees with the Ms Ahmed (one of the Applicants) who says that relocation is to be preferred to renovations at the property. The renovations proposed would be too extensive, costly, time consuming and would create too much upheaval. Ms Everett concludes that the Applicants’ application should be ‘allocated top priority’;
(g)Ms Everett notes that the current property has appropriate external access and is level.
(e)Dr Hugo Sampaio – Paediatric Neurologist
[28] Exhibit A5 filed in ACAT by the Applicants 31 July 2015

Dr Sampio wrote to Dr McCallum[29] (GP) on 24 April 2014 [30] reporting on the Applicants’ son’s condition. Dr Sampoio’s report confirms the diagnosis and prognosis of the Applicants’ son’s condition.
(f) Leanne Ellen Broad – Occupational Therapist
[29] Exhibit R2 filed in ACAT by the Respondent 3 September 2015
[30] Exhibit A8 T Docs
Ms Broad is employed by Therapy ACT and provides services to Housing and Community Services ACT under the Housing ACT occupational therapy services.
Ms Broad made a written statement signed on 2 September 2015[31] and gave evidence on behalf of the Respondent at the hearing. Attached to the statement was Ms Broad’s Occupational Therapy Home Assessment Report dated 18 May 2015[32] and photographs that she took at the property on 24 April 2015.[33]
[31] Exhibit R2
[32] Exhibit R2 Attachment ‘C’
[33] Exhibit R2 Attachment ‘D’
Ms Broad conducted an assessment of the property on 24 April 2015. She attended the property with a ‘Spotless’ builder, Hans Turek. Mr Turek is the Spotless manager of disability modification works. Ms Broad assessed the suitability of the property to accommodate the Applicants’ son’s needs and to make recommendations about equipment and modifications. She concluded that with ‘changes in practice, modifications and additional equipment’ the property ‘would be appropriate’ to address his ‘long term needs’.[34]
[34] Exhibit R2 at [6(a)]
In the Occupational Home Assessment report dated 18 May 2015 [35] Ms Broad noted:
(a)the lack of wheelchair access to bathroom;
(b)inadequate space in bedroom 3 (the Applicants’ son’s current room) to perform safe hoist transfers; and
(c)that it was difficult to move the mobile hoist (which could otherwise be used to assist with transfers) in the hall, bedroom and bathroom.
[35] Exhibit R2 Attachment ‘C’ page 3
Whichever of the options she recommended were undertaken, the following equipment would be needed:
(a)wheeled toilet/shower commode; and
(b)‘potentially’ a ceiling track hoist.
In relation to modifications to the property Ms Broad recommended:
(a)Option 1- move the Applicants’ son to Bedroom 2 and undertake major modifications to the bathroom and adjoining toilet; or
(b)Option 2 - move the Applicants’ son to Bedroom 1 and undertake major modifications to the en suit bathroom.
Whichever of the proposed options is undertaken, Ms Broad would need to attend the property again to prepare detailed specifications. These would then be sent to the Applicants for comment. Once agreed and finalized work could commence.
In preparing her statement of 2 September 2015[36] Ms Broad says that she had read the Applicants’ statements filed 31 July 2015[37] and the reports of Ms Everett [38] and Ms Granger.[39]
[36] Exhibit R2
[37] Exhibits A9 and A10
[38] Exhibit A5
[39] Exhibit A3
The Applicants and their son were at the property when Ms Broad attended on 24 April 2015. Although the Applicants’ other children were present at the property, they did not participate in the assessment.
Ms Broad observed that the Applicants’ son can use his motorized wheelchair independently and accurately. Although she did not see him hit against doorways or walls, in evidence she agreed that this is a common occurrence when a wheelchair is used in the home – for example when the user is fatigued. Ms Broad advised that there is material that can be attached to walls and doorways which does not encroach on space and protects the walls etc from marks and/or damage.
Ms Broad said:
(a)regarding option 1 or 2 that bedroom 1 or 2 would need to be cleared of all furniture other than the adjustable bed (currently used by the Applicants’ son) and a small bedside unit. Ideally the carpet would be removed to allow better use of a mobile hoist and mobile shower/toilet commode and or wheelchair. However if a ceiling hoist is installed, then the room could have carpet and a small desk;
(b)that for option 1 (move to Bedroom 2) the main bathroom and adjoining toilet would need major modifications including removal of the wall between them, removing the bath, and major changes to the shower and toilet so that they were accessible for a mobile shower/toilet commode and to facilitate transfers; and
(c)that for option 2 (move to Bedroom 1) major modifications would need to be undertaken in the ensuite.
During the home visit on 24 April 2015 Ms Broad observed and discussed with the Applicants and their son how activities of daily living are currently undertaken. Ms Broad discussed with the ‘Spotless’ builder (Mr Turek) which of the suggested modifications, from his perspective, were possible at the property. She does not recall observing the Applicants’ son in the ensuite. No issues had been identified in relation to the use of kitchen or laundry and these rooms were not included in the assessment.
In evidence Ms Broad said the purpose of the assessment, which had been requested by the Respondent, was to prepare a preliminary report as to whether the property could be modified to meet the Applicants’ son’s longer term needs. Further visits would be needed, to allow preparation of detailed specifications, once a ‘preferred’ – of the two proposed – options was identified. However, based on the concerns identified by the Applicants, she said that option 1 (move to Bedroom 2) was the preferred option.
Ms Broad also gave evidence that option 1 (move to Bedroom 2) is the preferred option given the larger size, if modified, of the combined bathroom/toilet (as compared with the en suite).
In evidence Ms Broad identified the possible ‘longer term’ needs of the Applicants’ son as being that he may ultimately need assistance from 2 carers with transfers etc, as he may grow and further or different equipment may be needed. She said she had taken account of this in her assessment.
Ms Broad said that the Applicants’ son would need a mobile commode with a tilt function to ensure his safety and comfort as his condition deteriorates. Ms Broad identified that ideally transfers would take place in the bedroom with use of a hoist and the Applicants’ son could then be transferred to the bathroom or toilet with a mobile shower/toilet commode. Based on her assessment she considers that the need to address lack of suitable wheelchair access to the bathroom or toilet are a priority.
Ms Broad noted that the ‘hallway access’ issues identified by the Applicants would not present as an issue if option 2 (move to Bedroom 1) were undertaken. In relation to option 1 (move to Bedroom 2) the wall between Bedroom 2 and the lounge could be modified/removed to make this area ‘open plan’ to facilitate access from Bedroom 2 to the bathroom. Ms Broad said that the possible modifications to this wall had not been explored in any detail.
In answer to questions about the ‘lack of privacy’ for the Applicants’ son in moving between Bedroom 2 and the bathroom if the wall between Bedroom 2 and the lounge were removed, Ms Broad said that option 2 (move to Bedroom 1) would not have this issue and it was therefore a matter of what is a priority for the family.
Ms Broad considered the hallway at the property was at least standard and perhaps a little wider than normal. She considered that the issue was not the width of the hallway but turning into rooms through doorways. As the Applicants’ son is currently in Bedroom 3, which is at the end of the hallway, this would be less of an issue in Bedroom 2 and not an issue for Bedroom 1.
Ms Broad agreed with the concern expressed by Ms Everett[40] about the risk of injury to the Applicants and or their son because of the current process whereby the Applicants (mostly Mr Ahmed) ‘full lift’ their son in order to effect transfers. Ms Broad considered that the only alternative to this – short term – would be the installation of a temporary ramp to the shower.
[40] See Exhibit A5 at top of page 3
Ms Broad gave evidence that there is no requirement that a hallway is sufficiently wide to allow a wheelchair to turn – since a hallway is used to move from one part of a property to another. However, Ms Broad said that is was necessary to be able to do this in the bathroom and bedroom.
Ms Broad said that if she had concluded that the property was not suitable she would have recommended relocation. That was not her conclusion. She said that by undertaking either of the proposed options to modify the property, or alternative proposals if agreed, the property could meet the Applicants’ son’s needs.
Ms Broad said that from her observations the property in its current state is not ‘detrimental’ to the Applicants’ son’s condition but it would be better for him if the modifications were carried out as soon as possible. She agreed that some of the practices that she observed were not ideal, but did not make an assessment about the impact of these on others in the household. Ms Broad said that she was concerned about the length of time it would take for a transfer, given the need for improved bathroom managements.
Ms Broad considers Bedroom 2 is large enough without removing the built-in wardrobe (which is larger than the one in Bedroom 3). Ms Broad said that the need for a desk would need to be reviewed as in her view the Applicants’ son’s condition – with continued loss of muscle strength etc – means it is likely he would be restricted to a computer device mounted on the wheelchair.
Ms Broad said that if the modifications were undertaken, it would be up to the Respondent to, with the Applicants, decide whether the family remained at the premises or relocated during renovations. Sometimes portable bathroom facilities were used if the family remained, but that renovations undertaken while the family remains usually take longer.
Ms Broad said that the reference to ‘urgent’ work – as was identified in Ms Carr’s report 28 September 2011[41] - is a universal term that is used and is understood to mean the work is to be undertaken within 2 to 3 months. She described ‘Adaptable Class C’ housing as being housing that was constructed in a way that was either level access or easily modified to accommodate disability – such as vision, mobility or intellectual disability. ‘Universal’ housing incorporates design principles for ease of use and ‘visitability’ by people with disabilities.
[41] Exhibit R1
Although Ms Broad did not consult with Mr Turek about the installation of a ceiling hoist, Ms Broad has subsequently consulted with others who say it should not be an issue. Mr Turek confirmed that the wall between the toilet and main bathroom can be removed and the bathroom can be reconfigured. This would require the room to be ‘stripped out’. Whether or not the wall was removed, it would be a major modification.
Using the ‘score’ referred to in Ms Carr’s Occupational Therapy Home Assessment dated 28 September 2014[42] Ms Broad would regard the need for the proposed bathroom modifications and move to bedroom 2 as ‘P1’ – ‘urgent’ and ceiling hoist, if approved, as P2 – ‘semi-urgent’.
[42] Exhibit R1 at pages 2 and 3
If option 1 (move to Bedroom 2) were to be undertaken, there would need to be further detailed assessment which would take 1-2 weeks, then further consultation and ‘sign-off’ by the Applicants’ family, which could take another week. If approved by the Respondent it would then ‘signed-off’ by Spotless – who would undertake the work. Based on discussions Ms Broad has had with Spotless personnel the actual work would take approximately 3 months. If the family were to remain at the property during the renovations it may take longer.
Ms Broad considers that a ‘tilt option’ commode is becoming more imperative as the Applicants’ son’s function continues to deteriorate. His condition has deteriorated since 2011 and will likely continue to do so.
If the family were to remain in the premises during the modification works, then separate and prior to the commencement of that work an option would be to make temporary arrangements – such as installation of ramp to shower etc – in the ensuite, so as to accommodate the Applicants’ son’s needs during the renovation.

Applicants’ evidence
(a)Armina Ahmed

Armina Ahmed’s (one of the Applicants) signed statement filed 31 July 2015 was tendered without change [43] and she gave oral evidence.
[43] Exhibit A9
Ms Ahmed denied that she had in 2012 refused access to the builders to undertake the work recommended by Ms Carr.[44] She said that although in 2012 she spoke to Ms Carr about the proposed modifications, when the builders attended to do the bathroom work the builders advised Ms Ahmed that they could not do the work as it required use of a jackhammer which would wreck the pipes etc in the bathroom.
[44] in Exhibit R2
Ms Ahmed said that she had not, prior to this Application to ACAT, seen the October 2012 email correspondence from Ms Carr [45]about the possibility of a wedge ramp in the shower. Ms Carr had advised Ms Ahmed that this was not a suitable solution.
[45] RFD7
Ms Ahmed confirmed that other than modifications to the front and rear door access, no modifications had been undertaken inside the premises since they moved into the property in August 2011.
Ms Ahmed says that:
(a)the hallway is too narrow, their son can’t turn the wheelchair and has caused damage to walls and doorways;
(b)the bathroom is too small and the step into the shower means a commode can’t be used
(c)the toilet is too small making it difficult to provide assistance;
(d)their son will be getting a new wheelchair and it may be bigger;
(e)if the move to Bedroom 2 meant reducing the size or removing the built-in wardrobe, this would further reduce the limited storage at the property and means their son’s belongings need to be stored elsewhere in the house;
(f)their son needs access to a desk but he could only have a desk in Bedroom 2 if a ceiling hoist installed; and
(g)if the carpet in the bedroom is removed it would be too cold.
Ms Ahmed said that their son had originally slept in Bedroom 2 when they first moved into the property but because of the position of the wardrobe it made turning in wheelchair difficult and so, after about 6 months, he moved to Bedroom 3.
Ms Ahmed agreed that Ms Carr’s assessment of 28 September 2011[46] assumes that their son would use Bedroom 1 and that the ensuite would be modified. However, Ms Ahmed noted that the move to Bedroom 1 would only have occurred if the ensuite modifications had been done.
[46] Exhibit R2. See comment on page 1 ‘will be using front bedroom with attached ensuite’ and diagram of ensuite on page 5
Ms Ahmed said that although sometimes they use the ensuite for their son, usually he showers in the main bathroom. A shower commode cannot be used in either bathroom.
Ms Ahmed said that due to the size of the Bedroom 3 and the size of the mobile hoist it is too difficult to manoeuvre the hoist so Mr Ahmed lifts their son from the wheelchair to and from the bed.
Ms Ahmed said that even if the modifications proposed by Ms Broad were undertaken this would not address the narrow hallway which, because a wheelchair cannot turn, presents danger for her son and others in the house –e.g. if there were an emergency and he was in the hallway.
Ms Ahmed also said that she did not agree with a proposal that the bath in the main bathroom be removed, as other members of the family use the bath.
(b)Saleh Ahmed
Saleh Ahmed’s (one of the Applicants) signed statement filed on 31 July 2015 was tendered without change[47] and he gave oral evidence.
[47] Exhibit A10
Mr Ahmed gave evidence about the physical care that he provides to their son every day. Mr Ahmed said that the option of moving to Bedroom 1 was not feasible as no other bedroom at the property is big enough for the Applicants’ queen bed. In any event, Mr Ahmed works full-time 5 days a week and Ms Ahmed undertakes their son’s physical care when he is at work. This is very demanding for Ms Ahmed and she is often uncomfortable at night and needs the larger bed.
Mr Ahmed experiences lower back pain that he says first began when he started helping his son with his physical care including lifting. Mr Ahmed was referred for physiotherapy treatment in August 2014.[48] Mr Ahmed undertook physiotherapy treatment for 6 weeks and now does the recommended exercises. His back is sometimes better than at other times. Mr Ahmed said that lifting his son into bed or the shower results in pain and he experiences discomfort.
[48] Referral by Dr Helmy for Physiotherapy assessment and treatment dated 8 August 2014 – Exhibit A2.
Mr Ahmed considers that his son needs to use an ensuite to ensure privacy. If he were to move into Bedroom 1 his son would be restricted in regard to access to his siblings because of the narrow hall leading to their bedrooms.
Mr Ahmed does not accept that the necessary modifications to the ensuite could be done, including widening the doorway, and still have enough room for an appropriately modified shower, basin and toilet.
Mr Ahmed said that they have had a mobile hoist for about 2 years. Ms Carr organized for the provision of the mobile hoist and showed Mr Ahmed how to use. However, Mr Ahmed said it is difficult to use because once their son is in it, there is then insufficient space for Mr Ahmed to turn it and for Mr Ahmed to provide assistance. Mr Ahmed said that using it is difficult and presents a risk of injury to himself or their son.
Mr Ahmed says he uses the main bathroom to shower his son as it is easier and safer.
Mr Ahmed considered that a fixed hoist in Bedroom 2 may help with transfers in the bedroom. He was unable to say whether the proposed modifications to the main bathroom would create enough space, as he had not yet seen plans. He doubted that much additional space could be achieved if the toilet, bath, shower and basin were to remain.
Mr Ahmed gave evidence that because his son is a teenage boy, Mr Ahmed (rather than Ms Ahmed whenever possible) undertakes most of his son’s personal care needs, such as showering and toilet, rather than Ms Ahmed, so as to preserve his son’s dignity. As his son is getting bigger Mr Ahmed now gets their other, younger, son to help with some of this care. Again this is in an effort to respond to his son’s needs as a teenage boy.
(c)Hermarnee Perry
Ms Perry attended the hearing with the Applicants. She is an advocate with the disability support organisation ADACAS. She has known the Applicants for about 3 months and has attended the property twice. The first time about 3 months and then again about 2 weeks before the hearing.
Ms Perry does not have specific training or expertise. She worked for about 3 years in a high support disability facility where the residents used wheelchairs and hoists were used for transfers. She has walked around the property. The Applicants’ son was not there and she has not met him.
In relation to the property Ms Perry noted there was limited space in the bedrooms, the toilet was narrow and there was limited space in the main bathroom. When she visited the property the mobile hoist was in the ensuite and took up most of the available space.
Ms Perry said that in relation to option 2 (move to Bedroom 1) the Applicants are their son’s carers and this is a huge responsibility. It is not uncommon for care responsibilities to place pressure on relationships. Fostering the Applicants’ relationship supports them as carers and is in their son’s best interests.
In regard to option 2 (move to Bedroom 2) Mr Perry considers that it would be better if the family were to move to a larger property where there was room for a change table in the bathroom as this would enable better care for the Applicants’ son particularly as his condition deteriorates.

Consideration and findings of fact

The Applicants’ son has a debilitating, deteriorating condition which impacts dramatically on his mobility and capacity for independent activity. He requires carer assistance to undertake all self-care and activities of daily living other than independent use of his motorized wheelchair. He is unable to assist with transfers. When at home, the Applicants and their other children provide this assistance.

The Applicants’ son’s condition has deteriorated since the tenancy began in August 2011.
The Applicants’ son is now 15 years old and weighs 52 kilograms. He may not have finished growing and his condition may further deteriorate. There is no prospect that the Applicants’ son’s capacity for self-care or mobility will improve. It is likely that his care needs will become more demanding and/or difficult to manage.
The property is a ‘Universal’, as compared with an ‘Adaptable Class C’, standard property and is capable of, but not specifically designed for, modifications of the kind that would be needed to address the Applicants’ son’s needs and the equipment required.
The only modifications that have been undertaken at the property subsequent to the commencement of the tenancy were modifications to front and back door ‘access’ to enable wheelchair access. Modifications for access to front and back door at the property were undertaken after 30 September 2011 and before 24 February 2012[49].
[49] RFD6 page 30A
Notwithstanding that an ‘urgent’ request for Disability Modifications to the ensuite bathroom at the property were approved by the Respondent on 30 September 2011 and again, with a minor amendment to the original approved modifications, on 16 January 2012, no other modifications have been undertaken at the property.
Ms Ahmed gave evidence that the Respondent’s contractor advised her that the nature of the proposed bathroom modifications would require use of a jackhammer and that this would destroy plumbing therefore the contractor decided not to do the work.
There were several assertions in documents relied on by the Respondent[50] that the Applicants had in 2012 refused access and had not allowed the contractors to undertake the work. The Respondent did not provide any positive evidence of this assertion.
[50] including RFD30A; RFD10 page 35 in Cheryl Balderson’s email of 13 November 2014; in the Application for Housing Assistance Assessment dated 14 October 2014 T Docs 35; in the Respondent’s letter of 20 October 2014 advising of the Original decision T Docs 38
Whilst the Tribunal is unable to determine why the internal modification work at the property requested and approved in September 2011 and in January 2012 did not proceed, the Tribunal is not satisfied that this was because the Applicants did not permit access to enable the work to be undertaken following the approval by the Respondent for urgent modification work in January 2012.
The property is not currently appropriate to meet the Applicants’ son’s needs. Recommendations have been made about changes to practices, modifications to the property and additional equipment that could be undertaken, installed or provided so that the Applicants’ son’s needs could be met and to reduce the risk of injury to the Applicants’ son and his carers.
From the information provided the only recommended change to ‘practice’ that that the Applicants could make without further modification at the property is for the Applicant’s son to move to Bedroom 2 or 1. Modifications to the property are essential to effect all other recommendations.
The necessary modifications would include major modifications to the main bathroom and toilet or the ensuite. These include changes to the tap/hose location in the shower, modification to the shower unit to allow wheelchair/commode chair access and more room to facilitate a carer/s to assist with showering. If the main bathroom and toilet are modified, the bathroom would be stripped and the wall between toilet and bathroom would be removed. Whether the main or ensuite bathrooms are modified, there would need to be some relocation of the toilet pan to accommodate mobile commode and/or facilitate transfer.
Recommendations have been made about equipment that may be provided and/or installed which would facilitate in maximizing the Applicants’ son’s independence and the carers in their role – such as installation of a ceiling transfer hoist; use of wheeled shower/toilet ‘tilt in space’ commode chair. The property does not currently allow for use of a wheeled shower/toilet commode chair, there is insufficient space for effective use of the mobile hoist which the Applicants do have. It is possible that a ceiling transfer hoist could be installed in Bedroom 1 or 2, however this would only assist with transfers in the bedroom and, given the current bathroom facilities, would not alleviate the ‘transfer’ issues in the toilet or shower.
Recommendations have also been made about the size and set-up of the bedroom to be used by the Applicants’ son. It has been recommended that if the Applicants’ family remain in the current property that their son should move from Bedroom 3 to Bedroom 2 or 1 – where there is more room for the equipment that is needed and which provide more ‘circulation’ space which would better accommodate and enable safe movement, care and transfer of the Applicants’ son.
Whilst ‘relocation’ of the Applicants’ son to Bedroom 2 or 1, with some modification to these rooms, may address some of the Applicants’ son’s needs and use of equipment, there will need to be major modifications to the bathroom/toilet and or ensuite to address many of the Applicants’ son’s self-care and activities of daily living, such as use of toilet, showering and other bathroom use.
Ms Broad gave evidence that ideally the Applicants’ son should be undressed in the bedroom before being placed in the mobile shower/toilet commode before showering. If the wall between the hall near Bedroom 2 and the lounge room at the property were removed to make the area between the entry to Bedroom 2 and the modified main bathroom/toilet ‘open plan’ this would mean that the Applicants’ son would be in view of the main lounge area when he was transferred between bedroom and bathroom.
Apparently it is not uncommon for there to be damage to walls and doorways in houses where a wheelchair is used. Although some steps could be taken to protect against or minimize this damage, the Tribunal finds that this is not an exceptional, critical, urgent or significant factor in this matter.
The evidence supports the conclusion that the ‘preferred’ option, if the property can be modified to meet the Applicants’ son’s needs, is that he relocate from Bedroom 3 to Bedroom 2 and that major modifications be undertaken to the main bathroom and toilet.
The Tribunal finds that, if these changes were undertaken, then the size of the hallway to Bedrooms 3 and 4 would not prevent access by the Applicant’s son to these bedrooms and does not demonstrate an exceptional, critical, urgent or significant need for transfer to an alternative property.
The Tribunal finds that the need for modifications to the toilet and bathroom facilities at the property are exceptional, urgent and critical. These needs were ‘urgent’ when they were first approved by the Respondent in 2011 and the Applicants’ son’s condition has not, and will not, improve. Indeed, the Applicants’ son’s condition will likely further deteriorate and his need for assistance and care increase.
The risk of injury to the Applicants’ son and his carers in undertaking the transfers for the purpose of, in particular, use of shower and toilet, cannot be addressed unless major modifications are undertaken at the property.
The specific nature and timing of the proposed modifications have not yet been determined. Ms Broad indicated that there would need to be a further period of consultation, detailed specifications would need to be drafted and approved and this may take, at least, several weeks. The modifications would take approximately 3 months, if the Applicants’ family were to relocate during the period that the work was undertaken, and may take longer if they remain at the property while the work is carried out.
If the family were to remain at the property, Ms Broad said that interim short term changes (such as a wedge to the shower unit) in the ensuite may be made to the facilitate care for the Applicants’ son. Ms Broad did not observe the Applicant’s son in the ensuite. She said that the need to make these changes would need to be assessed and implemented so that they were in place before the modification to the main bathroom and toilet were undertaken. This would take further time.

Needs category, criteria and Supplementary Principles

In relation to Needs Category and Criteria set out in the Housing Assistance Public Rental Housing Assistance Program (Housing Needs Categories) Determination 2011 (No 2) [51], the Tribunal finds that the Applicants:
(a)     live at the property with their 3 children;
(b)    one of their sons has serious and chronic health issues;
(c)     one of their sons has a disability and, unless the Applicants’ family is housed in a property that accommodates his needs, there is risk of injury to his carers which could impact on their capacity to provide care to him;
(d)    the need for access to appropriate bathroom and toilet facilities that can allow for adequate care of the Applicants’ son is extremely critical to ensure his safe care and the safety of his carers in providing him with assistance. The current facilities present a risk, and therefore are potentially detrimental, to the Applicants’ son and the Applicants or their other children when providing care for the Applicants’ son;
(e)     given the specific needs of the Applicant’s son and their financial circumstances it is not in dispute that the Applicants would be unable to find appropriate and affordable housing on the private rental market; and
(f)     the Applicants are capable of independent living and have the capacity to undertake a housing tenancy to address their longer term housing needs.

Conclusion

[51] See the Priority Housing Needs Category General Description and Principles

The property is not appropriate to address the Applicant’s son’s needs. Major modifications to the property would need to be undertaken in order to meet these needs. These modifications have not yet been ‘specifically’ determined. It is not clear how long it would take to complete the approval process and proposed modification work, however it would likely take at least 4 months. It would be necessary to accommodate the Applicants’ son’s needs during the period while modifications were undertaken – whether by relocation to an appropriate alternative property or by undertaking (as yet undetermined) interim measures at the current property. Any interim measure would add to the time needed to undertake the substantive modification. No specific measures have been proposed in relation to what action would be taken to address the Applicants’ son’s needs during this period.
The Applicants have demonstrated that they have ‘exceptional, urgent and critical needs’. Although the Tribunal accepts that these needs could be met if major modifications were undertaken at the property, the Tribunal finds that this proposal, in the circumstances of this matter, is not ‘reasonable’. Accordingly, the Tribunal concludes that the Applicants’ needs can only be resolved by the early transfer to another social housing property which is appropriately constructed or modified to address the Applicants’ son’s needs.
The Tribunal finds that the Applicants have demonstrated that their situation meets the degree of the Priority Housing category and the alternative proposed to the provision of social housing, here major modifications, is not reasonable.
The reviewable decision dated 30 January 2015 is set aside. The Tribunal substitutes its decision that the Applicants’ approved transfer application is to be allocated to the Priority Housing Needs Category.
………………………………..
Ms L. Crebbin – General President
for and on behalf of
Ms W. Corby – Senior Member
HEARING DETAILS

FILE NUMBER:	AT 15/19
PARTIES, APPLICANT:	Saleh and Amina Ahmed
PARTIES, RESPONDENT:	Commissioner for Social Housing
APPEARING FOR THE APPLICANT	Saleh and Amina Ahmed
SOLICITORS FOR RESPONDENT	Linda Hann, ACT Government Solicitor
TRIBUNAL MEMBERS:	Ms W. Corby – Senior Member
DATES OF HEARING:	17 & 18 September 2015