Applicants v Commissioner for Social Housing in the Act
[2014] ACAT 62
•25 September 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANTS v COMMISSIONER FOR SOCIAL HOUSING IN THE ACT
(Administrative Review) [2014] ACAT 62
AT 14/19
Catchwords: ADMINISTRATIVE REVIEW – review of decision to refuse to allocate applicants to priority housing category
Legislation:
Housing Assistance Act 2007 ss 19, 20
ACT Civil and Administrative Tribunal Act 2008 s 68
Subordinate
Legislation:Housing Assistance Public Housing Assistance Program 2013 (No 1) DI2013-52 cl. 13, 30, 31, 32
Housing Assistance Public Rental Housing Assistance Program (Housing Needs Categories) Determination 2011 (No 2) NI2011-507
Tribunal: Ms W. Corby – Senior Member
Date of Orders: 25 September 2014
Date of Reasons for Decision: 25 September 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL AT 14/19
BETWEEN:
THE APPLICANTS
Applicants
AND:
COMMISSIONER FOR SOCIAL HOUSING
IN THE ACT
Respondent
TRIBUNAL: Ms W. Corby – Senior Member
DATE:25 September 2014
ORDER
The Tribunal Orders that:
Pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008 the reviewable decision is confirmed
………………………………..
Ms L. Crebbin – General President
For and on behalf of
Ms W. Corby – Senior Member
REASONS FOR DECISION
These reasons relate to an application by the ‘Applicants’ for review of a decision made on 18 February 2014 by Frank Duggan, a delegate of the Commissioner for Social Housing in the ACT (the ‘Respondent’), to deny their application for review of the Respondent’s decision to allocate them to the High Needs, rather than the Priority, Housing Category.
The Applicants assert that their situation brings them within the Priority Housing Category in the Housing Assistance Public Rental Housing Assistance Program (Housing Needs Categories) Determination 2011 (No 2) NI2011-507 (the ‘Determination’).
The Applicants are husband and wife. With the agreement of the parties, the Tribunal has decided to publish reasons for the decision without identifying the Applicants – while their life stories are very relevant to the tribunal’s decision, their names and identities are not. The Tribunal is concerned that identification of the parties may lead to difficulties for them, their children or for other family members and the Tribunal is therefore satisfied that the interests of the private lives of the parties, including the interests of their children, require that their names be withheld in this case.
The Hearing
The matter was first listed for hearing on 18 July 2014. On that date, at the request of the parties and by consent, the matter was adjourned. No evidence was taken.
The matter was relisted and a hearing conducted on 11 August 2014. At the conclusion of the hearing the Tribunal reserved its decision.
Mr Moffett (of Counsel) instructed by Ms Russell (from Welfare Rights and Legal Centre) appeared for the Applicants. Both Applicants gave oral evidence and provided signed statements that were tendered as exhibits. One applicant attended for most of the hearing. The other attended for all of the hearing.
Ms Bayer (from the ACT Government Solicitor’s Office) appeared for the Respondent, instructed by staff from the Respondent’s office.
In making its decision the Tribunal considered the following:
(a)the oral evidence and signed statements by the Applicants;
(b)the Tribunal Documents (the ‘T Docs’) filed by the Respondent and which consist of those documents held by the Respondent relevant to the decision under review. The T Docs are divided into attachments A to Q inclusive. Each attachment has, sometimes several, documents with folio numbers in the top right hand corner. In these reasons documents are identified by the alphabetical and folio number (e.g. T Doc A folio 1). It should be noted that the folio numbers are not always sequential within the alphabetical divisions;
(c)the exhibits tendered by the parties during the hearing;
(d)the oral and written submissions made on behalf of, and other documents filed in the Tribunal by, the parties and available to the Tribunal as at the hearing date.
Relevant legislative and other provisions referred to in these reasons for decision have been included in an attached Schedule.
Eligibility and needs category of applicants for social housing
Under the Housing Assistance Act 2007 (the ‘HA Act’) the Minister may approve housing assistance programs (section 19 HA Act). The programs may provide for the Respondent to make determinations (section 20 HA Act).
The Housing Assistance Public Housing Assistance Program 2013 (No 1) Disallowable Instrument DI2013-52 (the ‘HA Program’) is a program approved pursuant to section 19 of the HA Act. The Determination is made pursuant to clause 13(1) of the HA Program.
On 5 November 2012 the Applicants applied for rental housing assistance. On 2 January 2013 the Applicants were advised of the Respondent’s decision to approve their application (T Doc C folio 55). The Applicants were approved as eligible for 3 bedroom public housing accommodation with effect from 5 November 2012, the date of their application.
Clause 13(3) of the HA Program requires the Respondent to allocate a needs category to eligible applicants ‘having regard to the criteria’ set out in the Determination and ‘the needs of the applicant’. The Applicants were allocated to the ‘High Needs’ category. The Applicants have sought review of this decision and seek to be allocated to the Priority Needs category.
Jurisdiction
A decision about the allocation of a ‘needs category’ is a reviewable decision (clause 30 (1)(d) HA Program). The Applicants are eligible to, and did, seek review of this decision (clause 31(1) HA Program). The Respondent’s delegate referred the Applicants’ request for review to the Housing Assistance and Tenancy Review Panel (‘HATRP’). The delegate can either ‘accept, vary or reject’ the HATRP recommendations (clause 31(4)((b)). When making the reviewable decision on 18 February 2014 the Respondent’s delegate accepted the HATRP recommendation to deny the category transfer requested by the Applicants. The Applicants are entitled to apply to the ACT Civil and Administrative Tribunal (‘ACAT’) for review of this decision pursuant to clause 32 of the HA Program.
The Tribunal undertakes a merits review and in doing so stands in the shoes of the original decision maker and must confirm, vary or set aside the decision (section 68, ACT Civil and Administrative Tribunal Act 2008 ).
Chronology of applications and decisions
5 November 2012
(T Doc A)Applicants applied for social housing
2 January 2013
(T Doc C folio 55)Respondent’s decision to place Applicants in High Needs category for 3 bedroom house effective 5 Nov 2012
13 August 2013
(T Doc D folio 71)Respondent’s decision, following receipt of further information provided by Applicants, to affirm placement in High Needs category for a 3 bedroom house
08 October 2013
(T Doc E folio 76-78)Applicants’ request for review
18 October 2013
(T Doc G folio 89)Respondent’s confirmation of placement in High Needs category for a 3 bedroom house but extended to include additional suburban areas
21 November 2013
(T Doc H folio 94)Applicants’ request review.
24 December 2013
(T Doc I folio 106-107)Respondent affirmed decision of 18 October 2013.
03 January 2014
(T Doc J folio 111)Applicants’ request review
18 February 2013
Reviewable decision by Frank Duggan who accepted the recommendation of HATRP to deny the Applicants’ request for transfer from the High Needs to the Priority Housing category
Category of High Needs Housing compared to Priority Housing
The Determination identifies three needs categories: Standard, High Needs and Priority. The category of Priority Housing is, for want of a better term, the ‘most urgent’, then High Needs and then Standard.
It was common ground, and the Tribunal accepts, that the category of Standard Housing does not apply to the Applicants. The parties agreed, and the Tribunal is satisfied, that the Tribunal should limit its consideration of this matter to whether the Applicants should be moved from the High Needs to the Priority Housing category.
The Determination sets out that to come within the general description of –
(a)Priority Housing –
Applicants must demonstrate exceptional, urgent and critical needs that cannot be resolved by any means other than the early provision of social housing.
(b)High Needs Housing –
Applicants must demonstrate significant needs that cannot be resolved by any reasonable means other than provision of social housing within a reasonable timeframe. This includes significant affordability issues in obtaining housing on the private market.
The determination also provides a non-exclusive list of risk factors which can be referred to in assessing whether applicants come within the needs category. These are discussed in more detail below.
The evidence
The husband gave oral evidence and his signed statement dated 18 June 2014 was tendered (Exhibit A1). The wife gave oral evidence with the assistance, by telephone, of an interpreter who translated the questions to and answers given by her. The wife’s signed statement dated 18 June 2014 was tendered (Exhibit A6).
Based on the evidence of the Applicants and the documents referred to below, including those filed by the Applicants in support of their application during the conduct of this matter, the Tribunal’s understanding of the Applicants’ situation is set out in the following paragraphs.
The Applicants are refugees from Afghanistan. They married in 2006 in Kabul. They have two children. Their daughter was born in Kabul in 2007.
The husband came to Australia in May 2009 to study. He completed his degree and was awarded his Bachelor of Arts in July 2014.
The wife came to Australia in December 2009. The couple’s son, and second child, was born in 2010. Initially the wife and the children lived with friends interstate. They moved to Canberra in February 2012.
The family were granted Permanent Protection Visas in late 2012..
Between February 2012 and February 2013 the family lived in a one bedroom, private rental unit in Canberra. They received assistance from the Migrant and Refuge Settlement Service (‘MARSS’). In February 2013 the family moved to a two bedroom ground floor unit. In around April 2013 the family were required to move from the ground floor to a first floor, two bedroom unit in the same building.
The Applicants and their children, now aged 7 and 3.5 years, still live in the first floor, two bedroom unit. The rent is $360 per week. Their daughter is in Kindergarten. The wife is pregnant with their third child, due in November 2014. Neither Applicant is currently in paid work. The family’s sole income is Centrelink benefits.
The Applicants submit that their current accommodation is too expensive, unsuitable and unsafe, and that these factors, combined with financial and health issues, support a decision that their situation brings them within the category of Priority Housing.
The Applicants submit that the first floor two bedroom unit is unsuitable for the following reasons -
(a)The stairs to the first floor are a problem –
(i) for their children – their son has fallen on the stairs; their daughter has ‘exercise induced asthma’;
(ii) for the wife who has chronic back pain and is now pregnant. Using, and carrying things up and down, the stairs exacerbates her back pain and ; and
(iii) for the husband who has a fracture to his left wrist and cannot carry things with his left arm. His left wrist condition has been investigated by an orthopaedic surgeon who has recommended surgery. No date has yet been allocated for surgery.
(b)The accommodation is inadequate –
(i) Four people including two children, one an active 3.5 year old, live in a two bedroom unit with no balcony, no outside area and busy streets nearby.
(ii) There is nowhere that the children can play, safely and unsupervised, outside near the home. Because of the wife’s back problems she finds it difficult to take the children to parks. The husband is currently able to do this as he is not working or studying.
(iii) The limited options for physical activity contribute to the daughter becoming very inactive. The Applicants are concerned that this may be impacting on her physical and mental health.
(c)The unit is unsafe –
(i) The Applicants are very concerned about windows in the lounge area of the unit which, although about 1 metre above floor height, are accessible to their son and, apart from fly screens, have no safety barrier or balcony which would prevent a fall. The Applicants say that the fly screens have holes in them, are flimsy and would not prevent a fall.
(ii) In addition, due to the small size of the unit, a couch which does not fit anywhere else has to be placed under this window. The position of the couch increases the risk for their son who likes to jump on the couch. The son has to be constantly supervised. The husband says he has to constantly admonish his son when he is too near the window and this is not good for their relationship.
(iii) The stairs present a risk for the son who has fallen on the stairs and injured himself, and for the daughter who has ‘exercise induced asthma’. Use of the stairs presents problems for both of the Applicants due to their respective medical conditions and for the wife because of the pregnancy.
(d)Private rental is not an achievable alternative –
(i) The Applicants currently pay $360 per week in rent. No specific evidence of the current private rental market for 3 bedroom, ground floor accommodation was provided.
(ii) The Applicants conceded that they have not sought alternative, private rental accommodation (cf. Exhibit A1 paragraph 20 and Exhibit A6 paragraph 22).
(iii) The husband said they had not sought private rental because the family’s sole income is from Centrelink and he did not believe a private lessor would be interested in letting to the family.
(iv) The wife said that she does not want to move again to temporary accommodation. She wishes to move for the long term, into housing where she and her family have a sense of security. Moving into private rental or alternative MARSS administered properties would not have this level of certainty. It was implicit in her evidence that she considered allocation of public housing would be secure and long term.
(e)The Applicants’ financial position is poor -
(i) The Applicants provided evidence that they currently have rental arrears of approximately $1,000; owe a friend $1,800; and have an outstanding electricity bill of $2,287.
(ii) For the time being MARSS has not indicated that it will take action in relation to the rent arrears. There was no evidence that the friend will press for return of the loan in the short term; the Applicants have taken steps to address the outstanding electricity account. They have sought assistance from Care Inc. Action has been taken to identify and address the cost of running appliances – especially the hot water service – which should reduce future bills. On about 6 August 2014, ACAT ordered a part waiver of the current arrears.
(iii) The husband gave evidence that, before receiving his degree in July 2014, he responded to an email about applications for work with a government department. He received a request for further information. He has not responded to this request. He has made no other application for work. His evidence was that he is reluctant to look for work until he has had, and recovered from, proposed surgery to his left wrist.
(iv) Prior to becoming eligible for Centrelink payments the family were solely dependent on Red Cross payments. During the husband’s studies he received Austudy. Since taking his degree the family has relied on Newstart and other payments from Centrelink.
(v) The Income and Expenditure Sheet prepared by CARE Financial Counselling (Exhibit A3) shows the total household income as at 5 August 2014 as $1,561.10 each fortnight. Total household expenditure was $1,751, leaving a fortnightly deficit of $189.90.
(f)The family members have a number of health issues –
(i) The husband was referred by his general practitioner to an orthopaedic surgeon in relation to left wrist pain following an incident in April 2014. The surgeon prepared two reports dated 25 July 2014 (Exhibit A10) and 7 August 2014 (Exhibit A5). The reports confirm the husband’s evidence that he sustained a fracture his left wrist when he was about 9 years old. In April 2014 he sustained a further displaced fracture to his left wrist which requires surgical intervention. Surgery will, hopefully, be performed before the end of the year. The surgeon is endeavouring to expedite this. The surgeon notes that following surgery the husband will have a cast for up to 8 weeks. Further, the surgeon considers that because of the injury the husband would ‘have difficulty’ performing manual work, and ‘probably also some difficulty with sedentary work’ (Exhibit A5 paragraph 3). The surgeon concludes these employment limitations will continue for at least 6 months, being presumably until after the anticipated surgery.
The husband gave evidence that he cannot use his left hand for typing for more than about 10 minutes as it becomes too painful.
The injury to his left wrist causes him severe pain and impacts on his ability to carry things in his left hand. This limits his ability to obtain manual or sedentary work. It also means that carrying things to and from the first floor unit is more difficult.
Because of his injury and the anticipated surgery he has postponed seeking employment until after the surgery.
(ii) The husband also referred, in his statement (Exhibit A1 at paragraph 31) to an accident in 2005 in which he sustained a fracture to his left collarbone which causes him ongoing pain and discomfort. The condition requires medical investigation. No medical evidence was provided in relation to this condition, nor did the husband provide any further evidence as to how this condition relates to his application.
(iii) The wife’s general practitioner, and her counsellor at Companion House, both prepared several reports/letters in support of the Applicants’ application. These reports/letters, which are discussed below, refer specifically to the wife’s health issues.
(iv) In summary, the wife suffers from lower back pain exacerbated by climbing and carrying things up and down stairs. This is further impacted by the fact she is currently pregnant. She suffers from anxiety and depression related to her childhood experiences, her current living conditions and financial circumstances, and concern for her sister who is living, as a refugee, in Pakistan. The wife has Helicobacter Pylori which her general pracititioner concludes is related to her current circumstances including the inadequacy of her accommodation.
(v) The wife says that she suffers anxiety and depressions, primarily because she has concerns for her sister in Pakistan (Exhibit A6 paragraph 28).
(vi) Both the wife (at Exhibit A6 paragraphs 24-31) and the husband (Exhibit A1 paragraph 26) consider that the financial pressure being experienced by the family has the effect of exacerbating the wife’s’s depression and anxiety.
The wife gave evidence that she is attending counselling every 2 or 3 weeks. She gave evidence that these sessions do provide her with some relief.
Documentary Evidence
The General Practitioner provided a number of reports which in summary say:
(a)12 Apr 13 (T Doc E folio73) – confirms the wife has anxiety and depression due to high rent and family demands. She also suffers backache which impacts on her capacity to undertake regular physical activity and is exacerbated by the her use of stairs. She has been diagnosed with Helicobacter Pylori – a stomach condition.
(b)18 Nov 2013 (T Doc H folio 90) - The wife has been a patient since 21 May 2012. She suffers from back pain, Helicobacter Pylori and stomach problems. Also anxiety and depression related to her experience of war and social injustice in her past, and currently due to financial pressures, including high rent. The doctor concludes that it is hard for the wife to lift heavy objects and her physical and psychological condition would improve if the family moved to a ‘proper living environment’.
(c)25 Nov 13 (T Doc H folio 92) – confirms that the Applicants’ daughter suffers from exercise induced asthma and concludes that the stairs and cramped living environment is not good for her asthma. The report concludes that the whole family would benefit from a new living environment.
(d)27 Mar 2014 (Exhibit A6 Attachment C) – referral of the wife to the Antenatal Clinic.
(e)08 April 2014 (Exhibit A1 Attachment F) referral of the husband to an orthopaedic surgeon in relation to x-rays showing a fracture of his left wrist.
The orthopaedic surgeon’s reports say:
(a)25 Jul 2014 (Exhibit A10) – x-rays of the husband’s left wrist following a fall on 7 April 2014 revealed a fracture which was apparently not put in a cast. The x-ray also revealed a previous fracture to his left wrist which the husband says occurred when he was 9 years old. The earlier injury has resulted in a deformity and some limitation of forearm rotation. The husband is right handed and was referred for further investigation. The preliminary view was that surgery would be needed.
(b)7 Aug 2014 (Exhibit A5) –further investigation confirmed that the left wrist fracture had not healed. The surgeon confirms the need for surgery including open reduction, internal fixation and bone graft. The surgeon is trying to expedite the surgery, but it may not be performed until the end of 2014. The husband will need to wear a cast for up to 8 weeks post-surgery. The surgeon confirms that ‘with his injury ..(he) will have difficulty performing any manual work and probably also some difficulty with sedentary work’. The surgeon therefore concludes that the husband’s ‘employment prospects would be limited for at least the next 6 months but possibly longer.’
Companion House – a service assisting survivors of torture and trauma provided supporting letters which address the following matters:
(a)01 Nov 2012 (T Doc A folio 8) – The Counsellor/Advocate‘s letter in support of the Applicants’ application for public housing is based on her assessment of the unaffordability of private rental housing given the Applicants’ limited financial means.
(b)05 Dec 2012 (T Doc C folio 45) – letter from Dr Christine Phillips (Director Medical Service) and the counsellor. At the time of this letter the Applicants were living in a one bedroom, top floor unit. The letter refers to the wife’s back pain which is exacerbated by carrying things up and down stairs. It states that the wife’s psychological ‘distress’ of depression, insomnia, mood swings, poor memory and concentration, is related to ‘her past circumstances’. It concludes that ‘secure, stable and affordable housing in a peaceful location’ would assist.
(c)17 Dec 2013 (T Doc J folio 109) - The Counsellor/Advocate notes that despite the grant of their permanent protection visa the wife continues to suffer stress and anxiety relating to concerns for her sister in Pakistan, as well as concerns about the Applicants’ ongoing financial pressure including rental arrears and high electricity costs. The wife is distressed by the prospect of eviction, is more vulnerable due to her past experiences and is unable to sleep. Her condition is affecting her mood and her ability to care for her son. The counsellor concludes that ‘affordable, safe and secure housing’ will provide the possibility of ‘recovery and resettlement’.
(d)16 Jan 2014 (T doc L folio 114) – The counsellor provides this further letter in support of the Applicants’ request for transfer to the Priority Housing Category. The counsellor has been engaged with the family since July 2012. She refers in particular to the injury to the husband’s left wrist, and to another, previous, fracture to his left collar bone. At the time of this letter the husband was studying full time. The counsellor concludes that full time study and his injuries prevented the husband from seeking work to help address the family’s financial position. The counsellor notes that the high rental and electricity costs place pressure on the family. In addition, the unprotected lounge windows present a danger for the Applicants’ son and an added stress for the Applicants. She requests that the family be considered for Priority Housing.
(e)25 Jun 2014 (Exhibit A8) – The Counsellor provides background information about the wife’s experiences before coming to Australia. When the wife was a child her mother was killed by the Taliban. The wife was subsequently treated badly by her stepmother. Due to her unhappiness the wife attempted suicide when she was 14 years old. Her unhappiness continued. The wife married and then, in 2009, came to Australia. The counsellor says that the wife’s experiences have left her with ‘a legacy of anxiety and depression’. She has insomnia, nightmares, uncontrollable mood swings and angry outbursts triggered by minor incidents. This impacts on family relationships and her capacity to care for her children. She experiences back pain carrying things up and down stairs. The cramped living conditions and unsafe windows are adding to her stress. She is concerned about her husband’s wrist injury which causes him pain and disability. Further, after she came to Australia her father and sister were forced, for political reasons, to leave Afghanistan and go to Pakistan. Sadly her father died there. Her sister is now alone in Pakistan, where she is at risk, and this causes grave concern. The counsellor is concerned that if the family do not move to suitable accommodation, especially with a baby due in November, that ultimately the wife’s condition may further deteriorate to the point where she can no longer function.
Migrant and Refugee Settlement Service (‘MARSS’) provided letters as follows:
(a)29 Nov 2012 (T Doc C folio 46) - A case manager provided a letter in support of the Applicants’ application for public housing. At the time of the letter the Applicants lived in private rental accommodation and the husband was studying full time. The consequent financial pressure on the family was noted. The letter concludes that the lack of ‘stable long term accommodation’ was an ‘impediment’ to the family’s ‘successful settlement’ and was causing them ‘untold distress’.
(b)31 Jul 2013 (T Doc D folio 58) - Another caseworker confirms that MARSS supported the family’s move to a 2 bedroom unit, however notes that this is private rental and expensive given the household’s solely Centrelink income. The letter asserts that due to the family’s restricted income they are disadvantaged in the private rental market. The uncertainly of their situation and their previous ‘traumatic experiences’ in their home country, negatively impact on the family’s ‘mental and physical health’.
(c)10 Oct 2013 (received by Respondent on this date T Doc E folio 72) - The Settlements Grants Project Officer, asks that the Respondent take into account the Applicants’ limited financial position and sole reliance on Centrelink payments which reduces their ability to get more suitable private rental accommodation. Also the impact of living in a small unit on the children’s play space and the Applicants’ concerns that neighbours may complain about noise of the children playing. The letter is written in support of the Applicants’ request to be moved from the High Needs to the Priority Housing category.
(d)4 Dec 2013 (T Doc I folio 97-98) – A contract manager, advised the Applicants of rental arrears of $2,400 and requested payment.
(e)19 Jun 2014 (Exhibit A7) – The CEO, advised rental arrears are $1,720 and requested payment.
Australian Red Cross wrote the following:
(a)7 Dec 2012 (T Doc C folio 47) - A case worker provides this letter in support of the Applicants’ application for public housing noting that the Applicants had received Red Cross assistance between 25 Sep and 20 Nov 2012.
Canberra Refugee Support Inc said:
(a)28 Oct 2012 (T Doc A folio 9) – The President confirms that the Applicants are receiving ‘settlement support’ from the service and will do so for ‘as long as support is needed’. The letter confirms that at that time the Applicants were in private rental housing which they can not sustain given their limited financial resources. The letter is written in support of the Applicants’ application for public housing.
(b)29 Nov 2012 (T Doc C folio 44) – A further letter supporting the Applicants’ application for public housing. At the time the Applicants were living in a one bedroom apartment. It is noted that the Applicants’ son had fallen on the stairs. At that time, as the husband was studying full time and the wife was studying English in order to improve her employment prospects, it was noted that this impacted on the Applicants’ income earning capacity and added to their financial pressure.
Daughter’s PreSchool –
(a)18 Feb 2013 (T Doc D folio 57) - A School Counsellor/Psychologist records that the Applicants’ daughter attends preschool. The husband reported that as he was growing up he experienced much disruption in education and housing, as well as trauma associated with violence. In contrast he wants his daughter’s experience to be consistent rather than disrupted. The counsellor says that provision of long term security and stability, by provision of public housing, is critical to relieve the family’s stress and urges that they be allocated to the Priority Housing category to hasten this outcome.
University Counselling Centre –
(a)1 Feb 2013 (T Doc D folio 56) – A Counsellor wrote that at the time of this letter the husband was living with the family in the one bedroom unit. This was making it difficult for him to study.
Canberra Institute of Technology (‘CIT’) –
(a)21 Nov 2013 (T Doc H folio 91) - A Senior Teacher, advised that although a keen English student, the wife’s studies and the family’s well being were being negatively impacted by having to live in an unsuitable, small, second floor, expensive unit. The letter concludes they need alternative accommodation.
Daughter’s Primary School
(a)4 Dec 2014 (sic) (T Doc I folio 99) – A school counsellor wrote that the Applicants’ daughter attends the school. The counsellor records that the husband reports the negative impact of the small, second storey flat on the family and their daughter’s behaviour at home. She notes the husband’s desire for the family to have stability. The counsellor agrees that consistency would be positive for their daughter and supports the Applicants’ application for transfer to the Priority Housing category.
Care Inc –
(a)5 Aug 2014 (Exhibit A9) – A Financial Counsellor advised that the husband had sought assistance from Care Inc in relation to the Applicants’ financial position and in particular in relation to an outstanding electricity account. Care Inc prepared the Income and Expenditure Sheet dated 5 August 2014 (Exhibit A3) which was enclosed with the letter. The letter notes that steps had been taken in relation to some problem with the hot water service and this had in part addressed high electricity usage. The family’s financial pressures, including the recent medical treatment costs and the need for surgery, combined to cause the husband ‘emotional distress’ and he was referred to Companion House for support. It is noted that the family does not have capacity to pay for electricity and has had to borrow from friends and/or rely on charity to pay previous bills. The letter requests some waiver in relation to the current outstanding account and a period of up to 3 months when no payment is required. The Tribunal notes that these latter comments are not addressed to the current Tribunal. The Tribunal understands that the Applicants made the necessary application to the tribunal’s utilities work area and that orders consistent with the requested response set out in the Care Inc letter were made.
Conclusions and findings
At the time the Applicants first applied for public housing in November 2012 they were living in a one bedroom, private rental unit. Their children were aged 2 and 5 years old. The husband was a full time university student. The wife was studying English.
As at the date of hearing of this application:
(a)the husband had completed his degree on 18 July 2014.
(b)the husband had fractured his left wrist on 7 April 2014. This requires surgery which may not occur until late 2014. In addition, investigation of his left wrist revealed evidence of ongoing deformity and some limitation of movement following an ill treated injury when he was a child.
(c)the husband is not in paid employment and, he says, because of the current limitations caused by his left wrist injury and the planned surgery, he has not actively sought work since taking his degree.
(d)the wife continues to suffer back pain, anxiety and depression related to her past and to her current ‘uncertain’ situation with respect to finances and accommodation. She has Helicobacter Pylori. She is pregnant with their third child.
(e)The Applicants have a daughter aged 7 years old who attends Kindergarten. Their son will be 4 years old in September 2014.
The Tribunal accepts that the husband will require surgery to repair the fracture to his left wrist. The Tribunal accepts that the fracture and need for surgery will impact on the husband’s capacity to obtain manual work for at least 6 months.
The Tribunal does not accept that the husband is unable to look for or unable to perform at all ‘sedentary’ work which does not involve typing, for more than 10 minute periods, with his left hand. Based on the surgeon’s reports (Exhibits A5 and A10) it is not apparent that these restrictions will not continue after the husband has recovered from surgery.
Comparison of the two Income and Expenditure Sheets prepared by Care Inc dated 18 June 2014 (Exhibit A1 Attachment E) and 5 August 2014 (Exhibit A3) shows that the 5 August 2014 Sheet makes no allowance for repayment of the outstanding rent, electricity or personal debt amounts. By comparison an amount of $100 per fortnight respectively is included for electricity and the repayment of the friend’s loan in the 18 June 2014 sheet.
The Respondent confirmed that the rental rebate scheme, which operates for eligible public housing tenants, limits rental payments to 25% of household income. The Applicants currently pay rent of $360 per week. The Tribunal notes that if the household income is $1,561.10 as set out in the 5 August 2014 Sheet (Exhibit A3) then 25% of their current weekly income would be approximately $195 per week. With this saving of approximately $165 it is likely that the Applicants could address the current weekly income deficit of approximately $95 per week and perhaps, by instalment payments, make headway in addressing the arrears of rent and electricity and attend to repayment of the personal loan.
The Tribunal accepts that, despite a slight increase in their income (of approximately $10 per fortnight between June and August 2014), the family’s expenditure continues to exceed their income. It is likely they will continue to accrue debt unless their expenses are reduced or their income increases.
The Tribunal is satisfied that the Applicants’ current household expenditure and level of debt exceeds the household income by at least $90 per week. The Tribunal further accepts that the provision of social housing and, assuming that they would be eligible, the operation of the rental rebate scheme may provide the opportunity for the Applicants to meet their current weekly expenditure, and to make repayments towards arrears of rent, electricity and personal debt which they have accrued.
No photographs of the inside of the unit where the Applicants live were provided. It is not clear why there is no outside area for the children to access at the property. Presumably the unit where the Applicants live is on the first floor in the building shown on the left hand side of the photograph (Exhibit A6 Attachment A). However the Tribunal accepts this was not explicitly stated at the hearing.
The Tribunal accepts that the size of the unit, the fact it is on the first floor and can only be accessed by stairs, and that there are possible safety issues associated with the height and location of windows in the unit, make the unit unsuitable for the Applicants’ family.
At the hearing the Respondent confirmed that, after the birth of the baby due in November, the allocation of housing for this family will continue to be for a 3 bedroom house.
The Tribunal accepts, logically, that if nothing else changes, the birth of the baby due in November will place added strain on most aspects of the Applicants’ situation as set out above. The Applicants’ counsel noted that, at that time, the Applicants can make a further application for transfer to the Priority Housing category, if this application is not successful. Similarly they can at that time provide to the Respondent further information about any change in their circumstances which may be relevant to the Respondent’s allocation of housing, if the Applicants have not by then been allocated social housing.
It is the Tribunal’s view that the wife’s pregnancy and the impending birth of the Applicants’ third child is relevant to this application in that it is part of what the Tribunal might consider when taking into account the Applicants’ situation.
The Tribunal accepts that the allocation of public housing provides, as compared with private rental accommodation, security of tenure and, in light of the rental rebate scheme, affordability that is not a feature of the private rental market. The Tribunal considers that this aspect of the Applicants’ desire for public housing would be a feature of virtually any other application for public housing. What may make the Applicants’ situation ‘exceptional’ is their history and experience in Afghanistan.
As compared with their situation when they first applied for public housing in November 2012:
(a)the Applicants are now living in a cheaper, 2 bedroom unit, supported by MARSS;
(b)the husband has completed his degree and so is no longer in full time study and therefore is available for full time work and, hopefully, has improved employment prospects for non-manual work as a result of having obtained tertiarly qualifications;
(c)the wife is attending counselling which alleviates, albeit on a relatively short term basis, some of the anxiety and depression that she is experiencing and which is related to her past, her concerns about her sister, and the Applicants’ current situation.
On the other hand –
(d)the wife is pregnant with and due to have their third child in November. The pregnancy further exacerbates her back pain which is made worse by use of the stairs to the first floor unit. Even if the back pain is less severe when she is no longer pregnant, the medical reports confirm that her condition predates the pregnancy, so the need to juggle baby and associated items, 2 other children and the normal incidents of living up a flight of stairs and within the confines of a 2 bedroom unit housing (by then) 5 people, suggests that her situation will not improve following the birth.
(e)In addition, if the husband, whose capacity to assist is impacted by his left wrist injury, is able to find work, it may be that the wife will be undertaking much of the child and household care alone. Also the husband’s surgery, unless it can be expedited, will be carried out when the baby is very young. Presumably his capacity to assist will be in some ways further compromised at the time of and immediately following surgery.
(f)The Tribunal accepts that it is unlikely that the wife will seek work in the short term given her pregnancy. The prospect of the wife being able to contribute, other than Centrelink payments, to the household income is, in the short term, unlikely. Her employment prospects are diminished, with the consequent diminution in the financial prospects of the family.
The Tribunal accepts that there may be some risk to the children’s health and safety in remaining in the current accommodation. Use of the stairs may induce asthma in the Applicants’ daughter and the Applicants’ son has fallen on the stairs. Their son may be at risk in relation to the ‘unguarded’ lounge room windows. A move to alternative, ground floor accommodation with easy access to an outdoor, secure, play area would benefit the children.
Although the Applicants currently have rental arrears, they receive support from MARSS and there was no evidence that they are currently at risk of eviction. Action has been taken to, in the short term, address outstanding and upcoming electricity accounts. There is no evidence the friend whom the Applicants owe money is pressing for repayment in the short term.
Consideration of Applicants’ circumstances and criteria for priority housing
Taking into account the Applicants’ circumstances and the various matters included in the Determination (see attached Schedule for full text) which are provided as examples of risk factors and needs that are typical of applicants in the Priority Housing category, the Tribunal finds as follows:
(a)Primary or secondary homelessness - The Applicants are not experiencing primary or secondary homelessness as defined in the interpretation section of the Determination. The Applicants have moved three times since the wife and the children arrived in Canberra in February 2012. Although the Tribunal accepts that the move from the ground floor to the first floor unit at their current address was unfortunate, and that private rental does not offer the same security of tenure as public housing, the Tribunal does not accept that the number of moves, nor nature of the accommodation they have had, could be characterised as ‘primary’ or ‘secondary’ homelessness.
(b)Families with children, especially children who have experienced multiple housing moves and/or have school based remediation needs and children aged up to five years in large multi unit properties – The Tribunal does not consider that this applies to the Applicants.
(i) The family has moved 3 times in 2.5 years since coming to Canberra in February 2012. They spent approximately 12 months in the first property, a one bedroom unit. Then about 2 months in a ground floor unit, before moving upstairs to their current unit in the same building in about April 2013.
(ii) The Tribunal accepts that the Applicants have some concern about the impact of their accommodation on their daughter’s physical and mental health, however there was no evidence that either of the children have school based remediation needs.
(iii) The Tribunal does not accept the Applicants’ submission that their current accommodation is in a ‘large multi unit’ property. The photograph (Exhibit A6 Attachment A) suggests it is a 2 storey building with one or two units on the ground floor and a similar number on the first floor.
(c)Formally diagnosed mental health issues, including the effects of past trauma and torture –
(i) The Tribunal accepts that the wife’s childhood experience has resulted in her suffering from anxiety and depression for which she has sought medical treatment and is currently attending counselling every 2 or 3 weeks.
(ii) The Tribunal accepts that the wife’s condition is referable to her family situation as a child, and has been impacted by the political situation in Afghanistan, her current concerns for her sister’s welfare, and the current financial and housing issues that she and her family are experiencing.
(d)Other serious and chronic health issues –
(i) The Tribunal accepts that the wife suffers chronic lower back pain that is exacerbated by the need to use, and carry items up and down, stairs and is made worse by her pregnancy. The wife also has Helicobacter Pylori, a condition for which is being treated by her general practitioner.
(ii) The Tribunal accepts that the Applicants’ daughter suffers exercise induced asthma and that this condition is impacted by the need to use stairs.
(iii) The Tribunal accepts that the husband has some ongoing discomfort and limitation of movement in his left wrist as a result of a childhood fracture that was not properly treated. He sustained a further fracture to his left wrist in April 2014 which requires surgery that may not be carried out until late 2014. The wrist will be in plaster for a further 6-8 weeks post surgery.
(iv) The Tribunal accepts that the husband’s condition impacts on his capacity to carry items with his left hand. The Tribunal accepts that the husband’s capacity to undertake manual work and some sedentary work tasks, including the ability to type for more than 10 minutes with his left hand, is compromised by his condition. The Tribunal accepts that the condition referable to his childhood injury will not be addressed by the anticipated surgery, but hopefully the more recent fracture and resulting pain and incapacity will be addressed.
(v) The Tribunal does not consider that the husband is currently incapacitated for all sedentary work.
(e)The Tribunal does not consider that the factors relating to ‘frail aged’ or ‘domestic violence’ apply to the Applicants’ situation. Neither Applicant has Aboriginal or Torres Strait Islander heritage.
(f)Children at risk of neglect or abuse – While there is no suggestion that this applies to the Applicants’ children, the wife’s counsellor at Companion House expressed concern that if the Applicants remain in their current accommodation, the wife’s ‘psychological state will deteriorate .. possibly to a point where she can no longer function adequately’ (Exhibit A8 paragraph 1 page 2). Obviously if this were to occur it would impact on her capacity to care for her children.
Applying the Supplementary principles relevant to the Priority Needs Category which are set out in the Determination (see attached Schedule for the full text) to the Applicants’ situation –
(a)Risk factors that are extremely critical or detrimental to their well being or that of their family –
(i) The Tribunal accepts that the Applicants require suitable, ground floor accommodation in order to help address the physical health conditions of the wife; the husband, at least until he recovers from surgery; their daughter, who has asthma, and to remove the current risk presented to their son by the unprotected lounge room windows and the stairs.
(ii) The Tribunal further accepts that the Applicants’ children need an area for outdoor play which is not, currently, readily available. the wife’s health currently restricts her capacity to facilitate this.
(iii) As mentioned above, the combination of the wife’s physical and psychological conditions, the anticipated birth of the baby in November and the husband’s need for surgery later in the year, may combine to create a critical situation which may impact on the well-being of the family.
(b)Inability to find appropriate and affordable housing on private market - The Tribunal was not provided with any detailed, current evidence as to the cost and availability of private rental accommodation. The Applicants gave evidence that they had not looked for private rental accommodation. The husband said that he thought that as Centrelink recipients the Applicants would not be attractive to prospective lessors. The wife said that she did not want to move again into temporary accommodation. In short, the Tribunal is not satisfied that the Applicants have demonstrated an inability to find appropriate and affordable private rental housing.
(c)Capable of independent living and undertake tenancy for longer term housing needs - The Tribunal accepts that the Applicants are capable of independent living with the capacity to undertake a tenancy to address their longer term housing needs.
Conclusion
The Tribunal is satisfied that the Applicants’ need for appropriate housing is critical and urgent. That need is exceptional insofar as, given their particular circumstances, it relates to this particular family living in a first floor 2 bedroom unit.
However, the Applicants have not explored private rental housing options. The husband has not actively sought employment since he completed his studies. The Tribunal considers it would have been reasonable for the Applicants and the husband to have taken these actions. If the Applicants were able to find suitable and affordable housing and/or the husband is able to find paid non-manual employment, the risk factors and limitations presented by their current situation may be partly or wholly addressed.
The Tribunal is not satisfied that the Applicants needs cannot be resolved by any reasonable means other than the early provision of social housing.
Consequently the Tribunal considers that the Applicants’ situation does not bring them within the Priority Housing Category. The category of High Needs Housing should be allocated to their application for social housing.
Order
Pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008, the reviewable decision is confirmed.
………………………………..
Ms L. Crebbin – General President
For and on behalf of
Ms W. Corby – Senior Member
LEGISLATION
Housing Assistance Act 2007
Approved housing assistance programs
(1)The Minister may approve a housing assistance program.
(2)An approved housing assistance program is a disallowable instrument.
Note1 Power given under an Act to make a statutory instrument (including a program) includes power to amend or repeal the instrument (see Legislation Act, s 46 (1)).
Note 2A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.
Approved housing assistance programs—determinations
(1)An approved housing assistance program may provide for the housing commissioner to make determinations for the program.
(2)A determination under subsection (1), and each amendment (if any) of a determination, is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act.
Housing Assistance Public Housing Assistance Program 2013 (No 1) Disallowable Instrument DI2013-52
Needs category
The housing commissioner must determine needs categories and the criteria for allocating needs categories to eligible applicants.
In determining needs categories and criteria for each category the housing commissioner must have regard to the relative needs of applicants.
The housing commissioner must allocate a needs category to the application of an eligible applicant for rental housing assistance having regard to the criteria and the needs of the applicant.
Notice of reviewable decision
The following decisions of the housing commissioner are reviewable decisions:
(a)a decision about an application for rental housing assistance or following a review of entitlement to rental housing assistance under Section 29(B), or an application for facilitation of community rental housing assistance, other than a decision under clause 10, clause 19(1), clause 19(2), clause 19(4), clause 19(6), clause 20(4), clause 28(1)(a) or clause 28(2); or
(b) a decision to provide, or refuse to provide, a rent rebate; or
(c)a decision to return, or refuse to return, an applicant’s name or a community applicant’s name to the register; or
(d) a decision about the needs category allocated to an application;
(c)a decision revoking or amending a decision mentioned in paragraph (a) (excluding a decision which is not a reviewable decision);
(d)a decision revoking or amending a decision mentioned in paragraph (b), (c) or (d).
The housing commissioner must give an applicant, community applicant or tenant affected by the decision (an affected person) written notice about the decision within 28 days after the day the decision is made.
The notice must include a statement that the affected person may within 28 days of receiving the notice ask, in writing, for a review of the decision.
For subclause (1) (a), a decision by the housing commissioner to end a tenancy agreement entered into upon provision of rental housing assistance under this program on any ground which is lawfully available in relation to the tenancy agreement and any action by the housing commissioner in relation to the decision is not a reviewable decision, except in the case of a decision to terminate a tenancy as a result of a review under section 25 of the Housing Assistance Act and clause 29B of this program.
Review of decision
An affected person may ask the housing commissioner, in writing, for a review of an internally reviewable decision.
The request must be made within 28 days after the person is given notice of the decision, or such longer period as the housing commissioner allows.
The request must include full details of the grounds on which it is made.
NoteIf the housing commissioner approves a form for a request, the form must be used.
If the housing commissioner receives a request, the housing commissioner may—
(a) review the decision; or
(b) refer it to an advisory committee established by the housing commissioner for recommendation and accept, vary or reject the recommendation.
The housing commissioner must give the affected person written notice of the decision under subclause (4) within 28 days after the decision is made.
The notice must be in accordance with the requirements of the ACT Civil and Administrative Tribunal Regulation 1989 section 7.
In particular, the notice must tell the person—
(a) that the person has the right to apply to the ACT Civil and Administrative Tribunal for review of the decision, and how the application for review must be made; and
(b) about the options available under other Territory laws to have the decision reviewed by a court or the ombudsman.
NoteThe housing commissioner is not required to review decisions made by housing providers.
ACAT review
Application may be made to the ACT Civil and Administrative Tribunal for review of a decision under clause 31 (4)(a) or a decision to accept vary or reject a recommendation under clause 31(4)(b).
Housing Assistance Public Rental Housing Assistance Program (Housing Needs Categories) Determination 2011 (No 2) Notifiable Instrument NI2011-507
PUBLIC AND COMMUNITY HOUSING APPLICANTS
| Priority Housing | Applicants must demonstrate exceptional, urgent and critical needs that cannot be resolved by any reasonable means other than the early provision of social housing. | Able to demonstrate a range of complex needs with evidence of significant risk factors that would be addressed or substantially alleviated through the early allocation of social housing, including: · primary or secondary homelessness, including clients exiting specialist homelessness services; incarceration in a corrective services facility, or mental health or other health facility; · families with children, especially children who have experienced multiple housing moves and/or have school based remediation needs and children aged up to five years in large multi unit properties · formally diagnosed mental health issues, including the effects of past trauma and torture; · other serious and chronic health issues; · disability including frail-aged, where natural supports have broken down, or are at serious risk of breaking down; · Aboriginal and/or Torres Strait Islander persons and families having difficulty accessing private rental accommodation and facing complex issues; · women with or without children escaping domestic violence; · children at risk of abuse or neglect. Supplementary principles · An applicant with a single risk factor may be considered for inclusion if that factor is assessed as being extremely critical or detrimental in relation to their well-being or that of their family. · An applicant must also demonstrate an inability to find appropriate and affordable housing on the private market; for this purpose rent on the private market will be deemed unaffordable where it exceeds 50% of household income. · Inclusion will be confined to applicants who are currently capable of independent living and with the capacity to undertake a housing tenancy to address their longer term housing needs. A clear distinction will be made between applicants who meet these requirements and those for whom crisis or short-term housing is more appropriate to their needs. |
| High Needs Housing | Applicants must demonstrate significant needs that cannot be resolved by any reasonable means other than the provision of social housing within a reasonable timeframe. This includes significant affordability issues in obtaining housing on the private market. | Able to demonstrate one or more risk factors that would be addressed or substantially alleviated through the provision of social housing, including: · existence of one or more of the risk factors identified for the priority housing category but to a degree that does not justify admission to that category; · experiencing private rental barriers such as extreme affordability problems, or demonstrable and ongoing discrimination; · having a need for housing that addresses special needs such as a disability or a chronic medical condition that cannot be reasonably catered for through the private housing market; · living in overcrowded conditions, placing children at an identifiable risk. |
Interpretation
For the purposes of this Determination:
primary homelessness relates to people who have no shelter, sleep rough, live on the streets, in cars, under bridges or in impoverished dwellings;
secondary homelessness relates to people who frequently move from various forms of temporary accommodation such as emergency accommodation, or short-term accommodation with friends and relatives.
overcrowded conditions relate to households that have two or more bedrooms less than the number they are eligible for, based on the Housing Size Guidelines.
0
0
0