BOLTON and CENTRECARE INC. - [2011] WASAT 198

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: BOLTON and CENTRECARE INC. [2011] WASAT 198

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MS D TAYLOR (SENIOR MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

HEARD: 23 TO 25 MARCH 2010

DELIVERED : 5 DECEMBER 2011

FILE NO/S: EOA 30 of 2009

BETWEEN: LANA BOLTON
Applicant
AND
CENTRECARE INC.
Respondent

Catchwords:

Equal opportunity - Discrimination on grounds of impairment and pregnancy in the area of accommodation and on the ground of race in the area of goods, services and facilities - Less favourable treatment Failure to establish impairment

Legislation:

Equal Opportunity Act 1984 (WA) s 4(1), s 10(2), s 21(2)(b), s 66A, s 66A(3), s 66L(1)(b), s 83(1), s 89, s 90, s 107(3), s 127
State Administrative Tribunal Act 2004 (WA), s 32(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Ms M McComish
Respondent: Mr I Curlewis

Solicitors:

Applicant: Daydawn Advocacy Centre
Respondent: Lavan Legal

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Edoo and Minister for Health [2010] WASAT 74
Grover v Commissioner of Police [2005] WASC 263
Represi and Discrimination Commissioner and Criss Group Pty Ltd 1996 39 ALD 729
Winter and Commissioner of Western Australian Police Service [2006] WASAT 87

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On 25 March 2009 the applicant, Ms Lana Bolton, complained to the Commissioner for Equal Opportunity that the respondent, Centrecare Inc., and the Department of Housing, had discriminated against her unlawfully on the grounds of impairment or disability and race in the areas of accommodation and in the provision of goods or services, contrary to the provisions of the Equal Opportunity Act 1984 (WA). The complaint against the Department of Housing was subsequently withdrawn.
The applicant is an Aboriginal woman with 10 children. She is responsible for the care of a large family.
The respondent is a provider of housing and services for socially disadvantaged and poor families. It denies discriminating against the applicant.
On 16 April, 2009 the applicant made an additional complaint on the ground of pregnancy in the area of the provision of goods or services.
On 15 June 2009, the Commissioner for Equal Opportunity dismissed the totality of the complaint as being misconceived.
On 13 July 2009, the Commissioner for Equal Opportunity referred the complaint to the Tribunal pursuant to s 90 of the Equal Opportunity Act 1984 (WA). The complaint referred was of unlawful discrimination on the grounds of pregnancy and impairment in the area of accommodation and on the ground of race in the area of goods or services.
On 24 March 2010, the applicant withdrew her complaint on the ground of race. To that end, the complaint of discrimination before the Tribunal was limited to the grounds of impairment and pregnancy in the area of accommodation. The applicant submitted that the grounds were supportive of each other and stood or fell together, and that they needed to be considered in the round and in the widest possible circumstances.
The complaint relates to events that took place during the period November 2008 to March 2009, when the applicant was the tenant of a property owned by the respondent.
The applicant alleges that the terms and conditions of a tenancy agreement into which she entered with the respondent in December 2008, indirectly discriminated against her because she was required to agree to do things she was incapable of doing, due to her pregnancy and impairment. She alleges that her eviction from the property for breach of a requirement to keep the yard in good order and clear of rubbish, was a direct result of that indirect discrimination.
The applicant claimed damages in the sum of $25,000. She sought compensation for her suffering during the nine months of homelessness that followed her eviction.
The Tribunal found that the applicant was unable to establish that she suffers from an impairment within the meaning of the Equal Opportunity Act 1984 (WA). In addition, the applicant adduced no evidence capable of supporting a finding that there was a causal link between her pregnancy and alleged impairment, and her inability to meet the terms and conditions of her tenancy agreement.
Accordingly, the Tribunal dismissed the claim.

Background

The relevant background facts are not in dispute and may be stated briefly: Ms Lana Bolton is an Aboriginal woman with a sad and impoverished personal history. She was subjected to sexual abuse as a child and has been the victim of significant assault as an adult from the father of her 10 children, Mr David Bropho.
Ms Bolton (applicant) was pregnant during the relevant period. She gave birth to her 10th child on 3 March 2009.
Ms Bolton is known to a number of agencies providing housing and related assistance to disadvantaged Aboriginal families.
She is registered in the Indigenous Family Program (IFP) administered by the respondent, and in 2007 and 2008 was the recipient of grants in connection with housing from the Department of Child Protection (DCP), the Supported Accommodation Assistance Program (SAAP) and Centrecare Inc. (Centrecare or respondent).
On 3 September 2007, Ms Bolton entered into a tenancy agreement for three months for a property located in a residential area in North Street, Beckenham (the North Street property). The terms and conditions of the tenancy were negotiated with the respondent, although funding was provided by the DCP. The provision of housing was a fundamental part of a package of support offered to Ms Bolton to address longstanding housing and social problems.
The tenancy agreement was renewed on an ongoing basis throughout 2007 and 2008, despite ongoing problems with Ms Bolton's occupancy. The problems related, in the main, to damage to the structure of the property and to large amounts of rubbish being left in the yard.
The tenancy agreements were renewed until July 2008, despite the problems, because Ms Bolton made efforts to address them and cooperated with the agencies that were providing her with help.
Ms Bolton continued residing in the North Street property after the DCP funding came to an end in September 2008, under another program for people with chronic housing problems, the SAAP, a program also administered by the respondent.
Ms Bolton's continued occupation of the property became a live issue in October 2008, because of the state of the premises and because of complaints about the antisocial behaviour of children visiting or living at the property.
In November 2008, the respondent decided to terminate the tenancy and to issue a notice to vacate. However, it did not take steps to evict Ms Bolton, and instead offered her a new lease on the terms and conditions about which she now makes complaint.
On 2 December 2008, Ms Bolton entered into a further tenancy agreement with the respondent, on terms and conditions identical to, or very similar to, those in place since 2007. She made no complaint about them at the time.
On 19 February 2009, Ms Joanne Walker, the Property Officer at the respondent's offices in Cannington, issued a notice of breach of agreement. The respondent claimed that Ms Bolton was in breach of para 2.8(a) of the tenancy agreement that required her to keep the premises clean and well maintained. It said: 'the walls and floors require a heavy clean to remove hand prints, food and other marks. Bathrooms, toilets and shower recess require a heavy clean. The oven and stove top require a heavy clean. The door to the front right bedroom has many holes in it to the base and the bathroom mirror has been broken, these items were not reported to Centrecare'.
The notice of termination required Ms Bolton to provide vacant possession of the premises by 3 March 2009. It claimed the terms of the tenancy agreement relating to the upkeep of the yard had been breached and not remedied as required. The notice states 'the yard had clothes, toys and other rubbish all over yard. All yards and garden require attention'.
On 3 March 2009 Ms Walker wrote to Ms Bolton in the following terms:
Please be advised that Centrecare will be completing a property inspection of your home to ensure the breach issued on 19 February 2009 has been rectified as per the terms in your Tenancy Agreement, on:
Wednesday 11 March 2009 between 9.30 am and 10.30 am.
Should you not be home we would use the office keys to complete the internal inspection as allowed in the terms of the Tenancy Agreement.
If you have anything to bring to our attention please write a note on the back of this letter and leave for collection in a prominent spot.
Your effort to maintain a high standard of presentation will also be appreciated by us.
The standard checklist for your consideration, based on the Property Condition Report includes clean ceilings, walls, floors and all appliances, tidy lawns, weeded gardens and clean carport, as applicable.
Thank you in anticipation.
Copies of the letter were sent to Ms Susan Pope, the Assistant Manager, and to Mr Michael McKerrisher, the Case Worker.
Ms Bolton was in hospital on 3 March 2009. She was discharged on 11 March 2009.
On 6 March 2009, Ms Leanne Strommen, Executive Manager of the SAAP based at the respondent's offices in Gosnells, wrote to Ms Bolton in the following terms:
Centrecare wishes to advise you that we will not be renewing your tenancy at 5 North Street, Beckenham, which expired on 28 February.
We have come to this decision due to the ongoing antisocial complaints we have been receiving, unacceptable internal and external property standards and damage to the property. You have been issued with three breaches for the above and a termination based on the external property standards.
In addition to this, you have missed six of your last seven appointments with Centrecare since last December. SAAP support has now been withdrawn and the Department of Child Protection has been advised of our decision.
Would you please clean and vacate the property by 23 March 2009 and return the keys to our Gosnells office.
We enclose a list of possible options for future accommodation and encourage you to register with these agencies.
Copies of the letter were sent to Ms Walker and Ms Pope.
Ms Bolton is entitled to think that the respondent's employees were aware of the decisions that were being made in connection with the property. It is unfortunate that no mention of the inspection on 11 March 2009 is made in Ms Strommen's letter of 6 March 2009, as it leaves open the possibility of a further reprieve.
On 11 March 2009, a further notice of termination was issued that claimed breach of the agreement as follows: 'the tenant shall keep the premises clean and well maintained and shall report all damages within three days all walls and floors require heavy clean'. The notice of termination notes that notice of the breach was given to Ms Bolton on 19 February 2009.
On 19 March 2009, Ms Walker wrote to Ms Bolton enclosing a copy of a further notice of breach of agreement dated 11 March 2009. Ms Bolton is advised that, as she had failed to rectify the breach and Centrecare had received several verbal and written complaints regarding antisocial behaviour at the property since issuing the breach dated 3 March 2009, a decision had been made to terminate the tenancy.
Ms Walker indicates that the decision was made, not just because of the inadequate standards at the property, but because several complaints had been received by way of letters, emails and telephone calls about the antisocial behaviour of people at the property. The complaints related to, among other things, bad language, threatening and disruptive behaviour, fighting and ongoing aggression, entering adjoining yards without permission, damage to property and the reckless causing of a fire. Ms Walker tells Ms Bolton:
You need to understand that as the Tenant you are responsible for you and your visitor's behaviour. … As previously documented, please find alternative accommodation for all people currently living at the property.
You are required to clean and vacate the property by 23 March 2009 and return the keys to our Centrecare Gosnells office.
On 26 March 2009, an eviction order was issued in the Perth Magistrates' Court. Ms Bolton did not attend the hearing.
Ms Bolton takes no issue with the decision of the Magistrate. She accepts that she did not maintain the property in accordance with the conditions of the tenancy agreement. It follows that for the purposes of these proceedings, the condition of the property may be taken as described in the notices.

Pregnancy

Ms Bolton made an additional complaint of discrimination on the grounds of pregnancy, on the basis that she was required to remedy breaches to the terms of her tenancy agreement within 14 days, by performing heavy cleaning inside the house and a major garden clean up, including mowing, edging and weeding of lawns and gardens. Ms Bolton said that she was heavily pregnant at the time and had been hospitalised on more than one occasion as a result of problems in the latter stages of pregnancy and that as a result, the requirements imposed upon her were ones with which it was impossible for her to comply and unreasonable in view of the totality of her circumstances and other impairments.

The landlord/tenant relationship

The applicant submits that this was not an ordinary landlord/tenant relationship because Ms Bolton was in receipt of three government grants that were all designed and intended to prevent her and her children from falling back into homelessness. The applicant says that she was in receipt of funding in significant sums from the DCP, the Indigenous Family Programme (IFP) and the SAAP, because of the complex needs of her family. Ms Bolton submits this was because her level of need was high and recognised by the agencies.
The applicant submits, in essence, that because her needs were so great and obvious, the departments and agencies responsible for providing the financial underpinning for her housing had a duty to prevent her from becoming homeless.
The terms and conditions set out in the residential tenancy agreement are standard terms and conditions that anyone leasing property from the respondent is required to accept.
Ms Bolton is presumed to be an adult capable of managing her own affairs. She is not registered with the Disability Services Commission. She does not suggest that she lacks the capacity to enter into contracts because of a mental impairment. To that end, she has the right to decide whether or not to enter into contractual terms for housing or anything else.
Ms Bolton appears to have made no complaint about the terms with which she was asked to comply at the time the contract was entered into, or at any stage prior to her claim being made to the Commissioner for Equal Opportunity (Commissioner). It is not a matter that she appears to have raised beforehand. It would be difficult to see how she could complain, given the standard nature of the terms and conditions, in any event.
It is submitted on behalf of Ms Bolton, that it was unreasonable and discriminatory for the respondent to seek to impose any conditions upon someone in her position, in view of her history. It is suggested that there was every likelihood that the conditions would be breached.
Ms Bolton was able to maintain stable accommodation in good order for her family for an extended period of time between 2007 and 2008. This indicates that Ms Bolton was not regarded as being someone by virtue of impairment or otherwise, who was incapable of complying with standard terms and conditions relating to a tenancy in the community.
Ms Bolton appreciated that living in a community brings with it obligations to the other people living in the neighbourhood. She accepted that things had got out of hand when Mr Bropho was a presence in her home, she accepted that minimum standards could not be abandoned in their entirety to meet her needs alone.
Ms Bolton will need to demonstrate that it was unreasonable for the respondent to require her to enter into standard terms and conditions for the letting of a property.

The scheme of the Act

Anyone may lodge a complaint with the Commissioner, pursuant to s 83(1) of the Equal Opportunity Act 1984 (WA) (EO Act). Provided the complaint is lodged within 12 months after the date on which the alleged contravention is said to have taken place, the Commissioner must investigate it. Ms Bolton's complaint was lodged within the requisite time.
In conducting an investigation, the Commissioner can obtain information and make various directions for the purposes of investigating and attempting to conciliate the complaint. The Commissioner has the authority, at any time during her investigation, to dismiss a complaint for reasons that include it being frivolous, vexatious, misconceived or lacking in substance (see s 89 of the EO Act). The Commissioner dismissed Ms Bolton's claim as being misconceived.
Where the Commissioner dismisses a complaint as being misconceived, the complainant can require the complaint to be referred to the Tribunal, provided that notice is given within 21 days. Ms Bolton gave notice within the requisite period.
The Tribunal must hold an enquiry into any matter referred to it by the Commissioner (s 107(3)). It has jurisdiction to make orders in the complainant's favour (s 127) where it finds a complaint is substantiated.

Direct and indirect discrimination

Direct discrimination occurs when someone treats a person less favourably than they would treat another person in the same or similar circumstances, because of a ground, such as the other person's or a relative or associate's race, impairment, marital or family status, pregnancy, family responsibility, age, sex, sexual orientation, religion or politics.
Indirect discrimination occurs when an apparently neutral rule, policy, practice or procedure has a negative effect on a substantially higher proportion of people with a particular attribute or characteristic, compared to people without that attribute or characteristic, and the rule is unreasonable in the circumstances. (See 'Accommodating Everyone' a report to the Attorney General for the state of Western Australia by the Commissioner for Equal Opportunity June 2009.)

The legal issues

Discrimination on the ground of impairment arises under s 66A of the EO Act.
Section 66A(3) of the EO Act provides:
(3)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a)with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Consideration of the following questions is necessary as a result of the provisions of this section:
1)Does Ms Bolton have an impairment within the meaning of the EO Act?
2)Was Ms Bolton required to comply with a requirement or condition?
3)If so, was the requirement or condition reasonable having regard to the circumstances of the case?
4)Did Ms Bolton comply with the requirement or condition?
5)Would a substantially higher proportion of persons who do not have the same impairment as Ms Bolton comply with the requirements or be able to comply with them?
Consideration of allegations of discrimination in the area of accommodation fall to be determined under s 66L(1)(b):

Section 66L(1)(b) provides:
(1)It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person's impairment -
(b)in the terms or conditions on which accommodation is offered to the other person[.]
…
If the Tribunal is satisfied that Ms Bolton suffers from an impairment, it will be necessary to consider whether Ms Bolton's eviction from the property was related in any way to her impairment.
Consideration of discrimination on the ground of pregnancy arises under s 10(2) of the EO Act.
Section 10(2) provides:
(2)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the pregnancy of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a)with which a substantially higher proportion of persons who are not pregnant comply or are able to comply;
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Section 21(2)(b) provides that:
(2)It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or breast feeding -
…
(b)by evicting the other person from accommodation occupied by the other person; or
…
Section 66L(1)(b) of the EO Act states:
...
(b)in the terms or conditions on which accommodation is offered to the other person; or
...

Ms Bolton's claim of indirect discrimination

Ms Bolton alleges that the respondent imposed four requirements upon her in connection with the provision of accommodation at the North Street property. She says that she was unable to comply with the requirements because of her impairment and pregnancy, and that the requirements were unreasonable in all the circumstances.
The four requirements may be summarised as follows:
i)maintain property standards and clean and tidy yards and gardens;
ii)give vacant possession of the property on 3 March 2009;
iii)prevent antisocial behaviour; and
iv)meet weekly with her case worker and engage with the respondent's workers.
Ms Bolton concedes that people without her characteristics would have been able to comply with the requirements and conditions.
Ms Bolton's claim is dependent upon her establishing that she suffers from an impairment within the meaning of the EO Act. The Tribunal considered this issue before considering any other aspect of the claim.

The respondent's case

The respondent adduced evidence from a number of witnesses employed in its offices, and from the Regional Manager for the South East Metropolitan Department of Housing.
The respondent denied the allegations. In particular, it denied discriminating against Ms Bolton on the grounds of race. It said that the allegation in itself was bordering on the preposterous, as a core part of Centrecare's business was designed to support Aboriginal families like Ms Bolton's, displaced because of the closure of the Swan Valley Noongar camp in Lockridge, in which associated issues of family violence, homelessness, justice and legal concerns and sexual abuse were of ongoing concern to the families.
The respondent conceded that Ms Bolton's troubled relationship with Mr Bropho was known to them, and that Ms Bolton had told them, on more than one occasion, that her relationship with Mr Bropho was over. Ms Bolton had been in receipt of a supporting parent pension, not a disability support pension, and was not, as far as Centrecare were concerned, a person for whom services were provided by the Disability Services Commission. They said that she had made a statement to the Family Court in September 2008, in which she had said 'I enjoy good health and have no medical conditions that prevent me caring for my children'.
The respondent says that there were no reasons known to them why Ms Bolton could not enter into a binding legal agreement. It had not been suggested to them by her, or anyone else, that she did not have the necessary capacity to enter into a contract of this sort.
The respondent says that maintaining standards at the property had been an issue during previous tenancies. A number of attempts had been made to address the problems that appear to have resulted in acceptable standards being maintained up until the period in issue in January 2009. The respondent asserts that it is aware of the cultural obligations Aboriginal people have toward members of their family, and that overcrowding may result leading to damaged property, antisocial complaints and unreasonable wear and tear. In such circumstances, the tenancy is often unable to be sustained.
The respondent says that in view of the knowledge of the particular problems faced by Ms Bolton and mothers in her position, Centrecare does not and did not impose unreasonable standards of neatness on the family. It does, however, expect tenants not to cause unreasonable amounts of damage to the property during occupation. In short, it asserts that it is reasonable for any organisation, particularly a charitable not for profit organisation, to expect reasonable standards to be maintained in order to preserve the integrity of the property.
The respondent considers itself to have behaved in such a way as to afford Ms Bolton every opportunity to maintain the tenancy, and in accordance with the law. The decision to grant an order evicting Ms Bolton from the property was made by a magistrate after consideration of the evidence and in the knowledge that due process had occurred.
The respondent provided a number of photographs taken of the inside and outside of the North Street property, showing significant damage to the inside of the property and a yard littered with rubbish.

Is Ms Bolton impaired within the meaning of the Act?

Under s 4(1) of the EO Act, impairment in relation to a person means one or more of the following conditions:
…
(a)any defect or disturbance in the normal structure or functioning of a person's body; or
(b)any defect or disturbance in the normal structure or functioning of a person's brain; or
(c)any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,
whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment
(d)which presently exists or existed in the past but has now ceased to exist; or
(e)which is imputed to the person;

The evidence of Ms Lana Bolton

Ms Bolton is a Noongar woman raised in Perth by her aunt. She is responsible for providing a home for most of her 10 children, either on a full time basis or when they come to visit the family.
Ms Bolton gives a graphic account of the violent nature of her relationship with Mr Bropho, and the impact this has had on her ability to provide and maintain a home for her children. She says that Mr Bropho is her 'expartner'. She says that she is very frightened of him, that he is a violent man with an extensive criminal record who has assaulted her on many occasions, causing her grave and permanent injuries.
Ms Bolton describes being punched in the stomach in 1989 when she was about 30 weeks pregnant with her first child, and subsequently giving birth prematurely to a child suffering from celebral palsy.
She describes a number of occasions from 1989 until the present when she has been attacked by Mr Bropho, with weapons that have included an axe and a didgeridoo, that have left her with permanent physical injuries and problems such as recurring headaches and a bad memory.
She describes permanent damage to her arm caused by a fracture as a result of which she experiences ongoing numbness and pain. She says she has trouble lifting her arm.
Ms Bolton describes being forced by Mr Bropho to withdraw measures put in place to protect her, and to support her housing. She describes being driven by him to the Perth Central Law Courts in January 2009, so that she could remove a violence restraining order (VRO) taken out against him whilst he sat outside the courtroom and waited for her. The purpose of the VRO had been to afford her a measure of protection against Mr Bropho approaching her or entering her home upon his release from prison.
Ms Bolton describes the impact on her household of Mr Bropho's most recent release from prison. She describes how the good standards she had maintained in relation to her tenancy during his imprisonment fell away rapidly as a result of the direct and indirect consequences of his influence on her household. She admits that the condition of the premises, including the yard, declined and that the complaints about noise and antisocial behaviour from people at her premises were justified. She describes seeking help from the Police in February 2009 to be taken to a safe house, in the context of ongoing domestic violence that was exacerbated if Mr Bropho had been drinking or taking drugs.
In summary, Ms Bolton's alleged impairments consist of memory loss and headaches (caused by head injury); numbness, pain and limited use of her arm (caused by a fracture); and depression, stress and anxiety (caused by past history of abuse).
Counsel for Ms Bolton submits that the impairments are cumulative and need to be viewed in the round, together with the effects of her pregnancy.
Ms Bolton also describes refusing the help she was offered during the critical period in January 2009, when the poor state of the yard caused her to be in breach of her tenancy agreement, because she believed Mr Bropho would have beaten her if she had let people in to help her and they had discovered he was on the premises.
Ms Bolton accepts that she was not required to do the cleaning herself, but to permit people access to the premises so that they could do the work for her.
Ms Bolton says that she went to the Gosnells housing office on 11 March 2009, on the day she was discharged from hospital following the birth of her child, and was told that she was evicted. She says that she did not want to lose the house and was very upset because she 'didn't want me and my children to be homeless'. She describes taking her newborn child and children and leaving the house in circumstances where she did not know what she could do to keep the home, and was also fleeing Mr Bropho. She believes that he was trying to follow her and stalk her, that he had a gun and knives and that he was trying to kill her.
Ms Bolton describes spending a night or two in overcrowded accommodation with family members, before camping in parks and down by the river in Belmont. She says she tried to get help from the DCP in Armadale and was told that they 'didn't help with homelessness'.

Evidence in support of the contention that Ms Bolton suffered from an impairment

Ms Bolton relied on written and oral evidence from Dr Leonie Coxon and Dr Krishnan, to support her contention that she suffers from an illness or condition which impairs her thought processes, emotions or judgement. Neither witness was tendered as an expert witness in accordance with the standard practices in matters before the Tribunal.
Ms Bolton is described as suffering from high levels of anxiety. She is said to have a number of symptoms that would support a diagnosis of post traumatic stress disorder. She is also said to have a moderate to severe level of impairment in functioning.
There was no evidence adduced from a consultant psychiatrist or any expert witness to indicate that Ms Bolton had ever been diagnosed formally as suffering from a mental illness or a disturbed mental state. There was no evidence to indicate that Ms Bolton had ever undergone a mental state assessment. Moreover there was evidence to indicate that her mental state was such that it had not occurred to her general practitioner to refer her to a psychiatrist for any reason.

The evidence of Dr Coxon

Dr Coxon is a clinical and forensic psychologist in private practice. She prepared a report concerning Ms Bolton in 2008, in connection with a redress scheme claim and a criminal injuries compensation claim. She saw Ms Bolton on two occasions for the purposes of her report in April 2008 and June 2008 for a total period of three and a half hours. Dr Coxon agreed to the release of that report for the purpose of these proceedings. She also provided a statement and further report for these proceedings.
Dr Coxon conducted two structured interviews with Ms Bolton in which she gave a detailed history of her relationship with Mr Bropho. She also administered a number of psychological tests. She concluded in her report that Ms Bolton ‘has significant cognitive and functional impairments'. In her oral evidence she indicated that Ms Bolton was capable of conducting a normal conversation and of dealing with matters in a normal way. She thought Ms Bolton may need some assistance with her everyday tasks.
Ms Bolton told Dr Coxon that Mr Bropho had been her partner for 17 years and was the father of her nine children. She said that he was very violent towards her and that she had been seriously wounded on two occasions. One occasion took place in October 1997, when he struck her on the head with an axe in front of one of her children. The second occasion occurred sometime later, only a few days after he had been released from custody, when he fractured her arm in several places with a didgeridoo. Ms Bolton said that the injury was so severe that she was kept in hospital for two weeks to undergo surgery to stabilise her arm. Ms Bolton had also recounted a history of sexual abuse by family members from the age of 4 years.
Dr Coxon says that Ms Bolton meets the criteria necessary to be diagnosed as suffering from an illness, namely post traumatic stress disorder, because of the results of the test she administered that is designed to aid in the diagnosis of this illness. She recorded Ms Bolton's scores as falling well within the range required to found a diagnosis. Dr Coxon considered Ms Bolton's results to be related to exposure to a traumatic event, and to indicate a classic range of symptoms consistent with a formal diagnosis. Dr Coxon did not go so far as to make a diagnosis herself, perhaps because it is not appropriate for her to do so. Dr Coxon was unable to say to what extent Ms Bolton's psychological problems could be attributed to her childhood experiences of chronic sexual abuse, or to the physical assaults upon her. She posited that the chronic sexual abuse in early childhood may have set the scene for Ms Bolton's post traumatic stress, general anxiety, depression and low self esteem in later life, and may have caused her to enter into a poor quality and destructive relationship with someone who was both physically and psychologically damaging.
Dr Coxon considered Ms Bolton to be in urgent need of psychological treatment, and noted that Ms Bolton was, however, unlikely to take it up, not least because of her inability to trust people. She did not treat Ms Bolton herself, and her interaction was solely for the purposes of assessment in connection with the proceedings as outlined.

The evidence of Dr Krishnan

Dr Krishnan is a qualified medical practitioner who specialises in Indigenous health and women's health. She runs a general practice in Kelmscott and has known Ms Bolton and her family for a number of years. She has treated Ms Bolton on and off for a number of years for what she describes, as 'chronic depression and anxiety caused by her years of domestic violence'. She did not see Ms Bolton during her pregnancy in 2008 and 2009.
Dr Krishnan thought Ms Bolton would have had difficulty in complying with tenancy conditions requiring heavy cleaning of the house and yard in the late stages of her pregnancy.
Dr Krishan has never thought it necessary to refer Ms Bolton to a psychiatrist for assessment.

Ms Bolton's understanding of the reasons why the tenancy agreement was terminated

Ms Bolton accepts that some, but not all, of the incidents of antisocial behaviour complained about during the relevant period, arose because of the action of members of, or visitors to, her household. She believes that her children have been blamed for antisocial behaviour in the neighbourhood. However, she admits that one of her sons, aged 11 at the time, caused a grass fire to break out accidentally on a neighbour's lawn as a result of throwing a bike chain over the power line.
With regard to her knowledge of the steps being taken by the respondent to terminate her tenancy, Ms Bolton says that she had seen a few letters and breach notices, but that she was very confused about whether she was supposed to be in or out of the home.
It is unsurprising that Ms Bolton was confused about where she stood with the respondent. On the one hand, the respondent wrote to her on 3 March 2009 indicating that an appointment had been arranged the following week to inspect the condition of the property and see if the breaches noted on 19 February 2009 had been rectified. On the other hand, it wrote to her some three days later on 6 March 2009 to inform her that a decision had been made not to renew the tenancy agreement which had expired on 28 February 2009, because of complaints about the ongoing antisocial behaviour at the property, and because of its unacceptable internal and external state.

Findings as to impairment

The Tribunal accepts Ms Bolton's account of her personal history. It also accepts her account of the nature of her relationship with Mr Bropho. Her account supports a finding that she is a competent, loving mother who is capable of providing her children with a stable home. It also supports a finding that this stability has, on occasions in the past, been undermined by domestic violence and the influence of a violent and abusive man.
The problems for Ms Bolton do not appear to arise because of any innate flaw in her mental health or wellbeing. They would appear to arise for a number of complex reasons and notwithstanding the combined efforts of all the agencies with which she and her family are, from time to time, involved. An analysis of the underlying causes of Ms Bolton's housing problems is beyond the remit of the Tribunal.
It is a tragedy for Ms Bolton that intervention appears to have made no sustainable difference to her life. No one disputes the substance of what lies at the heart of Ms Bolton's claim. Her life story speaks for itself. Her life consists of trying to do her best for herself and her family in the face of overwhelming adversity.
Ms Bolton's own account of her circumstances is in keeping with a finding that in January and February 2009, she was struggling to meet the requirements of her tenancy and the demands of her large family. The Tribunal accepts that Mr Bropho may well have been present in her home at times when she turned away help from her door. However, Ms Bolton did not suggest that she was not unaware of the consequences of her decisions not to permit people to come in and help her clean her yard. She did not suggest that her perception of reality was disturbed, nor did she suggest that her judgment was impaired.
The Tribunal accepts Ms Bolton's evidence that she was trying to prevent the authorities from knowing that Mr Bropho was present at her home.
The Tribunal found the evidence of Dr Coxon and Dr Krishnan to be helpful insofar as it gave general information about Ms Bolton's background, and unhelpful insofar as it was put forward as a firm foundation upon which the Tribunal could conclude that Ms Bolton suffered from a recognised mental illness or physical disability, that would bring her within the definition of impairment within the EO Act. If anything, the evidence of both witnesses gave an insight into the extent to which Ms Bolton is able to function notwithstanding the impoverished nature of her background.

Dr Krishnan did not purport to make a formal diagnosis of post traumatic stress disorder, nor did she assert that she had the necessary specialist qualifications to do so.

The relevant legal principles

It is now well established that the Tribunal can only determine complaints referred to it by the Commissioner (See Winter and Commissioner of Western Australian Police Service [2006] WASAT 87 (Winter)). The terms of the referral are of critical importance. Whilst the Tribunal may hear evidence regarding any matter relevant to its enquiry, it is unable to assume jurisdiction (whether of its own motion or on the application of any party) that does not arise directly from the terms of the referral.
Whilst counsel for the applicant urged the Tribunal to take the broadest possible view of the matters before it, she recognised the limits imposed upon the Tribunal by the terms of the referral and made her submissions accordingly.
The applicant bears the burden of proving discrimination on the part of the respondent. The standard of proof is the balance of probabilities, but having regard to the serious nature and consequences of allegations of discrimination under the EO Act, it is accepted that the approach discussed in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 361 to 362 (Dixon J) applies. (See Edoo and Minister for Health [2010] WASAT 74 (Edoo) at [53]).
The rules of evidence do not apply in the Tribunal by virtue of the provisions of s 32(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)). However, it is incumbent upon the Tribunal to act fairly to all parties in the proceedings before it. The Tribunal may permit evidence to be adduced that is not directly relevant to the issues to be determined, but it must base its findings on material which is probative of the matters to be proved (see Grover v Commissioner of Police [2005] WASC 263 at para 26).
To that end, the Tribunal considered the reports made by the Commissioner to the Attorney General ('Finding a Place' (2004) and 'Accommodating Everyone' (2009)).
With regard to consideration of whether or not the conditions of the tenancy were reasonable, the EO Act provides no assistance. To that end, such matters need to be considered on a case by case basis.
Ms Bolton must establish that she suffered from an impairment as defined in the EO Act, if her claim is to stand any prospect of success.
As the Tribunal has found that Ms Bolton has failed to establish this essential element of her claim, namely that she suffered from an impairment as defined in the EO Act, it is unnecessary for the Tribunal to consider another aspect of her complaint, including whether the alleged acts of discrimination occurred in relation to her pregnancy. This is because Ms Bolton's case was put on the basis that the grounds of impairment and pregnancy were mutually supportive of each other and to be taken in the round.
As noted by the Tribunal in Edoo (see [70]), the term 'condition' is not defined in the EO Act. It is defined in the Shorter Oxford English Dictionary (5th ed, 2002) as a state or mode of being, and specifically 'the state resorting from a physical or mental illness: sickness of malady'. The word 'condition' in the phrase 'illness or condition' in the context of equal opportunity legislation, has been interpreted to denote something that might be characterised as a pathological condition (that is, a physical or a mental disease or a personality disorder: Represi and Discrimination Commissioner and Criss Group Pty Ltd 1996 39 ALD 729 (Represi) at [742]).
Having regard to the definition of 'impairment' as a whole, and to the list of matters set out following the reference to an illness or condition, the word 'condition' appears to denote an underlying cause and not merely symptoms (see Represi at [742]).
Given the Tribunal's conclusions regarding this matter, it is not necessary to consider any other element of Ms Bolton's claim.
The Commissioner, and ultimately the Tribunal, are constrained by the statutory provisions of the EO Act. Unless a complaint falls within the jurisdiction Parliament intended the Commissioner and the Tribunal to exercise, neither the Commissioner nor the Tribunal can grant relief. Ms Bolton's remedy, if there is one, lies elsewhere.

The Tribunal dismisses her claim, because it does not fall within the ambit of the jurisdiction the Tribunal is able to exercise. It accepts her account, that her fear of a violent and dangerous man may render it impossible for her to meet the societal norms expected of her.

Order

The application is dismissed.

I certify that this and the preceding [123] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT