Bradley v Commissioner for Social Housing in the Act (Administrative Review)
[2015] ACAT 18
•2 March 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BRADLEY v COMMISSIONER FOR SOCIAL HOUSING IN THE ACT (Administrative Review) [2015] ACAT 18
AT 14/84
Catchwords: ADMINISTRATIVE REVIEW – social housing - rental transfer – valid offer - number of valid offers – applicant’s needs and preferences to be taken into consideration
Legislation:ACT Civil and Administrative Tribunal Act 2008 s68
Housing Assistance Act 2007
Subordinate
Legislation:Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) cl 13, 15, 17, 20, 21, 30, 31, 32
Housing Assistance Public Rental Housing Assistance Program (Housing Needs Categories) Determination 2011 (No 2)
Texts/Papers: Allocations Policy for allocation by the Commissioner for Social Housing of public rental housing assistance – headings and text referred to - ‘Offers’; ‘Valid Offer’; ‘Number of Valid offers’; ‘Valid offer refused’
Tribunal: Ms W. Corby – Senior Member
Date of Orders: 2 March 2015
Date of Reasons for Decision: 2 March 2015
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL AT 14/84
BETWEEN:
DARRYL BRADLEY
Applicant
AND:
COMMISSIONER FOR SOCIAL HOUSING IN THE ACT
Respondent
TRIBUNAL: Ms W. Corby – Senior Member
DATE:2 March 2015
ORDER
The Tribunal Orders that:
Pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008 the reviewable decision dated 5 September 2014 to remove the Applicant’s name from the priority housing list on the register is set aside.
The Applicant’s name is to be returned to the priority housing list on the register in relation to the application for rental transfer (no. 64817) with effect from 27 March 2006 for a two (2) bedroom Social Housing accommodation in the City or Belconnen area.
………………………………..
Ms W. Corby
Senior Member
REASONS FOR DECISION
Darryl Bradley (the ‘Applicant’) seeks review of the decision made by the delegate of the Commissioner for Social Housing (the ‘Respondent’) on 5 September 2014 (the ‘reviewable decision’) confirming the earlier decision by the Respondent on 12 February 2014 (the ‘original decision’) to remove the Applicant’s name from the register of applications for social housing assistance.
The hearing
This matter was heard on 30 January 2015. The Applicant was represented at the hearing by Ms Faulder of Welfare Rights & Legal Centre (‘WRLC’).
The following people attended the hearing and gave evidence in support of the application –
(a)the Applicant;
(b)Sandra Harrington – who resides with the Applicant and who was included in the application for rental transfer lodged by the Applicant on 5 November 2013;
(c)Susan Kristensen – the Applicant’s sister who has been actively involved in relation to the Applicant’s rental transfer application since September 2013.
The Respondent was represented by Mr Adkins from the Respondent’s office. Mr Maling from the Respondent’s office attended to assist Mr Adkins.
The Respondent did not call any witnesses, however the Respondent relied on video footage that was viewed by the Tribunal, the Parties’ representatives, the Applicant, Ms Harrington and Ms Kristensen, of the internal areas of two Social Housing properties in Downer and Hackett, in the ACT.
At the conclusion of the hearing on 30 January 2015 the Tribunal reserved its decision.
Information relied on by the Tribunal
In considering this matter the Tribunal has had regard to –
(a)those documents held by the Respondent which relate to this matter and which were filed in the Tribunal (the ‘T Docs’). These will be identified in these Reasons for Decision by their page number e.g T Docs 1;
(b)the verbal evidence given at the hearing and written evidence tendered by the Applicant’s witnesses;
(c)other documentary evidence tendered at the hearing;
(d)the video footage taken of Social Housing properties in Hackett on 15 January 2014 and Downer on 21 January 2014 which was viewed at the hearing and tendered as Exhibit R3;
(e)the Statements of Facts and Contentions, and Reply, filed on behalf of the parties and the oral submissions made by the parties’ representative at the hearing; and
(f)the relevant legislative provisions.
Relevant legislative and other provisions
The full text of legislative and policy provisions which are referred to in this decision are attached in a Schedule for ease of reference.
Background
The following paragraphs set out the history of this matter, based on the information available to the Tribunal.
The Applicant has been a social housing tenant at his current social housing rental accommodation since February 2004. It is a one bedroom, ground floor unit.
Some time after February 2004 and before or on 27 March 2006 the Applicant applied to the Respondent for a transfer to another social housing rental property. Although there was no dispute that this application had been made, there was no specific information about this application available to the Tribunal. It appears that the Respondent’s file relating to the Applicant was, due to an administrative error, sent for archiving some time prior to May 2012. In May 2012 the file was destroyed. It is not clear what, if any, action was taken by the Respondent in relation to the 2006 rental transfer application.
Sandra Harrington commenced living with the Applicant, as carer and friend, in May 2012.
On 1 July 2013 the Applicant completed a ‘Social Housing Eligibility Questionnaire’ (T Docs 19-22). This Questionnaire had apparently been sent by the Respondent to the Applicant. In that document the Applicant confirms that Ms Harrington resides with him and provides carer assistance to him. He also refers to the transfer application that he had made in ‘2005/2006’.
In September 2013 the Applicant’s sister, Susan Kristensen, began actively assisting the Applicant in relation to his transfer application. On 5 November 2013 the Applicant and Ms Harrington completed, with a representative of the Respondent, a transfer application form providing details of, in particular, the Applicant’s health conditions and the need for a second bedroom to accommodate Ms Harrington.
On the transfer application form dated 5 November 2013 it is noted that when completing the form the Applicant raised some issues in relation to climbing stairs. It is noted on the form (see T Docs 28) that although this restriction was not confirmed by the Applicant’s treating General Practitioner, the Applicant stated that he was ‘uncertain’ about whether he had difficulty using stairs. There is no mention on this form of mobility issues for Ms Harrington.
On 24 January 2014 the Respondent approved the transfer application dated
5 November 2013. The application was given the reference number 64817 by the Respondent. Pursuant to Clause 13 of the Housing Assistance Public Rental Housing Assistance Program 2013 (No1) DI2013-52 (the ‘Housing Program’) the respondent must determine ‘categories’ for applications by eligible applicants, and all applications by eligible applicants must be allocated a ‘category’. The Respondent has determined that there are three categories – Standard, High Needs and Priority. These categories and the relevant criteria relating to each category is set out in the Housing Assistance Public Rental Housing Assistance Program (Housing Needs Categories) Determination 2011 (No 2) NI 2011-507 (the ‘Categories Determination’).
On 24 January 2014, the 5 November 2013 transfer application by the Applicant and Ms Harrington was allocated to the High Needs housing category. Following a decision on 6 February 2014 (T Docs 51) the application was moved to the Priority housing category on the register.
The Applicant had identified Ms Kristensen, the Applicant’s sister, as a person who was assisting him in relation to the transfer application of 5 November 2013. On 11 February 2014 Ms Harrington was contacted by a representative of the Respondent and advised that there were two properties for inspection by the Applicant and Ms Harrington in relation to the transfer application.
Presumably, although it is not apparent from the information available to the Tribunal, this ‘offer’ was made by the Respondent in response to the Applicant’s transfer application of 5 November 2013 and not the 2006 transfer application. It is not clear whether it related to the Respondent’s decision made on -
(a)24 January 2014 to approve the transfer application and register the application on the High Needs Housing list with effect from 27 March 2006; or
(b)6 February 2014 by the Multi Disciplinary Panel (‘MDP’) and signed by the Chair of the Panel on 21 February 2014 to approve the application being moved to the Priority Housing list on the register from 6 February 2014.
In the initial conversation that Ms Kristensen had with the Respondent’s office about the properties on 11 February 2014 she says that she was asked whether ‘stairs’ would be a ‘problem’. Ms Kristensen says that she ‘assumed’ this referred to stairs inside the property and advised they would not (Para 3 Exhibit A3).
Ms Kristensen, at paragraph 4 of her Statement (Exhibit A3) said that
after she received the call from the Respondent’s office and before inspecting the properties, she advised the Applicant and Ms Harrington about the properties. Ms Harrington told Ms Kristensen that stairs would be an issue. Ms Kristensen said that they made the decision to inspect the properties anyway in case they were nonetheless suitable.
The Applicant, Ms Harrington and Ms Kristensen collected the keys and inspected the two properties on 11 February 2014. No representative from the Respondent’s office was present when the properties were inspected.
Neither the Applicant, nor Ms Harrington, nor Ms Kristensen considered that the properties met the accommodation needs or preferences of the Applicant and Ms Harrington.
Following the inspection, a meeting was held at the Respondent’s office. Ms Perry, the team leader of the allocations area at the Respondent’s office, the Applicant, Ms Kristensen and Ms Harrington attended. The Applicant said little at the meeting, however Ms Kristensen, primarily, and Ms Harrington provided reasons why the two properties they had viewed did not meet the Applicant’s and Ms Harrington’s needs and preferences. Ms Perry made a file note of the matters discussed at the meeting (T Docs 52).
Ms Kristensen gave evidence that the file note (T Docs 52) made by Ms Perry does not accurately record what was said, or how people behaved at that meeting. Mr Kristensen, the Applicant and Ms Harrington did confirm that the meeting was held.
The Tribunal accepts that at the meeting at the Respondent’s office on
11 February 2014 various matters were discussed relating to the properties that had been viewed and why the Applicant and Ms Harrington, and Ms Kristensen on their behalf, did not consider them suitable.
Whilst there is some dispute as to what exactly was said at the meeting, the Tribunal accepts that on 11 February 2014 the Applicant and Ms Harrington signed a ‘Notice of Refusal of Property Offer’ and probably also communicated this decision to Ms Perry at the meeting with Ms Perry on
11 February 2014. In the Notice of Refusal (T Docs 53), the Applicant and Ms Harrington record that the properties “were disgusting, they smelt the stairs were a problem”.
On 12 February 2014 (T Docs 54) the Respondent wrote to the Applicant and Ms Harrington advising of the Respondent’s decision pursuant to sub-clause 17(1)(c) of the ‘Housing Program’ to remove the Applicant’s and Ms Harrington’s name from the Priority Housing list on the register because they had refused an ‘offer’ of the Downer and Hackett properties, being two properties which the Respondent considered met the Applicant’s reasonable accommodation needs.
On 4 April 2014 the Applicant and Ms Harrington sought review of the
12 February 2014 decision (T Docs 55-63). On 2 May 2014 the Respondent made the decision confirming the 12 February 2014 decision to remove the transfer application from the register (T Docs 64-65).
On 2 June 2014 Welfare Rights and Legal Centre (‘WRLC’), on behalf of the Applicant and Ms Harrington, made a request for review of the 2 May 2014 decision (T Docs 77-78). This application was referred to the Housing Assistance and Tenant Review Panel (‘HATRP’) which considered the matter on 1 August 2014. HATRP recommended that the Applicant and Ms Harrington’s names be returned to the register and one further offer of social housing accommodation be made.
On 5 September 2014 (T Docs 85) the Respondent’s delegate (the ‘reviewable decision maker’) rejected the HATRP recommendation and wrote to the Applicant and Ms Harrington advising that their names would not be returned to the register (T Docs 85 – the reviewable decision).
The reviewable decision maker stated that this decision had been made because notwithstanding the recommendation by HATRP the reviewable decision maker had been advised, and accepted, that the Downer and Hackett properties viewed on 11 February 2014 were ‘standard and therefore valid offers’. The effect of the reviewable decision was to confirm the 12 February 2014 decision to remove the Applicant’s and Ms Harrington’s transfer application from the housing register.
The Applicant applied to ACT Civil and Administrative Tribunal (‘ACAT’) for review of reviewable decision. In these reasons for decision, when using the term ‘ACAT’ the Tribunal is referring to the ACAT as a whole. The term ‘Tribunal’ refers to the individual Tribunal member who heard the matter on
30 January 2015 and is making the decision.
Review by the Tribunal
The decisions made by the Respondent on 12 February 2014 and reviewed by the Respondent on 2 May 2014 and 5 September 2014 were all decisions within the operation of sub-clause 30(1)(a) of the Housing Program. The reviewable decision was made pursuant to Clause 31(4)(b) of the Housing Program.
Pursuant to clause 32 of the Housing Program an application can be made to ACAT for review of decisions made pursuant to clause 31(4)(b) of the Housing Program.
On 23 September 2014 WRLC applied, on behalf of the Applicant, to ACAT for review of the reviewable decision.[1]
[1] Section 68(3) of the ACT Civil and Administrative Tribunal Act 2008
In response to the application ACAT must either confirm, vary or set aside the reviewable decision. ACAT can exercise all of the functions of the decision-making entity.[2]
[2] Section 68(1) of the ACT Civil and Administrative Tribunal Act 2008
In its consideration of the matter the Tribunal is to have regard to all of the relevant information available at the time the decision. It is the Tribunal’s role to make the correct or preferable decision. It is not the Tribunal’s role to make an assessment of any previous decision made by the Respondent.
Rental transfer applications - legislative framework
Pursuant to clause 20 of the Housing Program, an application by a public housing tenant for transfer from one public housing property to another is a ‘rental transfer’. The Housing Program applies to a rental transfer as if it were an initial application for rental housing assistance.
Pursuant to Clause 21 of the Housing Program the Respondent has a discretion to decide the size, type and location when allocating housing assistance pursuant to the Housing Program. However the Respondent must, when making this decision take into account, relevantly -
(a)the availability, size and type of accommodation;
(b)the Applicant’s reasonable accommodation needs; and
(c)the preferences expressed by the Applicant.
The Respondent has an Allocations Policy.[3] The Policy describes a ‘valid offer’ of housing assistance in relation to an application (in this case for a rental transfer) as, relevantly, one that corresponds with the ‘applicant’s reasonable housing preferences’ and any confirmed medical or special needs of the household that will affect housing requirements.
[3] Attachment H of the Applicant’s Statement of Facts and Contentions dated 3 December 2014
Up to two ‘valid offers’ are to be made to ‘applicants on the standard housing list’. The Tribunal notes that, as other parts of the Allocation Policy refer specifically to the Priority Housing list, it is not clear if this limit of two offers applies to applicants on the Priority and High Needs list. The Allocation Policy states that if both ‘valid offers’ are ‘refused’ by the applicant, then the application is cancelled. Cancellation in these circumstances is dealt with in clause 17(1)(c) of the Housing Program and is discussed below.
At the hearing the Respondent’s representative noted that as clause 17(1)(c) of the Housing Program refers to ‘refusal of an offer’ and the Allocations Policy provides for up to two ‘valid offers’, that the Allocation Policy demonstrated a more generous approach than is set out in the Housing Program.
The Tribunal accepts that the Allocation Policy is consistent with the Housing Program and that an applicant on the Standard Housing list is to be offered up to two properties which meet the requirements of a ‘valid offer’. The Tribunal considers that as no specific reference is made – under the heading ‘valid offer’ in the Allocation Policy - to applications on the Priority or High Needs Housing List, that up to at least two valid offers should be made to these applicants as well. The Tribunal is otherwise unable to comment on what, if any, different number of offers might be made to applicants in these Categories.
The Applicant’s 5 November 2013 application for rental transfer was on the register having been added to the High Needs Housing list on 24 January 2014, and later transferred to the Priority Housing list on 6 February 2014. It is unclear if the earlier application by the Applicant in 2005/6 – probably
27 March 2006 since this is the ‘effective’ date for the 24 January 2014 decision (T Docs 48) - was on the register at any time after his application of 2005/6 and before the decision of 24 January 2014.
Pursuant to clause 17(1)(c) of the Housing Program, the Respondent may remove the name of an applicant from the register if the applicant ‘refuses an offer of rental housing assistance’. An applicant whose name is removed under clause 17(1) can apply, within one month of removal, to have their name returned to the register. The Respondent has a discretion to return the applicant’s name to the register provided the Respondent is satisfied that the applicant remains eligible and was so for the period their name was not on the register.
The reviewable decision relates to the decision made on 12 February 2014 pursuant to clause 17(1)(c) of the Housing Program to remove the Applicant and Ms Harrington from the register. The Applicant sought review of this decision (T Doc 55-57). The Applicant did not apply to have his name returned to the register pursuant to clause 17 (3) of the Housing Program.
In this matter it is agreed, and the information available as at the hearing date supports the conclusion, that the Applicant and Ms Harrington were eligible applicants on the High Needs or Priority Housing list of the register at the date of the decision on 12 February 2014. The removal of their names from the register related to clause 17(1)(c) of the Housing Program and their refusal to accept either of the properties offered by the Respondent on 11 February 2014.
From the available information it appears that the Applicant and Ms Harrington’s situation has worsened since February 2014. Ms Harrington is no longer working. Health issues, for both the Applicant and Ms Harrington, have either not improved, deteriorated or emerged since the rental transfer application made on 5 November 2013.
It is not disputed, and the Tribunal accepts that the Applicant and
Ms Harrington would have at all times since 12 February 2014 and until the hearing date remained eligible applicants on the Priority Housing List for a rental transfer had their names not been removed from the register.
The question for the Tribunal is, should the Applicant’s application for rental transfer be removed from the Priority Housing list on the register pursuant to clause 17(1)(c) of the Housing Program? More specifically, did the refusal of the offer of rental housing accommodation by the Applicant and Ms Harrington on 11 February 2014 amount to a refusal of an offer of rental housing assistance pursuant to clause 17(1)(c)? If not, then for the reasons explained in more detail below, it is the Tribunal’s view that the reviewable decision should be set aside.
Findings of fact
The evidence in this matter primarily addressed -
(a)the condition of the public housing properties that the Applicant inspected, with Ms Harrington and Ms Kristensen, on 11 February 2014; and
(b)the health conditions of the Applicant and Ms Harrington.
Condition of the properties ‘offered’ on 11 February 2014
The Downer property was a vacant first floor, 2 bedroom unit with a small external balcony which faces the street. The property is accessed by a flight of communal stairs.
The Applicant, Ms Harrington and Ms Kristensen all described the property as being in a relatively poor condition and inadequate in a number of ways. They also asserted that how the property ‘looked’ on the video (Exhibit R3) was not a true representation of its condition since the ‘positives’ were highlighted and the ‘negatives’ were glossed over or not mentioned. Nonetheless they did not disagree that the video image (Exhibit R3) was a video of the property they had viewed.
Ms Kristensen asserted that the property had a bad smell. She asserted that it was so bad that she ran outside and vomited and consequently did not view the whole of the inside of the property. The Applicant and Ms Harrington did view the whole of the inside of the property and all three reported that the property smelled as if something had died there.
The Tribunal finds that:
(a)the property was in substantially the same condition when viewed by the Applicant, Ms Harrington and Ms Kristensen on 11 February 2014 as it had been when the video was made on the Respondent’s behalf on 21 January 2014 (Exhibit R3); the property is old and is in ‘fair’, perhaps in parts ‘poor’, condition. The small kitchen and appliances are adequate. The paintwork and carpeting and overall condition was for the most part fair; and in some instances of carpet stains and the need for maintenance of doors and walls, poor;
(b)when viewed on 11 February 2014 by the Applicant, Ms Harrington and Ms Kristensen, the property had a bad smell. This was reported to the Respondent on 11 February 2014. There was no evidence concerning any ‘follow up’ about this by the Respondent, therefore the Tribunal does not know if the matter was investigated by the Respondent, nor if the smell persisted or could have been addressed; and
(c)other than its age and being in only fair condition, there were no obvious matters relating to the condition of the unit which are relevant to the consideration of this matter.
The Hackett property was a vacant 2 bedroom, first floor unit with a small-medium sized external balcony facing the street. The property is accessed by communal stairs.
The Applicant, Ms Harrington and Ms Kristensen all viewed the whole property. Their evidence is that the property was in poor condition, the kitchen and cupboards were too small, there was a ‘mouldy’ smell.
The Tribunal finds that:
(a)the condition of the property when viewed by the Applicant, Ms Harrington and Ms Kristensen on 11 February 2014 was in substantially the same condition as the video of the property made on 15 January 2014 (Exhibit R3);
(b)the property was in relatively good condition having been recarpeted and repainted and other maintenance work undertaken to repair the bathroom and walls and other areas;
(c)the property was in fair to good condition. There are no matters relating to the condition of the property which are relevant to this decision.
Location of properties – geographic location and social environment
There was no issue that the location of the properties was acceptable to the Applicant and Ms Harrington who had nominated City and Belconnen as their preferred areas.
The main restriction on ‘location’ from the Applicant’s point of view is that the Applicant has a long-term association with the Ainslie pharmacy where he collects medication. In addition, the Applicant and Ms Harrington have other supports in the City and Belconnen area.
In addition to the geographic location, the surrounding social environment of any proposed property is very relevant to the Applicant’s rental transfer application. This aspect of his application is supported by his GP’s reports which cover periods from 2006 until 4 July 2014 (Exhibits A5, A6, A7 and A8). The Tribunal accepts that this GP has been the Applicant’s treating doctor since 2004.
The Applicant’s GP provided the following reports to the Respondent in support of the Applicant’s 2006 and later 5 November 2013 transfer applications –
(a)April 2006 (Exhibit A5 - T Docs 70);
(b)9 December 2012 (Exhibit A6 - T Docs 23);
(c)22 November 2013 (Exhibit A7 - T Docs 33); and
(d)3 June 2014 (Exhibit A8 - T Docs 75-76);
The reports all refer to the ‘need’ for the Applicant to live in an environment where he is not exposed to illicit drug use and associated activities. The GP’s reports in April 2006 (Exhibit A5) and December 2012 (Exhibit A6) are written in support of the Applicant’s transfer application in 2006.
By 2012 (Exhibit A6) the Applicant had developed further medical conditions. The GP concludes that the mould problems at the applicant’s current residence may have contributed to him developing pneumonia on two occasions.
In addition, the Applicant had developed another medical condition which resulted in him suffering from almost daily headaches which he reported were exacerbated by the noisy environment of the unit complex he lives in.
By the GP’s report of 22 November 2013 (Exhibit A7) the Applicant reported memory loss related to one of his physical health conditions. It was also noted in this report that Ms Harrington was living at the Applicant’s property and provided support and care for the Applicant. The GP confirms that the Applicant requires this assistance due to the impact on him of his medical conditions. The GP supports this relationship and says that as a result the Applicant needs a two bedroom property so that Ms Harrington, as his carer and support, can be accommodated.
On 22 November 2013 (Exhibit A7) the GP reports that the Applicant’s mental health had deteriorated. The Applicant was more depressed and the associated anxiety was being aggravated by his environment. This included incidents such as witnessing or being exposed to violent incidents that had occurred around the Applicant’s residence in the unit complex where he lives. The Applicant did not feel safe.
In the GP’s further report of 3 June 2014 (Exhibit A8) she confirms that all of the physical and mental health conditions previously reported were ongoing. In addition the Applicant had been diagnosed with a further physical condition.
In the 2014 report the GP states that the Applicant’s mental health had further deteriorated. He was severely depressed and perhaps suicidal. His anxiety and exposure to the negative aspects of the social environment where he lived had meant that he had become reclusive and demonstrated some symptoms of agoraphobia.
In the 3 June 2014 report the GP concludes that the Applicant’s worsening mental health is related to his unsatisfactory living environment and his mental health is unlikely to substantially improve unless this changes. The change would include a clean, safe environment where he has access to a private outdoor space and perhaps the opportunity for positive interaction with neighbours.
The Applicant’s treating psychologist, Vickie Walmsley, prepared a report dated 5 August 2014 (Exhibit A1 Attachment ‘B’). She supports the GP’s conclusion that the Applicant’s mental health issues, especially depression and anxiety, are being exacerbated by the Applicant’s living conditions including the exposure to drug use and associated behaviours. Ms Walmsley notes that it is particularly difficult for the Applicant. The Applicant is hyper-vigilant and feels unsafe. Ms Walmsley concludes the Applicant and Ms Harrington, whom she notes is his carer, need a 2 bedroom unit with private courtyard or garden.
The support letter from Miracles Australia (T Docs 14) was received by the Respondent on 1 July 2013 and was provided in support of the Social Housing Eligibility Questionnaire completed by the Applicant on 1 July 2013. In the Questionnaire the Applicant refers to his previous rental transfer application in ‘2005/6’ (sic). The Miracles Australia letter refers to the impact on the Applicant’s mental health of living in his current accommodation. The letter notes that while visiting the Applicant some of their workers witnessed an incident involving a violent neighbour who threatened the Applicant and others. The letter supports the Applicant’s need for a two bedroom property to accommodate Ms Harrington as the Applicant’s carer. The letter also suggests that the Applicant needs an apartment situated so that it enables him to avoid contact with behaviour and individuals associated with drug use.
In their evidence the Applicant, Ms Harrington and Ms Kristensen all confirmed that as they entered the building of the Hackett property they noted a group of men standing to their right on the front outdoor area near one of the buildings in the same unit complex as the Hackett property. The men were quite loud, but not aggressive nor behaving in any other way inappropriately and some of them appeared to be drinking alcohol.
Based on the differing accounts about the presence of these men, the Tribunal accepts that there were a group of at least five men standing near the front of the unit complex, at least several metres from where the Applicant, Ms Harrington and Ms Kristensen entered the building to access the Hackett property.
The witnesses said the men were standing near the entrance to one of the units and the witnesses each said they assumed the men, or at least some of them, lived in the complex. The Applicant said he saw beer labels on bottles and cans and saw men drinking out of bottles in bags. Therefore he concluded they were drinking alcohol. The witnesses also described the men as ‘drunk’. Whilst the Tribunal is unable to say whether any of the men was drunk, the Tribunal accepts that some of the men were drinking alcohol. Because of the proximity of the group of men to the building, the Tribunal accepts that at least one of the group resided or was staying at another of the units in the Hackett property complex.
Based on the video evidence (Exhibit R3) the Tribunal is satisfied that both the Downer and the Hackett properties had balconies which would afford access to an outside space. However both balconies were external, faced the street and, as they were first floor properties, were visible from and not very far from the street. The Tribunal is satisfied that given the Applicant’s physical and mental health, and the need for a private external area, that neither property was suitable.
Stairs
Exclusively stair access to the proposed property is also an issue. The Applicant expressed ‘uncertainty’ about the suitability of stairs when completing the Application for Social Housing Register Needs Assessment Form on 5 November 2013 (T Docs 28). However from the information available to the Tribunal, including the evidence given by the Applicant, Ms Harrington and Ms Kristensen at the hearing, the Tribunal is satisfied that the Applicant is not prevented from using stairs to access a property.
Dr Mills has provided a report dated 27 November 2014 (Exhibit A4) in which he confirms Ms Harrington has osteoarthritis ‘mainly in her knees and hands’. He states that the condition limits her ‘physical ability’ and so she requires accommodation without stairs.
Ms Harrington gave evidence that she had experienced symptoms of the osteoarthritis condition, in particular in her knee, for some time before it was diagnosed. She gave evidence that in about September 2014, she was forced to seek treatment and as a result of this medical condition she was forced to stop work as a cleaner as she was no longer physically able to do the work. She is now on a Disability Support Pension and cannot work. She says she can ride a bike as this is easier than walking and she does use a bike for transport, errands etc.
The Tribunal accepts that notwithstanding Ms Harrington’s physical restrictions caused by her medical conditions this does not impact on her capacity to perform her role as carer for the Applicant. The Applicant, Ms Harrington and Ms Kristensen all gave evidence that Ms Harrington’s carer role is directed at helping address the Applicant’s memory-loss by ensuring he remembers to take medication, attend appointments and does not leave appliances etc running. In addition she provides general companionship and support which assist him in addressing his mental health issues. Ms Harrington’s medical conditions and physical restrictions would not impact on her capacity to perform her ‘carer’ role for the Applicant.
The medical evidence supports, and the Tribunal is satisfied, that Ms Harrington’s role as carer is important in addressing the Applicant’s mental health conditions. It is therefore appropriate that she be included in the consideration of the Applicant’s rental transfer application and that the proposed accommodation should address her ‘reasonable accommodation needs’.
The Respondent submitted that the very brief report provided by Dr Mills (Exhibit A4) does not support this conclusion and that further more detailed medical information is required.
Based on the medical and witness evidence the Tribunal is satisfied that Ms Harrington is unable to live in a property which has exclusively stair access or which is not on one level. This would not prevent a property which is above ground level being suitable, provided there was some alternative to stair access.
As both the Hackett and Downer properties were on the first floor and exclusively accessed by stairs, the Tribunal finds that neither of the properties met the reasonable accommodation needs of Ms Harrington in that regard.
Applicant’s preferences
The Tribunal notes that the Applicant, Ms Harrington, and Ms Kristensen on their behalf, expressed preferences for a new, or newer, two bedroom ground floor property of generous size which is clean and with access to a medium sized private open area. Ideally this area would include a garden space and/or enclosed balcony.
The Tribunal accepts that the Respondent must consider the preferences expressed by an applicant when making decisions about allocation.[4] The Tribunal accepts that the properties did not meet some, or all, of the preferences expressed by the Applicant and Ms Harrington. However the Tribunal considers that the properties could have been ‘valid offers’ – had they otherwise met the reasonable accommodation needs of the Applicant and Ms Harrington, despite the fact that they did not correspond to these expressed preferences.
[4] Clause 21(2)(c) of the Housing Assistance Public Rental Housing Assistance Program 2013 (No 1)
The Tribunal’s decision rests on the failure of the properties to meet the reasonable accommodation needs of the Applicant and Ms Harrington, not the failure to meet their expressed preferences.
Conclusion
Properties did not meet reasonable accommodation needs
The Applicant has provided evidence of health issues and or treatment and support needs, in particular –
(a)his vulnerability to chest infections;
(b)his depression and anxiety conditions as a result of which he has become reclusive and displays symptoms of agoraphobia;
(c)his need to be removed from drug related environments and behaviour. Consequently any external area accessed from the property needs to be private;
(d)headaches which are related to a health condition and are exacerbated by exposure to noise; and
(e)memory problems related to a health condition and as a result of which the Applicant requires assistance from a carer, currently Mr Harrington who lives with the Applicant.
The Tribunal is satisfied that the Applicant has demonstrated that because of these evidenced medical conditions and the need for treatment and support his reasonable accommodation needs include a property that:
(a)has two bedrooms one of which is able to accommodate his current carer, Ms Harrington;
(b)is mould free so as not to exacerbate his chest condition;
(c)that is in a location where there is not, in the immediate vicinity where the Applicant is likely to come into regular contact with it, a community where drug and alcohol use and associated behaviour is evident;
(d)that is in a location where the Applicant is not likely to be exposed to aggression and violence;
(e)is a property within the City or Belconnen areas where the Applicant has support and in particular has easy access to the Ainslie Pharmacy; and
(f)any external area accessed from the property needs to be private, such as a courtyard, enclosed balcony etc with limited visibility or access by others.
The Tribunal accepts that the Applicant’s current carer is Ms Harrington and that she has demonstrated that because of her medical condition, her reasonable accommodation needs require the property to be on one level and not exclusively accessible by stairs.
The Tribunal is satisfied that given:
(a)the smell at the Downer property;
(b)the possible presence of mould/damp at the Hackett property;
(c)the presence of the men near to the entry to the Hackett property;
(d)the availability of only an exposed, street facing external balcony at both properties; and
(e)both properties were on the first floor and only accessible by stairs, neither the Downer nor the Hackett property met the reasonable accommodation needs of the Applicant set out in paragraph 89 above or Ms Harrington set out in paragraph 90 above.
At the hearing the Applicant’s representative noted that Ms Harrington had not been included in the application to ACAT. The Applicant’s representative, whom I gather would also then be instructed by Ms Harrington, requested that, if necessary, the Tribunal add Ms Harrington as a party to this application for review by ACAT.
The Tribunal accepts that Ms Harrington is the Applicant’s current carer. In the Tribunal’s view, Ms Harrington’s role as carer makes her situation relevant to the consideration of the Applicant’s accommodation needs and therefore this application for review. The Tribunal notes that Ms Harrington is an applicant in the transfer application no.64817 made on 5 November 2013. In the circumstances the Tribunal does not consider that it is necessary to add Ms Harrington as a party to this application, but considers her accommodations needs, by reason of her role as current carer for the Applicant, are relevant to this application.
The Tribunal is satisfied that the offers made to the Applicant on 11 February 2014 were not valid offers. Consequently there is no basis for a decision to remove his name from the register pursuant to clause 17(1)(c) of the Housing Program. The reviewable decision should be set aside.
The Tribunal is satisfied that the Applicant and Ms Harrington have at all times remained ‘eligible applicants’ subsequent to the 12 February 2014 decision. Their rental transfer application, following the decision of the Multi-Disciplinary Panel made on 6 February 2014 (T Docs 49-51) was transferred on 6 February 2014 from the High Needs to the Priority Housing List on the register.
The Tribunal notes that pursuant to clause 15 of the Housing Program, an ‘eligible applicant’ awaiting housing assistance must advise the Respondent of any ‘relevant change in circumstances’. This obligation rests with the Applicant and any other member of his household at all times while his application is current and until he is provided with housing assistance.
The Tribunal is satisfied that further ‘valid’ offers should be made to the Applicant. Although the Tribunal is not certain that the number of valid offers appearing in the Allocation Policy necessarily applies to applicants on the Priority or High Needs Housing list, for the reasons set out in paragraphs 41-44 above, the Tribunal accepts that at least two ‘valid offers’ should be made.
Any offer must take into consideration the reasonable accommodation needs of the Applicant and, because she is his carer, Ms Harrington. These would include the accommodation needs set out in paragraphs 89 and 90 above, subject to any further information provided by the Applicant and Ms Harrington.
………………………………..
Ms W. Corby
Senior Member
Schedule
Housing Assistance Public Rental Housing Assistance Program (Housing Needs Categories) Determination 2011 (No 2)
PUBLIC AND COMMUNITY HOUSING APPLICANTS
| Needs Category | General Description | Needs Category typically includes, but is not limited to, applicants who are/have: |
| 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. |
| Standard Housing | Applicants facing significant affordability issues in obtaining housing on the private market | · Incomes within the income eligibility criteria specified in clause 9 of the Public Rental Housing Assistance Program |
Housing Assistance Public Rental Housing Assistance Program 2013 (No 1)
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.
Changes in circumstances of applicant
An eligible applicant must immediately tell the housing commissioner, in writing, of any relevant change in circumstances of the eligible applicant which happens at any time before the provision of any form of assistance (and during receipt of assistance in the form of a rent rebate, if applicable).
For the purpose of this program, a relevant change in circumstances, for an eligible applicant, means any of the following:
(a)a change of the applicant’s address;
(b)the applicant’s absence from the Territory for more than 1 month;
(c)the entering into a domestic partnership by the applicant or any change in a domestic partnership of the applicant;
(d)a change in the applicant’s household;
(e)any change in the circumstances of the applicant, or the applicant’s household which would result in the applicant not being an eligible applicant;
(f)any change in the applicant’s circumstances that could affect their needs category or priority status within a needs category;
(g)any other change that the housing commissioner decides is a relevant change and tells the applicant about in writing.
Removal from register
The housing commissioner may remove an applicant’s name from the register if the applicant—
(a)fails to accept an offer of rental housing assistance in accordance with clause 18; or
(b)does not respond to a written offer of rental housing assistance; or
(c)refuses an offer of rental housing assistance; or
(d)fails to advise the housing commissioner of a relevant change in circumstances in accordance with clause 15; or
(e)fails to enter into a tenancy agreement with the housing commissioner in accordance with clause 18 (5) or 22 (2) or 22 (3) (as applicable), unless otherwise agreed by the housing commissioner; or
(f)fails to provide the housing commissioner with information or further information when requested; or
Note If the information is not provided in accordance with a notice under section 24(3) or section 25(2) of the Act the application may be refused.
(g) ceases to be an eligible applicant for whatever reason.
The housing commissioner must take all reasonable steps to notify the applicant if the name of the applicant has been removed from the register.
An applicant’s name removed from the register under subclause (1) may be returned to the register if the applicant asks the housing commissioner to do so within 1 month after the day it was removed (or such longer period as the housing commissioner permits) and the housing commissioner is satisfied that the applicant remains an eligible applicant and was so for the whole period during which the applicant’s name was removed from the register.
Rental housing assistance - Rental transfer
A tenant may apply to the housing commissioner for a transfer from a dwelling provided by way of rental housing assistance by the housing commissioner to a new public housing dwelling, which will be a rental transfer for the purpose of this program.
NoteIf the housing commissioner approves a form for an application, the form must be used.
This program applies to an application for a rental transfer as if it were an initial application for rental housing assistance.
The housing commissioner may approve the application for a rental transfer.
Despite subclause (2), if a tenant applies for a rental transfer which will result in the transfer to a dwelling with fewer bedrooms, or to other housing where the housing commissioner considers that the transfer will enable more efficient use or management of the public housing stock, the following clauses do not apply to the application:
(a)clause 9(1);
(b)clause 13;
(c)clause 16;
(d)clause 18(3).
Also, if the tenant has agreed with another tenant (the second tenant) that the second tenant applies to the housing commissioner to transfer to the dwelling occupied by the tenant, the following clauses do not apply to the application:
(a)clause 9(1);
(b)clause 13;
(c) clause 16;
(d) clause 18(3).
Rental housing assistance - Type of accommodation to be provided
The housing commissioner may decide the size, type and location of a dwelling to be provided to an applicant by way of rental housing assistance.
In making a decision, the housing commissioner must take into account—
(a)the availability of different sizes and types of dwellings in various locations; and
(b) the reasonable accommodation needs of the applicant; and
(c)the preferences expressed by the applicant; and
(d)whether the applicant has been identified as a special needs applicant with an entitlement to a special needs dwelling.
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;
(e)a decision revoking or amending a decision mentioned in paragraph (a) (excluding a decision which is not a reviewable decision);
(f)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.
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).
ACT Civil and Administrative Tribunal Act 2008
Review of decisions
(1)This section applies if the tribunal reviews a decision by an entity.
(2)The tribunal may exercise any function given by an Act to the entity for making the decision.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
(3)The tribunal must, by order—
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.
HEARING DETAILS
FILE NUMBER: | AT 14/84 |
PARTIES, APPLICANT: | Darryl Bradley |
PARTIES, RESPONDENT: | Commissioner for Social Housing in the ACT |
SOLICITORS FOR APPLICANT | Ms V. Faulder – Welfare Rights and Legal Centre |
REPRESENTATIVES FOR RESPONDENT | Mr Adkins & Mr Maling, Commissioner for Social Housing in the ACT |
TRIBUNAL MEMBERS: | Ms W. Corby – Senior Member |
DATES OF HEARING: | 30 January 2015 |
PLACE OF HEARING: | ACAT |
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