Commissioner for Social Housing in the ACT v “A”
[2015] ACAT 13
•17 December 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR SOCIAL HOUSING IN THE ACT v “A”
(Residential Tenancies) [2015] ACAT 13
RT 14/713
Catchwords: RESIDENTIAL TENANCY –- termination and possession order – 26 week no-cause notice – discretion to make a termination and possession order - lessor a public authority – relevance of tenant’s right to protection from unlawful or arbitrary interference with home in exercise of discretion
Legislation cited: Residential Tenancies Act 1997, ss 47
Human Rights Act 2004, ss 12, 40B, 40C(2)(b)
Legislation Act 2001, ss 146
Cases cited:Commissioner for Social Housing in the ACT v Pearce (Residential Tenancies) [2014] ACAT 19
Commissioner for Housing in the ACT v Eastman [2007] ACTRTT 14
Commissioner for Social Housing in the ACT v Massey (Residential Tenancies) [2013] ACAT 41
Eastman v Commissioner for Housing for the ACT [2006] ACTSC 52
Tribunal: Ms Mary-Therese Daniel – Member
Date of Orders: 17 December 2014
Date of Reasons for Decision: 6 February 2015
ACT CIVIL & )
ADMINISTRATIVE TRIBUNAL ) RT 14/713
THE COMMISSIONER FOR SOCIAL HOUSING IN THE ACT
Applicant/Lessor
“A”
Respondent/Tenant
Tribunal: Ms Mary-Therese Daniel, Member
TERMINATION AND POSSESSION ORDER
TAKE NOTICE that on Wednesday 17th December 2014, the ACT Civil & Administrative Tribunal, made the following ORDERS:
The residential tenancy agreement is terminated at 5:00pm on Wednesday 17th December 2014.
The tenant must vacate the premises on or before 5:00pm on Wednesday 17th December 2014.
If the tenant fails to vacate the premises as required by paragraph 2 of this Order the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.
The operation of paragraphs 1, 2 and 3 of this Order is suspended until 5:00pm on Wednesday 7th January 2015.
Ms Mary-Therese Daniel
Member
ACT Civil & Administrative Tribunal
REASONS FOR DECISION
On 17 December 2014 I made an unconditional termination and possession order under section 47 of the Residential Tenancies Act 1997 (RT ACT) terminating the respondent’s tenancy over premises owned by the Commissioner for Social Housing (applicant). At the time that I made those orders, the parties requested that I provide written reasons for the decision. These are those reasons.
Facts
On 14 June 2007 the respondent entered into a tenancy agreement with the applicant over the premises. The tenancy agreement had no fixed term but was periodic from the outset. It was noted on the agreement that the respondent as sole tenant would occupy the premises with three of her children.
In December 2013, the respondent was sentenced to a period of imprisonment of two years, with a non-parole period of one year. She would be eligible for parole in January 2015.
On 7 January 2014 the applicant served the respondent with a Notice to Vacate pursuant to clause 94 of the prescribed terms, requiring the respondent to vacate the property on or before 2 July 2014 (Notice). The respondent promptly advised the applicant by statutory declaration made 17 January 2014 that she did not intend to vacate the premises in accordance with the Notice.
On 19 August 2014 the respondent applied to the Sentence Administration Board (SAB) for parole, and that application was ultimately refused in December 2014.
It transpired that the respondent did not vacate the premises as required by the Notice, and was still in possession of the premises when the matter came before the Tribunal for hearing later in 2014 and when final orders were made on 17 December 2014.
The proceedings
On 30 July 2014 the applicant filed an application seeking a termination and possession order in relation to the tenancy, pursuant to section 47 of the RT Act.
The matter was listed before the Tribunal on 21 August 2014, at which time the respondent was legally represented. The respondent’s solicitor indicated that the application was opposed on the basis that she anticipated release on parole in January 2015, and would need safe and secure premises for that purpose, and also in order to pursue the return of her children to her care. The Tribunal made directions for the filing of evidence and submissions by each party, and the matter was listed for hearing on 22 October 2014.
On 27 August 2014 the applicant filed an amended application, deleting an erroneous reference to termination for non-payment of rent which had been contained in the original.
At the commencement of the hearing on 22 October 2014 it was identified that a determination of the respondent’s parole application was imminent. After discussion with the parties’ representatives, the hearing was adjourned to 20 November 2014, to allow the Tribunal to be informed of the outcome of the parole hearing before the SAB.
On 20 November 2014 a final decision from the SAB on the respondent’s parole application was not available (that application having been adjourned to December 2014). Nonetheless, the parties and their representatives being present and prepared to proceed, the Tribunal decided to conduct the hearing on the evidence available on that date. The parties’ representatives had filed comprehensive witness statements and submissions, as follows:
Applicant:
a)Applicant’s amended application filed 27 August 2014
b)Applicant’s statement of facts and contentions dated 11 September 2014
c)Contemporaneous documents attached to the statement of facts and contentions (Exhibit A1)
d)Applicants Submissions in Reply dated 16 October 2014
e)Policy on incarceration of tenants (Exhibit A2)
Respondent:
a)Response (handwritten) filed 18 August 2014
b)Witness statement of the Respondent dated 1 October 2014 (Exhibit R1)
c)Email correspondence from the Alexander Maconochie Centre re parole hearing date (Exhibit R2)
d)ACT Corrective Services Pre-Release Report (Exhibit R3)
e)File note of Ms Aidman (respondent’s solicitor) re parole hearing date (Exhibit R4)
f)Email from Care and Protection Services re review of Care arrangements (Exhibit R5)
g)Parole application dated 19 August 2014 (Exhibit R6)
h)Respondent’s statement of facts and contentions filed 2 October 2014
The applicant’s representative had filed a bundle of authorities for the assistance of the Tribunal, to which both parties’ representatives referred in the course of their oral submissions.
The respondent gave evidence at the hearing. She explained that prior to her incarceration she had lived in the premises for at least 7 years. She was charged with serious offences in 2010, and in that year spent 5 months remanded in custody before being granted bail. She was finally sentenced to two years imprisonment on downgraded charges in December 2013, and her earliest parole date was in January 2015.
The respondent said that she planned to return to her home upon being granted parole, and resume a normal life. She explained that although her four younger children were now subject to care and protection orders until the children were aged 18, the two eldest of these were in kinship care with her mother. She hoped by resuming occupation of their most recent family home to be able to arrange overnight access visits and have a greater degree of involvement in their everyday needs moving progressively to a shared care arrangement and, long term, restoration of the children to her care.
The respondent explained that the two younger of the four children subject to orders are currently in foster care. The respondent said a review of those care arrangements would occur in January 2015, in which she would participate with a view to re-establishing contact with those children.
She hoped by resuming occupation of the premises to take advantage of close proximity to her mother, to be able to better support her mother (who has some financial and emotional responsibility for the respondent’s grandmother and uncle).
The respondent also gave evidence about her concerns for her adult daughter, who now has a son, and her desire to provide her daughter and grandson with a home. She explained that if her daughter became homeless, the grandson might also become subject to care and protection orders thus perpetuating a cycle of homelessness and care and protection involvement.
At the conclusion of the hearing I reserved my decision to Monday 24 November 2014.
On 24 November 2014 I advised the parties of my decision in principle, and the orders I proposed to make in due course. Those orders were contingent upon parole being granted in a relatively short timeframe. I indicated that should the respondent be granted parole to commence in January 2015 the application for a termination and possession order would be refused, however, if the decision of the SAB in December 2014 was to refuse the application for parole, I would make the termination and possession order sought.
I adjourned the matter to 17 December 2014 for the making of final orders.
Consideration of section 47 of the RT Act
The application was brought under section 47 of the RT Act, relying on a notice to vacate issued under clause 94 of the prescribed terms. This is what is commonly referred to as a ‘26-week no cause Notice’.
Clause 94 provides:
94The lessor may serve a notice to vacate during the term of a tenancy requiring the tenant to vacate the premises at the end of the notice provided that—
(a)the notice is for 26 weeks; and
(b)the notice does not require the tenant to vacate the premises during a fixed term.
Section 47 of the RT Act provides the power for the Tribunal to make a termination and possession order where a tenant fails to vacate a property as required by a no-cause notice:
47No breach of standard residential tenancy terms
(1)On application by a lessor, the ACAT may make a termination and possession order if satisfied that—
(a)a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms); and
(b)the lessor has served a termination notice on the tenant based on that ground; and
(c)the tenant has not vacated the premises as required by the termination notice.
(2)If—
(a)the ACAT makes an order under subsection (1); and
(b)the ACAT is satisfied that—
(i)were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and
(ii)that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period;
the ACAT may suspend the operation of the termination and possession order for a specified period of no more than 3 weeks.
The applicant submitted that given the surrounding context of the RT Act, any discretion under section 47 not to make a termination and possession order was narrow. The applicant argued that when considering an application under section 47, if the elements of subsection 47(1) were made out and there were no concerns in relation to natural justice, the termination and possession order must be made by the Tribunal.
The respondent submitted that the power conferred by section 47 of the RT Act to make a termination and possession order is clearly discretionary in nature, and that in the circumstances of this case the Tribunal should decline to exercise that power.
In response to the analysis of section 47 proposed by the applicant, the respondent submitted that the preconditions set out in section 47 (1) are thresholds only. The respondent submitted that to assert that a termination and possession order must be made in every case where those preconditions and the requirements of natural justice were met, would be to reduce the scope of any discretion to nothing.
The applicant pointed to a number of authorities in support of its submission that the discretion under section 47 not to make a termination and possession order was a ‘narrow’ one. The respondent contested this description, and further argued that even if it were considered that the tribunal would decline to make a termination order under section 47 in only a very few cases, the present case could be situated on its facts and circumstances within that narrow discretion.
The wording of section 47, through the use of the word ‘may’, indicates that the power provided by section 47 is discretionary.[1] The surrounding context of the RT Act is consistent with this interpretation.
[1] See Legislation Act 2001, section 146
There is no authority for the proposition, put by the applicant, that a termination and possession order must be made provided that the requirements of paragraphs 47(1)(a), (b) and (c) and natural justice, are satisfied. The only judicial comment on this particular point is that of Ryan J in Eastman v Commissioner for Housing for the ACT [2006] ACTSC 52 in which his Honour expressly stated he was unable to reach that conclusion ‘with confidence, without the benefit of full argument on the point’. His Honour in that case proceeded to deal with the question as though section 47 provided a discretionary power, which was not ‘unfettered’.[2]
[2] Eastman v Commissioner for Housing for the ACT [2006] ACTSC 52 paragraph 33
I do not accept the applicant’s proposed construction of section 47. Such an interpretation would in practical terms reduce to nothing what is clearly, given the wording of the section and surrounding provisions, a discretionary power.
It is the established approach of the tribunal to treat the power to make (or not to make) a termination and possession order under section 47 as a discretionary power which is not ‘unfettered’. In exercising that discretion the tribunal must have regard to all relevant considerations; these will include the place of section 47 in the RT Act (providing the mechanism for the lessor to seek to terminate the tenancy agreement for no cause), the powers and functions of the lessor, and the individual circumstances of the tenant and the case as a whole. [3]
Impact of the HRA on exercise of discretion under section 47
[3] Eastman v Commissioner for Housing for the ACT [2006] ACTSC 52; Commissioner for Social Housing in the ACT v Pearce (Residential Tenancies) [2014] ACAT 19; Commissioner for Housing in the ACT v Eastman [2007] ACTRTT 14
The applicant, as a public authority, is bound by the Human Rights Act 2004 (HRA) in its dealings with the respondent. In a previous decision involving an application under section 47[4] (Massey) I set out my conclusions as to how the lessor’s status as a public authority and concerns as to a contravention of the HRA could be ventilated and relied upon in proceedings in the tribunal under the RT Act. There is no need to repeat those conclusions here.
[4] Commissioner for Social Housing in the ACT v Massey (Residential Tenancies) [2013] ACAT 41
In the current matter the respondent submitted that section 12 of the HRA was engaged by the circumstances of these proceedings, and that the conduct of the applicant in issuing the Notice within only 2 weeks of the respondent becoming incarcerated was clearly arbitrary and unreasonable. Section 12 of the HRA provides:
12 Privacy and reputation
Everyone has the right—
(a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
(b) not to have his or her reputation unlawfully attacked.
The respondent’s representative submitted that the concept of ‘arbitrariness’ in section 12 of the HRA is to be construed as including both procedural and substantive arbitrariness, the latter incorporating concepts of proportionality and reasonableness.
The respondent’s representative pointed out that no evidence had been brought by the applicant in relation to the decision-making in relation to the issuing of the Notice, therefore it was difficult to see how the Tribunal could be satisfied that due consideration had been given to the respondent’s rights in the issuing of the Notice.
The respondent submitted that the applicant’s own policy on incarcerated tenants indicated that a property could be left vacant for up to 6 months with the agreement of the applicant, and that agreement for a home to be left vacant for more than 6 months could be granted in highly exceptional circumstances. The respondent pointed to the facts that there was no debt on the property, and that her mother and daughter maintained the property during her incarceration, as being relevant under the policy to any decision to allow the property to be unoccupied. The respondent submitted that against this background, it was arbitrary for the applicant to issue the Notice only two weeks after incarceration commenced, and that the decision to issue the Notice was therefore unlawful pursuant to section 40B of the HRA. Further, the respondent submitted that the Tribunal had no jurisdiction to entertain an application founded on an unlawful decision, and that the application should be dismissed.
The applicant maintained that the Notice was issued reasonably. It was submitted that the Policy document referred to applied where an application to be absent had been made, and in the current case no such application was made. It was submitted that even if the decision to issue the Notice had been inconsistent with internal policy, that this would not necessarily make the decision unlawful. Finally, the applicant disputed the assertion that the Tribunal had no jurisdiction to proceed if the decision to the Notice was unlawful, reiterating that there was no authority to that effect.
In the current matter, I am satisfied that the respondent’s right under section 12 of the HRA not to have her home interfered with unlawfully or arbitrarily is engaged by the actions taken by the applicant in issuing the Notice and bringing these proceedings.
As discussed more fully in Massey, I consider that it is not appropriate, and the legislature did not intend, for the Tribunal to embark on a review of whether certain acts or decisions of a public authority lessor, taken pre-litigation, are ‘unlawful’ pursuant to section 40B of the HRA.[5]
[5] Such questions are more appropriately ventilated in proceedings in the Supreme Court, see for example Burgess & Anor v Director of Housing & Anor [2014] VSC 648
It is not the Tribunal’s role to review the lessor’s compliance with the HRA in issuing the Notice. Nonetheless, as it had been raised by the respondent I explained that I did not in any event consider that the applicant acted arbitrarily in promptly issuing a 26-week no cause notice when notified that the respondent had been sentenced to two years imprisonment. It followed that I did not accept the respondent’s submission which flowed from that assertion.
However, the identity of the applicant as a public authority is a significant circumstance to which the Tribunal should have regard in exercising its discretion to make orders under the RT Act. It seems to me that there is a place, in the exercise of discretion, for the Tribunal to consider whether the outcome contemplated would effect an arbitrary interference with the tenants home, and whether for this reason the orders should not be made. This allows the tenant to rely upon his or her rights under the HRA in the RT Act proceedings, as provided by section 40C(2)(b) of the HRA.
This is not to suggest that a lessor, who happens to be a public authority, is required to satisfy the Tribunal that it had a good reason for issuing a no cause notice and seeking a termination and possession order under section 47 of the RT Act. That would be clearly contrary to the intended operation of section 47 of the RT Act which provides for a no cause termination.
I do not consider that the effect of section 40C(2)(b) is to place an onus on a public authority lessor to demonstrate reasonableness and proportionality in the orders it seeks under the RT Act. Nor does section 40C(2)(b) by a back door require the tribunal, when for the purposes of the HRA acting as a ‘court’ conducting ‘legal proceedings’, to treat itself as a ‘public authority’ bound to only make orders that comply with the HRA.
Rather, when a public authority lessor brings an application under the RT Act, it is open to the tenant to argue that the making of the order would be disproportionate or unreasonable such as to amount to an arbitrary interference with their home, and that, given the nature of the particular provision of the RT Act relied upon and the individual circumstances of the case, the discretionary power to make the order should not be exercised. Where a substantive argument is raised, it is for the applicant lessor to satisfy the tribunal that, after a consideration of all of the circumstances of the case (including whether or not the orders sought by the lessor impermissibly contravene the tenant’s rights under the HRA), the orders sought should be made.
Exercise of discretion
In the current matter, the requirements of subsection 47(1) of the RT Act were made out, and the Tribunal had the discretionary power to make the termination and possession order sought.
In deciding how to exercise that discretion, I considered the particular circumstances of the respondent’s case. I was satisfied that maintaining her home, which is familiar to her older children and located close to her mother, was very important for the reasons she had detailed in her evidence. The ability to point to her secure housing was an important factor in her application for parole, and if she no longer occupied these premises she would have to apply for emergency or other housing, potentially setting back her parole application. Further, any alternative housing might not meet the respondent’s needs for contact with her children and proximity to her mother, and her wish to provide a residence for her daughter and grandson.
On the other hand, the applicant’s circumstances in managing scarce public housing resources in the ACT also are important. The respondent’s premises would sit unoccupied for the duration of her two year sentence, unless and until she was granted parole and released on that basis sometime in or after January 2015. The Tribunal faced making a decision about possession of the premises at roughly the halfway point of the sentence. The question of parole was live, and undetermined.
In all of the circumstances of the case, I considered that it would be appropriate to terminate the tenancy, except for the imminent prospect of the tenant being released on parole and able to resume her occupation of the premises.
I was concerned that because of the time taken for the matter to come on for hearing, I was considering making a termination and possession order only a matter of 7 weeks prior to the tenant being released from custody and herself able to resume her occupation of the premises. If the ‘end’ sought by the applicant lessor was effective use of public housing stock which was otherwise sitting vacant, it seemed to me disproportionate and unreasonable to interfere with the tenants home at this late stage for the sake of the premises being occupied for such a short period of time.
The practical difficulties of arranging to move out of premises while incarcerated, the length of time required for those arrangements to be undertaken, and the potential costs to the lessor and tenant of making those arrangements, also had to be balanced against the benefit of the lessor being able to re-let the property on an earlier date than the respondent would resume occupation.
Because of the uncertainty surrounding the respondent’s release from custody, I advised the parties representatives on 24 November 2014 that if the decision of the SAB was to grant the respondent parole effective in January 2015 – some 7 weeks distant – I would dismiss the application for a termination and possession order. However, if the parole application was unsuccessful, I would make a termination and possession order as sought.
When the matter came before the Tribunal on 17 December 2014 the respondent’s representative advised the Tribunal that the decision of the SAB had been to refuse the respondent’s application for parole. It was anticipated that the respondent would undertake some further courses, as these were available, and apply for parole as soon as was considered practicable. This would not however be until sometime after the date in January 2015.
Having received this further information, I proceeded to make an unconditional termination and possession order as foreshadowed on the previous occasion, terminating the respondent’s tenancy and granting possession to the applicant. I suspended the operation of the order for the maximum period available to allow the parties sufficient time to take advice from their solicitors, and provide any instructions for further action.
………………………………..
Ms Mary-Therese Daniel
Member
DEIDENTIFICATION OF REASONS
These reasons were provided to the parties on 6 February 2015. On 10 February 2015, the Tribunal made an order prohibiting the publication of anything which could identify the respondent in these proceedings or the children. Accordingly, the decision has been edited to remove the identifying material.
………………………………..
Ms Mary-Therese Daniel
Member
HEARING DETAILS
FILE NUMBER: | RT14/713 |
PARTIES, APPLICANT: | Commissioner for Social Housing in the ACT |
PARTIES, RESPONDENT: | “A” |
SOLICITORS FOR APPLICANT | Ms Bayer ACT Government Solicitor |
SOLICITORS FOR RESPONDENT | Ms Aidman Welfare Rights & Legal Centre |
TRIBUNAL MEMBERS: | M-T Daniel |
DATES OF HEARING: | 20 November 2014 17 December 2014 |
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