Commissioner for Social Housing v CC (Residential Tenancies)

[2017] ACAT 17

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v CC (Residential Tenancies) [2017] ACAT 17

RT 744/2016

Catchwords:              RESIDENTIAL TENANCIES - setting aside termination and possession orders- ‘exceptional circumstances’- intentional or reckless – serious damage – arbitrary interference with home

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 s 56

Human Rights Act 2004 s 12

Residential Tenancies Act 1997 s 51 standard term 63

Cases cited:Canberra Fathers and Children Services v Watson [2010] ACAT 74

Commissioner for Social Housing and Canham [2012] ACAT 41
Cooper v Westpac General Insurance Ltd [2007] ACTCA 20
Cure v Bridge Housing Ltd [2014] NSWCATAP 80
Director of Public Prosecutions (Commonwealth) v Tang [1995] VSC 679
Little v Commissioner for Social Housing [2017] ACAT 11
Manchester City Council v Pinnock [2010] UKSC 45
Westpac General Insurance Ltd v Cooper [2006] ACTSC 91
Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290

Tribunal:                   Senior Member A Anforth

Date of Orders:  20 March 2017

Date of Reasons for Decision:         20 March 2017

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 744/2016

BETWEEN:

COMMISSIONER FOR SOCIAL HOUSING

Applicant

AND:

CC

Respondent

TRIBUNAL:   Senior Member A Anforth

DATE:20 March 2017

ORDER

The Tribunal orders that:

1.The termination and possession order of 25 August 2016 is affirmed and the warrant of possession is to issue for execution not before 5 May 2017.

………………………………..

President G Neate AM

Delivered for and on behalf of the Tribunal

REASONS FOR DECISION

Overview

1.The respondent is a tenant of the Commissioner for Housing. He has lived in a flat in a large flat complex since December 2015 with his partner Ms J. On 25 August 2016 the Tribunal made a termination and possession order terminating the tenancy. The present matter is an application by the tenant to set aside that order.

2.The tenant and his partner are both people of substantial intellectual impairment and histories of substance abuse. They have proved incapable to managing their flat together. At all material times the condition of the flat was unhygienic and in a state of disrepair.

3.The Commissioner’s application for termination and possession was made to the Tribunal under section 51 of the Residential Tenancies Act 1997 (RTA) which applies where the tenant has ‘intentionally or recklessly’ caused ‘serious damage’ to the premises. Where section 51 is relied upon there is no requirement for a prior notice of termination. Application for termination may be made directly to the Tribunal.

4.Section 51 applies in the case of serious damage to the premises but has no application to the issue of the cleanliness of the premises to which other provisions of RTA apply. The Commissioner has not invoked those other provisions.

5.There was no dispute concerning the lack of cleanliness and some efforts and arrangements were made during adjournments in the course of the proceedings for the tenant to receive help in that regard. That help did not materialise.

6.There was also some damage to the premises that was not ultimately denied by the tenant. The damage was plain in the many photographs tendered and was widespread. The Tribunal has not particularised each item of damage but was satisfied that the nature and extent of the damage was ‘serious’ within the meaning of section 51.

7.The first issue was whether the tenant ‘intentionally or recklessly’ caused this damage. The issue hinged on the extent of the capacity of the tenant and Ms J and whether this pointed to an intentionality or recklessness on their part. The Tribunal found that the damage had been intentionally or recklessly caused.

8.The next issue concerned whether there were ‘exceptional circumstances’ within the meaning of section 56(c)(iii) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) that justified setting aside the termination and possession order notwithstanding the existence of the breach by the tenant. The exceptional circumstances also had regard to whether the decision of the Commissioner or the Tribunal involved any breach of the tenant’s human rights under section 12(a) of the Human Rights Act 2004.

9.In the end the Tribunal concluded that the tenancy was not sustainable without intensive support for the tenant and Ms J for the physical house management and mental health issues. The Tribunal had no power to order the provision of these services; the Commissioner had not done so; and neither Catholic Care nor any other non-government support agency had come forward to offer necessary regular practical support. This left the Tribunal with little choice but to find that the circumstances pointed to termination and not to exceptional circumstances for preserving the tenancy.

History of the Proceedings

10.The respondent is a tenant of premises in the ACT (the premises) under a residential tenancy agreement with the Commissioner that commenced on 17 December 2015 for a fixed term period until 15 February 2016 at a rent of $400pw. He lived in the premises with a female named Ms J.

11.On 6 July 2016 the RSPCA executed a search warrant on the premises in which they seized two dogs and a cat. The RSPCA reported to the Commissioner that:

[the premises] smelt strongly of faeces and urine which covered the floor in all rooms … and the benches were filthy. Rubbish and food items were strewn over the floor as well. The place is not [fit] for humans to live in it, nor for that matter for animals. Both tenants were again extremely abusive and made significant threats towards the RSPCA. RSPCA inspectors have had numerous dealings with these people and it is obvious they have scant regard for others, animal and property.

12.The RSPCA report stated that previous premises the tenant had occupied was found to be in the same condition. The RSPCA report urged the Commissioner to take action.

13.The Commissioner lodged an application with the Tribunal on 11 August 2016 seeking termination and possession of the premises pursuant to section 51 of the RTA together with outstanding rent arrears. The Commissioner sought an urgent hearing. The application appended nine photographs of the premises which confirmed the RSPCA’s description of the premises so far as a photograph could do so.

14.On 15 August 2016 the tenant contacted his housing manager in the Commissioner’s office and informed the housing manager that the premises had been cleaned up. The housing manager and another person attended the premises for an inspection. They prepared a report and took thirteen photographs. Both the report and the photographs were tendered at the subsequent hearing on 25 August 2016. The report said:

·   The smell of faeces and urine was very strong even before entering the property;

·   The kitchen and dining area was still full of rubbish;

·   The carpet in the laundry and two bedrooms had been ripped up. [MsJ] state that Spotless were the ones who did it and removed the carpet. Nails were sticking out of the floor boards. HM [housing manager] reported this to Spotless as an urgent. This carpet was later found to be left in the common area;

·   The bathroom had some improvements, but still had a lot of what looked to be wet clothes on the floor;

·   There was cockroach infestation in the kitchen area;

·   The second bedroom had a bed on the floor and some kids toys;

·   There was what looked to be faeces on the walls on [sic] the lounge room walls.

[Ms J] state that when her and [the tenant] had been away, people had broken in and human faeces was thrown all over the walls in the lounge room areas…..

15.The photographs taken on 15 August 2016 showed marginal improvement over the previous state and otherwise confirmed the contents of the housing manager’s report.

16.The matter was listed for 18 August 2016 before a differently constituted Tribunal. Mr Safi-Westendorf appeared for the Commissioner and there was no appearance of the tenant. The matter was adjourned to 25 August 2016.

17.On 25 August 2016 Mr Safi-Westendorf appeared for the Commissioner and again there was no appearance of the tenant. A differently constituted tribunal made an order for the termination of the tenancy on that same day with a warrant for possession to issue.

18.On 1 September 2016 the tenant made application to the Tribunal to set aside the order of 25 August 2016 on the grounds that he did not received the notice of hearing for the 25 August and he had substantially improved the condition of the premises. The application was made by Canberra Community Law (CCL) on behalf of the tenant.

19.The application to set aside the order of 25 August 2016 was listed for hearing on 5 September 2016 before the presently constituted tribunal. Mr Safi-Westendorf appeared for the Commissioner and Ms Bartlett from CCL appeared for the tenant.

20.In addition to the housing manager’s report of 15 August 2016, the Commissioner tendered reports of previous visits and incidents at the premises dated 29 July 2016, 27 July 2016, 18 July 2016 and 2 June 2016. These reports concerned the state of the premises, aggression towards the Commissioner’s staff and incidents in which the tenant is alleged to have been making a nuisance of himself.

21.On 5 September 2016 there was discussion before the Tribunal about the state of the premises and the degree of improvement. The tenant said that he had done further work on the house. The housing manager had not inspected the property since this work had been done and it was agreed that the parties would convene a joint inspection to determine the future course of the matter. The Tribunal was informed that the tenant had sought and obtained assistance for household assistance from a social welfare organisation and that they would attend the premises and assist with the cleaning.

22.The matter was adjourned part heard to 14 September 2016. On that day the same parties appeared. Ms Bartlett for the tenant tendered what purported to be press releases from the ACT Government announcing an intention to demolish the flat complex in which the premises were located and relocate tenants to new homes in 2017-18.

23.The Commissioner tendered a report of the joint inspection of the premises on 13 September 2016 at which time the tenant and her legal representatives were present together with fifty three photographs. The report and the photographs showed substantial improvement in the state of the cleanliness of the premises. The report noted unpleasant odours and cockroach infestation. The report indicates that the tenant protested that the cockroach problem was coming from other premises in the flat complex. The photos showed considerable rubbish, clutter and damage to the premises. The cleanliness of the premises were substantially improved over their previous condition but were not clean by ordinary standards. Damage was still evident.

24.On 14 September 2016 there was a wide ranging discussion in the Tribunal that did not take the traditional curial form. It transpired that the requested household assistance for the tenant had not yet materialised and that this accounted for some of the shortfall in present state of the premises.

25.The Tribunal raised the question of whether there were issues of intellectual disability and/or substance abuse affecting the tenant’s capacity to care for the premises. Ms Bartlett for the tenant advised that both these issues were at play with the tenant and with Ms J. Both the tenant and Ms J had a history with the Drug and Alcohol Service. The Tribunal noted that although the facts and presentation of the tenant and Ms J suggested the above, there was no actual evidence of it before the Tribunal.

26.Mr Daley from Catholic Care appeared at the Tribunal some way into the hearing. He informed the Tribunal that he was Ms J’s support worker and been so for about a year. Mr Daley informed the Tribunal that Ms J was of indigenous descent, as was he. He expressed a negative opinion of the Tribunal and the Commissioner in the way that he alleged these bodies had mistreated indigenous people. After allowing Mr Daley to express himself for some time the Tribunal informed Mr Daley that Ms J was not the tenant in these proceedings, the respondent was, and that the state of premises had nothing to do with indigenous disadvantage. In any event the Tribunal had no awareness of Ms J’s indigenous heritage.

27.Mr Daley was asked why the support workers had not yet attended the premises. He said that he was busy and lacked resources. He said that he was trying to arrange for Belconnen Community Services to take up that role and was attempting to obtain a grant for Ms J from the National Disability Insurance Agency. These things had not yet come to fruition.

28.Ms Bartlett urged upon the Tribunal that the application for termination issued by the Commissioner relied upon section 51 of the RTA which requires ‘serious damage’ to the premises. She conceded the lack of cleanliness and hygiene in the premises but distinguished this from serious damage. On this basis she argued that the grounds of ‘serious damage’ asserted in the application for termination were not made out and had never been so; accordingly the termination and possession order of 25 August 2016 was invalid and should be set aside.

29.She also argued that because the premises was intended to be demolished, any damage to the premises could not be serious because the whole premises was to be bulldozed.

30.Mr Safi-Westendorf did not concede or deny the finality of any decision by the ACT to demolish the premises.

31.Mr Safi-Westendorf argued that the Tribunal’s power to set aside a decision under section 56 of the ACAT Act required there to be ‘extraordinary circumstances’ which did not exist in the present case. He argued that the existence of intellectual and/or substance abuse issues with associated tenancy issues was common with the Commissioner’s tenants and therefore not ‘extraordinary’.

32.At the end of the hearing on 14 September 2016 there was discussion about how the matter was to be progressed. There was clearly a challenge by the tenant to whether the grounds of the application for termination had been made out on the facts and therefore that the termination and possession order was invalid. The Tribunal determined to allow submissions on this issue of law after which the matter would be determined on the papers. The Tribunal left open the possibility of the matter being relisted at the behest of either party if there were new and relevant developments. A timetable was made for the filing of submissions.

33.On 19 September 2016 the tenant’s legal representatives issued a subpoena directed to the Commissioner for a description of documents related to the tenant. The Registrar issued the subpoena unbeknown to the presiding member who had not anticipated that there would be further evidence led in the case (except for new developments). The President of the Tribunal authorised the issue of the subpoena on the basis that its purpose was only to inform the tenant’s submissions and not for the purpose of eliciting new evidence and made orders in chambers.

34.The tenant then sought an extension of the timetable for submissions to allow for the return of the subpoena. The Commissioner consented and an amended timetable was issued which provided for the tenant to file his submissions first.

35.On 30 September 2016 the tenant’s legal representatives issued a second subpoena to Mental Health, Justice Health and Alcohol and Drug Services of the ACT seeking certain documents on Ms J. The request for this subpoena was drawn to the attention of the present member on 5 October 2016 who authorised the provisional issue of the subpoena with the matter to be listed for a directions hearing on 18 October 2016 to determine its purpose. The formal orders adjourned the issue of the subpoena to that day.

36.Notwithstanding the above, the subpoena was issued and served on Mental Health on 7 October 2016 and an affidavit of service filed.

37.On 18 October 2016 Mr Safi-Westendorf appeared for the Commissioner and Ms Chaudhri from CCL appeared for the tenant. By this time Mental Health had responded to the subpoena. The Tribunal questioned Ms Chaudhri concerning the purpose of the issue of the summons to Mental Health concerning Ms J given that she was not the tenant. Nevertheless the documents from Mental Health were now to hand and orders were made by the Registrar for their inspection.

38.On 2 November 2016 the parties again sought an extension of the timetable for filing submissions. The order was made by consent in chambers by the President.

39.On 25 November 2016 the tenant filed his submissions with annexures. Those submissions conceded the long term complex mental health issues of the tenant and Ms J and recounted the procedural history of the matter.

40.Those submissions took issue with the Commissioner on whether there were ‘exceptional circumstances’ under section 56(c)(iii) to set aside the order of 25 August 2016 on the bases that:

(a)the state of the premises has been substantially remedied; and

(b)the premises are due for demolition.

41.Curiously, the tenant did not purport to rely upon section 56(c)(i) notwithstanding that the order of 25 August 2016 was made ex-parte and this was the initial grounds nominated by the tenant to set aside that order.

42.The tenant argued that ‘exceptional circumstances’ was a term of wide import and largely unconstrained as to circumstances, although obviously having to bear upon the issues raised under the tenancy agreement.

43.The tenant also challenged the applicability of section 51 in circumstances where the damage to the premises was not caused by the tenant with intention or recklessness. It was put that the tenant and Ms J lacked the capacity for self-care and did not intentionally or recklessly cause any damage. Section 51 applies where:

…the tenant has intentionally or recklessly caused or allowed or is likely to cause or allow:

(a)     serious damage to the premises…

44.The tenant provided submissions on the meaning of ‘intentionally’ and ‘recklessly’ derived from the criminal law.

45.The tenant submitted that if section 51 was found to be relevant and had been breached then the Tribunal had a discretion whether to evict under section 51 which should not be exercised on the facts of this case.

46.The tenant argued that section 12 of the Human Rights Act 2004 (HRA) applied which provides that there should not be arbitrary interference with his home. The test of whether an interference is ‘arbitrary’ was said to be a three stage test:

(a)Is the interference for a legitimate purpose?

(b)Is the interference necessary?

(c)Is the interference nevertheless disproportionate?

47.The tenant conceded that the Commissioner’s actions were for a legitimate purpose but challenged criteria (b) and (c) above.

48.The eviction was said to be unnecessary because of:

(a)the historically poor state of the premises;

(b)the pending demolition of the premises; and

(c)the failure of the Commissioner to address the issue of the tenant’s lack of capacity and direct resources to assisting the tenant.

49.The eviction was said to be ‘disproportionate’ because of the mental health issues of the tenant and Ms J (Manchester City Council v Pinnock [2010] UKSC 45). The eviction would unhouse them and they would not be capable of finding housing in the private sector or the public sector in Canberra. Apart from the usual problem arising from being homeless, the eviction would aggravate their mental health issues.

50.On 19 December 2016 the Commissioner filed his/her submissions. The Commissioner maintained that there were no exceptional circumstances and relied upon Director of Public Prosecutions (Commonwealth) v Tang [1995] VSC 679 to the effect that that there must be unusual or special circumstances.

51.The Commissioner cited Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 which offered a further range of synonyms for ‘exceptional circumstances’. The court noted that exceptional circumstances may exist in either the qualitative or quantitative aspects of a case; in single events or a series of events but ultimately it is a question of fact in the particular circumstances of the case.

52.The submissions pointed out that the tenant has a contractual obligation not to intentionally or negligent damage the property (standard term 63) and that merely making good a breach of this term cannot of itself amount to exceptional circumstances.

53.The Commissioner argued that the ex-parte order of 25 August 2016 should not be set aside because the tenant had not demonstrated any good reason for his non-attendance on that day. This is a curious submission given that the tenant appears only to have relied upon section 56(c)(iii) relating to exceptional circumstances and not on section 56(c)(i) relating to the ex-parte nature of the order. Nevertheless the Tribunal takes into account the point raised by the Commissioner but it is not immediately obvious how the existence of ‘exceptional circumstances’ is tied to whether the order was ex-parte or not.

54.There have been no submissions in reply by the tenant and no requests from either party for any further hearing on any issue.

Consideration of the issues

55.The termination and possession order of 25 August 2016 was made ex-parte. The application to set it aside nominated this as the basis for the application but the tenant has subsequently broadened those grounds to include ‘exceptional circumstances’. The Tribunal’s power is found in section 56 of the ACAT Act which provides:

56. The tribunal may, by order—

…
(c) amend or set aside a tribunal order if—
(i) the order was made after hearing an application in the absence of a party; or
…

(iii) extraordinary circumstances make it appropriate to amend or set aside the order; or

56.The facts of the present case and the manner in which the tenant put their case engage both limbs of section 56(i) and (iii). The Commissioner has addressed both limbs in his/her submissions.

57.It is a statutory prerequisite to the application of section 51 of the RTA that there has been ‘serious damage’ ‘intentionally or recklessly’ caused by the tenant. Section 51 does not go to the issue of cleanliness. The Tribunal has only had regard to the cleanliness issue in so far as it reflects on the tenant’s capacity for self-management and mental health issues.

58.There is no doubt when viewed in isolation, the premises have been seriously damaged by the tenant. It falls then to consider whether the possible future demolition of the premises can abrogate that finding.

59.If the demolition was certain and reasonably imminent then there may be some force in the tenant’s argument. It would certainly be a relevant consideration in awarding any compensation to the Commissioner for damage to premises that he was about to demolish. The problem for the tenant is that ACT Government press releases tendered concerning the demolition of the flat complex are each said to be ‘subject to funding and approvals’ such that it may never happen. For this reason the Tribunal rejects the tenant’s submission.

60.There is more force in the tenant’s argument that neither he nor Ms J were capable of self-management and did not form any intention to cause the serious damage. In considering whether the tenant’s actions were reckless the Tribunal should take into account the level of understanding and capacity of the tenant and Ms J.

61.The onus of proof of establishing that the tenant intentionally or reckless caused the serious damage lies on the Commissioner (Westpac General Insurance Ltd v Cooper [2006] ACTSC 91). This finding of law was not disturbed on appeal in Cooper v Westpac General Insurance Ltd [2007] ACTCA 20.

62.The tenant relied upon a number of authorities from the criminal law concerning ‘intentionality’. It is hard to know just how relevant criminal authorities are in the present civil context. For present purpose the Tribunal intends to follow the lead of the Appeal Tribunal of the New South Wales Civil and Administrative Tribunal in Cure v Bridge Housing Ltd [2014] NSWCATAP 80. The Appeal Tribunal took the view that intentionality was made out where the tenant deliberate undertook some action where it was apparent to the tenant that some damage would probably occur as a result of those actions.

63.In the present case there is no suggestion that the damage in question was not caused by the tenant or Ms J for whose actions the tenant was vicariously liable. It is only a question of whether the tenant was conscious of the likely effects of his actions on the state of the premises. This is a difficult question because it requires some insight into the tenant’s state of mind. On one view the tenant seemed oblivious to the effects of his actions and the state of the premises. He did not see anything wrong with the conditions he lived in. On the other hand it is hard to discount that he had some recognition that what he was doing was not right.

64.There is no psychological evidence to guide the Tribunal. The Tribunal is left in a state of considerable uncertainty on this issue. The Tribunal notes the previous occasions in which the Commissioner (and RSPCA) have intervened and the resentment that this has raised in the tenant. It is hard to know whether that resentment was driven only from a sense of fear of some kind or whether there was also some element of consciousness of guilt.

65.The Tribunal must do the best it can on the evidence before it. In the absence of expert psychological evidence the Tribunal is left to form its own view, however speculatively. The Tribunal is slightly more inclined the view that the tenant did know what he was doing in causing damage to the premises was not right, even if the state of the premise were acceptable to him. He would have known this because other people had told him this.

66.The tenant said that he wanted a new and better house or his existing premises fixed. This conveys some understanding on his part of the poor state of repair (and cleanliness) of his premises. He also conveyed the impression that he had given up attempting to care for the premises because he was frustrated with the Commissioner’s non-response to requests.

67.The same conclusion applies in relation to the ‘recklessness’ consideration. If there is intentionally then ipso facto there is recklessness in the cause of the damage.

68.On balance, but with no great degree of confidence, the Tribunal finds that the tenant did intentionally or recklessly damage the premises.

69.The next issue is whether there are ‘extraordinary circumstances’ to justify setting aside the order under section 56(c)(iii). This raises the issue of whether ‘extraordinary circumstances’ can exist even when the Commissioner has made out his case that the tenant has intentionally or recklessly caused the serious damage; or whether ‘extraordinary circumstances’ are limited to circumstances that bear on procedural and evidential issues only.

70.The extraordinary circumstances power appears to be sufficiently broadly framed to permit the order of 25 August 2016 to be set aside notwithstanding the tenant’s breach where new evidence shows other circumstances which could have affected the exercise of the discretion to evict in the first instance. This is not to say that ‘exceptional circumstances’ and the discretion implicit in section 51 are the same power, they plainly are not. The finding of exceptional circumstances would require circumstances in the tenant’s favour in excess of that needed to tip the exercise of the discretion in the tenant’s favour. If this were not the case then the anomalous situation would arise where the previous termination order could be set aside for exceptional circumstances but there would be insufficient merits on the tenant’s behalf to then exercise the discretion not to evict. The anomaly would lie in setting aside the previous termination order and then re-imposing it.

71.In the above paragraphs section 51 is said to imply a discretion to evict via the existence of the word ‘may’ in that section. Notwithstanding the short hand use of the term ‘discretion’ the Tribunal does not construe section 51 to permit discretion in the usual sense of that power, but rather requires that an evaluative judgment be made as to whether the circumstances of the breach justify the termination of the tenancy.

72.The issue of whether there are exceptional circumstances is related to the human rights issue and to whether it was necessary or proportionate for the Commissioner and the Tribunal to evict the tenant. Section 12 of the HRA has been applied in the context of social housing on a number of occasions. In Commissioner for Social Housing and Canham [2012] ACAT 41 the presently constituted tribunal indicated its adoption of the principle set out in Canberra Fathers and Children Services v Watson [2010] ACAT 74 which remains the case. The Tribunal notes also the decision in Little v Commissioner for  Social Housing [2017] ACAT 11 in which section 12 of the HRA was applied to the deliberations of the Commissioner.

73.The exceptional circumstances power in section 56(c)(iii) of the RTA would appear sufficiently broad to include considerations of any breach of the HRA that occurs in a decision made by the Commissioner or the Tribunal.

74.In the present case the factors that are relevant to the ‘exceptional circumstances’ are also relevant to the human rights issues, namely whether it was necessary or proportionate to evict the tenant given his vulnerability and limited capacities and notwithstanding the breaches found to have occurred.

75.The Commissioner had options. It was plain for all to see that the tenant was not coping. It was open to the Commissioner to have intervened earlier and more productively by arranging for relevant intervention by support workers, visits by social workers, basic training in home management, repairs, transfers to other suitable premises etc. The Commissioner had powers available to him under the RTA that would have facilitated these kinds of actions including the power of inspections and the power to issue a notice to remedy and follow through with orders by the Tribunal in relation to cleanliness and repair. The Tribunal could have ordered the tenant to rectify the damage to the premises and the unhygienic condition; and could have made orders by consent about the tenant accepting relevant support and supervision. Proceedings of these kinds in the Tribunal often cause the tenant to focus on the issues and can be a catalyst or provide leverage for intervention by other support services. By doing this the Commissioner could have intercepted the tenant’s deteriorating circumstances at an earlier time and may not then have required eviction.

76.There is little doubt that if the tenant is evicted he (and Ms J) will not find other accommodation in the private or public sector in the ACT. The Commissioner is their last hope and chance. This made it more imperative for the tenant’s wellbeing and that of Ms J that the Commissioner take a strong and earlier interventionist approach. The Commissioner’s failure to do so has contributed to the development of the present circumstances.

77.Unfortunately the Tribunal has no power to order the Commissioner to take the above kind of action or the tenant to accept designated support (other than by consent). The Tribunal did actively explore and encourage that course of action during the proceedings. Nevertheless time has now moved on and the situation as it stood at the last hearing had not much improved. The support from Catholic Care was notional only and had not materialised into any hands-on support. No other support had materialised. It should have been obvious to the tenant and his advisors that active and urgent intervention was being encouraged by the Tribunal in order to preserve the tenancy. Mr Daley’s contribution was polemical and unsupportive of the tenant’s case in that it gave no reason to believe that any practical support would materialise in the near future, if ever.

78.As things stand the tenant is not capable to living alone unsupported and nor is Ms J. The premises are damaged and unhygienic. Absent regular support there is no reason to believe that the tenant and Ms J will not revert to their previous habits and standards. This is not a tenable situation for them, their neighbours or the Commissioner. They cannot be left to their own devices until the next crisis. The Tribunal has little option but to affirm the termination order.

79.The tenant and Ms J will need time to move. The time permitted for this must be balanced against the ongoing risk factors. The Tribunal will suspend the execution of the warrant of possession until 5 May 2017.

80.By reason of the personal nature of matters canvassed in this decision, the Tribunal has determined to suppress publication of the name of the tenant and Ms J.

………………………………..

President G Neate AM

Delivered for and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	RT 744/2016
PARTIES, APPLICANT:	Commissioner for Social Housing
PARTIES, RESPONDENT:	CC
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	Canberra Community Law
TRIBUNAL MEMBERS:	Senior Member Anforth
DATES OF HEARING:	14 September 2016