Commissioner for Social Housing v Kennedy (Residential Tenancies)

[2018] ACAT 22

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v KENNEDY (Residential Tenancies) [2018] ACAT 22

RT 950/2017

Catchwords:              RESIDENTIAL TENANCIES – termination and possession order – tenant incarcerated – whether the fact that a social housing home is unused while other people are in need of social housing is a matter to be considered by the Tribunal – whether to grant an adjournment – what purpose would be served by an adjournment – human rights considerations – whether when considering the tenant’s personal circumstances the eviction of the tenant would be capricious, unpredictable, unjust or disproportionate having regard to the Commissioner for Social Housing’s policy objectives

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 ss 6, 7

Housing Assistance Act 2007 s 11

Human Rights Commission Act 2005 s 12, 40

Residential Tenancies Act 1997 s 47 standard terms 94, 96

Subordinate

Legislation cited:      Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) s 13

Cases cited:               Commissioner for Social Housing v A [2015] ACAT 15

Commissioner for Social Housing v Alan Carter (A Pseudonym) [2018] ACAT 16
Commissioner for Social Housing v Black [2017] ACAT 20
Commissioner for Social Housing v Jones [2016] ACAT 75
Commissioner of Housing of the Australian Capital Territory v Nicole Smith [1995] ACTSC 17
Miller v Commissioner for Social Housing [2017] ACAT 10
PJB v Melbourne Health & Anor [2011] VSC 327 (Patrick’s Case)

Tribunal:                   Senior Member H Robinson

Date of Orders:  15 March 2018

Date of Reasons for Decision:         19 March 2018

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 950/2017

BETWEEN:

COMMISSIONER FOR SOCIAL HOUSING

Applicant

AND:

JOSHUA KENNEDY

Respondent

TRIBUNAL:Senior Member H Robinson

DATE:15 March 2018

TERMINATION AND POSSESSION ORDER

1.The residential tenancy agreement is terminated at 5:00 pm on Thursday 15 March 2018.

2.The tenant must vacate the premises on or before 5:00 pm on Thursday 15 March 2018.

3.If the tenant fails to vacate the premises as required by paragraph 2 of the Order the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.

4.The operation of paragraphs 1, 2 and 3 of this Order is suspended until 5:00 pm on Wednesday 4 April 2018.

…………Signed…………..

Senior Member H Robinson

REASONS FOR DECISION

1.On 22 November 2011 the applicant lessor, the Commissioner for Social Housing, (the Commissioner) entered into a residential tenancy agreement with the respondent tenant (the tenant) with respect to premises at Palmerston in the ACT.

2.Although the timeframe is not entirely clear from the material before the Tribunal, it appears that the tenant was originally sentenced to a period of incarceration that was due to end in late 2016. He was then charged and convicted of further offences. On 5 September 2017 he was sentenced to a further term of imprisonment with a non-parole period of two years nine months, and a maximum sentence of four years three months. His earliest release date (non-parole period) is 29 June 2019. The tenant appealed his sentence for the further offences, and the NSW Court of Criminal Appeal (NSW CCA) has heard the appeal and reserved its decision (the Appeal).

3.On 29 April 2017 the Commissioner served the tenant with a notice to vacate (NTV) pursuant to clause 94 of the standard residential tenancy terms (standard terms) in Schedule 1 to the Residential Tenancies Act 1997 (RT Act). The notice required the tenant to vacate on or before 30 October 2017.

4.Clause 94(1) provides that a lessor may terminate a periodic tenancy “without cause” upon the provision of 26 weeks’ notice. It provides:

Termination of tenancy without cause

94 The 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.

5.The tenant did not vacate the premises in accordance with the NTV.

6.On 16 November 2017 the Commissioner filed an ‘Application for Resolution of a Dispute under the Residential Tenancies Act 1997’ seeking a termination and possession order (TPO) under to section 47 of the RT Act evicting the tenant. Section 47 provides for the Tribunal to make a TPO where a ground exists under the RT Act, other than a breach of a standard term. It is the relevant provision for making a TPO where a tenant has failed to vacate in accordance with a notice issued under clause 96 of the standard terms.

7.The matter first came before the Tribunal on 14 December 2017. On that occasion there was no appearance by the tenant or a representative of the tenant. A differently constituted Tribunal was satisfied that the requirements of section 47 of the RT Act were satisfied and made the TPO (first TPO).

8.The tenant applied shortly thereafter to have the TPO set aside on the grounds that he had not been properly notified of the hearing, and that had he been present he would have sought leave to have the matter adjourned pending the outcome of the Appeal proceedings. The application was heard on 21 December 2017 and the first TPO was set aside. Directions were then made setting the matter down for hearing on 2 February 2018, and requiring both parties file any material to be relied upon seven days before the hearing.

9.Thereafter, the tenant’s solicitor asked the Tribunal to issue a subpoena on the Commissioner for Social Housing for the tenant’s file. Due to delays in compliance by the Commissioner, the original hearing date was vacated and the matter was re-listed for 10:00am on 26 February 2018.

10.The tenant is incarcerated at Cooma Correctional Centre. The Tribunal has limited capacity to require or permit the attendance of a detainee who is incarcerated in an interstate correctional facility. The Tribunal, with the assistance of NSW Corrections, went to some effort to secure the tenant’s attendance by video link at the scheduled hearing on 26 February 2018. Unfortunately, the video link technology failed on the day, but the tenant was able to attend the hearing by telephone and the effort of all involved to facilitate this is appreciated by the Tribunal.

11.On morning of 26 February 2018, at 9:05am, less than one hour before the hearing was due to commence, the tenant’s lawyer filed submissions seeking an adjournment of the proceedings pending the outcome of the Appeal. The application for an adjournment was heard at the commencement of the hearing. I declined to grant the adjournment, and my reasons for doing so are set out below.

12.Thereafter, the primary issue for determination at the hearing was whether, pursuant to section 47(1) of the RT Act, the Tribunal should make a termination and possession order, or make some other order.

The adjournment request

13.In any request for an adjournment of a hearing, the Tribunal must balance a range of obligations, including its obligation to ensure access to the Tribunal is simple and inexpensive for all parties[1], its obligation to ensure that hearings are resolved as quickly as possible as is consistent with achieving justice[2], and its obligation to afford natural justice and to be fair.[3] Requests for adjournments made on the morning of the hearing make these considerations particularly acute, particularly in circumstances where minimal notice of the application is given to the other parties or the Tribunal.

[1] Sections 6(b), 7(a) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act)

[2] Section 6(c) of the ACAT Act

[3] Sections 6(d), 7(b) of the ACAT Act

14.As a starting point, there is nothing inappropriate about seeking an adjournment in the circumstances of this case. It could not be seriously contested that (notwithstanding the NTV was a ‘no cause’ notice) the Commissioner is seeking this TPO because the tenant is incarcerated. The anticipated length of the tenant’s incarceration may, absent other factors, weigh in favour of the Tribunal making a TPO. However, there is some prospect that the NSW CCA will reduce the sentence and shorter sentence may weigh in favour of the tenant’s case.

15.The outcome of the appeal has such significant consequences for the tenant that it was entirely appropriate that the tenant make submissions about the appropriateness of an adjournment, particularly as an alternative to the making of the TPO. It was not, however, appropriate that such an application be made on the morning of the hearing, in circumstances where the effect would be the vacation of a hearing date and an indefinite adjournment, and where little notice was given.

16.Granted, the prospect of the Tribunal adjourning proceedings pending the outcome of the Appeal, as opposed to the making of a TPO, was raised in the application for a set aside of 14 December 2017. Additionally, on 26 January 2018, the tenant filed documentation that included a letter from his Legal Aid solicitor stating that his sentence has been appealed and that she was “…hoping that his sentence will be reduced such that he will be released on parole sometime this year, maybe even as early as May or June.” However, no formal application was made prior to the morning of the hearing, when the tenant’s lawyer finally filed submissions seeking the adjournment.

17.In her written submissions, the tenant’s lawyer attempted to justify the late application for an adjournment as follows: because the previous TPO has been set aside, the hearing on 26 January 2018 was, effectively, the “first return date” and “[i]t is not unusual for matters to be adjourned on the first return date.”[4] This argument is unconvincing. The tenant’s lawyer is correct that matters involving the Commissioner and listed in the termination and possession list are not usually decided on the first return date – directions are usually made instead. However, on any view, this matter has had its first hearing.  Directions were made in this matter following the set aside on 2 February 2018. Those directions made it clear that material was to be filed seven days before the hearing.

[4] at [26] of the respondent’s submissions

18.The Tribunal is flexible. We recognise that documents are filed late, or on the day, due to late arrival or some other good reason. Sometimes, late requests for adjournment requests are unavoidable for unforeseen reasons. However, none of the grounds pursuant to which this adjournment were sought unexpected, unforeseen or last minute. The parties had attended a return of subpoena before the Registrar on 30 January 2018, and had sought an adjournment, which had been granted. There was sufficient opportunity for the tenant’s lawyer to raise concerns about the progress of the matter, or at least to put the Commissioner and Tribunal on notice that an adjournment of the hearing would be sought, prior to the hearing date. At the very least, the submissions setting out the grounds for the adjournment should have been filed seven days before the hearing, so that the Commissioner was in a position to address those arguments on the hearing date.

19.That said, while the Tribunal has serious concerns about the manner in which the adjournment was sought, the obligation of the Tribunal is to be fair to the tenant, and in this case there was a genuine argument to be made that case management principles should give way to broader concerns about fairness and natural justice. The questions, therefore, is what purpose would be served by an adjournment in this case?

20.The tenant’s position was that the prejudice to the tenant in proceeding with the hearing outweighed any prejudice to the respondent.  In Commissioner for Social Housing v Jones[5] (Jones) the prospect of the tenant’s imminent release on parole was a relevant consideration for the Tribunal in considering whether to exercise its discretion whether to make a TPO under section 47 of the RT Act. If there was a prospect of the tenant’s imminent release, that information would be similarly relevant here. The difficulty, however, is that in Jones, there was a significant amount of information that was supportive of both the tenant’s imminent release, and the necessity of him having a house in order to effect that release. The evidence included that the tenant was already undertaking transitional activities in preparation for release, that he was visiting his property in preparation for release, he had undertaken productive rehabilitation activities in gaol and that he was likely to be released on parole in October, but that it was essential he had accommodation for that to happen. In this case, the best evidence available was an email from the tenant’s Legal Aid lawyer expressing her “hope” that the tenant would be released, “sometime this year … maybe as early May or June”, and a suggestion that I draw an inference that the provision of Legal Aid funding is indicative of reasonable prospects of success. While I have no reason to doubt this evidence, as far as it goes, it does not go very far – and certainly it would seem to confirm that even on a very best case scenario, the tenant will be incarcerated for several more months.

[5] [2016] ACAT 75

21.The Commissioner’s position was that an adjournment was inappropriate. The argument had two bases. First, the Commissioner’s representative was prepared to run the hearing and it was not reasonable to adjourn it. Secondly, the Commissioner argued, there is some time pressure to the matter – a public house was standing empty, while there were persons and families on a waiting list in need of accommodation. The Commissioner filed evidence that there were, as at the date of the hearing, 1705 applicants for public housing, some 26 of which were on the priority list. The average wait for priority housing was 355 days and for high needs housing was 653 days. A delay, he submitted, would prejudice the Commissioner and disadvantage another person (or family) on that waiting list.

22.There was, in my view, much merit to the Commissioner’s argument. Where an adjournment request is made late in the day, without good reason, where the duration of the adjournment sought is unknown, and where the burden of the adjournment falls on the other party it is generally not in the interests of justice, or consistent with the principles of the ACAT Act, that the hearing be adjourned indefinitely. I was also cognisant of the fact that the parties were ready to proceed. The tenant was available on telephone link, his sister was available to give evidence, the documentation was before the Tribunal. The only uncertain factor was the outcome of the Appeal, and when that outcome would be known.

23.Consequently, I dismissed the application for an adjournment of the hearing and proceeded to hear the Commissioner’s application for a TPO.

24.However, in doing that, I recognised that the Appeal decision may have consequences for the outcome of this case. Therefore, having regard to the Legal Aid lawyer’s opinion that a decision on the Appeal was likely before the end of February, I directed that the Tribunal would reserve its decision and not deliver it prior to 8 March 2018. If the NSW CCA made its decision the meantime, as anticipated by the tenant’s solicitor, both parties had liberty to relist and make submissions on that decision.

25.It remained open to the Tribunal, at the conclusion of the hearing on 26 February 2018, to determine that a decision in this matter be further adjourned, pending the outcome of the Appeal. In considering this matter, I gave some thought as to whether it was appropriate to adjourn for a further period, to allow further submissions after the Appeal is determined. For reasons that will become clear below, I decided it was not.

26.On 7 March 2018, the tribunal registry made enquiries of the NSW Supreme Court registry to determine whether the sentence appeal was listed for delivery of decision. The tribunal registry was advised that it was not. As of the date of these reasons, the Tribunal does not know when the NSW CCA will deliver its decision, and is not appropriate that this decision be adjourned indefinitely while awaiting it.

The relevant law

27.The law relating to termination of tenancy without cause was summarised by Senior Member Lennard in Jones as follows:

9. Clause 94 of the standard residential terms provides that the lessor may serve a notice to vacate during the term of the tenancy requiring the tenant to vacate the premises at the end of the notice provided that the notice is for 26 weeks and that notice does not require the tenant to vacate the premises during a fixed term.

10. Section 47 of the RT Act provides that ACAT may make a termination and possession order if satisfied that a ground for termination exists under the standard residential tenancy terms and the lessor has served a notice of termination on the tenant based on that ground and the tenant has not vacated the premises as required by that termination notice.

11. The legislature’s use of the word ‘may’ means that ACAT has discretion to exercise in determining whether a termination and possession order should be made pursuant to section 47 of the RT Act. In Eastman v Commissioner for Housing for the ACT [2006] ACTSC 52, Ryan J stated:

I am unable to conclude with confidence, without the benefit of full argument on the point, that the Tribunal is bound to make such an order upon being satisfied of each of the matters enumerated in s 47(1)(a), (b) and (c). That is not to say that the discretion which the alternative construction allows to the Tribunal is unfettered.

12. In Commissioner for Social Housing in the ACT v A [2015] ACAT 13, the Tribunal stated:

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.

13. Where the Human Rights Act 2004 has been engaged, human rights issues are relevant matters to be considered by the tribunal in the exercise of the discretion.

14. In Commissioner for Social Housing v Lysle.  I canvassed the circumstances and manner in which it is appropriate for ACAT to deal with human right issues where there is an application for termination and possession by a public authority lessor. It is not necessary to revisit these issues in their entirety. However, I reproduce my conclusions. In relation to a residential tenancy matter where there is an application for termination and possession, I consider the appropriate case for ACAT to take is as follows:

(a) if a respondent raises and relies on section 40C(2)(b) of the HR Act, then the ACAT may consider whether there has been a contravention of section 40B of the HR Act;

(b) in making a decision as to whether there is a contravention of section 40B of the HR Act, ACAT must also consider whether the human right is subject to any reasonable limit, pursuant to section 28 of the HR Act; and

(c) if ACAT arrived at the conclusion that there had been a contravention of section 40B of the HR Act, that contravention must be addressed within the context of ACAT’s existing powers and processes. If ACAT were to consider any issue arising under the HR Act it would be appropriate to do so when exercising discretion whether or not to make a termination and possession order pursuant to section 49 of the RT Act.

Where a respondent raises and relies on section 40C(2)(b) of the HR Act, then the onus of proof is with that respondent. It is not for the applicant to establish on each occasion that a termination and possession order is sought, that they have acted in compliance with the requirements of the HR Act.

15. In Commissioner for Social Housing v A [2015] ACAT 13 the tribunal took the view that a tenant’s right under section 12 of the HR Act not to have his or her home interfered with unlawfully or arbitrarily is engaged, where a public authority lessor issues a ‘without cause’, notice of termination. The identity of the applicant as a public authority was regarded as a significant circumstance to which the tribunal should have regard in exercising its discretion to make orders under the RT Act. Member Daniel (as she then was) stated:

It seems to me that there is a place, in the exercise of discretion, for the Tribunal to consider whether the outcome contemplated would affect an arbitrary interference with the tenant’s 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.

28.Further, and also in Commissioner for Social Housing v A[6] Member Daniel (as she then was) made the following observations about the practical approach of the Tribunal:

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.

[6] [2015] ACAT 15

29.The tenant submitted that this position in relation to both the discretion under section 47 and the approach taken to the consideration of human rights issues is well established. I invited the Commissioner’s representative to make submissions on how he thought the Human Rights Commission Act 2005 (HR Act) operated, and he responded, somewhat unhelpfully, that he was not instructed to make submissions on human rights issues. Accordingly, there being a clear line of authorities within the Tribunal, and no contest from the Commissioner, I adopt the principles set out above, both in relation to the operation of the HR Act and the discretion under the RT Act.

The tenant’s position

30.The tenant raised and relied on section 40C(2)(b) of the HR Act – that is, he sought to rely on his rights under the HR Act in this proceeding. His submissions were to the effect that, having regard to the full range of circumstances, a decision to evict him from the property would be an unlawful or arbitrary interference with his privacy and/or home, contrary to section 12(a) of the HR Act. He submitted that, having regard to this consideration, the Tribunal should decline to exercise its discretion to make an order under section 47 of the RT Act.

31.In support of his case, the tenant filed a witness statement and gave evidence orally. He was cross examined. His evidence can be summarised as follows:

(a)He has appealed his sentence and has been advised that there is reasonable chance that he will be released early – possibly as early as May 2018.

(b)His reasonable prospects of success on appeal is evidenced by the granting of Legal Aid funding to appeal his sentence – such a grant requires that Legal Aid has assessed his case as having reasonable prospects.

(c)When released, he will likely return to live in the ACT. His family connections are here, including his mother and sister. His sister, in particular, provides him with significant care and support and functions as his ‘carer’, and he is heavily reliant upon her for assistance.

(d)Due to health concerns he has little prospect of maintaining a private tenancy in the ACT.

(e)He has applied to be transferred to the Alexander Maconochie Centre so that he can be closer to his family and support networks. He cannot progress the transfer until the Appeal is finalised, but in the meantime having a home in the ACT is important to both his appeal prospects and to his chances getting transferred.

(f)The property is particularly well suited to him for numerous reasons:

(i)      He suffers from a range of medical conditions, including epilepsy, and the open plan design of the house reduces the risk that he will injure himself if he has a seizure.

(ii)      He also has a number of mental health conditions. The property’s position and privacy are beneficial to his mental health.

(iii)     The property is in the same suburb as his sister’s house, which means she can reach him quickly (within minutes) when he needs assistance. The property also has a second bedroom that allows his sister to stay at the property when she needs to care for him. 

(iv)     His general practitioner is located only five minutes away.

(v)     The property has a double garage where he can “lock [his] car up and keep it safe”.

(vi)     The property is a short walk to local shops, which is useful as he does not currently drive at present for medical reasons.

(vii)   He has a good relationship with his neighbours and feels safe.

32.Having heard the tenant’s evidence, I was satisfied that he is a man with a complex medical history and some social difficulties. He is reliant upon his sister for assistance in managing his conditions. The location of the property, in such close proximity to hers, and to shops and other services, makes it an ideal property for him. I understand and appreciate that he is desperate not to lose the property. I accept there may be some concern for his wellbeing if he is evicted.  

33.The tenant’s sister also filed a witness statement and gave evidence. She largely confirmed the tenant’s evidence, including that she lived nearby and that she regularly acted as her brother’s carer. Her concern for her brother was obvious. She was very worried about his mental health, and the consequences for him of the loss of his house, and expressed that concern to the Tribunal in clear terms. She has been paying her brother’s rent (the Commissioner has a policy of charging $5 a week while the tenant is incarcerated), and said that she was making a contribution toward arrears. She was also caring for the property in his absence.

34.Although she is not a party to these proceedings, it is quite apparent that the tenant’s sister’s welfare may also be affected by the tenant’s eviction, as she will find it much more difficult to care for him if he is not living close to her.

35.The tenant’s sister explained that the tenant had initially lived with her and her children when he came to Canberra, but the living arrangements were very crowded. Her evidence was that her brother could not return to live with her, as the arrangements were untenable.

36.The tenant’s sister said:

I care about [the tenant] when he comes out of prison and I just want him to be able to live safely and peacefully in his home, as he was before he went to prison. He has been a good tenant and should not be punished by getting evicted from his home just because he is in prison.

37.I note that at no stage was it contended that the tenant was anything other than a ‘good’ tenant. Although it appears, from the tenant’s sister’s evidence, that there are some arrears, I do not know the quantum of them, and that is, in any case, not a basis for termination in these proceedings.

38.The tenant also filed two medical certificates/brief reports prepared by his general practitioner, Dr Watson. These certificates confirmed that:

(a)Dr Watson has been treating the tenant him for 10 years.

(b)The tenant has a range of mental health issues (the details of which I do not need to set out here) and these contribute to a pattern of poor decision making and impulse control.

(c)The tenant’s mother and sister are a stable force in his life.

39.Although not strictly relevant, Dr Watson also opined that the tenant has no history of violence, was always respectful, and presented no risk to his neighbours.  However, the tenant’s conduct, like the reason he is incarcerated, is not relevant to this decision.

The lessor’s position

40.The lessor’s oral submissions are summarised as follows.

41.The Tribunal can be satisfied that each of the elements of section 47 of the RT Act have been satisfied, namely a 26 week notice of termination pursuant to clause 94 has been served and the tenant has failed to vacate the premises in accordance with that NTV.

42.While the Commissioner did not directly comment on human rights issues, to the extent they are relevant, they should be considered as a relevant consideration in the exercise by the Tribunal of its discretion under section 47 of the RT Act.

43.The NTV was issued lawfully, because it was issued in compliance with the RT Act. The notice was not issued arbitrarily, because it was issued for a purpose that was rationally connected to and proportionate with achieving the objective of making a currently under-utilised public housing property available to a person on the waiting list. The purpose was consistent with the Commissioner’s role of managing social housing assets.

44.The Commissioner further submitted that its position as a social housing provider, with limited assets and a very significant waiting list, must be considered in the exercise of any discretion under section 47. The Commissioner filed a summary of the number of persons on the public housing waiting list, broken down into each of the three ‘needs categories’ established by the Commissioner under section 13 of the Housing Assistance Public Rental Housing Assistance Program 2013 (No 1). The same document included average wait times. The document indicated that waiting times for public housing ‘priority housing’, the most urgent category, was nearly a year. Priority housing applicants are those with a range of complex needs and evidence of significant risk factors that would be substantially alleviated though the early allocation of housing, including the homeless, families with children, people with serious health conditions, persons escaping domestic violence and children at risk of abuse or neglect.[7] The wait for housing for clients with ‘high needs’ that do not meet the priority need category is closer to two years.  For standard applicants, the wait is two and a half to three years.[8]

[7] Priority Housing factsheet -

[8] See: Commissioner’s representative submitted, in effect, that the numbers of the list were not just ‘abstract numbers’, but ‘real people’ facing housing stress. The fact that a social housing home is unused, while people are in need of housing is, the Commissioner submitted, a matter that the Tribunal can, and should, consider when exercising its discretion.

46.The Commissioner also submitted that the tenant’s personal circumstances, which entitled him a social housing, will continue to exist when he leaves gaol. He will likely be assessed as entitled to housing again. The Commissioner did concede, however, that he will have to endure the waiting list a second time – meaning he faces another wait of a year or so for public housing when released.

47.The Commissioner suggested to the tenant’s sister that he could return to live with her one released, but she said this was not feasible. The Commissioner referred to the Tribunal’s observations in Commissioner for Social Housing v Black [2017] ACAT 20[9] as to the other options that were broadly available, but none were seriously suggested in this case, other than with the tenant’s sister.   The Commissioner submitted that, if the tenant remains eligible for public housing upon release (as is likely) he will eventually be rehoused, albeit after another waiting period.

Consideration

[9] Referring to the Tribunal’s observations in Commissioner for Social Housing v Black [2017] ACAT 20 at [52]

48.I am satisfied that the requirements of subsection 47(1) of the RT Act have met. The Tribunal has the discretionary power to make the termination and possession order sought. But should I exercise that discretion?

49.This is a difficult matter. It raises hard questions about the balance between the private interests and rights of a vulnerable tenant (who has, indeed, already served a ‘waiting period’ for public housing), and the broader public interest in effectively utilising scarce social housing resources in the most effective way possible.

50.In the exercise of my discretion, I have taken into account several considerations.

51.First, I have taken into account the individual circumstances of the tenant. He is a single man, with a range of complex health and social challenges. He is committed to maintaining his current home, which is well suited to his medical conditions, and provides him with a safe environment close to his family and his various community supports.

52.Society is best served when parolees, or persons who have served their sentences, are released into communities that are safe and supportive, and the evidence before the Tribunal indicates that the property provides the tenant with those things. These are factors that weigh in favour of declining to make a TPO.

53.I have also considered the prospect that the tenant may soon be eligible for parole by reason of a reduction in sentence on appeal. However, this is only a ‘may’ – the highest that the evidence goes is that the tenant’s Legal Aid lawyer is ‘hopeful’ of success, although I accept that it is unlikely that Legal Aid would have funded the appeal if there were not reasonable prospects. The Legal Aid lawyer’s ‘experience’ suggests a decision may be made soon, but there is no certain timeframe, and the CCA’s decision was not made by the end of February 2018, as she expected.  There appears to be some prospect of the full sentence period being reduced to May or June, but assuming only the minimum sentence is reduced is reduced, there is no evidence as to the tenant’s prospects of being granted parole.

54.This case varies from Jones because in that case the tenant was applying for parole. While there were several months between the time that the Tribunal made its decision (June), and the tenant’s likely parole date (October), the tenant’s prospects for release appear to have been reasonably strong – I note the consideration of Jones in relation to the request for an adjournment at paragraph 20 to 23, above.

55.The tenant’s representative also made submissions, adopting the comments in Commissioner of Housing of the Australian Capital Territory v Nicole Smith [1995] ACTSC 17, (Smith) that exercise of the discretion in section 47(1) would include considerations such as the power and functions of the lessor as “landlord of last resort”, and that this was particularly the case of the tenant, who, she submitted, has no other options upon his release from prison.

56.Several observations may be made about this.

57.First, Smith was decided prior to the passage of the RT Act, and the reasoning therein refers to both a very different legal framework to that in place today – although many of the observations remain relevant.

58.Second, the observation that the Commissioner is a landlord of ‘last resort’ is a factual finding that, while true for many people, particularly in relation to private houses, it is not necessarily true for everyone. 

59.As to alternatives, the Tribunal accepts that it is highly unlikely that the tenant will be able to lease a private property, other than with the assistance of either the Commissioner, or another charitable organisation. This does not mean that, however, that should he lose this property, he will inevitably be released into homelessness. The Tribunal is aware, as a general level, that there are alternative accommodation options available to a person released from prison – such options include accommodation with relatives, transitional or supported accommodation or share accommodation. The relevant authorities will usually assist a person being released from incarceration to access these options, and parole may not be granted without them in place. While the Tribunal has no real evidence of these alternatives, there could be little doubt that many of these alternatives will not be consistent or desirable as a private home – although it should be acknowledged that in some cases a move away from previous associates or a period in supportive accommodation may actually be more beneficial than returning to previous accommodation. I do not suggest that the latter is the case here (if anything the evidence suggests the opposite), but ultimately these matters will be considered by the relevant authorities when the tenant applies for parole. For the purposes of the application, I accept that the medical evidence indicates that there are several health and social advantages to the tenant returning to his existing property, and that consistent, private accommodation would benefit him. I also accept that, should the tenant lose that property, alternative accommodation may need to be found for him prior to his release. This may take time, and this may delay his parole and extend his period of incarceration. A potentially longer period of incarceration is a significant consideration and weighs against making a TPO.

60.However, in exercising my discretion, I have also taken into account the powers and functions of the Commissioner. I have taken into account the extensive waiting list, and the fact that the property is currently vacant. This situation is different to the situation in, for example, Commissioner for Social Housing v Alan Carter (A Pseudonym)[10] (Carter). In Carter an argument was advanced that the tenant, through his actions, had shown himself to be less meritorious than other persons on the waiting list for public housing. It is not appropriate for the Tribunal to make such judgement. In the present situation, by contrast, the current tenant is presently incarcerated elsewhere, and is not residing in the property at all. The choice is between ‘holding’ an empty property for a tenant who will likely return to it at a later time, or utilising it now.

[10] [2018] ACAT 16

61.The Commissioner has an essential social function of delivering housing support in the ACT, including public housing.[11] The Commissioner must be able to manage his assets effectively in pursuit of that function. It is the Commissioner, not the Tribunal, that is best placed to undertake that management. To this end, I agree with Senior Member Lennard’s observation in Jones that “[i]t is a legitimate approach for the lessor to seek termination and possession to further the objective of the most effective use of public housing stock which is otherwise sitting unoccupied.”[12] These considerations weigh in favour of granting the TPO.

[11] Housing Assistance Act 2007 section 11(a)

[12] At [33]

62.Finally, I have taken into account the human rights issues raised by the tenant’s lawyer.

63.The tenant claims the that termination of his tenancy would be incompatible with his rights under section 12(a) of the HR Act, that is, the right not to have his privacy, family, home or correspondence interfered with unlawfully or arbitrarily.

64.In considering the application of the protections under the HR Act, a key point is that there is no prohibition on ‘interference’ per se, but rather a prohibition on interference that is unlawful or arbitrary.

65.Consistent with the excerpts from Jones at paragraph 27, above, where a respondent raises and relies on section 40C(2)(b) of the HR Act, the onus of proof lies with that respondent. In this case, it is a matter for the tenant to establish some kind of arbitrary or unreasonable interference with his privacy. However, it is then a matter for the Commissioner to convince the Tribunal, having regard to the full circumstances of the case, that an order should be made.

66.There is nothing in the material before the Tribunal to suggest that the Commissioner’s actions were ‘unlawful’. Clause 96 of the standard terms provides a legislative and contractual right to terminate a tenancy, for whatever reason, upon the provision of 26 weeks’ notice, said notice being in the form required by law. The notice given in this case was compliant with the procedural requirements. It was not ‘unlawful’.

67.But was it ‘arbitrary’?

68.‘Arbitrary’ has a particular meaning in human rights litigation that distinguishes it from its plain English meaning. There is a significant amount of case law on the meaning of the term, but little of it was put before the Tribunal in this matter. Suffice to say, the Tribunal has had cause to consider the meaning of the term in the context of section 12(a) of the HR Act on numerous occasions, and most recently in Miller v Commissioner for Social Housing[13]. In that case, Presidential Member Symons adopted the reasoning of Bell J in Patrick Case[14] at [89]:

[T]he human right…not to have your privacy, family, home or correspondence ‘arbitrarily’ interfered with extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.

[13] [2017] ACAT 10

[14] PJB v Melbourne Health & Anor [2011] VSC 327 (Patrick’s Case)

69.Would the eviction of the tenant, having regard to his personal circumstances, be “capricious, unpredictable or unjust” or unreasonable or disproportionate, having regard to the Commissioner’s purposes for seeking it?

70.The Commissioner’s decision to terminate the tenancy was made in circumstances where a public asset for which there is great demand is not being utilised, with the intention of allowing to be utilised. That is a legitimate, reasonable end. The Commissioner must manage scarce public housing resources. The eviction of a tenant who is not resident in a property, so that it may be reutilised by a prospective tenant who can reside in it, is not capricious or unpredictable.

71.However, such an eviction may certainly be unjust or disproportionate in certain circumstances. Relevant circumstances include where the tenant has a high likelihood of being imminently released. Other circumstances may be where there is an exceptional vulnerability on the tenant’s part, or where children or other persons are involved, perhaps as occupants of the property, such that an injustice arises.

72.The tenant certainly does have more than his share of personal challenges. He is a vulnerable tenant, and clearly one who is entitled to housing. However, even in weighing these, I am not satisfied that his particular circumstances are so compelling as to make the Commissioner’s decision, in the circumstances, a disproportionate one. Those circumstances include that the property can certainly be utilised by another person who is need of urgent housing (even if not for some weeks).

73.I may have decided differently were there an imminent prospect of the tenant being released, and able to resume his occupation of the premises, and particularly if he was likely to do so before the property could reasonably be relet. However, that prospect is at best speculative. On any view, even if his sentence is reduced, it will likely be some months before he is released. It may be many more.

74.I recognise that this decision will be difficult for the tenant to accept. It is not a decision made lightly. It is a decision made against the shadow of potentially serious ramifications for the tenant’s mental health and wellbeing, and for the wellbeing of his sister. The fact I am making it is indicative of the chronic shortage of housing options in the Territory, and indeed nationwide, a regrettable situation that makes the rationing of scare resources amongst vulnerable people so complex and difficult.

75.In summary, therefore, having considering all of these factors, I am satisfied that:

(a)first, it is not appropriate to reserve my decision or otherwise adjourn these proceedings until after the outcome of the Appeal;

(b)second, that I should exercise the discretion to make a termination and possession order in these proceedings.

76.While I make the TPO with effect from today, section 47(2) of the RT Act permits me to stay the order for a period of three weeks, if I am satisfied that the tenant would suffer hardship; and that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period. I am satisfied that test is met and I will suspend the order for three weeks to allow the tenant time to make arrangements. It will also provide his legal representative with time to consider these reasons, once published, and to advise him accordingly.

………………………………..

Senior Member H Robinson

HEARING DETAILS

FILE NUMBER:	RT 950/2017
PARTIES, APPLICANT:	Commissioner for Social Housing
PARTIES, RESPONDENT:	Joshua Kennedy
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 H Robinson
DATES OF HEARING:	26 February 2018