Douglas v Department of Land and Housing
[2011] FMCA 1028
•22 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOUGLAS v DEPARTMENT OF LAND AND HOUSING | [2011] FMCA 1028 |
| HUMAN RIGHTS – Disability discrimination – allocation of housing – respondent experiencing difficulty in finding accommodation that met the expectations of the applicant. |
| Australia Human Rights Commission Act 1986 (Cth), s.46PO(3) Disability Discrimination Act 1992 (Cth), ss.6, 10, 11, 25 Housing Act 1912 (NSW) Housing Act 1976 (NSW) Housing Act 1985 (NSW) Housing Act2001 (NSW), s.5 Residential Tenancies Act1987 (NSW) Sex Discrimination Act 1984 (Cth) |
| Ali-Hossaini & Anor v NSW Land and Housing Corporation [2010] FMCA 644 Department Of Land & Housingv Douglas [2011] FMCA 75 Howe v Qantas Airways Ltd [2004] FMCA 242 State of New South Wales v Amery (2006) 230 CLR 174 Walker v State of Victoria [2011] FCA 258 |
| Applicant: | WAYNE DOUGLAS |
| Respondent: | DEPARTMENT OF LAND AND HOUSING |
| File Number: | SYG 1224 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing dates: | 18 and 19 May 2011 |
| Date of last submissions: | 24 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner of Turner Coulson (appearing on a pro bono basis) |
| Counsel for the Respondent: | Ms K Edwards |
| Solicitors for the Respondent: | Mr N Cureton |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1224 of 2009
| WAYNE DOUGLAS |
Applicant
And
| DEPARTMENT OF LAND AND HOUSING |
Respondent
REASONS FOR JUDGMENT
Background
On 22 February 2011, I dismissed an interim application seeking summary dismissal of this matter and set the matter down for final hearing on 18 and 19 May 2011. At the end of the hearing of evidence, the parties were granted leave to file further written submissions. The applicant was granted until 24 June 2011 to file any further submissions, the respondent until 8 July 2011 to file any further submissions and the applicant until 15 July 2011 to file any submissions in reply.
In the interim judgment delivered on 22 February 2011 (Department Of Land & Housingv Douglas [2011] FMCA 75) I set out the background of this matter at [2] – [12] and I reproduce that material below to assist in the understanding of the proceedings:
2. The principle Application and the subsequent Amended Application alleged unlawful discrimination under s.46PO of the Human Rights & Equal Opportunity Act 1986 (Cth) (“HREOC Act”). The Applicant asserts disability discrimination and relies on s.6 of the Disability Discrimination Act 1992 (Cth) (“the DD Act”).
3. Mr Douglas initially made contact with the NSW Land & Housing Corporation (“NSW Housing”) in or about 2006, to obtain assistance for rental arrears he was experiencing in relation to his privately rented accommodation. NSW Housing was subsidising Mr Douglas in respect of payments made by him under that private rental agreement. NSW Housing agreed to assist in paying the arrears Mr Douglas had accumulated in the private residence. When it became apparent that Mr Douglas was about to be evicted from the private accommodation, NSW Housing commenced searching for accommodation in the form of a head leasing arrangement for Mr Douglas. Once the eviction took place, Mr Douglas was housed in a motel paid for by NSW Housing while suitable accommodation for Mr Douglas was pursued.
4. Mr Douglas suffers from a number of medical conditions including a cardiac condition, liver condition and morbid obesity. Mr Douglas requires the use of a motorised wheel chair. His medical problems are affecting his function particularly his residential environment which required modifications to allow him access.
5. NSW Housing on or about 13 July 2006, located a four bedroom property at 9 Melliodora Way, Macquarie Fields which was identified as suitable for Mr Douglas. The property had a very large shower recess, including grab rails suitable for Mr Douglas’ use. There was a ramp at the rear of the house to accommodate the motorised wheel chair. Mr Douglas was offered the only property that could be located that fits his needs in the geographic area of Ingleburn, Glenfield and Macquarie Fields. This was the area requested by Mr Douglas.
6. Mr Douglas commenced his tenancy on 7 August 2006, but claims that he was not given any choice about whether to accept the property and he contends it was not fit for or suitable for a person with his disability. Mr Douglas claims that in November 2006, his carer had moved a lounge suite so the floors could be swept. While Mr Douglas was sweeping the floor with a broom, he stepped over to the corner of the lounge room and went through the floor due to termite damage.
7. Mr Douglas refused to pay rent for the Melliodora Way property from the commencement of his tenancy until January 2007. Following a series of hearings at the Consumer, Trade and Tenancy Tribunal (“CTTT”), NSW Housing was granted termination of the tenancy agreement with the date of effect being 1 March 2007. Mr Douglas subsequently appealed to the Supreme Court where the matter was held over several times. The CTTT decision was stayed during the Supreme Court proceedings. Mr Douglas lodged an Application for a transfer to alternative accommodation in June 2007. The Application was refused as his tenancy had been terminated by the CTTT in March 2007, and this decision was the subject of the Supreme Court proceedings.
8. Mr Douglas filed a complaint with the Australian Human Rights Commission (“the Commission”). The date that this complaint was filed is unknown to this Court. The complaint was summarised by the Commission in the following terms:
You advised that you have a severe disability as a result of morbid obesity. He claimed that in 2006 the NSW Department of Housing (“the Department”) provided you with a house that was not suitable for your disability. Specifically, you claim that the floor could not support your weight. You alleged that as a result you fell through the floor and injured yourself in November 2006. You also claim that the Department has declined your request to provide a lockable shed at the rear of the house so that you could store your wheelchair as it cannot fit in your house.
9. On 22 December 2008, the Commission issued a Notice of Termination pursuant to s.46PH(2) of the HREOC Act. A delegate of the President indicated that the compliant was terminated under s.46PH(1)(i) of the HREOC Act on the grounds that they were satisfied that there was no reasonable prospect of the matter being settled by conciliation. That notification indicated that the complainant may apply to the Federal Magistrates Court or the Federal Court of Australia to have the allegation decided by Court and that Application must be filed within 28 days of the Notice of Termination.
10. On 20 May 2009, Mr Douglas filed an Application in this Court alleging unlawful discrimination under s.46PO of the HREOC Act. The first court date hearing was listed for 19 June 2009. Mr Douglas appeared as a self represented litigant on that date. Based on the documentation placed before the Court on that occasion and the brief discussion with Mr Douglas in open Court, I made the following orders:
1. Pursuant to r.12.03(1) of the Federal Magistrates Court Rules 2001 (Cth) the Applicant is referred to the Registrar for referral to a lawyer on the pro-bono panel for legal assistance, including in relation to one or more of the following:
(i) the preparation of affidavits;
(ii) the preparation of the amended application and written submissions;
(iii) representation of the Applicant at the resumed hearing.
2. The Applicant is to file and serve an amended Application on 17 June 2009 or;
3. The matter is listed for directions on 31 July 2009 at 9.30am.
11. Mr Turner agreed to represent Mr Douglas on a pro bono basis.
12. The parties agreed to pursue mediation in an attempt to resolve the dispute between them. The Court was advised that mediation was scheduled on 1 March 2010, and during that session, significant steps were taken to settle the matter involving making Mr Douglas’ house suitable for his particular circumstances. As progress was being made at that stage, both parties requested that the proceedings be adjourned for at least two months at liberty to apply on three days’ notice to enable negotiations to proceed. At a directions hearing on 22 October 2010, the Court was advised that despite a number of mediation sessions, final resolution of the matter was not possible and the parties requested that the proceedings be re-listed for final hearing.
Amended Application
The Amended Application was filed in Court at the commencement of the hearing and was in the following terms:
PART A – ORDER[S] SOUGHT
1. Final Orders sought by Applicant
a. That the Respondent correctly and appropriately houses the Applicant
b. Compensation in respect of the physical damages, including, but not limited to, the loss of the Applicant’s leg
c. A declaration that the Respondent unlawfully discriminated against the Applicant
d. Costs
PART B – GROUNDS OF APPLICATION
1. The Respondent unlawfully indirectly discriminated against the Applicant.
PARTICULARS
a. The Disability Discrimination Act 1992 s.6 provides;
“For the purpose of this Act a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition.
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.”
b. The Respondent requires all public housing tenants in New South Wales to maintain the house and grounds in a proper manner.
c. Because of his disability, the Applicant was not able to maintain the property.
d. A substantially higher proportion of people without disabilities of the Applicant would be able to comply with this requirement.
2. The Applicant’s initial disability was obesity which was known to the Respondent at the time of or after the allocation of the housing. The Respondent, knowing that the allocated house was not suitable for the Applicant, discriminated against him by requiring him to accept the house and giving him no other option.
3. When he was placed in inappropriate housing by the Respondent he suffered further damages including the loss of use of a leg.
4. The loss of use of his leg is a further disability which adds to the indirect discrimination suffered by the applicant.
Evidence
Mr Turner, appearing for Mr Douglas, the applicant, indicated that the applicant relied on the following evidence:
a)Affidavit of Raymond Charles Turner affirmed on 3 February 2010 (the “First Turner Affidavit”);
b)Affidavit of Raymond Charles Turner affirmed on 7 February 2011 (the “Second Turner Affidavit”);
c)Exhibit A1 – Notice of Termination from the Human Rights Commission;
d)Exhibit A2 – Applicant’s Written Submissions dated 2 February 2011;
e)Exhibit A3 (initially MFI 1) – Residential Tenancy Agreement;
f)MFI 2 – Tenant’s Rights and Responsibilities; and
g)Affidavit of Wayne Douglas sworn on 26 October 2009;
Ms Edward indicated the respondent, the Department of Land and Housing (“Housing NSW”) relied on the following evidence:
a)Affidavit of Brian Squires sworn on 23 December 2010;
b)Affidavit of Phillip Tomkins affirmed on 24 December 2010 (the “First Tomkins Affidavit”); and
c)Affidavit of Phillip Tomkins affirmed on 7 February 2010 (the “Second Tomkins Affidavit”).
Mr Turner called the following witness:
a)Mr Wayne Douglas T 18/5/2011 – p.8.
Ms Edwards called the following witnesses:
a)Mr Brian William Squires; and
b)Mr Phillip Adrian Tomkins.
Law to be satisfied
The applicant bears the burden of proof in this matter. In order to be successful, the Applicant must satisfy the requirements of section 6 of the Disability Discrimination Act 1992 Cth (the “DDA”) in force at the time the discrimination occurred. As the complaint was terminated before the DDA was amended (on 22 December 2008), the version in force as from 26 March 2006 is the correct legislation to which this Court must have regard.
The relevant sections stated by the Australian Human Rights Commission as applying to this claim were ss.6 (indirect discrimination), 10 (where act one for one or more reasons), 11 (unjustifiable hardship) and 25 (accommodation) of the DDA. Those sections are set out immediately below.
6 Indirect disability discrimination
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
10 Act done because of disability and for other reason
If:
(a)an act is done for 2 or more reasons; and
(b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);
then, for the purposes of this Act, the act is taken to be done for that reason.
11 Unjustifiable hardship
For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(a)the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(b)the effect of the disability of a person concerned; and
(c)the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
(d)in the case of the provision of services, or the making available of facilities—an action plan given to the Commission under section 64.
25 Accommodation
(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s disability or a disability of any of that other person’s associates:
(a) by refusing the other person’s application for accommodation; or
(b) in the terms or conditions on which the accommodation is offered to the other person; or
(c) by deferring the other person’s application for accommodation or according to the other person a lower order of precedence in any list of applicants for that accommodation.
(2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s disability or a disability of any of the other person’s associates:
(a) by denying the other person access, or limiting the other person’s access, to any benefit associated with accommodation occupied by the other person; or
(b) by evicting the other person from accommodation occupied by the other person; or
(c) by subjecting the other person to any other detriment in relation to accommodation occupied by the other person; or
(d) by refusing to permit the other person to make reasonable alterations to accommodation occupied by that person if:
(i) that person has undertaken to restore the accommodation to its condition before alteration on leaving the accommodation; and
(ii) in all the circumstances it is likely that the person will perform the undertaking; and
(iii) in all the circumstances, the action required to restore the accommodation to its condition before alteration is reasonably practicable; and
(iv) the alteration does not involve alteration of the premises of any other occupier; and
(v) the alteration is at that other person’s own expense.
(3) This section does not apply to or in respect of:
(a) the provision of accommodation in premises if:
(i) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside on those premises; and
(ii) the accommodation provided in those premises is for no more than 3 persons other than a person referred to in subparagraph (a)(i) or near relatives of such a person; or
(b) the accommodation is provided by a charitable or other voluntary body solely for persons who have a particular disability and the person discriminated against does not have that particular disability; or
(c) the provision of accommodation in premises where special services or facilities would be required by the person with a disability and the provision of such special services or facilities would impose unjustifiable hardship on the person providing or proposing to provide the accommodation whether as principal or agent.
(Emphasis added.)
The Applicant’s Submissions
The following paragraphs are a combination of the written and oral submissions made by Mr Turner on behalf of the applicant. I have avoided any further direct attribution as this would make the summary unwieldy.
The Applicant’s Submissions in Chief
The applicant moved into a house owned by the Respondent at
9 Melliodara Way, Macquarie Fields, NSW (the “Property”) on
7 August 2006. The applicant contends that he was discriminated against by the respondent in relation to his tenancy.
At the relevant time the DDA s.6 provided:
For the purpose of this Act a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
The applicant must show:
a)That he was required to live in the home;
b)That the respondent knew, or ought to have known, of his disabilities; and
c)That the respondent placed a requirement or condition on the applicant:
i)With which he was unable to comply; and
ii)With which an able bodied person could comply.
The evidence in this case establishes that each of the elements is met.
Under cross examination, the applicant continually asserted that he “had no choice” when he was offered the home (Transcript page 27 at line 45, page 28 at line 1, page 29 at line 30 to page 29 at line 40, page 30 at line 15).
Mr Squires acknowledges that only one property was offered to the applicant (Transcript page 120 line 15, Transcript page 121 line 15). Mr Squires was asked in cross-examination:
Mr Turner: Yes. And can I take you to paragraph 33 of your affidavit, where you say:
Mr Douglas was offered the only property which could be located that fitted his needs and geographical area.
?
Mr Squires: That’s right.
Mr Turner: That’s right. So there was only one property?
Mr Squires: At that stage, we had been unable to locate any private properties, and that was the only property that we could find. It was actually one of ours that became available.
Both Mr Squires and Mr Tomkins gave evidence that they were aware of the applicant’s weight (obesity). Annexure “A” to the First Turner Affidavit is a Centrelink Medical Certificate taken from the respondent’s file T10004124/2 sets out the applicant’s conditions of back Pain from fractured T1 & T4 vertebrae and morbid obesity. This information was known to the respondent’s records at the time of the allocation of the house and should have been known to the respondent’s officers who were specifically charged with looking after the applicant’s housing needs. It is no answer that the applicant’s file was too thick to be taken into account. Inconvenience is no excuse for failing to carry out the responsibilities of an administrative position.
The applicant made known the unsuitability of the home on a number of occasions. The First Turner Affidavit at p.5 (Housing NSW Briefing Note), p.8 (Human Rights and Equal Opportunity Commission – Complaint Form), p.20 (Housing NSW – Application for Transfer Notes), p.26 (NSW Housing – File Note), Transcript at page 40 line 22, line 35, page 71 line 6, page 72 line 34, page 73 line 13, page 74 line 5, line 36, line 44, page 75 line 4, page 76 line 10, line 45, page 78 line 40, page 79 line 1, line 33.
Mr Tomkins confirmed at Transcript page 141 line 5 that when he deemed that the property was acceptable he so found only in respect of an able bodied incoming tenant he took no account of the applicant’s disabilities.
Exhibit A3, the Residential Tenancy Agreement provides; clause 12.1 requires the tenant to “keep the residential premises reasonably clean”. It is inherent in the agreement that the tenant must live in the house (Cl. 6, 7, 28, 29 and 33).
Mr Squires said at Transcript page 118 line 6:
Generally speaking, when [tenants] signed up for a tenancy, the tenancy agreement would be gone over with them, and the rights and obligations would be explained to them at that stage.
Mr Tomkins set out at Transcript page 134 that he took the applicant through the Tenancy Agreement and gave him a booklet called “The Renting Guide” before the applicant’s tenancy of the house commenced. When asked what the responsibilities of the tenant were as set out in “The Renting Guide” Mr Tomkins replied:
That he has a responsibility to look after the property, maintain it in a clean and tidy state. A number of things along those lines…
The applicant gave evidence of the requirement for him to maintain the property Transcript page 84 line 27:
Ms Edwards: And no-one from housing has ever said to you, “You need to maintain the gardens better”, did they? --- I beg your pardon?
Mr Douglas: Ted Carnegie said to me, “You’ve got to start paying people to mow your lawns because you’ve got to start maintaining the property”, because it’s part of my tenancy”.
Ms Edwards: And that’s not in ---?
Mr Douglas: And you’re telling me no-one’s saying it; yes, they did. They told me right at the beginning of the tenancy because it’s part of the tenancy I signed for.
Ms Edwards showed the Applicant MFI 2 and went on at Transcript page 86 line 45:
Ms Edwards: You see, it’s true, isn’t it, that you have never seen a sheet like this in July 2006?
Mr Douglas: That’s incorrect because it has been part of the policies for the past 20 – odd years of housing.
Then at Transcript page 87 line 6:
Ms Edwards: …You said Ken Carnegie; is that right?
Mr Douglas: That’s correct, Team Leader of Housing Department, Macquarie Fields.
Ms Edwards: Never told you, you needed to mow the lawns, did he?
Mr Douglas: That’s incorrect because that’s why my 60 year old mother with her knee replacement does it for me because they said that if I didn’t maintain the premises to a standard they wanted, they would class me as an unsatisfactory tenant.
Mr Tomkins confirmed that, when the lease was signed, he gave the applicant a booklet setting out, inter alia, his obligations to “look after the property, maintain it in a clean and tidy state. A number of things along those lines” as was his standard practise.
The applicant submits that all the evidence now before the Court establishes:
a)He was, in a practical sense, required to live in the home. The respondent gave him no choice;
b)The respondent knew, or should have know, of all of his disabilities; and
c)The respondent placed a requirement or condition on him:
i)With which he was unable to comply; and
ii)With which an able bodied person could comply.
The applicant, is therefore, entitled to the relief sought including damages for the discrimination suffered by him from the respondent.
The Applicant’s Submissions in Reply
The respondent argues that it “[it] cannot make any person live in the accommodation it offers”. This argument ignores the circumstances of this case:
a)The applicant had nowhere else to live (he was in short time accommodation, with his daughter in a motel);
b)The respondent only offered him one property. He continually gave evidence that he “had no choice”; and
c)The evidence of Mr Tomkins was that once the lease was signed, the applicant was required to live in the home.
In State of New South Wales v Amery (2006) 230 CLR 174 Callinan J held at [208]:
The Tribunal and the courts are not bound by an applicant's formulation of a condition or a requirement. It is their duty to ascertain the actual position, including whether an (alleged) perpetrator has truly sought to impose, or permits indirectly, the imposition of a requirement or a condition which is discriminatory, and not reasonable within the meaning of the Act.
The Court’s finding clearly requires the Court to look at the ‘actual position’ and look at whether the discriminator has “truly sought …, or permits indirectly, the condition”. Put another way, it is necessary to look, in a practical sense, at all the circumstances surrounding the imposition of the requirement.
It cannot be a defence to a claim of indirect discrimination that such discrimination was unavoidable due to the inconvenience which would be suffered by the discriminator by avoiding the discrimination. The respondent’s submissions argue that due to the limited stock of public housing available, and the restrictions placed on the search by the applicant:
This property was the only property, which was in the required area, available and providing (in the respondent’s assessments) the best fit for the applicant’s needs as at July 2006.
The respondent’s own evidence shows that all the applicant’s needs were not considered (Phillip Adrian Tomkins Transcript page 140 line 45 onwards).
Mr Squires relied upon the assessment of Mr Tomkins in allocating the home. The allocation was, therefore, not subject to any proper assessment of the applicant’s disabilities.
The respondent submits that any requirement or condition requiring the applicant to reside in the property was imposed by the Residential Tenancies Act1987 (NSW) and/or Housing Act2001 (NSW), therefore, not by the respondent. If the condition or requirement is imposed by the Residential Tenancies Act1987 and/or Housing Act 2001 by the lease, as is arguably the case here, it is necessary to look at the actual situation in which the condition and requirement was imposed.
In cross-examination Mr Squires said at Transcript page 118:
Mr Turner: How were – let’s focus specifically on 2006 – how were potential tenants advised of their rights and obligation that would appear in that sheet?
Mr Squires: Generally speaking, when they signed up for a tenancy, the tenancy agreement would be gone over with them, and the rights and obligations would be explained to them at that stage.
Mr Turner: So is it right that you’re saying that the tenancy agreement formed the basis of the rights and obligations of the tenant?
Mr Squires: Yes, plus one and two of the legal contract[s] there, yes.
Mr Turner: Yes. And an officer of the Department of Housing, similar to yourself, would take the potential tenant through those and explain the operation of them?
Mr Squires: Yes, I believe so. Yes.
In cross examination Mr Tomkins said in relation to document MFI 2:
Mr Tomkins: Certainly, we hand out an information booklet on rent – it’s called the renting guide – which alludes to certain responsibilities and obligations.
Mr Turner: And do you recall whether that was a practise at the time in 2006 when Mr Douglas signed his lease.
Mr Tomkins: Yes.
…
Mr Turner: Did you personally give him the booklet?
Mr Tomkins: As far as I can recall, yes. Yes. The part of the sign up procedure includes Mr Douglas signing the lease, the residential tenancy agreement, and part of that sign up includes acknowledging receipt of the booklet.
Mr Turner: …Did you take him through the various clauses in the tenancy agreement?
Mr Tomkins: Yes.
Mr Turner: …Do you recall the obligations of a tenant which were set out in that booklet?
Mr Tomkins: In general terms, yes.
Mr Turner: Yes. Can you tell us what they were?
Mr Tomkins: The tenant has the right – sorry – the responsibility to pay rental on time and in advance. That he has the responsibility to look after the property, maintain it in a clean and tidy fashion. A number of things along those lines, yes. I can’t outline every – every single one.
The applicant said in cross-examination:
Ms Edwards: And no one from housing has ever said to you, “You need to maintain the gardens better”, did they?
Mr Douglas: I beg your pardon. Ted Carnegie said to me, “You’ve got to start paying people to mow your lawns because you’ve got to start maintaining the property”, because it’s part of my tenancy.
Ms Edwards: And that’s not in ---?
And you’re telling me that no-one said it; yes, they did. They told me right at the beginning of the tenancy because it’s part of the tenancy I signed for.
The argument that the Residential Tenancy Act 1987 and the Housing Act 2001 regulate the terms of a tenancy such as the applicant’s leads to the result that the Lease is of no effect which is contrary to the common and legal understanding of a lease and the importance put on it in this case by officers of the respondent.
The evidence of detriment before the Court is:
a)Falling through the floorboards: First Turner Affidavit) p.5, p.8, p.26, p.28, p.32; and
b)Forced to live in an unsuitable house: Affidavit of Wayne Douglas.
Mr Tomkins gave evidence that the house was suitable for an able bodied person. Such people clearly constitute a substantially higher proportion of persons without the disability.
It cannot be said that it was reasonable to require the applicant to live in a house which was not able to support his weight and to require him to maintain the house and grounds which he was not able, due to his disability, to do. The $32,000.00 of repairs were only agreed to by the respondent after these proceedings were commenced.
The requirement to maintain the property was imposed on the applicant personally by the respondent. He was only able to have the lawns mown by imposing upon his “60 year old mother with knee replacement” (Transcript page 87).
The respondent tried to enforce the applicant’s obligations to the extent that the proceedings were commenced in the Consumer Trader and Tenancy Tribunal (the “CTTT”) (Second Tomkins Affidavit at [10]).
The requirement to live in the house must be seen, in light of all the circumstances, as a requirement to reasonably live in the house in a normal manner, able to be done by a substantially higher proportion without the applicant’s disability, and exercise his entitlement to quiet enjoyment of the premises. The fact that the flooring in the house was unable to sustain his weight (disability) means that he was unable, due to his disability, to live a normal life in the house. Similarly, the requirement to maintain the property was not able to be carried out by the applicant in the same manner as a higher proportion of the population without his disability could have done.
Mr Tomkins’ evidence was that he had not read the entire file because it was ‘massive’. It cannot be a defence to a failure to carry out an occupational requirement or duty that to do so would have been inconvenient. Yes, the applicant’s file(s) were extensive but for a house to be properly allocated with regard to all his disabilities the files had to be read and all material on them had to be taken into account. Failure to do so, meant that the house was allocated without due regard to all the circumstances, including disabilities, of the applicant.
Far from never mentioning his disabilities, the evidence is that the applicant complained of many things including his morbid obesity and other disabilities from before the commencement of this lease (First Turner Affidavit p.2, p.5. Affidavit of Douglas 27/08/09 ex. A. Affidavit of Squires 24/12/10 Ex. P). The Respondent’s submissions set out at [27]:
In relation to the issue of white ant damage it is clear that the applicant considered the house from the start …
The Respondent’s Submissions
The following paragraphs are a summary of the respondent’s written and oral submissions made by Ms Edwards. I have avoided further direct attribution as this would make the summary unwieldy.
The applicant’s claim is one of indirect discrimination on the ground of disability. The first submissions (Exhibit A2) show that the applicant identifies the conditions or requirements said to be imposed by the respondent and giving rise to the discrimination as being:
a)Requiring the applicant to reside at the Property; and
b)Requiring the applicant to clean and maintain the property “to a reasonable standard, including the gardens and ensure that no damage is done by you your household members or visitors”.
In relation to the first requirement, it is important to note that this may only be judged at the time it was offered and accepted by the applicant from about 13 July 2006 (when Mr Squires offered the Property to the applicant – as per [7] and Annexure K of Mr Squires Affidavit) to
7 August 2006 (as per [8] First Tomkins Affidavit) when the Applicant commenced his tenancy and from which time he declined to pay rent (as per [9] First Tomkins Affidavit).
In broad terms the respondent says the applicant cannot make out his case because:
a)There was no requirement to live at the Property imposed by the Respondent on the applicant; and
b)In relation to the requirement to maintain the property to a reasonable standard:
i)Such a requirement was not imposed; or
ii)If it was imposed, the applicant was able to carry it out (albeit through other people such as his mother – see Transcript page 87 lines 9-12), that is, the applicant in fact complied with the condition on his own evidence; and/or
iii)No detrimental action was ever taken in relation to the applicant in relation to this requirement.
It is the case that the applicant’s own account of how he perceives and may recount information means the Court has a low correlation with what in fact occurred. In this regard to the applicant relies on the questioning which occurred at the beginning of cross-examination (Transcript page 16 line 28 to page 29 line 30).
Ms Edwards: Well, Mr Douglas, let me put it to you in concrete terms. If you say that you were treated poorly for six months and it was only three, then you understand the court gets a different idea from what actually happened, don’t you?
Mr Douglas: But that could be perceived by somebody else in a different way to how I would perceive it as a disabled person. You may say three, I may say 12, but really, its – it’s really up to the person that is listening that is going to decide that.
Ms Edwards: So, you’re asking the court to understand that when you say something like 12 months, that you could actually mean three; is that right?
Mr Douglas: That’s incorrect. That’s not what I said, so please don’t twist it. Because I said that I – you may take it as three months, but I may take it as 12 months, but I’m an individual. I’m not a normal person. I’m a 250 kilo man that doesn’t do what a normal person does.
Ms Edwards: Yes. But, you understand what telling the truth means, don’t you, Mr Douglas?
Mr Douglas: I certainly do.
Ms Edwards: Yes. And that’s - - -?
Mr Douglas: That’s how I got custody of my daughter.
Ms Edwards: And that’s how I’m trying – I’m trying to put before the court, how you understand the way in which you made your evidence. And what you’ve told the court so far - - -?
Mr Douglas: Yes.
Ms Edwards: - - - is that, sometimes that might mean saying 12 months when you mean three?
Mr Douglas: Well, that’s incorrect. No, I didn’t say that.
Ms Edwards: You didn’t say that?
Mr Douglas: I did not say that I’m saying this happened in three months, but it could happen in 12. I did not say that. I said, you may take it as three months and I may think that it’s been happening for 12 months, but really, opinions vary and that is why we’re here to get a decision on that.
Ms Edwards: And you understand that your case rests on your testimony, don’t you?
Mr Douglas: That’s correct, yes.
Ms Edwards: Yes. So, the court needs to take into account what you say in deciding whether something happened or not. You understand that, don’t you?
Mr Douglas: That’s correct, yes.
Ms Edwards: So, you understand that if you say 12 months, but it’s really three, that that presents a difficulty to the court?
Mr Douglas: Didn’t say that. I’m going to keep saying that. I did not say that. I said, you may take it as three months, but I may take it as 12 months. Individually, opinions vary. You may not feel it, because you’re not me as a disabled person, but me as a disabled person, feels it and you don’t. So, it could be a longer length of time that affects me, than what it would affect you. That is how it is in life, straight up, for a disabled person. You do not feel what I feel daily until you are me. So, please don’t tell me it last three months, 12 months, two years, because you know why? You can ask my doctor. Frequently, every day, a person like me is chronically discriminated daily. Laughing, poking fun, spat at, chips thrown at us, housing officers laughing in our face because we’re a joke. If you go out to my community where we live, you will see what is right.
It is further the case, that the applicant’s distorted perceptions means that he told the Supreme Court that he had “just got out of hospital” on the day of the CTTT hearing when, in fact, he had been out of hospital for around ten days before the CTTT hearing commenced (Transcript page 19 line 43 to page 26 line 38). The CTTT proceedings were commenced to enable the respondent to take back the Property because the Applicant did not pay rent from the time he moved in on 6 August 2006.
Likewise in these proceedings and under cross examination the Applicant gave new evidence that he thought would assist him and or make his case more sympathetic, even when he was, at the same, time giving evidence which was logically contrary. An example of this is set out below.
Ms Edwards: Now, Mr Squires – just going back to that conversation of 17 July – Mr Squires asked you where your daughter went to school, didn’t he, during that conversation?
Mr Douglas: Yes.
Ms Edwards: And you didn’t tell him, did you?
Mr Douglas: That’s incorrect. No. We told him because she was with us. She had the emblem on her jacket when she was sitting next to us in the meeting.
Ms Edwards: She was with you on that day, was she?
Mr Douglas: Yes, because I – because in not being rude – is that we had to cut the meeting short, and we had to take - - -
Ms Edwards: Mr Douglas, you’re just saying that for the first time today, aren’t you?
Mr Douglas: Sorry?
Ms Edwards: You’re just saying that for the first time today?
Mr Douglas: I didn’t think that that little bit was important. My daughter was there.
Ms Edwards: Well, Mr Douglas, you’re giving that evidence today because it suits your case, doesn’t it?
Mr Douglas: No, it’s not. No. Because if you have a look at the paperwork, Mr Squires said that I interrupted the interview, I took off and I ran out the office, because I was late for picking up my daughter, because you know what they kept doing to me? They kept making appointments at 2.15 at Campbelltown office for me – no - - -
Ms Edwards: Mr Douglas, I’m not - - - ?
Mr Douglas: --- for me then to, your Honour, pick up my daughter at 3 o’clock at Macquarie Fields Public School, so the meetings couldn’t be completed or anything done properly, so they knew that I had to be at this school, with disabilities, at 3 o’clock, and they would make a 2.15-3.30 appointment.
Ms Edwards: So, Mr Douglas, which is it? Was your daughter there or did you have to leave early because they made the meeting at an inconvenient time?
Mr Douglas: My daughter was there at that one.
Ms Edwards: Right. What I’m saying to you is that’s evidence that you giving for the first time today, isn’t it?
Mr Douglas: Because I didn’t think it was relevant about my daughter being there.
Ms Edwards: Well, I asked you earlier whether Mr – you’ve read Mr Squires’s affidavit? And you said you had, didn’t you?
Mr Douglas: Yes.
Ms Edwards: And you know that it’s important for the court to determine what actually happened during these conversations, don’t you?
Mr Douglas: That’s correct, yes.
Ms Edwards: Yes. So, you understand that what happened and who was present is important information for the court, don’t you?
Mr Douglas: Well, you said it wasn’t earlier, because I said Allison Prole was there, and you said, “That doesn’t matter.”
Ms Edwards: Mr Douglas, I’m asking you to answer my questions?
Mr Douglas: Well, I just did. You got my answer. Because you said earlier on it didn’t matter, so why does it matter now? Sorry. That’s what she said. She did say – I said, “Allison Prole was in the meeting with us,” your Honour. She said, “That doesn’t matter.” Why does it matter now who was there now she said that. If she said to me, “That doesn’t matter,” why does it matter that her person was there, but not mine.
Ms Edwards: Mr Douglas, it’s not my role to tell you what matters or what doesn’t matter?
Mr Douglas: Sorry. Just – I’m answering the questions correctly.
Ms Edwards: There are no right or wrong answers, Mr Douglas. The court just needs your answers to my cross-examination?
Mr Douglas: Well, I gave it. There, you got my answer.
Ms Edwards: Well, my answer is, you understand that it’s important for the court to determine what happened during these conversations, don’t you?
Mr Douglas: Yes. I know that. Yes.
Ms Edwards: So, if Mr Squires says something different to what you say, and that’s something that could be met by “My daughter was present on the day,” and so he couldn’t possibly have asked that, and I couldn’t possibly have denied it, that’s a relevant matter, isn’t it?
Mr Douglas: Not really, because she is too young to understand fully what was going on, and even if – like, not being rude - - -
Ms Edwards: Mr Douglas, I’m not asking about your daughter?
Mr Douglas: See what I mean. Sorry, your Honour. She needs to learn with people with anxiety, when you overtalk someone like that, it affects you. She knows what she’s doing.
His Honour: Mr Douglas, you’re not listening to the questions, because when we’re talking about the other person at the meeting, there’s confusion about whether it was Ms Bailey or Ms – I forget the name.
Ms Edwards: Ms Olava.
His Honour: Ms Olava, that’s right. And at that stage, it was told that it wasn’t important. There was one female there. And you said it was Ms Bailey, so- - - ?
Mr Douglas: We were talking about the workers. If she would have said, “Who was all in the room,” I would have answered that question, but she said, “Were these workers there?” That’s why I answered her question that way. All right. She didn’t say, “Who was completely in the room?” We all know she didn’t say that. She said, “What workers were there?” And that’s why I answered it to that question.
His Honour: But the question that was put to you at that time was that Ms Olava or Ms Bailey and - - - ?
Mr Douglas: Yes.
His Honour: - - - and you disagreed it was not Ms Olava, there was Ms Bailey?
Mr Douglas: That’s correct, yes.
His Honour: And then you asked for this sheet of paper so you could say their names on the bottom, and she was – signed all the documents. She was in at all the meetings?
Mr Douglas: She was the one who dealt with …..
His Honour: So, that issue was completed?
Mr Douglas: All right.
His Honour: Is not put aside to say it’s not important in respect of other issues?
Mr Douglas: All right.
His Honour: It is to ask was your daughter there. Now, the first time that this has come up is now, in your evidence. It’s not in your affidavit. It has not been raised before - - - ?
Mr Douglas: Your Honour, can I explain why? Because I’m not trying to use my daughter as the tool in these proceedings or anything.
(Transcript page 51 line 22 to page 53 line 32).
In this context, the respondent’s evidence ought be preferred over the applicant’s evidence.
There is no evidence grounding a submission by the applicant that the alleged requirements were imposed by the respondent within the meaning of the DDA. Further, it is not as the applicant alleges in his submissions (dated 24 June 2011) that a requirement will be imposed where the applicant was required to live in the Property “in a practical sense”. With respect that misconstrues the proper interpretation of the term “requirement” in the DDA for the reasons set out below.
Mr Squires gave evidence to the effect that
“…the allocations team matches a tenant to a property. A property becomes available, the allocations team then goes down the waiting list, depending upon who is on the waiting list. And if the property has a ramp, for example, they go down the list until they find a person who needs a ramp, and then it’s allocated, if it’s suitable. And then the local team, where the property is located – so usually, if it was located in Macquarie Fields, whoever was the closest team – would then normally make the offer. And so in this case, I think that means that Mr Tomkins would have made the offer. But because of the particular circumstances of this case, Mr Squires was asked to offer the property, and even though he wasn’t from the local team.” (Transcript page 154 lines 14-22)
Firstly, and most importantly in relation to the first requirement alleged to be imposed (i.e. living at the Property) the respondent has no power to tell the applicant where to live. The respondent could and can only offer accommodation based on what its stocks of accommodation and resources to renovate them allow at any given point in time. Such offers do not amount to a requirement that those to whom the offers are made, accept those offers. The respondent cannot make any person live in accommodation it offers. The applicant did not have to accept the property due to any circumstances imposed on him by the respondent. The fact that the applicant had limited choices through his particular life circumstances does not mean the respondent imposed a requirement. It means the respondent’s offer was weighed against fewer options. Regardless the respondent did not create the applicant’s life circumstances and so cannot be said to have caused the limited choices.
In relation to the second requirement (i.e. maintenance), there is nothing in the applicant’s evidence that this requirement was in fact ever imposed on the applicant. There is no evidence that the applicant ever read the relevant policy (of which only the 2010 version is attached) or had it brought to his attention because he was not complying with it. Indeed, the reverse is true (see [47] of the Second Tomkins Affidavit). There is no mention of this requirement in his affidavit. Having said that it is clear that Mr Tomkins brought such a requirement to his attention, however it is equally clear that the requirement was never enforced ([47] of the Second Tomkins Affidavit).
Secondly, the requirement in relation to the Property as expressed by the applicant are not requirements within the meaning of the DDA as determined by the High Court in New South Wales v Amery (supra). In that case, the High Court had to determine whether the requirement to work full-time was a requirement within the meaning of the indirect discrimination provisions of the Sex Discrimination Act 1984 (Cth) (provisions are in similar terms to those the subject of this case). The circumstances of Amery (supra) were such that the applicant casual teachers were paid at a maximum of level 10 of the full-time pay scale, even though they had all worked as full-time teachers at levels above Level 10 (most being paid at the maximum level 14). Thus it was said that the requirement for full-time employment indirectly discriminated against women who bore the disproportionate burden of family responsibilities and worked part-time. The High Court was against this characterisation of full-time employment as being a requirement in the circumstances of the case. In Amery (supra) Justices Gummow, Hayne and Crennan JJ (in the majority with Callinan J) put at [78] – [82]:
78. The rights and obligations attaching to the two categories of teaching staff in the Education Teaching Service are so materially different that it would be an error to speak of the appointment of a person to "the position of teacher", where one of the terms and conditions of such appointment is that that person is required to undertake work either on a permanent or on a casual basis. Applying ss 24(1)(b) and 25(2)(a) of the AD Act to the circumstances of the respondents requires that consideration be given to the terms and conditions of their employment, not as teachers, but as casual teachers.
Employment as casual teachers
79. The immediate consequence of focusing upon the terms and conditions attendant upon the employment of the respondents as casual teachers is that the incongruity alluded to previously in these reasons becomes fatal to the respondents' case. It cannot be said to be a requirement or condition required to be complied with in the terms and conditions of employment as a casual teacher that, in order to obtain levels of pay corresponding with levels nine to 13 of the common incremental salary scale, the employee must cease to be a casual teacher.
80. Nor can it be said to be a requirement or condition, compliance with which is required in the terms on which one is offered employment as a casual teacher, that, in order to access those higher levels of pay, the employee must accept appointment as something other than a casual teacher. This last proposition is sufficient to deny any application to the situation of the respondents of s 25(1)(c), which proscribes discrimination on the ground of sex in the terms on which an employer offers another person employment.
81. The distinction between permanent and non-permanent teachers in the Education Teaching Service is a feature of the structure of the workforce employed in that Service. That structure was not adopted by decision or practice of the Department. It was imposed by the Teaching Services Act. The pay scales set by the Award and the practice, adopted by the Department, of not extending to its supply casual teaching staff over-award payments were an incident of the management of that structure.
82. Not every such incident may be described as being a requirement or condition, compliance with which is required either in the terms on which employment in the Education Teaching Service is offered or in the terms or conditions of employment afforded by the Department. For the reasons given above, the so-called requirement of permanence which the respondents sought to impugn was not such a requirement or condition within the meaning of the AD Act. The Tribunal's decision was thus infected by an error of law and should not have been reinstated to any degree by orders of the Court of Appeal. For that reason, the appeal should be allowed.
(Emphasis added.)
This case is the same in that any requirements imposed are part of an elaborate statutory regime, which governs how public housing is managed and allocated to clients such as the applicant including the Housing Act 2001 including the predecessor Housing Act 1912 (NSW), Housing Act 1976 (NSW), Housing Act 1985 (NSW) and the Residential Tenancies Act 1987.
Public Housing is long-term, affordable housing for people living in NSW on low incomes who are unable to rent privately. The properties are managed by Housing NSW through the New South Wales Land & Housing Corporation (the “Corporation”), a statutory body representing the Crown established under section 6 of the Housing Act 2001. The objects of the Housing Act 2001 are set out in section 5 as follows.
5 Objects of Act
(cf Act No 163, 1985, s 4, Act No 15, 1993, s 4)
(1) The objects of this Act are as follows:
(a) to maximise the opportunities for all people in New South Wales to have access to secure, appropriate and affordable housing,
(b) to ensure that housing opportunities and assistance are available to all sections of the community with housing needs,
(c) to ensure that public housing is developed as a viable and diversified form of housing choice,
(d) to ensure that public housing and community housing reflects the housing standards of the general community and is designed to cater for the ongoing needs of consumers,
(e) to maximise the opportunities for tenants of public and community housing programs to participate in the management of their housing and in the development of public and community housing policies,
(f) to ensure that the public housing system focuses on housing people who are most in need,
(f1) to ensure that the available supply of public housing is shared equitably among people who are most in need,
(g) to promote equity between levels of assistance provided to people living in public housing, community housing, private rental housing and those who own or are purchasing their homes,
(h) to maintain an efficient housing administration to ensure the effective co-ordination and provision of all housing services,
(i) to encourage social mix and the integration of different housing forms in existing and new communities,
(j) to ensure that registered community housing is developed as a viable and diversified component of the New South Wales social housing sector,
(k) to support the provision of registered community housing for people on a very low, low or moderate income,
(l)to facilitate the provision of assistance to home purchasers on low to moderate incomes,
(m) to provide for the management of such existing and future home purchase assistance schemes (including the portfolio of loans under HomeFund schemes) as the Minister directs,
(n) to provide for the funding of such other rental and home purchase assistance schemes as the Minister directs,
(o) to encourage the development of flexible and innovative financial arrangements to facilitate access to home ownership for persons in receipt of low and moderate incomes,
(p) to ensure appropriate mechanisms and forums are established to allow input into housing policy by representative community organisations and non-government agencies involved in housing policy and provision,
(q)to attract investment in public housing, including related activities such as tenant employment and the provision of integrated services,
(r) to enable the provision under this Act of corporate, technical and information technology services, in or outside New South Wales, to government and non-government agencies.
(2) In the administration of this Act, regard is to be had to the objects of this Act to the maximum extent possible taking into consideration the needs of the State and available resources, and subject to any directions of the Minister.
(Emphasis added).
In this context, Housing NSW provides subsidized housing for approximately 117,000 people who meet the relevant criteria. About half that number has some form of disability: [7] of the First Tomkins Affidavit. Commonwealth funding is also provided to Housing as part of NRAS (“National Rental Affordability Scheme”). As part of its work, Housing NSW enters into written residential tenancy agreements with each tenant at the beginning of their tenancy. Housing NSW offers residential tenancy agreements of different lengths depending on the circumstances of the client, the general policy applying at the time they are offered housing and any specific conditions that may be attached to the particular offer of housing. Rental rebates are also available to tenants pursuant to the powers contained in the Housing Act 2001 ss.54-58.
When Housing NSW signs a client to a residential tenancy agreement it does this in accordance with the requirements of the Residential Tenancies Act 1987. Those requirements include the requirement for tenants to reside in the property allocated to them. As such they are not requirements imposed by the respondent but by legislation and are fundamental to the nature of public housing. As such they cannot be seen as a condition of requirement imposed by the respondent for the reasons already described above as in Howe v Qantas Airways Ltd [2004] FMCA 242 at [231] – [232] per Driver FM it was held that the requirement or condition must be something separate from the nature of the job itself.
No part of this regime required the applicant to accept the accommodation offered to him. He was free to refuse it and to apply for alternative residential tenancies. Indeed, it was his evidence before the CTTT that Housing NSW was charging more than the market rates (see Transcript at page 31 line 37 to page 32 line 3), although he later resiled from that evidence (see Transcript page 32 lines 10 to 20).
Also in the majority in Amery (supra), Justice Callinan at [205] – [208] put the way in which a requirement may properly be identified slightly differently:
205. Unlike the Chief Justice I would not accept the respondents' case on the requirement issue. I agree with Gummow, Hayne and Crennan JJ that the appellant did not require the respondents to "comply with a requirement or condition" to obtain appointment to a permanent position with the appellant's Education Department. I agree generally with the reasons of their Honours in reaching this conclusion.
206. There is this also. Their Honours make the point that:
There is an element of incongruity in describing as a requirement or condition, compliance with which is required in the terms and conditions of employment as a casual teacher, a requirement that in order to access higher limits of salary, one must cease to be a casual teacher and obtain permanent appointment.
(Original emphasis)
207. I quite agree. It is an incongruity which stems from the respondents' formulation of the requirement or condition, which in my opinion distorts the true factual position. The appellant relevantly required nothing of the respondents. It was the respondents who stipulated a condition, or, to put it another way, sought to impose a condition in respect of their employment, that their employment as teachers be confined to particular locations. It was from that, their stipulation, and no condition imposed by the appellant, that the differential in remuneration flowed.
208. The Tribunal and the courts are not bound by an applicant's formulation of a condition or a requirement. It is their duty to ascertain the actual position, including whether an (alleged) perpetrator has truly sought to impose, or permits indirectly, the imposition of a requirement or a condition which is discriminatory, and not reasonable within the meaning of the Act.”
(Emphasis added).
This is just such a case. It was the applicant who imposed conditions on his accommodation (as discussed further below): the main being that it be located one of three suburbs, one of which was Macquarie Fields (see Exhibit R1). That requirement imposed by the applicant limited the choice of available accommodation the respondent could offer at the relevant time. There is no evidence that there was ever any more favourable accommodation in Macquarie Fields (or Glenfield or Ingleburn being the other two suburbs) at the relevant time. This property was the only property, which was in the required area, available and providing (in the respondent’s assessments) the best fit for the Applicant’s needs as at July 2006.
With respect the applicant’s case was not that the respondent required him to live in the Property, it was that the property did not meet his requirements which were unrelated to his disability:
a)It was not close enough to his daughter’s school (Transcript page 80 lines 1 – 5);
b)It was not close enough to doctors (Transcript page 80 lines 1 – 5);
c)It was not close enough to the shops (Transcript page 80 lines 1 – 5);
d)He did not want to accept responsibility for earlier debts as a condition of accepting the Property (Transcript page 80 lines 19 – 21);
e)He did not want to have to maintain the property (Transcript page 80 lines 35 – 39);
f)The property was “putrid” (Transcript page 81 lines 21 – 31);
g)He did not have a stove when he moved in (Transcript page 91 lines 35 – 39); and
h)There was white ant damage (Transcript page 81 lines 35 – 39).
The respondent cannot be liable for not being able to provide accommodation that is appropriate and adapted for every person with a disability. The Respondent does the best it can do with the resources it has (see [31] to [46] of the Second Tomkins Affidavit). In this case, this has meant making substantial additions and alterations to the Property to better suit the Applicant’s needs (see [7] to [17] of the First Tomkins Affidavit and paragraphs [36] to [40] of the Second Tomkins Affidavit).
In relation to the issue of having to maintain the property, this has no inherent connection with the applicant and his disability. There is a significant and important difference between being responsible for maintenance and being required to personally carry out maintenance. Agreements with the respondent require that the person signing a lease is responsible for maintenance, rather than do the maintenance themselves. In this way it cannot be said to be a requirement imposed personally on the applicant by the respondent with which he could not comply due to his disabilities. Further, it was the Applicant’s own evidence that he did comply with this responsibility, to some extent, as he had his mother do mowing for him (Transcript page 87 lines 9-12).
In relation to the issue of white ant damage it is clear that the applicant considered the house unsuitable from the start even though he agreed that this was not a matter about which he was immediately aware and that it was not apparent at the time of moving in (Transcript page 82 lines 16 – 22).
Housing NSW did not impose any requirement for the applicant to live at the Property or to maintain it. The only organisation that may be said to have imposed a condition or requirement on the Applicant with respect to accommodation was the Department of Community Services (“DoCS”), who, according to the Applicant, required him to have accommodation in order to properly look after his daughter (Transcript page 13 lines 2 – 4 and page 27 line 42 to page 28 line 46).
Ms Edwards made further submissions in respect of the operation of s.6 of the DDA dealing with the requirements that need to be satisfied in order for a plaintiff to succeed. I agree with those submissions and have incorporated them below.
Consideration
The applicant in these proceedings claims that he is seriously aggrieved by his treatment by Housing NSW. The evidence reveals a deeply acrimonious situation has developed between the parties with various litigation being pursued as is briefly referred to below. At the first Court date it was immediately apparent from the applicant’s pleadings and his oral submissions that he had no comprehension of how to prosecute his claim in this complex and rigidly structured piece of legislation. Even allowing for the legislative concession provided the DDA this was not going to assist the applicant. It was clearly apparent that the applicant believed he was seriously aggrieved but this was not articulated in any of the documentation filed and his oral submissions were limited to claims that his life had been ruined.
The general principle expressed in s.46PO(3) of the Australia Human Rights Commission Act 1986 (Cth) is that:
The unlawful discrimination alleged in the Application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the termination complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
On initial assessment the basic handwritten application and supporting affidavit lodged by the applicant does not appear to satisfy this requirement, however, we have a person on his own admission that has no comprehension of the legislation that he is attempting to pursue, together with an apparent lack of educational background and basic linguistic skills. It is immediately apparent that Mr Douglas believes that the events have resulted in him being severely disadvantaged and injured. I believe his claims should at be least clearly articulated.
I also note the comments made by his Honour Tracey J in Walker v State of Victoria [2011] FCA 258 in that it is essential that pleadings in indirect discrimination cases are carefully and precisely formulated setting out the requirements or conditions alleged to have been imposed. Similarly, submissions in indirect discrimination cases need to be comprehensive and detailed.
At this stage I indicated that it would be inappropriate for the applicant to attempt to proceed with his claim without legal assistance and referred the matter to the Court Registrar to seek pro bono assistance for the applicant. The Court would like to formally thank Mr R. Turner of Turner Coulson Immigration Lawyers for agreeing to assist the applicant in these proceedings.
On 31 July 2009 Mr Turner first appeared for the applicant, and a timetable was established for the carriage of this matter. A formal Notice of Change of Solicitor was filed by Mr Turner on 4 August 2009.
At a subsequent directions hearing it was agreed that the matter should be mediated. This was scheduled for 1 March 2010. The Court was advised by correspondence from Mr Turner that significant steps were taken to settle the matter which involved making Mr Douglas’ house suitable for his particular circumstances. However, the process was taking longer to complete than anticipated and both parties requested that the proceedings be adjourned for 2 months to allow this process to be completed. A number of directions hearings were adjourned by consent in an attempt to allow negotiations between the parties to be finalised. By October 2010 it was apparent that a settlement could not be achieved and a timetable for final hearing was established with a 3 day hearing scheduled to take place from 7 February 2011 to 9 February 2011.
On 7 February 2011 an Application in a Case was filed seeking summary dismissal of the proceedings on the basis that the Court had no jurisdiction to hear and determine the allegations of indirect discrimination under s.6 of the DDA. This application was heard on
7 and 8 February 2011 with a decision dismissing the summary dismissal application being handed down on 22 February 2011 (Department of Land and Housing v Douglas (supra)).
The applicant has brought a claim of indirect discrimination against the respondent in relation accommodation provided to him by the Housing NSW, being the Property, located at 9 Melliodora Way Macquarie Fields. The applicant’s claim is one of indirect discrimination on the ground of disability. The first submissions (Exhibit A2) show that the applicant identifies the conditions or requirements said to be imposed by the respondent and giving rise to the discrimination as being:
a)Requiring the applicant to reside at the Property; and
b)Requiring the applicant to clean and maintain the property “to a reasonable standard, including the gardens and ensure that no damage is done by you your household members or visitors”.
In relation to the first requirement, it is important to note that this may only be judged at the time it was offered and accepted by the applicant from about 13 July 2006 (when Mr Squires offered the Property to the applicant – as per [7] and Annexure K of Mr Squires Affidavit) to 7 August 2006 (as per [8] of the First Tomkins Affidavit) when the Applicant commenced his tenancy and from which time he declined to pay rent (as per [9] of the First Tomkins Affidavit).
In broad terms the respondent says the applicant cannot make out his case because:
a)There was no requirement to live at the Property imposed by the Respondent on the Applicant; and
b)In relation to the requirement to maintain the property to a reasonable standard:
i)Such a requirement was not imposed; or
ii)If it was imposed, the applicant was able to carry it out (albeit through other people such as his mother – see Transcript page 87 lines 9 -12), that is, the applicant in fact complied with the condition on his own evidence; and/or
iii)No detrimental action was ever taken in relation to the applicant in relation to this requirement.
The material before the Court indicates that the relationship between the applicant and Housing NSW was far from being normal, and reflected considerable tension between the parties. For example:
a)The files retained by Housing NSW were voluminous, being in the nature of six lever arch folders, each being approximately 25 – 30 mm in thickness (Transcript 153 lines 20 – 40). Evidence was given by Mr Tomkins that they were too voluminous to review in their entirety in order to obtain a profile of the applicant’s requirements prior to the selection and allocation of a property;
b)The Second Tomkins Affidavit indicated that between August 2006 and about September 2008 he was the officer who was appointed to liaise directly with the applicant regarding the applicant’s tenancy. Mr Tomkins pointed out that it was not the usual practice for an individual tenant to have a dedicated staff member to be the responsible contact point for a tenant, however, in the case of the applicant it was considered necessary to appoint a central contact person to deal with issues relating to his tenancy ([3] and [4]);
c)The Second Tomkins Affidavit contains a chronology of the initial disputes between Mr Douglas and Housing NSW:
8. From the commencement of Mr Douglas’s tenancy in 2006 he refused to pay rent, despite being under an obligation under the Residential tenancy agreement to do so. At no time was there an agreement with Mr Douglas or anyone else that he not pay rent. All tenants of Housing NSW are under an obligation to pay rent.
9. As a result of the constant arrears, Mr Douglas was issued with a formal notice of termination. This is the usual course for any and all tenant[s] who have fallen into arrears and [have] refused to pay rent.
10. Mr Douglas continued to refuse to pay rent so on or about 26 September 2006 an application was made to the Consumer Trader and Tenancy Tribunal (CTTT) for an order terminating the tenancy. Annexed to this affidavit and marked “B” is [a] copy of the CTTT application.
11. There was a series of hearings at the CTTT, including a full hearing on 1 February 2007. Annexed to this affidavit and marked “C” is a transcript of the CTTT hearing of 1 February 2007.
12. Housing NSW was granted termination of the tenancy on 1 February 2007, possession to be given on 1 March 2007. Annexed to this affidavit and marked “D” [is] a copy of the CTTT orders of 1 February 2007.
13. Mr Douglas appealed the decision of the CTTT to the Supreme Court on 23 February 2007. Annexed to this affidavit and marked “E” is the originating summons in the Supreme Court of NSW.
14. The issue of the CTTT’s decision was before the Supreme Court and the Court of Appeal between February 2007 and 28 December 2008.
15. Annexed to this affidavit and marked “F” is the judgment of Justice Harrison dated 12 July 2007.
16. Annexed to this affidavit and marked “G” is the judgment of Associate Justice Malpass dated 4 June 2008.
17. Annexed to this affidavit and marked “H” is the transcript of the matter before Rothman J dated 4 June 2008.
18. Annexed to this affidavit and marked “I” is the judgment of the Court of Appeal dated 10 November 2008.
19. Following the Court of Appeal judgment, Mr Douglas filed an originating summons in the District Court of New South Wales on 22 December 2008, again challenging the decision of the CTTT of 1 February 2007. Annexed to this affidavit and marked “J” is the summons in the District Court matter.
20. On 25 February 2009 the District Court matter was settled by consent. The orders of the CTTT were set aside and Housing NSW agreed to discontinue pursuing the termination and allow Mr Douglas to remain at the premises. This was conditional on his agreement to make up the rent arrears. Annexed to this affidavit and marked “K” is a copy of the draft settlement/orders.
21. Given that Housing NSW was pursuing the termination of the residential tenancy agreement for Mr Douglas’s continual failure to pay the rent, any application for transfer or modification to the property were refused. This is the approach that is and would be taken with any person in a similar situation in public housing regardless of whether they did or did not have a disability. Also, Mr Douglas’s transfer application did not meet the eligibility criteria required for the transfer to be approved.
; and
d)Mr Turner’s first affidavit contains a number of briefing notes (p 5 – 6, 43 – 63) file notes and correspondence that detail the long and difficult relationship between the applicant and Housing NSW concerning the different tenancies held over a number of years prior to the chain of events that led to the current disagreement;
Clearly there was also a distinct void between available housing stock that was under the control of Housing NSW and the expectations of the applicant. Mr Squires, in his affidavit at [7], describes the initiation of the process to find accommodation for Mr Douglas:
7. As at in or about June 2006, Mr Douglas was a party to a private rental lease agreement. The respondent was subsidising Mr Douglas in respect of payments made by him under the agreement. The Department of Housing agreed to assist in paying the arrears Mr Douglas had accumulated in the private residence. When it became that Mr Douglas was about to be evicted from the private accommodation, the respondent commenced searching for accommodation in the form of a head lease arrangement for Mr Douglas. Once the eviction took place Mr Douglas was housed in a motel paid for by Housing NSW while suitable accommodation for Mr Douglas was pursued.
In the First Tomkins Affidavit at [43], Mr Tomkins indicated that when the applicant became a tenant, the Macquarie Fields office was responsible for some 1500 tenancies. Further, Housing NSW as at December 2010 provided accommodation for about 117,000 people of whom over half have some form of disability.
The number of properties requiring modification to house people with disabilities is addressed in the Second Tomkins Affidavit at [45] and [46]:
45. In relation to spending on new houses, Housing NSW spends on modified houses for people with disabilities on our new supply program, on average 5-10% of the annual budget may be used for disabilities under our General and Crisis programs. Total annual supply programs approx $250m so the amount on newly supplied houses with modifications is approximately $15-20m of the $250m.
46. In terms of how many people with disabilities we service, I understand that just over a third (34 percent) of the public housing households within the jurisdiction of Housing NSW included a member with a significant disability in June 2009. As of the 2008/2009 financial year, public housing household tenancies were numbers at 122,884. (source: Housing NSW Disability Action Plan 2009-2013: Summary and Housing NSW Annual Report 08/09). Annexed and marked “S” is the “Housing NSW Disability Action Plan 2009-2013”: Summary. Annexed and marked “T” is an extract from Housing NSW Annual Report 08/09.
Mr Squires’ Affidavit records the identification of a house for the applicant as:
17. On or about 13 July 2006, a four bedroom property at 9 Melliodora Way, Macquarie Fields was identified as suitable for Mr Douglas. The property had a very large shower access including grab rails suitable for Mr Douglas’ use. There is a ramp at the rear of the house…
On the information available to the Court it appears that this property was a single storey brick veneer cottage, built on brick peers with standard floor joints and bearers, with a tongue and groove timber floor of conventional construction. The applicant, in his evidence, indicated that he believed that this construction was inappropriate for his use and that he required a building on the ground. I presume that this reference is to a concrete slab construction poured directly on the ground with no sub-floor.
At an earlier stage, the applicant raised concerns about the flexing of the floor structure within the kitchen (Transcript p.132, line 30 – 40). When he moved in the house he claimed the condition of the property was appalling as there was no stove, the garden was not on a single level, and the gardens were a mess (Affidavit of Wayne Douglas at [4]). The building lacked security screens on both entrance doors and windows.
In respect of the first issue (see [75(a)] above) the applicant has been reliant on public housing for a considerable period. As set out in the Background (at [2] above) the applicant contacted Housing NSW in 2006 to obtain assistance for rental arrears in relation to privately rented accommodation he had at Albion Park Rail where he was facing eviction. When this did occur Housing NSW moved the applicant to a motel paid for by Housing NSW while suitable accommodation was being pursued in order to cater for the applicant’s physical condition and his need to be close to his daughter’s school.
There were a number of specific requirements of any particular house chosen for the applicant. The applicant requested that the house be located in Ingleburn, Glenfield or Macquarie Fields. The property was to be single storey with level access for his motorized wheelchair. Internally, the building needed to have a minimum of four bedrooms and to be modified to provide for the applicant’s special needs due to his morbid obesity and other medical needs. Within Housing NSW’s limited stock the Property at 9 Melliodora Way, Macquarie Fields was identified as available to be offered for occupancy by the applicant.
Mr Squires, the senior Client Service Officer with Housing NSW who was based at the Campbelltown Office during 2006 sets out in his affidavit the circumstances surrounding the identification of the Property at:
17. On or about 13 July 2006, a four bedroom property at 9 Melliodora Way Macquarie Fields was identifies as suitable for Mr Douglas. The property had a very large shower recess including grab rails suitable for Mr Douglas’s use. There is a ramp at the rear of the house. Annexed to this affidavit and marked “L” are photographs of the property taken prior to Mr Douglas’s signing of the lease. Also annexed to this Affidavit and marked “m” is the “Allocations Property Elements” Report.
18. On or about 13 July 2006 at approximately 9:00am I had a telephone conversation with Mr Douglas in words to the following effect:
Squires: “I have found a property for you at 9 Melliodora Way Macquarie Fields.”\
Douglas: “That’s where they burn houses. My daughter will be in danger. I don’t want the offer.”
Squires: “But you requested a house in this area and this property is good for your needs.”
Douglas: “I will come and get the keys and look at it.”
19. At approximately 1.40pm on the same day I called the Macquarie Fields office and was told that Mr Douglas had not attended the office to collect the keys. Annexed to this affidavit and marked “N” is a record of the conversation with Mr Douglas and the Macquarie Fields office.
20. On or about 17 July 2006, Mr Douglas attended the Campbelltown Office of Housing NSW with his carer, Mr Skeates. Also in attendance was Kim Oliver a Client Service Officer and we had a conversation in words to the following effect,
Douglas: “I will not accept the offer in Macquarie Fields because I have given information to the police and my life will be in danger.”
Squires: “When did this occur? Three months ago? Two months? Can you give us the event numbers or details of these matters?”
Mr Douglas did not provide direct answers in relation to provide a direct response. The conversation included:
Squires: “I understood that you requested the property in Macquarie Fields to access support from his grandmother and to access his daughter.”
Douglas: “No, that’s not true.”
Squires: “Where does your daughter go to school?”
Douglas: “It’s on the file. I’m not going to change my daughter’s school because of the Department of Housing.”
Squires: “Where does your daughter go to school?”
Douglas: “My daughter goes to school at Macquarie Fields and I need to be near her.”
Squires: “We may be able to expand our area of search to include areas to include neighbouring suburbs to provide safety for him while permitting access to his daughter and mother.”
Douglas: “I might accept the property on the condition that front and rear security doors are fitted and security screen on all the windows. The house is in bad condition and I want an officer of housing to come with us with a video to record his concerns.
Squires: “This property will be offered to you but you must acknowledge your previous debts of two thousand, five hundred and thirty dollars and seventy nine cents in maintenance charges and one hundred and seventy four dollars and thirteen cents in rent you owe from your last least with the department of Housing at 17 Corkwood Park Albion Park rail and make immediate steps to commence payments. We are prepared to accept thirty dollars per fortnight.”
Douglas: “I can’t afford that.”
After some discussion with Mr Skeates [Mr Douglas’ carer at the time] I did not hear, Mr Douglas said words to the following effect:
Douglas: “I’ll take the property, I can’t move in for at least one week. I have furniture in storage and could not afford to move in and have expenses related to moving. The Department of Housing must pay for a motel for them for another week.”
Squires: “Will you accept responsibility for the previous debt and enter into an agreement to repay those debts?”
Douglas: “I won’t accept responsibility for those debts.”
Squires: “Because you won’t accept responsibility for the previous debts we must withdraw the offer of the four bedroom house. You have rights of appeal of this decision. We will authorize two more nights at the motel.”
Douglas: “I will go and see my local state member.”
21. As Mr Douglas had refused to accept responsibility for the debts, the offer of the four bedroom property at 9 Melliodora Way was formally withdrawn and Mr Douglas was advised of his rights of appeal and provided with a Reviewing Decisions Form and a Fact Sheet entitled “Applying for Public Housing when you are a former tenant”. Annexed to this affidavit and marked “O”.
22. Shortly after Mr Douglas left the office I had telephone conversations with a person I only know as “Denise” at Graham West’s Office. Mr West is the State Member for Campbelltown. I had conversations with Denise in words to the following effect,
Denise: “Mr Douglas has been to our offices.”
Squires: “Wayne has been offered a property but he must make arrangements to pay the outstanding debt for his former tenancy.”
Denise: “Wayne has said he is going to the media.”
23. I also received a call from a person called “Sandy” from the Department of Community Services (DoCS). I had conversations with her in words to the following effect:
Sandy: “Mr Douglas and Gerard Skeates are at my office..”
Squires: “Wayne has been offered a property but he must make arrangements to pay the outstanding debt for his former tenancy. We can pay for 2 more nights accommodation.”
24. At approximately 4:00pm that same day, Mr Douglas came into the office and we had a further conversation in words to the effect:
Douglas: “I will accept the responsibility and pay the arrears debt to get the property but watch out when I get there.”
25. At approximately 4.15 on that same day I received another call from “Sandy” at the DoCS who said words to the effect:
Sandy: “If you offer the property to Wayne DoCS will pay storage and removal expenses if provided with quotes from Mr Douglas.”
26. I then approved funds allowing Mr Douglas to spend three more nights assistance to stay at the motel and called him and we had a conversation in words to the following effect,
Squires: “Please come into the office on 18 July 2006 to discuss the property further.”
Douglas: “OK.”
Annexed to this paragraph and marked “P” is a record of the matters raised in paragraphs 16-26 of this affidavit.
In cross-examination Mr Squires addressed the problems being experienced by Housing NSW in finding properties for the applicant:
Turner: Was it your first task to find him a suitable property?
Squires: …[A]t that particular time he had come to the office, he was facing eviction, and it was the job of access and demand, of which I was a member, to source head lease properties for people where we were having difficulty finding one of our own properties, but we would …try and source head lease properties. So that’s where I came into it asking staff to look for a suitable property for him in the area he designated.
Turner: Yes. And you were aware at that time, were you, of his personal circumstances and physical disabilities?
Squires: I was aware of his – his stature, certainly, because he made a point of it at our first interview. The first two properties that we sourced in the private market, one was quite dilapidated and the other, the shower recess I realised when I looked at it, was quite small and he wouldn’t have fitted in, and that was the reason we rejected that for him.
Turner: Then were there other properties?
Squires: No it was … a very tight housing market. There were not many properties available in the area that he had chosen to live.
Mr Squires under cross-examination gave details of the offer made to the applicant:
Turner: And can I take you to paragraph 33 of your affidavit, where you say:
“Mr Douglas was offered the only property which could be located that fitted his needs and geographical area”
Squires: That’s right.
Turner: So there was only one property?
Squires: At that stage, we had been unable to locate any private property, and that was the only property we could find. It was actually one of ours that became available.
Turner: And you told him that that was the only property available to him?
Squires: Look, I don’t remember my specific words, but I would think so, yes. I mean, he was unaware of all our attempts over several days to find him a property, so yes.
Although a property had been identified for the applicant there was a problem with the outstanding debt on the previous Albion Park Rail property which the applicant initially refused to acknowledge or repay. This debt did not prevent Housing NSW from attempting to source a property for him, but it was a policy requirement that before a new property could be offered, the previous debt had to be acknowledged and a repayment plan entered into.
The applicant did visit both Graham West his locate State member and DoCS, but finally he returned to Housing NSW and agreed to accept responsibility and arrange a payment plan to repay his debt on the previous rental property in order to be eligible to sign the lease at the Property. This was recorded at [24] of the Squires Affidavit:
24. At approximately 4:00pm that same day, Mr Douglas came into the office and we had a further conversation in words to the effect:
Douglas: “I will accept the responsibility and pay the arrears debt to get the property but watch out when I get there.”
On the information before the Court Housing NSW had undertaken a search to locate a suitable property for the applicant in the geographic location he requested and suitably modified to meet the needs of his physical disabilities. These actions are consistent with the objective of the Housing Act 2001 (see [56] above) which is to provide long-term affordable housing for people living in NSW on low incomes who are unable to rent property. The primary objective is to maximise the opportunities for all people to have access to secure, appropriate and affordable housing.
Significantly, the Housing Act 2001 does not provide Housing NSW with any power to tell anyone where to live or impose on anyone a requirement to occupy a particular property. Housing NSW can only offer accommodation based on what it holds as its own housing stock or alternatively what it can source on the open market and hold as a head lease. Most importantly the applicant or any other citizen does not have to accept a property offered by Housing NSW. The fact that the applicant had limited choices through his particular life circumstances does not mean that Housing NSW imposed a requirement on Mr Douglas. Nor did Housing NSW create the applicant’s life circumstances that caused him to have limited choices.
In the Housing Act under “Objects of the Act” clause 5(f) states:
[T]o ensure that public housing system focuses on housing people most in need.
This appears to have applied in the applicant’s case as he has been given priority in respect to his special needs and circumstances. The evidence of Mr Squires points to this in cross-examination. There are waiting lists for public housing, in some cases up to two years in the Campbelltown area (Transcript page 142 lines 2 – 10), however, in the applicant’s case, on eviction from the property at Albion Park Rail he was immediately transferred to motel accommodation paid for by Housing NSW while the search for alternate accommodation took place. This may have led to the applicant building up an expectation that was unrealistic in that his requirement would be immediately met.
I agree with the written submission of Ms Edwards that Housing NSW enters into a written residential tenancy agreement with each tenant at the beginning of their tenancy. These agreements may differ in length depending on the individual circumstances of the client. The general policy is that any specific conditions in respect of a particular tenancy are attached to the offer. When Housing NSW signs a client to a residential tenancy agreement it does this in accordance with the requirements of the Residential Tenancies Act 1987. Those requirements include the requirement for tenants to reside in the property allocated to them. Consequently, these are not requirement imposed by Housing NSW but by statutory legislation and are fundamental to the nature of public housing. None of this should be unfamiliar to the applicant as he had been a client of public housing on at least three previous occasions.
I acknowledge and agree with the authorities of Howe v Qantas Airways Ltd (supra) and New South Wales v Amery (supra) referred to by Ms Edwards at [58] above. It was the applicant who imposed conditions on his accommodation primarily that he be located in one of three suburbs, one of which was Macquarie Fields (Exhibit R1). That requirement limited the choice of available properties that could be offered at the relevant time. There is no evidence that there was more favourable accommodation in Glenfield, Ingleburn or Macquarie Fields at the relevant time. I also accept Ms Edwards’ submission at [64] above that despite the requirements of the property having to be suitable for his disability and medical requirements Mr Douglas found eight other reasons that the Property did not meet his requirements. Housing NSW cannot be liable for not being able to provide, at short notice, accommodation that is appropriate and adapted for every person living with a disability.
I am satisfied that the provision of public housing is on a normal contractual relationship based on offer and acceptance. Despite the life circumstances that the applicant found himself in, Housing NSW had no power to require him to occupy a particular property. Consequently, the first issue cannot be sustained and must be dismissed.
The second issue advanced on behalf of the applicant is the requirement to maintain the property to a reasonable standard. Importantly the applicant was to take responsibility for (as opposed to personally carry out) maintenance. On the material available to the court this is what happened in many instances with both Mr Skeates (his carer) and his mother undertaking a range of maintenance tasks. Most significant is the evidence of Mr Tomkins (Second Tomkins Affidavit at [47]) which was unshaken by cross-examination, no evidence that any action was ever taken against the applicant in relation to maintenance issues. Mr Tomkins’ evidence in cross-examination was that during the signing of the lease the applicant was given a booklet setting out a tenant’s obligations in general terms (similar to MFI 2). Those responsibilities included paying the rent on time, looking after the property, and maintaining the property in a clean and tidy fashion.
I note the written submissions made by Mr Turner in respect of the issue of maintenance (see [19] – [23] above) which records the evidence that Mr Ken Carnegie, the team leader of the Housing Department in Macquarie Fields, indicated to the applicant he needed to have the lawns mowed in order to maintain the premises to a standard required by the lease arrangements. The applicant indicated that he had to rely on his mother, who was 60 years old and had had a knee replacement, to perform the task. This is something that the applicant elected to do because of his own life circumstances but it does not suggest that any action was taken against Mr Douglas for not attending to this task, nor was he required to carry it out personally.
Mr Turner, in his submissions in reply, revisits the issue of maintenance of the property, particularly the lawns being mowed (see [35] – [37] above). The “Tenant’s rights and responsibilities fact sheet” (issued in May 2010 but in similar form to earlier publications) states the following requirement of the tenant:
· You clean and maintain your property to a reasonable standard including gardens, and ensure that no damage is done (by you, your household members or visitors).
As the applicant had been a previous tenant in other Housing NSW properties for which they held a head lease and given that Mr Tomkins indicated that he supplied a fact sheet of this nature during the signing of the lease, it is difficult for the applicant to maintain a claim that he was unaware of the requirement to maintain the property during his tenancy, to the extent that his expectations were different to the Department’s requirements or that lawn mowing was a service supplied by Housing NSW. I am not satisfied that this issue of maintenance of the garden can be separated from all other requirements as a stand alone issue.
In order to prove breach of pre-amendment s.6 of the DDA (and in addition to the above submissions as to what can and cannot be considered a requirement under the DDA) the applicant must prove:
a)A substantially higher proportion of persons without his disability comply or are able to comply with the requirements; and
b)The requirements were is not reasonable having regard to the circumstances of the case; and
c)The applicant does not or is not able to comply with the requirement.
In addition, the applicant must prove he has suffered a detriment within the meaning of s.25(2)(c). There is no dispute the respondent was providing accommodation to the applicant within the meaning of this section. There is a dispute as to whether the applicant in fact suffered a detriment.
Technically, the question of breach of s.25 of the DDA comes first. This means that if there is no detriment, there need be no further inquiry as to whether the treatment leading to the detriment satisfies the definitions of discrimination.
There is no evidence that the requirement had a detrimental effect on the applicant within the meaning of s.25(2)(c). Indeed, the reverse is true. The Property was in the same suburb as his daughter’s school. The Property was allocated on the basis of it being in one of three suburbs nominated by the applicant. It had a modified ramp at the back of the house and bathroom with a hobless shower and grab rails (Mr Squires’ Affidavit at [17]). The applicant was not required to climb stairs. This evidence is not in dispute. Although the applicant says a house on one level required it to be built on the ground, there was no evidence supporting such an assertion and it is contrary to logic. Importantly, in relation to the requirement to reside at the relevant premises, the applicant has taken every possible step to stay at the premises, indicating that it was not a detriment but a matter of significant value to him to stay at the Property.
It is also important to note that there was no evidence from the applicant that the house provided to the applicant was unsuitable to his needs (see in particular the discussion in Transcript at page 87 line 21 to page 90 line 26). There can be no detriment in the absence of this evidence. Finally, it was the evidence of Mr Tomkins (Second Tomkins Affidavit at [47]) unshaken under cross-examination that no action was ever taken against the applicant in relation to maintenance issues. In the absence of detriment being suffered through the provision of accommodation within the meaning of s.25(2)(c), there need be no further inquiry into whether discrimination occurred.
The applicant has made no submissions, did not cross-examine on, nor did he put on any evidence whatsoever about matters going to the issue that a substantially higher proportion of person without a disability comply. There was no evidence that the applicant could not comply with the requirement, indeed, as at the date he was offered the Property he had no need of a motorised scooter, that was a later development and as such is irrelevant to the determination of this matter. Put another way, the respondent cannot have breached the DDA unless the applicant suffered a disadvantage, or detriment (if there was one, which the respondent says there is not). As a matter of statutory construction, each of these three limbs must be made out in order for the applicant to be successful in these proceedings.
It is necessary for the applicant who bears the burden of proof to set out each of the relevant limbs of the test for discrimination and then show how the evidence might satisfy that test. The applicant in this case has not discharged that onus and certainly not in relation to this part of the test. This is similar to the situation in Ali-Hossaini & Anor v NSW Land and Housing Corporation [2010] FMCA 644 in which Driver FM dismissed a claim of disability discrimination because they did not address each key limb of the legislation, they simply listed their own concerns. His Honour states at [13]
Mr and Mrs Ali-Hossaini’s difficulty in this case is that the evidence does not point to any instance where Mrs Ali-Hossaini (or indeed any member of the family) has been treated less favourably by the Corporation than a person without multiple sclerosis. Indeed, the applicants have not identified any comparator. They have simply pointed to their own difficulties.
The applicant has not made out this part of the test and so the matter should end at this point.
If the applicant were successful on the issue that a substantially higher proportion of person without a disability comply, he could not be successful on the issue that the requirement is not reasonable. If it could properly be said that the offering of the Property, for lease to the applicant in July 2006, was indeed a requirement (and the respondent says it cannot be), the requirement was entirely reasonable in the context of the respondent’s resources at the relevant time.
The respondent relies on its submissions above with regard to what may constitute a requirement under the DDA and says, in addition, the respondent has limited resources to address significant housing needs for people in NSW, a significant proportion of whom have disabilities (around 35 per cent according to the Second Tomkins Affidavit at [46]).
It is particularly important to note that the respondent was required to try and find the applicant appropriate accommodation as a matter of some urgency given the applicant was evicted from his earlier accommodation on or about 12 July 2006. In this context, the respondent paid for the applicant to stay in a motel. Further, there was no dispute the applicant also objected to the quality of the motel accommodation. This was not a case in which there was any reasonable amount of time to make special arrangements to find appropriate accommodation. The applicant’s life was in crisis. He was homeless to the extent that without the provision of motel accommodation he and his daughter would have been without a place of their own to live, unless they went back to his parent’s “overcrowded” house (see Transcript at page 13 line 1). It was a case in which the respondent had to do the best it could with the resources it had to find the best kind of accommodation it had available to suit the applicant’s needs. That does not mean it was perfectly suited to those needs, but nor does the DDA require that. Regardless the respondent has recently spent around $32,000 on modifications to the house in accordance with its policy and information received from an occupational therapist (Second Tomkins Affidavit at [12]).
The supply of public housing is a limited resource and if those seeking it don’t live in it they are effectively disadvantaging others in need of accommodation. As Driver FM notes at [11]in Ali-Hossaini (supra):
There is also no real doubt that the Corporation has been unable to meet the needs of the family as perceived by Mr Ali-Hossaini throughout most of the period that the Corporation has been seeking to meet the housing needs of the family. That is not to be seen as a criticism of the Corporation. The Corporation does its best to assist approximately 117,000 clients in public housing, around half of whom are disabled. It is by no means an easy task. The public housing stock is limited. The public funds available for private rental assistance are also limited. The owners of private housing do not have to agree to modification works on their properties to meet the needs of disabled occupants. At times, temporary accommodation must be found pending the availability of suitable permanent accommodation. There are bound to be significant limitations in the suitability of temporary accommodation. This Court does not have any general jurisdiction to deal with perceived administrative shortcomings in the provision of public housing in New South Wales.”
In relation to the requirement to maintain the property, as noted above that was not an obligation requiring the applicant to personally carry out such maintenance. However, it was a reasonable requirement, which made the applicant responsible for ensuring such steps were taken. As noted above, it is clear he did so in relation to the mowing of lawns (done by his mother).
On the applicant’s own evidence he is unable to make out s.6(c) as he was able to comply and did in fact comply with the requirements (which the respondent does not agree were imposed):
a)To live in the relevant property; and
b)To maintain the property.
In this context, any evidence lead by the applicant as to his disabilities would only have been important in so far as they assisted in proving he could not comply with the requirement to live in the house, or take responsibility for (as opposed to personally carry out) maintenance. The applicant lead no such evidence and regardless, it was Mr Tomkins’ evidence that in the urgent situation with which the respondent was faced in trying to place the applicant as soon as possible (given his eviction) he:
a)Had not read the entire file because it was “massive” (Transcript page 143 line 31-33 and page 153 at lines 23 -40 indicating each of the applicant’s files held by the Respondent were 20-25 centimetres thick and there were six of them);
b)The applicant never mentioned disabilities (Transcript page 143 line 28-29).
In circumstances where the applicant indeed lives in the property he cannot argue that he does not or is not able to comply with that requirement.
Based on the material in evidence and the relevant authorities I do not believe that the application can satisfy the requirements of the relevant sections of the DDA and consequentially should be dismissed. Counsel for the respondent has sought to be hear on the issue of costs and I will accept written submissions on this issue.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 22 December 2011
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