Elliott v State of NSW (Housing NSW)

[2011] NSWADT 160

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Elliott v State of NSW (Housing NSW) [2011] NSWADT 160
Hearing dates:	7 June 2011
Decision date:	30 June 2011
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave is refused for the applicant's complaint of disability discrimination in the provision of services to proceed
Catchwords:	LEAVE - complaint of disability discrimination in the provision of services declined as lacking in substance - whether fair and just for complaint to proceed - complaint lacks merit - leave refused
Legislation Cited:	Anti-Discrimination Act 1977 Residential Tenancies Act 1987
Cases Cited:	Anti-Discrimination Commissioner v Acting Ombudsman [2003] TASSC 34; (2003) 11 Tas R 343 Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 Commissioner of Police v Mohamed [2009] NSWCA 432 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Jones and Anor v Ekermawi [2009] NSWCA 388 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26
Category:	Interlocutory applications
Parties:	Wayne Elliott (Applicant) State of NSW (Housing NSW) (Respondent)
Representation:	Wayne Elliott (Applicant - In person) Housing NSW (Respondent)
File Number(s):	111037

REasons for decision

Introduction

1. EQUAL OPPORTUNITY DIVISION (N HENNESSY, LCM (DEPUTY PRESIDENT)): Mr Elliott complains that Housing NSW has discriminated against him on the ground of his mental illness - dysthymia, post traumatic stress disorder and depression. Mr Elliott has been a tenant of Housing NSW since April 2008 and says that despite communicating with them on many occasions about the conduct of his neighbours, they did not respond in an appropriate manner.

1. The President of the Anti-Discrimination Board declined Mr Elliott's complaint as lacking in substance. Mr Elliott needs to obtain the Tribunal's permission before his complaint can proceed: Anti-Discrimination Act 1977 ( AD Act ), s 96. The Tribunal has a discretion to grant or refuse leave for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint lacks substance.

Reasons for declination

1. The President of the Anti-Discrimination Board declined Mr Elliott's complaint as lacking in substance for the following reasons:

The complainant has detailed incidents of the respondent failing to respond or act appropriately or failing to follow up on an intended action. These are allegations of poor service by the respondent. There is no information to suggest that poor service occurred because of the complainant's disability.

There is no information to suggest that the complainant was treated less favourably than someone without his disability in similar circumstances (conflicting reports from neighbours) would have been treated by the respondent.

Factual allegations

1. In Mr Elliott's words, within hours of moving to his unit, Mr and Mrs Quin, who occupied the unit directly below:

. . . stormed through their unit, slamming doors like gunshots. They smashed through the wind chimes, bamboo outside the back door, and metal outside the front door. These acts were repeated over and over and over until dawn, when Mr Quin left for his part-time work.

This shocking, deliberate, malignant introduction premiered a relentless campaign, instigated by Mr and Mrs Quin, who recruited all other tenants, to destroy a mentally ill stranger alone in his new home.

1. In his complaint to the Anti-Discrimination Board, Mr Elliott details the nature and extent of the noise and other harassment he says he endured from Mr and Mrs Quin over a period of approximately 12 months.

1. An officer from the Department visited Mr Elliott in June 2008, two months after he had moved in. It was an annual visit giving tenants an opportunity to raise issues and obtain information. The officer mentioned during that visit that there had been complaints of excessive noise. Mr Elliott noted on the letter inviting him to participate in a meeting that he did not "dob in" the Quins at that stage. In fact, Mr Elliott did not complain about the noise until six months after he moved into the unit. He first complained on 28 September 2008 but received nothing but what he calls "stock" letters in reply.

1. On 7 October 2008 Mr Elliott received a formal response to his complaint from Housing NSW saying that an officer would contact him within 15 days. According to Mr Elliott, no-one contacted him. He suspects that other letters may have been sent to him but his mail was often stolen.

1. On 20 October 2008 Housing NSW wrote to Mr Elliott again indicating that in particularly serious circumstances the Department may institute proceedings against a tenant in the Commercial Trader and Tenancy Tribunal (CTTT). Housing NSW requested documentation to use as evidence before the CTTT if necessary. Mr Elliott kept a detailed journal of the Quins' activities for 7 months from September 2008 until March 2009.

1. In December 2008 three people from an investigating team visited Mr Elliott. He says that this was the first practical response following his complaint about three months earlier. The officers told him that there had been complaints about him from other neighbours. He denies ever causing a nuisance or annoyance to anyone else. Mr Elliott says that he felt intimidated when the officers discussed the possibility of moving him out of his unit.

1. In March 2009 Housing NSW applied to the CTTT for an order that Mr Elliott abide by the Acceptable Behaviour Agreement under the Residential Tenancies Act 1987 (repealed). The reason for the order was said to be to stop Mr Elliott interfering with the reasonable peace and quiet of other residents. When he was advised of the conciliation hearing, Mr Elliott wrote to Housing NSW asking rhetorically why he should be dragged before the Tribunal when he was not the culprit. On 19 March 2009 Mr Elliott signed an agreement to comply with the terms of the residential tenancy agreement and, in particular, not to interfere with the reasonable peace, comfort and privacy of his neighbours including Mr Quin. Housing NSW indicated in its response to the Anti-Discrimination Board that Mr Quin signed a similar agreement.

1. Soon after the CTTT hearing, two officers visited Mr Elliott to tell him that the Quins would be leaving the following month. According to Mr Elliott, it was not until he wrote to the relevant State and Federal Ministers that the Department finally decided to remove the Quins. Since the Quins have left Mr Elliott says that he is able to live in peace.

1. In May 2009 another officer from the Department visited Mr Elliott to check if everything was all right. Mr Elliott said he telephoned the officer that afternoon but she did not contact him. In May 2010 another officer visited after receiving complaints from a neighbour about Mr Elliott's conduct.

1. In November 2009 Mr Elliott says that an officer from Housing NSW visited him holding a pad on which his name was written with the initials "AVO" beside it in red pen. When asked whether there were any problems, Mr Elliott, who had only just woken up and was medicated, replied that there were not. The officer left her number but when Mr Elliott called to enquire about the "AVO" notation, there was no response.

1. On 27 March 2010 Mr Elliott received a letter from the Minister for Housing saying that he understood that Housing NSW had investigated his concerns and had offered him a formal referral to the Community Justice Centre for mediation. The letter noted that Mr Elliott had declined that invitation but had provided journal entries in support of his allegations.

1. On 21 July 2010 Mr Elliott received a letter from Housing NSW responding to concerns he raised about another tenant, Mr Battat. The letter stated that the Department had been working hard behind the scenes to achieve a resolution for Mr Elliott and Mr Battat. The anti-social behaviour specialist with the Department, Mr Kittscha, proposed a meeting to discuss the matter. According to Mr Elliott no meeting was arranged. On 5 August 2010 Mr Kittscha contacted Mr Elliott requesting he provide a phone number.

1. Both Mr Quin and Mr Battat have since relocated and there had been no further complaints of nuisance or annoyance. Ms Eccleston, on behalf of Housing NSW, submitted that the Department responded appropriately to Mr Elliott's complaints. Staff, including the anti-social behaviour specialist and a senior client service officer, regularly visited the units where Mr Elliott lives to monitor the situation and speak to him and his neighbours. She added that the appropriate remedy for complaints of excessive noise is for a tenant to apply to the CTTT.

Merits of the complaint

1. In order to substantiate his complaint, Mr Elliott would have to prove that Housing NSW has breached s 49M of the AD Act . That provision makes discrimination on the ground of disability unlawful in relation to the provision of services. Discrimination is defined in s 49B. The first part of the definition refers to 'direct' discrimination. The second part refers to 'indirect' discrimination. My understanding is that Mr Elliott is complaining of 'direct' discrimination.

1. Mr Elliott alleges that Housing NSW has breached s 49M of the AD Act in relation to the terms on which they have provided him with a service. The conduct about which Mr Elliott complains can be summarised as follows:

(1) failing to provide a safe and peaceful environment;

(2) breaching the lease agreement;

(3) doing nothing to stop Mr Quin's behaviour;

(4) insisting that I provide reports of the conduct but failing to act following the provision of those reports;

(5) failing to provide counselling or other support; and

(6) failing to believe my allegations about the Quins.

1. The matters which Mr Elliott would have to prove to substantiate a complaint of direct disability discrimination in the provision of services are that:

(1) he has a 'disability' as defined in the AD Act ;

(2) Housing NSW has provided him with a service on unfavourable terms by engaging in the conduct listed above;

(3) in providing services on unfavourable terms, Housing NSW treated him less favourably than it treated or would have treated a person who did not have his disability, in the same or similar circumstances; (differential treatment) and

(4) at least one of the reasons for that treatment was Mr Elliott's disability even if that reason was not the dominant or a substantial reason for the treatment: AD Act , s 4A (causation).

Disability

1. Mr Elliott says he suffers from dysthymia, post traumatic stress disorder and depression. If he can prove that that is the case, he is likely to be able to establish that he has a disability within the meaning of that term in the AD Act .

Does the conduct constitute the provision of services on unfavourable terms?

1. Housing NSW accepted, for the purposes of these proceedings, that they provide services to tenants. Several of Mr Elliott's allegations cannot be described as unfavourable treatment.

1. Mr Elliott submitted that Housing NSW has a duty of care to mentally ill tenants and that they have breached that duty by failing to provide him with a safe and peaceful environment. He also alleges that they have breached the terms of the lease agreement. The Equal Opportunity Division of this Tribunal does not have jurisdiction to determine either of those matters. The central issue, if the matter were to proceed to a hearing, would be whether Housing NSW has breached s 49M of the AD Act . As I have said, that involves determining whether there has been differential treatment and, if so, the cause of that treatment.

1. Similarly, failing to achieve a particular outcome, such as stopping the Quins from making undue noise, is not a breach of s 49M. That provision addresses the way in which a person is treated, not the failure of Housing NSW to achieve a particular outcome.

1. Any failure to provide counselling or other support will only be a breach of s 49M if counselling and support is provided to tenants without a disability. There is no legal obligation under the AD Act for service providers to give particular or special services to people with disabilities.

1. The treatment which may come within the terms of s 49M is the alleged failure of Housing NSW to respond quickly to Mr Elliott's complaints and its alleged failure to believe him.

Differential treatment

1. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Elliott must be compared with the treatment that would have been afforded to a person without Mr Elliott's disability in the same or similar circumstances. Mr Elliott did not identify another person without a mental illness whose complaints had been dealt with more quickly or more effectively than his.

1. In the absence of an actual person whose treatment could be compared with the treatment given to Mr Elliott, the Tribunal would have to rely on a hypothetical person in a comparable situation. In those circumstances, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that the respondent treated the applicant less favourably than a hypothetical person without a disability would have been treated by determining that disability was a reason for that different treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133.

Causation

1. At least one of the reasons for being treated in the way he was treated must be Mr Elliott's disability, that is, his mental illness. Because the reason for the conduct is almost always within the respondent's knowledge, it is often difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation remains under the AD Act that the legal and evidential burden remains on the applicant to prove his or her case. Significantly, Mr Elliott has the legal and evidential burden of proving that his disability was at least one of the reasons for the conduct about which he complains.

1. While Mr Elliott is extremely dissatisfied with Housing NSW's response to his complaints, there is nothing in the material he has presented to suggest that the Department would have responded differently to a tenant without a mental illness or that Mr Elliott's mental illness was a reason for the way in which Housing NSW responded. The response he received may have been typical of the responses that other tenants with similar complaints received. It is not enough for Mr Elliott to prove that he has a mental illness and that he was treated unfavourably. He must be able to prove that there is a link between his illness and the treatment he received. In the absence of any direct evidence of such a link or of evidence which would allow a link to be inferred, the complaint lacks substance and it would be unfair and unjust for it to proceed.

Order

Leave is refused for the applicant's complaint of disability discrimination in the provision of services to proceed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar/Associate

Decision last updated: 30 June 2011