HAMERS-COOGAN & COMMISSIONER for SOCIAL HOUSING in the A.C.T. (Residential Tenancies]

[2011] ACAT 31

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

TAMMY HAMERS-COOGAN & COMMISSIONER FOR SOCIAL HOUSING IN THE A.C.T. (Residential Tenancies] [2011] ACAT 31

AA 2 of 2011

Catchwords: RESIDENTIAL TENANCIES – termination of lease – arrears of rent - Section 82, ACT Civil and Administrative Tribunal Act2008 – should the appeal be heard as a new application or as a review of the original decision? – balancing of the difficulties of the Appellant as a public housing tenant and the Respondent’s obligation to provide social housing – factors relevant to making of conditional termination and possession order - stay of warrant of eviction.

List Legislation: ACT Civil and Administrative Tribunal Act2008, s 82
  Residential Tenancies Act 1997, s 49

Tribunal:       Mr C G Chenoweth, Acting Presidential Member

Date of Orders:  15 April 2011 
Date of Reasons for Decision:         15 April 2011

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          AA 2 of 2011

BETWEEN:

TAMMY HAMERS-COOGAN

Applicant

AND:

COMMISSIONER FOR SOCIAL HOUSING IN THE A.C.T.

Respondent

TRIBUNAL:            Mr C G Chenoweth, Acting Presidential Member

DATE:  15 May 2011

ORDER

1. This matter is adjourned to a date at least 7 days after the 8th July 2011, to be fixed by the Tribunal registry.

1. The Appellant must pay the rent of the residential property leased by her from the Respondent in accordance with the terms of the lease.

1. The Appellant is to make further payments calculated at the rate of $20 per week in reduction of her arrears of rent, to be paid on the due dates for payment of her rent.

1. If the payments set out in orders 2 and 3 are not made on the due dates, the Respondent may relist the matter before the Tribunal on seven days notice to the Appellant.

1. Any further evidence to be provided by the Appellant is to be filed with the Tribunal by 1 July 2011.

………………………………..

Mr C G Chenoweth

Acting Presidential Member

REASONS FOR DECISION

1. This is an appeal against an order of the Tribunal dated 21 January 2011, pursuant to which the lease of the residential property in Ainslie ACT (“the Property”) between the Appellant and the Respondent was terminated.
   A warrant for possession of the Property was granted to the Respondent. The grounds for terminating the lease were that the Appellant had failed over a substantial period of time to pay the rent owing under the lease, and that she was in arrears. At the time of the hearing of this appeal, the arrears amounted to $3916.15.

2. The Appellant has occupied the Property since at least August 1998. The payment history with the Respondent, as demonstrated by Exhibit 1 tendered at the hearing, was irregular. There were large periods of time during which the Appellant paid no rent at all.  The Appellant and anyone else living in the Property have had the benefit of these rent free periods.

3. The Appellant’s income is provided by social security payments through Centrelink.

4. After the order for possession and termination was made, the Appellant by notice dated 24 January 2011 sought to have the decision set aside. This application was refused, and the order for termination of the lease of the Property and the issue of the warrant were confirmed.

5. The Appellant then sought the assistance of the Welfare Rights and Legal Centre, and as a result of that a notice of appeal in the Tribunal against the order of 21 January 2011 was filed on 8 February 2011. There were two substantial grounds of appeal. The first one was that the Appellant was not in breach of her lease. This ground was abandoned at the hearing of the appeal, as the Appellant’s advocate conceded that the rent record of the Appellant showed that there had been substantial breaches of the obligation to pay.

6. The second ground of appeal was that the Appellant had recently been making the rental payments, and that the Tribunal should therefore be “reasonably satisfied” that she would continue to do so in the future. The Appellant’s advocate pointed to three payments made since 3 December 2010 as evidence for that.

7. The appeal notice makes it clear that the Appellant is seeking (if the appeal is successful) a conditional termination and possession order under section 49 (3) and (4) of the Residential Tenancies Act 1997 ("RT Act"). The extent of the arrears and the modest means of the Appellant would indicate that there is no reasonable prospect of the payment of all of the arrears immediately, as required by section 49 (2) of the RT Act.

8. Sections 49 (3) and (4) of the RT Act provide as follows:

(3) Subsection (4) applies if --

(a) the tenant is, in the ACAT's opinion, reasonably likely to pay the rent that has become payable as well as pay future rent as it becomes payable; and
(b) the tenant agrees to pay the rent that has become payable, and undertakes to pay future rent as it becomes payable, as required by the ACAT.

(4) Instead of making a termination and possession order under subsection (1), the ACAT may order (conditional termination and possession order) that if the tenant fails to pay the rent that has become payable, or future rent as it becomes payable, as required by the ACAT --

(a)  the tenancy terminates at a stated on the day after the date when any rent becomes payable and is not paid; and

(b)  the lessor becomes entitled to possession of the premises and all rent payable is payable immediately.

9. The initial question for the Tribunal is whether this appeal should be heard by way of a new application, or whether it should be limited to matters raised in the original hearing.

10. Section 82 of the ACT Civil and Administrative Tribunal Act2008 (“ACAT Act”) allows the Tribunal to determine whether the application should be heard as new application or as a review of part or all of the original decision. I determined that it was not appropriate that a matter should be treated as a new application, and that the appeal should be limited to matters raised in the appeal notice. To this extent, I allowed the introduction of fresh evidence by the Appellant.

11. The Appellant’s advocate submitted a letter dated 15 September 2010 from Catholic Care to the Appellant’s doctor (Exhibit “B”). It indicated that the agency was meeting regularly with the Appellant to try and assist her with her problems. No updated report was submitted. A letter was submitted from Care Financial Counselling Service dated 5 April 2011 (Exhibit “D”), to indicate that the Appellant had begun to seek support and advice on her situation. The document from Care indicated that the approach by the Appellant had been very recent, and that no substantial work had been undertaken with her at this stage to assist her position.

12. An affidavit of the Appellant dated 3 March 2011 (Exhibit “C”) was filed. This indicated that the Appellant was unsure about the extent of her rental obligations, that she was in fear of her neighbours and that she was financially supporting her children and this had caused her problems in paying rent.

13. The Appellant gave evidence in person. Without canvassing all of the matters raised, it is clear that she is a woman with substantial personal and social difficulties. She considers that the various arms of the bureaucracy with which she has had to deal with have treated her badly. I make no judgement about that.  The Appellant acknowledged that due to an earlier attempt at a mediation of the outstanding rental payments, she had formed the view (she now accepted as wrong) that her arrears would be extinguished by a substantial credit to her account from the Respondent. She also indicated that she had serious disputes with Centrelink, who had been providing her social security payments. As a result of this, she had discontinued payment of rent by direct debit from Centrelink to the Respondent, and had attended to the payments herself, albeit on an irregular basis. The Appellant acknowledged that there have been previous applications to the Tribunal and its predecessor for action arising from unpaid rent and other breaches of the lease of the Property.

14. The Appellant gave evidence that she was providing financial support to her children, and that this had taken resources which would otherwise be used to pay rent. From the evidence before the Tribunal, it appears that only one of her children is under 18 years, and that that child is living separately from the Appellant. While the concern of a mother for her adult children is understandable, it cannot be allowed to override her obligation to pay rent to ensure that she maintains her home.

15. The Appellant had previously been making rental payments through direct deduction from the Centrelink payments. She had been dispute with Centrelink over some matters, and as a result had discontinued the direct deductions previously paid to the Respondent. This was a most unwise course, as her advocate conceded. Direct deduction of rental payments from Centrelink is the most convenient way for the Appellant to ensure that rental payments are received on the right date, in the right amount, and that her occupation of the home is thereby preserved. To try and make the payments herself directly runs the risk that other lesser priorities get in the way, as has happened in this case.

16. The Respondent’s advocate submitted that having regard to the substantial arrears in this case, and the whole history of the Appellant in failing to pay her rent regularly, the Tribunal could not have any confidence that the Appellant would make those payments in compliance with the terms of the lease of the Property. Previous orders had been made for additional payments to reduce the arrears but these had not been complied with.

17. The balancing of the obligations of the Respondent in these matters is difficult. It has an obligation to provide social housing for people who as a group have limited resources, and may have substantial social or other relationship problems and issues which get in the way of complying with their obligations. Nonetheless, the Respondent has the obligation to ensure that the limited resource of public housing is used in the most efficient way, and that people who have the benefit of it make a contribution by way of rental payments in recognition of the fact that they have been provided with a home. It is well known that the pressure on public housing in the ACT is great. There are many people who need to have the opportunity of getting public housing, and who are prepared to pay their rent by way of contribution.

18. The Appellant’s advocate urged upon me that following the earlier decisions of the Tribunal, and the advice and support that the Appellant had been given by both the social welfare agencies to whom she has turned and the advice that the advocate had given to her, the Tribunal could now be "reasonably satisfied" that the Appellant would continue to make regular payments of her rent, and that therefore the appeal should be allowed and the warrant for eviction stayed. He submitted that the Tribunal should adjourn the matter for one month, to allow the Appellant to continue to demonstrate that she was complying with her obligations under the lease.

19. The Respondent’s advocate opposed this course, pointing to the payment history of the Appellant and submitting that the Tribunal could not have any confidence that such a short period would indicate a change of practice such that the Tribunal could be "reasonably satisfied" that the Appellant would continue to make payments.

20. It is a serious business to evict a person such as the Appellant from her home, particularly having regard to the personal issues that she faces. On the other hand, the Respondent has an obligation to ensure that the scarce resource of social housing is used to support people who understand and accept the obligation to make a contribution to the provision of their homes, and do not simply discontinue payments because of some bureaucratic dispute, whether real or imagined, or because of what they see as a family obligation.

21.

If a conditional termination and possession order was to be made in place of the existing order for termination, section 49 (3) (a) of the RT Act requires the Tribunal to form the opinion that the tenant is (a) "reasonably likely to pay the rent that has become payable as well as pay future rent as it becomes payable, and (b) the tenant agrees to pay the rent that has become payable, and undertakes to pay future rent as it becomes payable, as required by of the ACAT."

22.Section 49 (4) then sets out the terms of the conditional termination and possession order. A failure to pay rent and to contribute to the arrears as ordered makes the termination of the tenancy automatic.

23. I consider that further evidence is required before making a final decision in this matter. A period of one month is too short to indicate a significant change of practice both in regard to payment of rent and to the Appellant obtaining and acting on the advice to deal with her problems. Further, the Appellant needs to demonstrate that she is prepared to continue making payment of rent without the immediate pressure of this appeal upon her. The Appellant needs to demonstrate that paying her rent is her first priority, and not the last priority and that she is prepared to tackle the backlog of unpaid rent.

24. I have decided to adjourn this matter for a period of three months, and propose to indicate the material which I consider is relevant to enable me to consider whether I am "reasonably satisfied" that the Appellant understands and accepts her obligations. Unless I am so satisfied, I see no alternative but to dismiss this appeal and re-activate the warrant for eviction.

25.In setting out the following matters, I am not to be taken as having decided whether or not to grant the application. The Appellant's history is not good, and she bears the burden of satisfying the Tribunal that a conditional termination and possession order is appropriate in all circumstances.

26. The Appellant should take advice from her advocate, who is very experienced in these matters.

27. I would expect that the Appellant would immediately restore the direct debit of the rental payments from her Centrelink payments, to ensure that the rent is paid regularly and on time. I would also expect to receive updated reports from the social welfare agencies to whom she has turned, and any other relevant evidence, indicating that she is obtaining and following advice from them to assist her to deal with the problems.

28. I would also expect to receive a full statement of the assets and regular income of the Appellant and any other person living in the Property, or who is being financially supported by the Appellant, to indicate to what extent they are making contributions to assist the Appellant to not only meet the regular rental payments but also to reduce her substantial arrears.

29. I do not accept that the Appellant's concern for her adult children, and any financial support that she may choose to provide to them or to a partner, is a satisfactory reason for not fulfilling her obligations to the Respondent. If the Appellant wishes to continue to have a home in which to live and to which her youngest child may ultimately return, then the first priority is the regular payment of rent and the reduction of arrears.

30. All of these matters go to the issue of whether I can be "reasonably satisfied" about the Appellant's commitment and capacity to pay the rent. The Appellant must understand that this is her last chance to demonstrate her commitment to payment of her obligations. There will also need to be evidence of her formal commitment under section 49(3)(b) of the RT Act.

31. While I propose to adjourn the matter for a period of three months, I will make orders now requiring regular payments of the Appellant's rent and a contribution of $20 per week to her arrears.  I will also make orders as to filing of any further evidence so that the Respondent and the Tribunal have a reasonable time to consider it before the resumed hearing.

32. If the Appellant fails to comply with the orders, then the matter must be resolved quickly. For this reason, if the Appellant fails to make payment of her rent in accordance with her lease and a further amount of $20 per week in reduction of the arrears, then the Respondent is given liberty to apply on seven days’ notice to relist the matter before me.

33. The issue of the warrant for eviction will be stayed until a further hearing of the Tribunal.

………………………………..

Mr C G Chenoweth

Acting Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      

APPLICANT:                TAMMY HAMERS-COOGAN

RESPONDENT:            COMMISSIONER FOR SOCIAL HOUSING OF THE A.C.T.

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      

SOLICITORS:  APPLICANT:          Mr Derek-Emerson Elliott

(Welfare Rights & Legal Centre)

RESPONDENT:      

OTHER:  APPLICANT:          

RESPONDENT:      Mr Chris Adkins, Manager, Housing ACT

TRIBUNAL MEMBER: Mr C G Chenoweth

DATE/S OF HEARING: 14.2.11; 8.4.11  PLACE: CANBERRA

DATE/S OF DECISION:  PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: