Hedley & Ors & Community Services Directorate (Discrimination)
[2013] ACAT 65
•25 September 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HEDLEY & ORS & COMMUNITY SERVICES DIRECTORATE (Discrimination) [2013] ACAT 65
DT 11/23
DT 11/24
DT 11/25
DT 11/26
Catchwords: DISCRIMINATION – referral of complaint by the Human Rights Commissioner - direct discrimination - indirect discrimination - unfavourable treatment on the grounds of attributes of gender, relationship status, or status as a parent or carer - whether housing allocations to applicants were discriminatory: allocations on the basis of “needs” – whether refusal to subdivide property discriminatory - Public Housing Schemes of Sale to Tenant Policy and the Shared Equity Scheme for Tenants
List of Legislation: Discrimination Act 1991, ss 7, 8 and 21
List of Texts/Papers: Department of Housing & Community Services, Sale to Tenant
Scheme Policy (17/7/2007)
Department of Housing & Community Services, Shared Equity
Scheme Policy (last amended August 2010)
Tribunal: Mr A. Anforth – Senior Member
Date of Orders: 25 September 2013
Date of Reasons for Decision: 25 September 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: DT 11/23,
DT11/24, DT11/25, DT11/26
RE:JEANNINE HEDLEY
Applicant – DT11/23
RE:HALINA KRUPINSKI
Applicant – DT11/24
RE:HILARY DAVIES
Applicant – DT11/25
RE:ROBYN CRAIG
Applicant – DT11/26
AND:COMMUNITY SERVICES DIRECTORATE
Respondent
TRIBUNAL: Mr A. Anforth – Senior Member
DATE: 25 September 2013
ORDER
The Tribunal Orders that:
1.The application is dismissed.
………………………………..
Mr A. Anforth – Senior Member
REASONS FOR DECISION
Overview:
Throsby Court, Narrabundah contains a complex of town houses owned by the ACT government. The complex sits upon a single land title. The Respondent is an agency of the ACT and is in part responsible for the management of the ACT housing stock. For present purposes, the Tribunal draws no distinction between the Respondent and the ACT.
The four Applicants are tenants of the ACT and each live in Throsby Court. They have each lived there for many years and have been model tenants. The Applicants were originally allocated their townhouses in the period spanning 1982-1991. They were each single mothers when they first moved into Throsby Court, but their children are now adults and have left home.
The ACT runs two programs aimed at promoting home ownership among public tenants; the Public Housing Scheme Sale to Tenant Policy and the Shared Equity Scheme for Tenants (the Schemes), both of which first commenced in 1991. The relevant terms of these schemes are set out in the body of these reasons. Suffice it say that the scheme allows long term tenants to offer to purchase their homes from the ACT. There are conditions imposed on each Scheme. For present purposes, the only relevant conditions are that the Schemes only apply to premises that are on separate titles and to premises which the Respondent determines are of a class that it wishes to offer for sale.
In the present case, Throsby Court sits on one title so that the townhouses of each Applicant are not separately titled. This factor of itself takes the Applicants’ townhouses outside the scope of both Schemes. In addition, the Respondent does not wish to offer Throsby Court for sale as it has its own redevelopment plans for the scheme in the fullness of time.
The Applicants have requested the Respondent to subdivide Throsby Court to facilitate their participation in the Scheme. The Respondent has refused to do so.
The Applicants complain that the Respondent’s refusal to subdivide Throsby Court and offer the townhouses for sale to the Applicants under the Schemes is an act of unlawful discrimination under the Discrimination Act 1991 (the Act).
The Applicants assert that they were originally located in Throsby Court many years ago because they were single mothers. They assert that if they had not been single mothers at that time, then they would have been allocated a stand alone house in the suburbs and would now be eligible to participate in the Schemes.
The essence of the Applicants’ argument is that at the time of their original allocation to Throsby Court between 1982-1991 single mothers were contra-preferentially allocated to townhouse complexes that did not sit upon separate titles. That policy was said be discriminatory at the time and its consequences continue to the present.
It is plain that a title to a townhouse that does not exist cannot be transferred, and thus a subdivision of Throsby Court is an essential pre-requisite to any transfer of the townhouses to each Applicant. The Tribunal has no power to order the Respondent to engage in such a subdivision. At best, the Tribunal can declare whether the original allocations of the Applicants in 1982-1991 and/or the actions of the Respondent in refusing to subdivide and offer the townhouses for sale, are a breach of the Act.
The Schemes are not statutory schemes. They are wholly the creation of policy in the exercise of the executive powers of government. There is no suggestion that the Applicants have a right to participate in the Schemes or a right to compel the transfers of title. The policy nature of the Scheme does not confer such rights on any person. The Respondent’s refusal to subdivide Throsby Court is consistent with the terms of the Schemes, set out below, and so there is no issue of any inconsistency in the application of the policies.
Rather the issue is limited to whether the original allocations and/or the subsequent refusal to subdivide the property to facilitate the participation of the Applicants, is discriminatory under the Act.
The case raised a number of evidential difficulties for the Tribunal. Firstly, neither of the Schemes existed in 1987-1991 when the Applicants were allocated their townhouses and so it is not open to the Applicants to assert that somehow the Respondent’s predecessors knew of the future implication of the housing allocations made at the time. Even if the Scheme were found to have commenced in 1991 immediately prior to the allocations of the last two of the four Applicants to be housed, there is no evidence that any allocation at the time had regard to what future implication might arise from the allocations.
Secondly, there was no evidence of the allocation of different kinds of housing to different kinds of tenants in 1982-1991. The only evidence on that issue was evidence of the present allocations statistics. At best this evidence invites the questionable inference that the allocation patterns where the same in 1987-1991 as they are today.
Thirdly, the allocation of public housing in the ACT sits within a framework set out in the Public Housing Rental Assistance Program (PRHAP) which has its own rules and criteria for housing allocation that have changed over time. If it were the case that the present housing allocation statistics suggested an unlawful discrimination of some kind at the present, then it would be necessary to examine the PRHAP criteria to determine whether the present statistical bias was systemic or random. This task has not been undertaken.
History of the proceedings:
On 28 January 2011, the First Applicant lodged an application with the Human Rights Commission complaining:
In 1987 I moved to Canberra and applied to the then Department of Housing for a government property to house myself and 2 sons. Shortly after my application I was granted a property at 12 Hacking Crescent, Narrabundah. I remain in these premises to date, although my adult sons have now left home. The Department of Disability, Housing and Community Services (ACT Government) introduced a scheme in 1991 which was further expanded in 2007 and 2010 known as the “Public Housing Scheme Sale to Tenant Policy and Shared Equity Scheme for Tenants” which essentially enables eligible public housing tenants to either purchase their government house or enter into a shared equity scheme with the government to eventually purchase their own home. As I understand, approximately 30% of housing tenants are either single women or single mothers, the majority reside in units because their family units are not large enough to warrant stand alone housing. As each “scheme” was issued by government, I applied to participate but was rejected as the property I lived in is a unit and therefore I was not eligible to apply. Being a single person, I am unable to rent any other type of property from ACT housing, disentitling me to participate in these schemes. The Sale to Tenant program targets tenants who register an interest in home ownership, pay full market rent, and reside in areas with high stock levels. Applicants must also be a current head tenant, have been a continuous public housing tenant for at least three years prior to registering an interest and have no rental arrears. I have been paying market rent for the past 12 years and comply with all other requirements to participate in this scheme, other than reside in a “stand alone” property. I wish to have the same opportunity as other government tenants and participate in the schemes provided by the ACT Government. I have lived in this complex for over 20 years and have formed close and lasting bonds to the area and the community. I believe that the policy of ACT Housing and Community Services is discriminatory in that it denies a class of people (distinguished by their gender and marital status) an opportunity to participate in the housing purchase schemes.
The remedy sought by the First Applicant was:
I wish to have the same opportunity as other government tenants that reside in “stand alone” properties and apply to purchase my property, or if I am unable to purchase, due to market price, then to at least enable others to be eligible to participate notwithstanding the type of property they reside in.
I understand that the complex I reside in could be unit titled or subdivided, and such cost factored into any sale price. This would then enable the government to continue to maintain their housing stock, but at the same time enabling those who could afford to, purchase their property and provide some security for themselves.
In the course of investigating the First Applicant’s complaint the other Applicants were joined as parties before the Human Rights Commission.
On 16 May 2011, the Human Rights Commissioner determined that the complaints lacked substance and closed the complaints under section 78(2)(c)(iv) Human Rights Commission Act 2005 (HRC Act). The Commissioner’s reasons read:
Your allegations
You claim that the housing guidelines issued by DHCS to determine the size of a property that a person or family unit is entitled to have affected your clients. You state that "such limitation, in relation to the complainants herein, considering their relationship status as single mothers, has resulted in they being entitled to units or small townhouses, rather than stand alone properties". As such you allege that the complainants are excluded from being able to participate in the home ownership schemes that would allow them to purchase their properties.
Ms Hilary Davies
Ms Davies stated that she lives in a DHCS property and made enquiries with DHCS to purchase her home. She said she was told that "(she) was not eligible as the property (she) resided in was contained on one Crown Lease and not unit titled and could not be separately sold". She said that she was told that her family unit did not entitle her to move to a stand alone property that would enable her to participate in the scheme. Ms Davies stated that, from her understanding, “38% of housing tenants are either single women or single mothers, the majority reside in units because their family units are not large enough to warrant stand alone housing". You stated that "as a result of her ineligibility to participate or even apply to participate in any of the purchase schemes, Ms Davies did not make any formal application to the Department of Housing".
Ms Robyn Craig
Ms Craig stated that she is a single woman with one daughter and that she has lived in an ACT Housing property for 19 years. You stated that Ms Craig contacted DHCS by phone in 1996 regarding the Kick Start Home Purchase Assistance Scheme "to make enquiries and to arrange a formal application to participate in this scheme" and that she was informed that she was not eligible to participate in the scheme. You say that Ms Craig made further enquiries after the scheme was expanded during 1996-2010 and she was again told that she was not eligible for this scheme due to the property she lived in not being separately titled. Ms Craig said that she would like "to have the same opportunities as other government tenants and participate in such schemes provided by the ACT government".
Ms Jeannine Hedley
Ms Hedley stated that she has been living in a DHCS property for over 20 years and she would like the opportunity to purchase it. She stated that she applied to participate in the Sale to Tenant program was told by DHCS that she was not eligible to purchase her property as it was a unit. Ms Hedley stated that she believes that "the policy of ACT Housing and Community Services is discriminatory in that it denies a class of people (distinguished by their gender and marital status) an opportunity to participate in the housing purchase schemes".
Ms Halina Krupinski
Ms Krupinski stated that she has been a DHCS client at the Throsby Court housing complex since 1991. She said that she made enquiries of DHCS by phone in 1996 and afterwards regarding her eligibility to purchase her unit but "was told by the Department that (she) could not participate in such schemes as the property (she) resided in was not a separate stand alone property and (she) was therefore ineligible to participate". You state that Ms Krupinski did not make a formal application for this scheme because she was told verbally that she was not eligible.
You state that as a result of not being eligible to access the home ownership schemes the complainants' security of tenure has been impacted. With regard to Ms Krupinski you state that "her age and financial commitments now prevent her from entering into the private market and the loss of opportunity of participating in Government schemes to achieve home ownership has had a significant financial and emotional impact on her". You state that all the complainants have been affected by these policies and that "their security of living in a close community, supported by those around them and in an area where the complainants have lived for a significant period of time, well over 20 years, has and will continue to have significant impact upon them all, financially, socially and emotionally".
DHCS' response
In its response DHCS denied that it has discriminated against your clients. It stated that the Sale to Tenant Scheme has specific eligibility criteria and that its policy specifically states that properties will not be sold if they are not separately titled. DHCS further stated that the policy specifies that "Housing ACT reserves the right to refuse to sell a property and retains absolute discretionary power when determining if a property is available for sale or not”.
DHCS stated that Ms Hedley applied to purchase the property she was occupying under the Sale to Tenant Scheme and that this application was denied. It said that Ms Hedley was advised that "the property could not be offered for sale as the properties in the complex were not separately titled and were registered on one Crown Lease". DHCS stated that it has "no record of Ms Davies, Ms Craig and Ms Krupinski lodging applications or making enquiries about either the Sale to tenant or Shared Equity Schemes".
DHCS further outlined that it has a responsibility to be accountable for "the efficient and effective financial management of the department" and to ensure control over its assets and over the incurring of liabilities. It stated that "Housing ACT serves a public function and utilises public funding resources to provide housing to disadvantaged members of the ACT community". It further claimed that "given the function of Housing ACT to provide publicly funded or subsidised housing to the needy members of the ACT community, it is reasonable for Housing ACT, when implementing policies such as those underpinning the Sale to Tenant and Shared Equity Schemes, to take into account financial considerations and the proper long term management of its public asset portfolio and resources".
In its response DHCS provided statistics for both single women and single mothers in ACT Housing properties. It stated that 42% of single women living in ACT Housing properties are in separate houses, 30% are in flats and townhouses, and 28% in aged persons accommodation. DHCS stated that 81% of single mothers in ACT Housing accommodation live in separate houses with only 19% in flats and townhouses. DHCS claimed that, contrary to the complainants' assertions, "51% of tenants are either single women or single mothers with a much larger proportion housed in separate houses". DHCS denied that it discriminated against the complainants in this matter stating that "the statistics show that a much higher proportion of single women and single mothers have been allocated separate housing, as opposed to flats".
Provisions of the Discrimination Act
Discrimination is defined under section 8 of the Discrimination Act 1991
(the Act) which says:(1)For this Act, a person discriminates against another person if—
(a)the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or
(b)the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7.
(2)Subsection (1) (b) does not apply to a condition or requirement that is reasonable in the circumstances.
(3)In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(a)the nature and extent of the resultant disadvantage; and
(b)the feasibility of overcoming or mitigating the disadvantage; and
(c)whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement.
Paragraph 7(1)(e), 7(1)(d) and 7(1)(a) of the Act makes it against the law to discriminate against a person because of their status as a parent or carer, relationship status, and sex respectively.
Discrimination in the area of accommodation is covered by in section 21 of the Act, which states:
21Accommodation
(1)It is unlawful for a person (whether as principal or agent) to discriminate against another person—
(a)by refusing the other person’s application for accommodation; or
(b)in the terms or conditions on which 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—
(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.
I will now consider the extent to which your complaint raises issues under the Act.
Application of the Act
There is no dispute that the complaint allegations arise in an area of public life that is covered by the Act given that the complainants were seeking to purchase property, which is covered under the definition of accommodation in the Act.
Was there unfavourable treatment?
To amount to unfavourable treatment, a person needs to show that he or she has suffered a significant detriment as a result of the alleged treatment. Based on the information you have provided, I accept that Mss Davies, Craig, Hedley and Krupinski have suffered a disadvantage in not being able to purchase the properties they live in, which amounts to a significant detriment as defined in the Act.
Direct Discrimination
There does not appear to be any dispute in this matter that the reason that the complainants were told that they were not eligible for the Sale to Tenant and Shared Equity Schemes was because of the policy requirements of the scheme, in particular that their properties were not separately titled. Therefore I do not consider that there is any direct discrimination in this matter.
Indirect discrimination
I must now consider whether DHCS has indirectly discriminated against your clients by imposing a condition or requirement on them that would be likely to disadvantage them disproportionately because of their relationship status, their status as parents or carers, or their sex, which was not reasonable in all of the circumstances.
You state that the complainants' "relationship status as single mothers has resulted in they being entitled to units or small townhouses, rather than "stand alone" properties". Each of the complainants state in their complaint forms that the majority of ACT Housing tenants that are single women and single mothers are residing in units because their family units are not large enough to warrant stand alone housing.
There is some disagreement between you and DHCS regarding the relevant statistics. You have used information from Minister Burch provided to the ACT Parliament in September 2010. However, DHCS has provided its own statistics. The major difference in agreement appears to be regarding the total percentage of Housing ACT tenants that are either single women or single mothers. You use Minister Burch's number of 38% and DHCS states it is actually 51%. There is more agreement regarding the statistics for the percentages of single women and single mothers who live in stand alone properties. According to the figures you provided from Minister Burch, 40% of single women are in stand alone houses (1144 out of a total of 2821 single women), and 74% of single mothers are in stand alone properties (1134 out of a total of 1535 single mothers). This is not very different to the DHCS figures which are 42% and 81% respectively.
Status as parents or carers
As outlined above, both the figures provided by you and DHCS, indicate that single mothers are more likely to be housed in stand alone properties (74% and 81% respectively). As there does not seem to be a dispute that the majority of single mothers are more likely to be housed in stand alone properties by Housing ACT, I do not consider that the complainants are being disproportionately disadvantaged, due to their status as parents or carers.
Relationship status
The attribute of 'single', as defined under 'relationship status' in the Act needs to fit this matter. The fact that a person is single may not be the only reason that they are living as a sole occupant in accommodation. There may be people who are in relationships that may not be 'single' according to a narrow definition of the Act that are living alone in Housing ACT accommodation. However, consistent with the right to equality under the HR Act, I am prepared to apply the definition of 'single' in a broad manner to apply to this matter. From the figures provided by both you and DHCS it appears that single women (defined as women living alone) are slightly less likely to be housed in stand alone properties by ACT Housing (40% and 42% respectively). However, in its response DHCS further expands on this figure, and states that of the remaining 58% of single women not in stand alone properties, 28% are in aged persons accommodation.
It would appear from the statistics provided, that women who are single, and who are not in aged care accommodation, are more likely to be housed in stand alone accommodation rather than in units and townhouses by ACT Housing. From these figures, it does not appear that single women are disproportionately disadvantaged by DHCS in its allocation of housing. It appears that the number of children is the main factor that determines the size of a property allocated to a parent. I therefore do not consider that the complainants have been indirectly discriminated against because of their relationship status of single.
Sex
No statistics have been provided to compare single women with single men, or single fathers with single mothers in relation to this matter. As no evidence has been given to support an argument that the statistics for men would be different to women in this case, it is not apparent that this matter has raised issues of discrimination based on sex.
Conclusion
In conclusion, I am of the view that this matter does not raise issues of either direct or indirect discrimination on the bases of status as a parent or carer, relationship status or sex. I have therefore decided that I must close your complaints as the matters raised lack substance.
On 6 July 2011, at the request of the Applicants the Commissioner referred the complaint to ACAT in accordance with section 53A of the HRC Act.
The matter was listed for directions before the Tribunal on 19 July 2011. Ms Duce of Maurice Blackburn, Solicitors appeared for the Applicants and Ms Holley of the ACT Government Solicitors Office appeared for the Respondent. Orders were made for referral to mediation and for the filing of correspondence referred to in the Commissioner’s decision.
On 20 July 2011, the Applicants filed the correspondence and documents as directed. These documents included:
(a)Letters of 4 March 2011 and 14 April 2011 from the Applicants to the Commissioner further clarifying the nature of their complaints;
(b)The Respondent’s response to the Human Rights Commissioner concerning the complaint;
(c)The Shared Equity Scheme Policy; and
(d)The Sale to Tenant Scheme Policy.
The Applicants’ letter of 4 March 2011 read:
I refer to your letter of 16 February 2011, and on behalf of the Complainants respond as follows:
Clarification of Grounds:
The parties hereto wish to amend their complaint forms to also nominate sex as a ground for the complaints. We apologise for this oversight;We also enclose copy letter from the Writer to the Department of Disability, Housing and Community Services dated 10 December 2010 together with their response dated 20 January 2011.
The complainants further submit, in addition to the information provided in relation to each individual below, the following:
· Housing Guidelines, issued by the Department of Housing, dictate, subject to an applicant's family makeup, the size of the property that a person or family unit is entitled to. Such limitation, in relation to the complainants herein, considering their relationship status as single mothers, has resulted in they being entitled to units or small townhouses, rather than "stand alone" properties. As a result, the complainants, as a class of people with a particular family unit, who are only entitled to a certain number of bedrooms which in practical terms leads to an entitlement of a unit rather than a house, automatically excludes them from taking part in any of the home ownership schemes, being the Public Housing Scheme Sale to Tenant and the Shared Equity Scheme for Tenants, and their relevant amendments since approximately 1991 to date.
We submit that the practical effect of this exclusion is that two classes of housing tenants has in effect been created. They being those that are entitled and granted a "stand alone" property which in turn entitles participation in the housing programs and a separate class, of which the complainants are part of, who have no alternative but to be granted non-eligible accommodation, such as a unit, so excluding these residents from participating in these housing schemes.
As a result of this situation, the Complainants have lost the opportunity to participate in these schemes and their ability to apply or even to be encouraged to apply and participate, as is further expanded below, is negated.
Their security of tenure regarding where they live has also been significantly impacted due to this inequity and, we submit, discrimination. Their security of living in a close community, supported by those around them and in an area where the complainants have lived for a significant period of time, well over 20 years, has and will continue to have significant impact upon them all, financially, socially and emotionally.
To separately title such properties, we submit, would not necessarily be of significant cost and could in any event form part of the purchase/sale price. Considering all public tenants should be able to participate in the opportunities that government provides so as to "move on" those tenants who can afford to, and at the same time, provide a cash injection to enable further stock to be purchased to assist those that are not in that position. Multi purpose complexes, being a combination of privately owned (being those sold to public housing tenants) and government owned can provide those that live in such communities a sense of security and maintain a balance of owner/occupiers and tenants so assisting in the overall care and maintenance of such complexes.
The schemes that are available for a certain class of people can provide an opportunity to public housing tenants to "break out" of the "public circle of dependence" and provide a reasonably secure future for those participants. To exclude the Complainants, who represent in effect a separate class of persons, who are eligible in all other criteria, other than their type of residence, would appear to defeat the purpose for which these schemes have been created.
We note that each of the complainants herein have had similar experiences with their enquiries with the Department of Housing to participate in the home purchase schemes as amended since 1991, and as a result of those experiences, each have similarly been affected, not only financially and socially but also, in particular, their inability to attain security of tenure in a complex that they have resided in for well over 20 years. Whilst Ms Krupinski, Davies and Craig had not received formal responses from their enquiries and Ms Hedley had documented her encounters, they have all collectively received the same response, that being that they were each unable to apply to participate or be eligible to take part in any of the schemes which had been introduced, nor were they granted any opportunity, in the early years, to transfer to eligible properties.
Each of the Complainants collectively supported each other over the years to make these enquiries and each have informed the others of the responses each had received. In particular those formal responses received by Ms Hedley, impacted upon all the complainants considering their circumstances were similar to Ms Hedley's and the responses she formally received, reinforced those received by the others on an informal basis. As a result, their ability and motivation to continue to apply in addition to Ms Hedley's efforts were severely curtailed.
There follows a recitation of relevant vocational and residential history of each applicant.
The Applicants’ letter of 14 April 2011 read:
We refer to this matter and to your letter of 18 March 2011 and make the following comments regarding the response received from ACT Housing
· We refer to the contents of our further submission dated 4 March 2011which -sought to expand the content of our clients' claims.
· The Department asserts that the Schemes' requirement that properties be separately titled is reasonable for the purposes of Section 8(2) of the Discrimination Act 1991. We do not agree with that assertion and we respond as follows:
oThrosby Court is a different complex to those generally created by the Department of Housing. It comprises elegantly designed 2 and 3 bedroom townhouses which were built as part of the post war reconstruction in 1951 and are likely to be eligible for heritage listing.
oThe Department refers to Throsby Court as being described as six houses wherein in fact it is 24 units.
oIn 1990 ACT Housing conducted a major upgrade of these units. Significant work was carried out internally including installation of French doors and small verandahs. Tenants had substantial input into the design and each unit is slightly different in terms of internal layout and finish.
oUnder earlier housing policy tenants were encouraged to consider the properties as their home and the upgrade appeared to underline this. Given the success of the renovation and the fact that the townhouses were adequate for those tenants' needs, the claimants felt that they were part of the community and did not seek transfer outside the development.
oIt was generally considered that at the time the renovations were done in the early 1990's there was a possible intention to unit title the properties and as a result the claimants understood that the properties were sufficiently renovated to indicate separate units so facilitating a unit title development in the future.
oThe claim by the Department of Housing that significant road works and car parking would need to be adjusted should these properties be unit titled we do not agree.
§ The units have been treated as separate stand alone units by all tenants.
§ Carports and visitor car parking facilities were upgraded as part of the major upgrade in 1990 so as to facilitate separate allocation.
§ The car parking spaces were originally designed within two lane way access that border the complex. These laneways originally enabled two way traffic, however since the up grade the same has now been changed to one way traffic to accommodate the extra car spaces.
oAs to the requirement for fire protection separation for each unit, based on our investigations it would appear that such separation has already been put in place when the properties were upgraded in the 1990's.
oIt is understood that there are a number of strata title complexes within the Canberra region that include Department of Housing tenants renting side by side with private tenants in a mixed usage development. As body corporate management would be in place in such non-government developments, the Department of Housing would be required to function within that management system. On that basis, such a management structure would not presumably be foreign to the Department and one that could be catered for should such an option be successful regarding Throsby Court.
oAs to the Crown Lease itself, and anticipated future use of the site, we submit that at Clause 3(e) of the Crown Lease, copy attached, that it was anticipated that the development may be separately titled, provided that the provisions of Clause 2(g) be complied with. We understand, as noted above, an upgrade to the parking and carport facilities in 1990's was done so as to comply with such a future proposal.
oWe submit that regarding this particular property, to unit title the development would not be such an onerous task considering the re-development work that has already been done to the units as well as the anticipated future options already contained in the single Crown Lease.
oWe believe that it is feasible to overcome and mitigate any disadvantage to the Department by unit titling the property in that such costs of unit entitlement can be included in any sale price, thus reducing any possible excessive disadvantage to the Department.
oFrom an historical point of view, we also understand that under the now repealed S. 28A of the City Area Leases Ordinance,(City Area Leases Act 1936) government housing was available to be sold to government tenants on the basis that the same not be further on-sold for a period of 5 years. Whilst the particular schemes in question, as modified have been in place since 1991, the concept of selling all types of government housing is not new and has been in place since as least 1951.
· In considering whether the condition imposed by the Department is reasonable it must be borne in mind that the onus on showing that the condition is reasonable lies on the Department. The question is whether it is objectively justified considering the issue in a practical way. The matters set out above demonstrate that the condition that a property be separately titled is not reasonable. It is merely a condition that has been imposed by the Department for its own convenience.
· The policy of allowing tenants to purchase the properties where they have resided for so long is to be applauded, especially in Australia where home ownership is seen as a desirable feature of our society. If the Schemes are in the interest of the Department then the underlying policy must be relevant to all tenants.
· The nature and extent of the disadvantage to those who we represent is great. The importance of not being able to purchase their own homes is obvious - these tenants have lived in these properties for most or much of their adult lives and have raised their children there. This is their community and they have been induced by the Department to treat the properties as their permanent homes as outlined above. Yet they are excluded from the opportunity afforded to others to obtain tenure.
· The feasibility of overcoming this disadvantage is too easily dismissed by the Department. The Department may have to do some work - not as much as it makes out - but work for which it will be compensated, probably rewarded. It is not an impossible or even a difficult task, merely one that will involve planning and implementation. Strata titling property is an everyday occurrence in the Australian Capital Territory.
· The disadvantage to the tenants that we represent of the condition of separate title is out of all proportion to the mere inconvenience of the Department required to rectify the issue. As previously mentioned, the onus is on the Department to prove that the condition is reasonable and it has not done so.
· We also, in accordance with Clause 3(c), believe that unit titling the property would not be disadvantageous or disproportionate to the results sought by the claimants.
· As to Housing's response in relation to Clause (a) of attachment 1 we believe that the fact that our clients have been precluded from participating in the Housing Schemes has precluded their opportunity to participate in home ownership and also to generate funds and the ability for the Department to replace housing accordingly.
· As to the response from Housing at Clause (c) of attachment 1, we attach copy notice paper dated 22 September 2010 which stipulates at Clause 3 the percentage relied upon.
· Clause 2 of attachment 1 we refer to the contents of our further submission dated 4 March 2011 clarifying our client's position.
· Clause 3 of attachment 1 - we rely on our submission provided under our letter of 4 March 2011.
· As to paragraph 4 of attachment A we note that Ms Hedley, Ms Davies, Ms Craig and Ms Krupinski as parents whose children had left home were not entitled to any other type of property other than a unit and so because of their family make up, their opportunity to purchase a stand alone property was negated.
· The fact that unit properties are not part of the Schemes and the fact that parents whose children have left home are only entitled to transfer to smaller units based on housing policy guidelines in most circumstances, and in particular in the circumstances of our clients, we submit, that our clients have been discriminated against due to their family make up.
· As to Clause 6, page 7 wherein there is a reference to the issue of separate Certificates of Occupancy or Use. It is our understanding that no separate Certificate is required to be issued in relation to government properties. We further understand that ex-government properties that are sold in the Territory are sold without such a certificate as they are ex-government properties, built by the government and do not require such validation of the work completed.
There follows comments specific to the each applicant’s history in public housing.
The Respondent’s response to the Human Rights Commissioner read:
Background — Ms Jeannine Hedley
Ms Hedley has been a Housing ACT tenant, occupying a 3 bedroom townhouse at Throsby Court, Narrabundah since August 1987. Ms Hedley has been paying full market rent since the commencement of her tenancy and has not applied for a transfer to another property at any stage during her tenancy.Ms Hedley's complaint to the ACT Human Rights Commission was dated 27 January 2011. In her complaint Ms Hedley stated she was treated unfavourably because she is "single" and because of her "status as a parent or carer".
Ms Hedley believes the reason why she has been treated unfavourably is that she applied to participate "as each "scheme" was issued by government", but was rejected as the property she lived in was a unit and therefore she was not eligible to apply.
Ms Hedley further stated that as she is a single person, she is unable to rent any other type of property from Housing ACT, thereby disentitling her to participate in these schemes.
The area of discrimination under which Ms Hedley noted that the unfavourable treatment happened is "accommodation". Ms Hedley stated that in 2008 her application to purchase was denied as she resided in a unit, and when she applied again in 2010 her application to purchase under the Shared Equity Scheme was rejected because the unit she resides in is not separately titled.
When responding to what she would like to happen in order to resolve her complaint Ms Hedley has said that she wishes to have the same opportunity as other government tenants who reside in 'stand alone' properties. Ms Hedley further stated that if she was unable to purchase, due to market price, she would like others to be eligible to participate, notwithstanding the type of property they reside in.
Action taken to date
Ms Hedley's solicitor sent a letter to the Chief Executive, Department of Disability, Housing and Community Services (DHCS) on 10 December 2010 in relation to this matter and received a response dated 21 January 2011 advising that the Department did not believe that the Sale to Tenant Scheme or the Shared Equity Scheme resulted in any unlawful discrimination as defined in the Discrimination Act 1991 (the Act).
....................................Background — Ms Hilary Davies
Ms Davies has been a Housing ACT tenant, occupying a 2 bedroom townhouse at Throsby Court, Narrabundah since September 1990. Ms Davies was paying full market rent up until January 2004 and has been on a rebated rent since that time. Ms Davies has not applied for a transfer to another property at any stage during her tenancy.Ms Davies' complaint to the ACT Human Rights Commission was dated 27 January 2011. In her complaint Ms Davies stated she was treated unfavourably because she is "single" and because of her "status as a parent or carer".
Ms Davies believes the reason why she has been treated unfavourably is because Housing and Community Services' (HACS) policy is discriminatory in that it denies a class of people (distinguished by their gender and marital status) an opportunity to participate in the housing purchase schemes.
Ms Davies stated she applied to participate in the schemes however, was told that she was not eligible as the property she resided in was contained on one Crown Lease and not unit titled, and therefore could not be separately sold. She further stated that she was not offered an option to transfer to another property which would enable her to purchase a property, as her "family unit" did not entitle her to a 'stand alone' property that would then enable her to participate in the scheme.
Ms Davies stated that as a result of her status the opportunity to purchase under these schemes was lost. She believed that in all other criteria she would have been eligible to participate in the schemes.
The area of discrimination under which Ms Davies noted that the unfavourable treatment happened is "accommodation".
When responding to what she would like to happen in order to resolve her complaint Ms Davies has said that she wishes to have the same opportunity as other government tenants who reside in 'stand alone' properties. Ms Davies further stated that if she was unable to purchase, due to market price, she would like others to be eligible to participate, notwithstanding the type of property they reside in.
Action taken to date
Ms Davies' solicitor sent a letter to the Chief Executive, Department of Disability, Housing and Community Services (DHCS) on 10 December 2010 in relation to this matter and received a response dated 21 January 2011 advising that the Department did not believe that the Sale to Tenant Scheme or the Shared Equity Scheme resulted in any unlawful discrimination as defined in the Discrimination Act 1991 (the Act).
................................Background — Ms Halina Krupinski
Ms Krupinski has been a Housing ACT tenant, occupying a 2 bedroom townhouse at Throsby Court, Narrabundah since October 1991. Ms Krupinski was paying full market rent up until January 2004 and was then on a rebated rent up until March 2008. Ms Krupinski paid full market rent from March 2008 to December 2008 and has been paying a rebated rent since that time. Ms Krupinski has not applied for a transfer to another property at any stage during her tenancy.
Ms Krupinski's complaint to the ACT Human Rights Commission was dated 27 January 2011. In her complaint Ms Krupinski stated she was treated unfavourably because she is "single" and because of her "status as a parent or carer".
Ms Krupinski believes the reason why she has been treated unfavourably is because the Housing and Community Services' (HACS) policy is discriminatory in that it denies a class of people (distinguished by their gender and marital status) an opportunity to participate in the housing purchase schemes.
Ms Krupinski stated that since the commencement of both the Sale to Tenant and Shared Equity Schemes she has made enquiries with the Department as to her eligibility.
Ms Krupinski said at various times of her rental term as a full-time employee paying market rent, she believed she met all the required eligibility criteria, however, upon making such enquiries she was informed by the Department that she could not participate in such schemes as the property she resided in was not a separate 'stand alone' property and she was therefore ineligible to participate.
The area of discrimination under which Ms Davies noted that the unfavourable treatment happened is "accommodation".
When responding to what she would like to happen in order to resolve her complaint Ms Krupinski has said that she wishes to have the same opportunity as other government tenants who reside in 'stand alone' properties. Ms Krupinski further stated that if she was unable to purchase, due to market price, she would like others to be eligible to participate, notwithstanding the type of property they reside in.
Action taken to date
Ms Krupinski's solicitor sent a letter to the Chief Executive, Department of Disability, Housing and Community Services (DHCS) on 10 December 2010 in relation to this matter and received a response dated 21 January 2011 advising that the Department did not believe that the Sale to Tenant Scheme or the Shared Equity Scheme resulted in any unlawful discrimination as defined in the Discrimination Act 1991 (the Act).
......................................Background — Ms Robyn Craig
Ms Craig has been a Housing ACT tenant, occupying a 2 bedroom townhouse at Throsby Court, Narrabundah since December 1991. Ms Craig was paying full market rent up until February 2009 and has been paying a rebated rent since that time. Ms Craig has not applied for a transfer to another property at any stage during her tenancy.Ms Craig's complaint to the ACT Human Rights Commission was dated 27 January 2011. In her complaint Ms Craig stated she was treated unfavourably because she is "single" and because of her "status as a parent or carer".
Ms Craig advised that she applied to participate "as each scheme was issued by the government" but was rejected as the property she lived in was a unit and therefore she was not eligible to apply.
Ms Craig believes the reason why she has been treated unfavourably is because Housing and Community Services' (HACS) policy is discriminatory in that it denies a class of people (distinguished by their gender and marital status) an opportunity to participate in the housing purchase schemes.
Ms Craig further stated that as her daughter had left home, she was a single person and therefore unable to rent any other type of property from Housing ACT, thereby disentitling her to participate in the scheme.
The area of discrimination under which Ms Craig noted that the unfavourable treatment happened is "accommodation".
When responding to what she would like to happen in order to resolve her complaint Ms Craig has said that she wishes to have the same opportunity as other government tenants who reside in 'stand alone' properties. Ms Craig further stated that if she was unable to purchase, due to market price, she would like others to be eligible to participate, notwithstanding the type of property they reside in.
Action taken to date
Ms Craigs' solicitor sent a letter to the Chief Executive, Department of Disability, Housing and Community Services (DHCS) on 10 December 2010 in relation to this matter and received a response dated 21 January 2011 advising that the Department did not believe that the Sale to Tenant Scheme or the Shared Equity Scheme resulted in any unlawful discrimination as defined in the Discrimination Act 1991 (the Act).
On 25 July 2011, the Applicants filed a series of correspondence between the parties including:
(a)
A letter from the Respondent to the First Applicant dated
4 December 2008 which read:
Thank you for your interest in purchasing the townhouse which you rent from the Department of Housing and Community Services.
I write to confirm my telephone advice that the property cannot be offered for sale. The property in this complex is not separately titled and none can be sold individually. All properties in the complex are registered on one Crown Lease.
I apologise for any inconvenience this has caused you. If you have any queries in relation to the matter please ring Sales Officer, Tilly Tan on 6207 1596.
(b)
A letter dated 4 February 2010 from the Respondent to the First
Applicant which read:
Thank you for your enquiry about the Shared Equity Scheme.
SHARED EQUITY SCHEME FOR TENANTS
We are pleased to announce that Housing ACT have partnered with IMB to provide a new package for Tenants called the Shared Equity Scheme.What is the Shared Equity Scheme?
The Shared Equity Scheme is one of the initiatives of the ACT Government's Affordable Housing Action Plan which seeks to assist public housing tenants with moving into private home ownership.The key feature of the scheme is that public housing tenants who are eligible to participate in the scheme will be able to become the full owners of their property but will not have to pay the full market value of the property upfront. They will only have to pay 70% of the price for the property.
As a result, Housing ACT and eligible scheme participants will share in increases or decreases in the property value (i.e. share the equity in the property).
What will I have to pay at the time I buy the property?
You will only have to pay Housing ACT 70% of the price for the property upfront. If you need to borrow the money to make this payment, you will need to borrow the money from the Shared Equity Scheme financier, IMB, and enter into a loan agreement with IMB.
Housing ACT will retain a "share" in the remaining 30% of your property by entering into a loan agreement with you to pay back the share to Housing ACT over 15 years, with a payment of 15% of the (30%) Equity to be paid at 5 years after the date of Settlement.
Interim payments, of a minimum of 5% of the Equity, may be made in installments. Each payment will be based on the market value of the property at the time of repayment.What will I have to pay after I buy the property?
You will be required to make repayments to IMB and Housing ACT in accordance with your loan agreements with each. Both IMB and Housing ACT will hold mortgages over your property.
However, as you will be the full owner of the property you will no longer be required to pay rent to Housing ACT as you will no longer be a "tenant" and you will be fully responsible for the property like a normal owner.Is the Sale to Tenant program still available?
Yes. The Sale to Tenant program is still available. The Shared Equity Scheme is simply another way in which tenants can move into private home ownership.How do I obtain more information and access the scheme?
Information sessions are being organised and we will contact you with the details of when the sessions will be held.
(c)
A letter dated 19 March 2010 from the Respondent to the First
Applicant which read:
Thank you for your enquiry about the Shared Equity Scheme.
In accordance with the Policy of the Shared Equity Scheme, I regret to advise that Housing ACT is not able to sell this property. Unfortunately the property you are renting from Housing ACT cannot be offered for sale as the townhouses in this complex are not separately titled and are registered on one Crown Lease. Unfortunately this, therefore, means they cannot be sold individually either the way of the Shared Equity or Sale To Tenant Scheme.
You can be assured not being able to sell the property under the Shared Equity Scheme in no way affects your current tenancy arrangements.
(d)
A letter of 10 December 2010 from the Applicants to the Respondent
complaining of the discriminatory nature of the Sale to Tenant
Scheme and the Shared Equity Scheme.
The parties engaged in protracted negotiations as part of the mediation process which were eventually unsuccessful. At the parties’ requests, the Tribunal made a succession of orders adjourning further directions until advised of the outcome of the mediation and negotiations.
The matter was listed for directions on 6 July 2012 at which time the Tribunal fixed a timetable for filing of evidence and Statements of Facts and Contentions.
Following some extensions of the timetable at the request of the parties, the matter was listed for hearing on 25 March 2013. The parties then sought an adjournment of the hearing date for various reasons, including the unavailability of counsel. The matter was relisted for hearing on 3 June 2013.
On 20 November 2012, the Applicants filed their Statement of Facts and Contentions and their personal witness statements.
The Applicants’ Statement of Facts and Contentions read:
Statement of Facts
1.In 1991 the ACT Government introduced a housing tenant purchase scheme, known as the Sale to Tenant Scheme. The Scheme is aimed at providing home ownership opportunities to public housing tenants. The Scheme has been further expanded over the years with the introduction of the Shared Equity Scheme in 2010. Both initiatives seek to provide public housing tenants with the opportunity to purchase the dwellings they live in.
2.The Applicants reside in townhouse style accommodation known as "Throsby Court" in Narrabundah and all entered the public housing market as single females caring for children. The Applicants have been public housing tenants for extended periods of time ranging from twenty to thirty years. Over many years the Applicants have repeatedly been denied the opportunity to participate in the ACT Governments Sale to Tenant Scheme or Shared Equity Scheme.
3.In January 2011 the Applicants lodged unlawful discrimination complaints with the ACT Human Rights Commissioner. In May 2011 the Commissioner closed the complaints citing a lack of substance. At the request of the Applicants the complaints were referred by the Human Rights Commission to this Tribunal.
4.The ACT Government introduced the Sale to Tenant Scheme in 1991. This Scheme was further expanded in 1998 and 2007. This scheme is aimed at providing a home ownership opportunity to public housing tenants.
5.In May 2010 the Shared Equity Scheme was introduced. This scheme provides for eligible public housing tenants to purchase 70% of their Housing ACT property upfront, with a financial institution providing the finance. The remaining 30% equity of the property remains with Housing ACT.
6.The Sale to Tenant Scheme and Shared Equity eligibility criteria for an applicant include the following. The applicant needs to:
I. be a current head tenant and occupant of the dwelling that they are applying to purchase;
II. be a signatory on the tenancy agreement relating to the property in which they are applying to purchase;
III. have been a continuous public housing tenant for at least 3 years prior to registering an interest in purchasing the property;
IV. have no rental arrears or legal action pending regarding tenancy matters; and
V. agree to be registered on the Certificate of Title as owning a minimum of 50% of equity in the property ("tenants in common").
Ms Jeannine Hedley
7.Ms Hedley has been a tenant of 12 Throsby Court, Narrabundah since 1987.
8.Ms Hedley began her public housing tenancy as a single mother of two sons.
9.Since 1996 Ms Hedley has made both telephone and written enquiries to the Department regarding her eligibility to purchase her rental premises.
10.Ms Hedley has been repeatedly denied the opportunity to participate in the Sale to Tenant Scheme or the later Shared Equity Scheme.
11.The Department has verbally advised and notified Ms Hedley in writing that the unit she resided in could not be offered for sale.
12.The consistent reason provided to Ms Hedley has been that her rental property does not have separate title and all units in the complex are registered on one Crown Lease.
Ms Halina Krupinski
13.Ms Krupinski has been a tenant of 4 Throsby Court, Narrabundah since 1991.
14.Ms Krupinski began her public housing tenancy as a single mother of one son.
15.From 1996 and subsequent years Ms Krupinski made telephone enquiries to the Department regarding her eligibility to purchase her rental premises.
16.Ms Krupinski was advised that the Throsby Court properties were not available for sale as they did not have separate title.
Ms Hilary Davies
17.Ms Davies has been a tenant of 8 Throsby Court, Narrabundah since 1982.
18.Ms Davies began her public housing tenancy as a single mother of one son.
19.Over the years Ms Davies made telephone enquiries with the Department regarding her eligibility to purchase her rental premises.
20.Ms Davies was advised by the Department that the Throsby Court units could not be offered for sale to public housing tenants.
21.The reason provided to Ms Davies was that the units did not contain separate title and were all on the one Crown Lease.
22.At no time was Ms Davies offered the option to transfer to another property that could be offered for sale under the various Government Home Ownership Schemes.
Ms Robyn Craig
23.Ms Craig has been a tenant of 1 Throsby Court, Narrabundah since 1991.
24.Ms Craig began her public tenancy in this complex as a single mother of one daughter.
25.Ms Craig made telephone enquiries with the Department regarding the possibility of purchasing her rental premises.
26.The Department advised Ms Craig that it was not possible for her to purchase the townhouse as the units do not have separate title.
27.On 4 December 2008, Mr Andrew Roylance, Manager, Portfolio Management of the Department of Disability, Housing & Community Services, advised Ms Hedley in writing, that her rental property could not be offered for sale. Mr Roylance cited the following reasons for the decision:
I.the property is not separately titled and cannot be sold individually;
II.all properties in the complex are registered on one Crown Lease.
28.On 27 January 2010, Ms Joy Burch, Minister for Disability, Housing and Community Services, advised Ms Amanda Bresnan MLA, in writing, that the properties at Throsby Court were unable to be sold. Ms Burch cited the following reasons for the decision:
I.the units in the complex do not have separate title and are registered on the one crown lease;
II.the Throsby Court complex is located in a RZ2 zone which allows for potential future development; and
III.continued ownership of the unit complex is necessary to ensure the ongoing portfolio viability of the housing stock.
29.On 19 March 2010, Mr Brent Fitzsimons, Manager, Portfolio Management of the Department of Disability, Housing & Community Services (DHCS), advised Ms Hedley, in writing, that Housing ACT is not able to sell her property located at 12 Throsby Court, Narrabundah. Mr Fitzsimons cited the following reasons for the decision:
I.the townhouses in the complex are not separately titled and are registered on one Crown Lease; and
II.the units cannot be sold individually either the way of the Shared Equity or Sale to Tenant Scheme.
30.On 12 April, 2012, Morgan Engineers ACT conducted an inspection of two Throsby Court Apartments. The report examines the process of Unit titling Throsby Court, as well as proposing an alternative option of subdivision. Both options are considered viable.
31.According to the Morgan Engineers report ........... the cost to unit title Throsby Court is approximately $6,000.00 per unit. The Department provided costing in a separate report which is inaccurate and overinflated.
32.The Department stated that the Crown Lease attached to Throsby Court does not permit unit titling. However, sub-clause (e) of Clause 3 of the Crown Lease states 'that approval to subdivide the premises under the Unit Titles Act 1970 shall not be given unless adequate car parking for the proposed units has been provided to the satisfaction of the Territory in accordance with sub-clause (g) of Clause 2 of this lease'.
33.All units in Throsby Court were provided with private carports, which comply with sub-clause (g) of Clause 2, by the Government during the 1991 refurbishment of the complex.
34.The Morgan Engineers Report concludes that Throsby Court has two alternatives available in unit titling and subdivision.
35.Unit titling Throsby Court would provide the ability for the Applicants and other tenants to purchase their property and thereby participate in the Government's Home Ownership Schemes.
Statement of Contentions
36.The Australian Capital Territory, specifically DHCS, has breached the Discrimination Act 1991 (ACT) by denying the Applicants an opportunity to participate in the various housing purchase schemes. The discrimination is indirect and is based on sex, relationship status and status as a parent or carer. The Department claims that the Throsby Court townhouses cannot be offered for sale to the Applicants based on the units in the complex not having separate title and being registered on one Crown Lease.
37.(Sic)
38.The Applicants have been denied the opportunity to participate in either the Sale to Tenant or Shared Equity home ownership schemes. The Applicants have been able to meet the eligibility criteria, however, have still been rejected.
39.The reasons provided by the Department for this rejection are said to be based on the fact that the Applicants are residing in units and not stand alone housing. The Applicants are all single mothers and as a result, their status effectively reduces their eligibility to rent any other type of property from ACT Housing.
40.The policies of the Department, in particular the type of housing available for single persons and single mothers, being in most cases units, matched with the ineligibility of units participating in the Sale to Tenants schemes, has in effect created two distinct classes of housing tenants. Rights, benefits and privileges have been afforded to one class of public housing tenants, whilst the same rights, benefits and privileges have been denied to the other class.
41.The Department has breached the Discrimination Act 1991 (ACT) ('the Act') by denying the Applicants, distinguished by their relationship status, sex, and status as a parent or carer, an opportunity to participate in the available home ownership schemes.
42.In deciding what constitutes discrimination, Section 8(1)(b) of the Act states 'the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7. The attributes applicable here are sex, relationship status and status as a parent or carer.
43.The Department has indirectly discriminated against the Applicants by failing to allow them the opportunity to purchase their own homes. The Applicants have been placed into unit style accommodation based on them being single female mothers. This discriminatory allocation has precluded the Applicants from participating in home ownership schemes and effectively purchasing their units.
44.The overall percentage of dwellings tenanted by single women and single mothers in Housing ACT dwellings is 38%. With single women representing 25% and single mothers representing 13%. The majority of these women are placed into units by Housing ACT based on their family make-up. It is through this practice that the Applicants have been discriminated against.
45.So, in summary, the indirect discrimination comes about by reference to the following contentions:
I. each of the Applicants is and was when first taking housing a single mother, thereby meeting the relevant attributes in section 7 of the Act, namely (a) sex, (d) relationship status and (e) status as a parent or carer;
II.the Applicants individually meet the criteria for the Sale to Tenant or Shared Equity home ownership schemes;
III..the policies of the DCHS result in persons such as the Applicants being placed in accommodation such as Throsby Court which is alleged to be unsuitable for the Sale to Tenant or Shared Equity home ownership schemes because DCHS will not undertake relatively minor work to issue separate titles, thereby imposing a condition or requirement that has, or is likely to have, the effect of disadvantaging the Applicants because of one of the attributes mentioned above (see section 8(1)(b) of the Act);
IV.put another way, had the Applicants not been single mothers each would have been allocated other accommodation and the existing eligibility of each would have resulted in an opportunity to participate in the Sale to Tenant or Shared Equity home ownership schemes;
V.Throsby Court is currently registered in one title and separate legal titles are not currently available for each dwelling;
VI.it is possible to issue separate titles for Throsby Court, and it is not reasonable for DCHS to fail to do so (see section 8(2)).
Decision sought
The Applicants seek the following:
I. the Department to make application for separate title or subdivision for each unit at Throsby Court through the ACT Planning and Land Authority (ACTPLA); and
II. the Department to provide assurance as to tenure for each resident at Throsby Court; and
III. compensation to be awarded to the Applicants.
The statement of the First Applicant (Exhibit A1) read:
I, Jeannine Hedley of 12 Hacking Crescent, Narrabundah, in the Australian Capital Territory state the following:
1. I am an applicant in these proceedings.
2. I believe the contents of this my Statement are true and correct.
3. I am a resident of the property described as Throsby Court and also known as 12 Hacking Crescent, Narrabundah. I have been a public tenant since 1987 when I moved to Canberra and applied to the then Department of Housing for a Government property to house myself and my two sons. Shortly after my application I was granted a property at 12 Hacking Crescent, Narrabundah. I remain in these premises to date although my adult sons have now left home.
4. The Department of Disability Housing and Community Services (ACT Government) introduced a scheme on 1991 which was further expanded in 2007 and 2010 known as the "Public Housing Scheme Sale to Tenant Policy" and "Shared Equity Scheme for Tenants" ............................ These policies essentially enabled eligible Public Housing Tenants to either purchase their Government house or enter into a "Shared Equity Scheme" with the Government to eventually purchase their own home.
5. When the "Kickstart Home Purchase Assistance Scheme" was introduced in 1996 I contacted the Department of Housing by telephone to make enquires as to whether I was eligible to arrange a formal application to participate in this scheme to purchase 12 Hacking Crescent, Throsby Court.
6. At that time I was informed that as I resided at Throsby Court considering that the property was a unit and not abled to be separately titled I was ineligible to participate in the scheme. As far as I understood the scheme, it was targeted at home purchase only in new developments such as Ngunnawal. At that time I was paying a rebated rent and not in a financial position to move from my place of residence or to successfully apply for a loan.
7. The Kickstart Home Purchase Scheme" was an amendment to and part of the "Sale to Tenants Scheme" which has been in existence and amended from time to time since approximately 1991.
8. In 1999 I commenced paying full market rent and contacted the Department of Housing by telephone again to enquire as to the possibility of applying for one of the "purchase schemes" at that time. The advice I received in 1996 was reiterated to me and I made no further enquiries until 23 July 2002.
9. On 23 July 2002, due to significant rent rises I contacted the Department to ascertain whether there had been any changes to the "purchase schemes" and whether I would be eligible to apply. As no change to the eligibility of unit tenants to purchase their property had occurred the information received in 1996 still applied.
10. On 26 October 2004 I contacted Ms Janet Heath in response to a brochure sent out by ACT Housing ................ inviting tenants to purchase their homes and to take advantage of the Governments offer of stamp duty concessions. Again, because my property was not unit titled I was not eligible to participate in the offer.
11. In April 2007 I telephoned Ms Maureen Sheehan in response to a letter received from Housing and Community Services dated 19 April 2007................ Upon my telephone enquiry I was advised that I could not participate as the property that I resided in was not separately titled.
12. During 2007 and 2008 I received correspondence from the Housing Minister, dated 9 August 2007 ....................
13. In December 2008 I telephoned the offices of Minister Hargreaves to make a further enquiry regarding my eligibility to purchase the property. At that time I recall speaking to a staff member, Keith, who as far as I can recall, on advice from ACT Housing, said to me, words to the effect that I was not eligible to participate in the scheme as Throsby Court was on one Crown Lease and my unit was not separately titled. I then recall speaking to a Ms Tilly Tan, a sales officer in ACT Housing, and asked her, in words to the effect of why the units were not separately titled. I recall that Ms Tan explained to me, in words to the effect that it was very costly to unit title and that as my property was not separately titled it therefore could not be sold. I further recall that Ms Tan suggested to me, words to the effect of, that I consider transferring to another property. In approximately April 2007, I had discussed this option with another Housing officer and recall being informed, to the best of my recollection, that if I was to transfer I would only be entitled to a bedsit.
14. On 4 December 2008 I received a letter from Mr Andrew Roylance Manager, Portfolio Management, Department of Housing and Community Services. This letter reiterates the advice confirming that my property cannot be offered for sale as the complex is not separately titled.
15. On 17 August 2009 I recall telephoning ACT Housing to discuss my concerns regarding my inability to purchase my property. At that time I recall speaking to a person by the name of Alan in Property Services who advised that he would pass on my complaint to the Manager Mr Andrew Roylance.
On 3 February 2010 I recall contacting the Department of Housing to again discuss my situation. On 4 February 2010 I received further correspondence from the Department of Disability Housing and Community Services ..........
17. On 19 March 2010 I received a response from Mr Brett Fitzsimmons regarding my enquiry confirming that I was ineligible under either the "Shared Equity" or "Sale to Tenants Scheme". ..........
18. During the above periods I informed my co-Complainants of the results of my enquiries which in turn I believe also influenced their position in regards to such applications.
34. As I understand, approximately 38% of housing tenants are either single women or single mothers, the majority residing in units because their "family units" were not large enough to warrant stand alone housing.
35. As a single person, based upon the Respondent's eligibility criteria I am unable to rent any other type of property so disentitling me to participate in the "purchase schemes".
36. I have been paying market rent for the past 12 years and comply with all other requirements to participate in the schemes other than reside in a "stand alone" property. I wish to have the same opportunities as other Government tenants and to participate in the schemes provided by the ACT Government.
37. I have lived in this complex for over 20 years and have formed close and lasting bonds in the area and the community. I believe that the policy of ACT Housing and Community Services is discriminatory in that it denies a class of people (distinguished by their sex, marital status and status as a parent and carer) an opportunity to participate in the housing purchase schemes.
38. As an ACT Government tenant I wish to have the same opportunities as other Government tenants that reside in "stand alone" properties and apply to purchase my property, or if I am unable to purchase, due to market price, then to at least to enable others to be eligible to participate notwithstanding the type of property they reside in.
39. As a result of the Respondent's policies, I am part of a small cohort of tenants whose needs are not addressed by current Housing Policy, that is single older women whose children have grown up and who have been disadvantaged by being ineligible to participate in any of the "Sale to Tenant" or "Shared Equity" programs.
40. As a result of these policies our needs as older women have not been considered and nor have we been given the opportunity to age in our choice of residence. I have also put considerable resources into my residence over the years in terms of improvement window furnishings, landscaping which has put me at a disadvantage as I age should I be required to be moved in that I receive no value for the improvements made.
41. The Respondent has stated from time to time that the potential for Throsby Court redevelopment is a major impediment to unit titling the properties and to sell the same to resident tenants. This statement conflicts with the Departments assertion, contained in their submission .................. that we may continue to occupy the property as a tenant. As I understand under the current policies of the Respondent I have no security of tenure. As I age this is of particular concern. Had I had the opportunity to purchase my unit, I would have been in a position to ensure my security of residence.
42. Based on my enquiries I understand that Throsby Court could be unit titled or sub-divided and such costs factored into any sale price. This would then enable the Respondent to maintain its housing stock, but at the same time enable those that could afford to, to purchase their property. ............... a document marked Throsby court Proposal which I and my fellow claimants submitted to the Respondent regarding options that could be taken up in order to separately title Throsby Court which would then enable tenants to be in a position to participate in the "purchase schemes".
43. As a result of my ineligibility to participate or even apply to participate in any of the "purchase schemes" or to have the opportunity to move to another property within which to participate I feel that my financial capacity to enter into the private market and my future security of tenure has been significantly impaired. I have persevered with my claim against the Respondent to highlight the inequity of the system and such perseverance has had a significant impact upon my health.
The statement of the Second Applicant (Exhibit A2) read:
I, Halina Krupinski of 4 Throsby Court, now known as 4/31 Throsby Crescent, Narrabundah, in the Australian Capital Territory state the following:
1. I am an applicant in these proceedings.
2. I believe the contents of this my Statement is true and correct.
3. I seek to rely in this statement upon ...........annexures ............ to the statement of Jeanine Hedley number DT 11/23 ..........
4. I am a resident of the property described as Throsby Court and have been a resident since October 1991 when I first moved into the area with my 8 year old son.
5. In 1995 I entered the workforce first on a part time basis and then in 1996 I began my permanent full time professional career and started paying full rent for the next 7 years.
6. The Department of Disability Housing and Community Services (ACT Government) introduced a scheme in 1991 which was further expanded in 2007 and 2010 known as the "Public Housing Scheme Sale to Tenant Policy" and "Shared Equity Scheme for Tenants", which essentially enabled eligible public housing tenants to either purchase their Government house or enter into a shared equity scheme with the Government to eventually purchase their own home.
7. In 1996 when the Kickstart Home Purchase Assistance Scheme was introduced I understood that I met all the requirements and eligibility criteria.
8. I contacted the Department of Housing by phone sometime in 1996 to make enquiries and to make a formal application to participate. At that time I was informed that as I resided at Throsby Court considering the property was a unit and not separately titled I was ineligible to apply to participate in this scheme.
9. I was not given the opportunity to discuss any alternatives within which I could participate in the scheme. The "Kickstart Home Purchase Assistance Scheme" was an amendment to and part of the "Sale to Tenants Scheme" which has been in existence and amended from time to time since approximately 1991.
10. As my eligibility was negated at first instance due to the fact that I resided in a unit at Throsby Court there was no formal application available to me to participate in either the "Kickstart Scheme" or any other introduced scheme since under the overall "Sale to Tenants Schemes".
11. I made enquiries with the Department of Housing during the period 1996 — 2010. I am unsure of exact dates however, at various times in my rental term as a full time employee and paying market rent I believed that I met all the required eligibility criteria. Upon making such enquiries I was informed by the Department that I could not participate in such schemes as the property that I resided in was not a separate stand alone property and I was therefore ineligible to participate.
12. Due to such reconfirmation of my ineligibility I made no further direct enquiries to the Department.
13. I was also not given the opportunity to transfer to an eligible property so as to enable me to participate in such schemes.
14. As I understand approximately 38% of housing tenants are either single women or single mothers, the majority residing in units because their "family units" are not large enough to warrant stand alone housing. The fact that I do not reside in stand alone property has prevented me from participating in these schemes and as a result has reduced my capacity to ensure my financial security for the future.
15. Due to my family status, I am unable to rent any other type of property from the Respondent.
16. I believe the policy of the ACT Housing and Community Services is discriminatory in that it denies a class of people ((distinguished by their sex, marital status and status as a parent and carer) an opportunity to participate in the housing purchase schemes.
17. The Respondent has stated from time to time that the potential for Throsby Court redevelopment is a major impediment to unit titling the properties and to sell the same to resident tenants. This statement conflicts with the Departments assertion,................that we may continue to occupy the property as a tenant. As I understand under the current policies of the Respondent I have no security of tenure. As 1 age this is of particular concern. Had I had the opportunity to purchase my unit, I would have been in a position to ensure my security of residence.
18. I have made significant improvements to my property that will now not be realised. I feel that my age and financial commitments prevent me from entering into the private market and the loss of opportunity of participating in the Government schemes to achieve home ownership has had a significant financial and emotional impact on me.
19. I wish to have the same opportunities other Government tenants that reside in stand alone properties and apply to purchase my property, or if 1 am unable to purchase, due to market price, then to at least enable others to be eligible to participate notwithstanding the type of property they reside in.
20. Based on my enquiries I understand that Throsby Court could be unit titled or sub-divided and such costs factored into any sale price. This would then enable the Respondent to maintain its housing stock, but at the same time enable those that could afford to, to purchase their property.
...............................
The statement of the Third Applicant (Exhibit A3) read:
I, Hilary Davies of 8 Throsby Court, now known as 8/31 Throsby Crescent, Narrabundah, in the Australian Capital Territory state the following:
1.I am an applicant in these proceedings.
2.I believe the contents of this my Statement are true and correct.
3.I seek to rely in this statement upon .......... annexures ...... to the statement of Jeanine Hedley number DT 11/23 ....... .
4.I am a resident of the property described as 8 Throsby Court and now known as 8/31 Throsby Crescent, Narrabundah. I have been a public tenant since 1979 when myself and my small son were eligible for Government housing in the ACT. We were given a flat in the Allawah complex in Civic and then a transfer to a two bedroom house in Ainslie. Following a number of disturbing break in's, the Police recommended that I move as quickly as possible and I was given a choice of one of two units in Throsby Court.
5.I moved to Throsby Court in approximately 1982 and at that time, I was nearly 30 and my son was 7.
6.I recall in approximately 1991, the Department of Disability Housing and Community Services (ACT Government) introduced a scheme which has further expanded in 2007 and 2010 known as the "Public Housing Scheme Sale to Tenant Policy and the "Shared Equity Scheme for Tenants" hereinafter referred to as the "Purchase Schemes". These Purchase Schemes essentially enabled an eligible public housing tenant to either purchase their Government house or enter into a shared equity scheme with Government to eventually purchase their own home.
7.I applied to participate however, I was told that I was not eligible as the property I resided in was contained on one Crown Lease and not Unit Titled and could not be separately sold. I was not offered an option to transfer to another property which would then enable me to purchase a property as my "family unit" did not entitle me to "a stand alone" property that would then enable me to participate in the Purchase Schemes. As a result of my status, the opportunity to purchase under these schemes was lost. I believe that in all other criteria I would have been eligible to participate in the Purchase schemes.
8.In 1996 when the "Kickstart Home Purchase Assistance Scheme" was introduced I contacted the Department of Housing by phone again to make enquiries and to arrange a formal application to participate in this scheme.
9.At this time I understood that I complied with the eligibility criteria however, upon my further enquiries I was informed that as I resided at Throsby Court considering the property was a unit and was not able to be separately titled I was ineligible to purchase my property.
10.The "Kickstart Home Purchase Assistance Scheme" was an amendment to and part of "The Sale to Tenants Scheme" which has been in existence and amended from time to time since approximately 1991.
11.As my eligibility was negated at first instance due to the fact that I resided in a unit at Throsby Court, there was no formal application available to me to participate in either the "Kickstart Scheme" or any other introduced scheme since, under the overall "Sale to Tenants Scheme" which includes the "Shared Equity Scheme".
12.I am unable to provide exact dates as to when I made these enquiries however, as new amendments to the "Sale to Tenants Scheme" were announced, particularly in 2008 and 2010 I recall contacting the Department by telephone to ascertain whether the preclusions of units was still the case.
13.I was advised again that as Throsby Court was on the one Crown Lease it was not separately titled and therefore could not be sold. At no time was I given the opportunity to discuss any alternatives within which I could participate in any of the schemes available.
14.During the period 1996 to 2010 I have made informal general enquiries of the Department of Housing together with my other Co-Complainants and at each time it was reconfirmed to me that I was precluded from my application due to the fact that Throsby Court was not separately titled.
15.As my eligibility was negated at first instance in 1996 and then reconfirmed as time went on, I was given no opportunity to make any formal application to the Department to participate in these schemes.
16.As a result of my ineligibility to participate or even apply to participate in any of the purchase schemes I did not make any formal application to the Department of Housing other than as noted above.
17.As I understand approximately 38% of housing tenants are either single women or single mothers, the majority reside in units because their family units are not large enough to warrant stand alone housing.
18.Based on further enquiries with the Department, I believe my application was rejected simply because I was a single person living in a unit. I wish to have the same opportunities as other Government tenants and participate in schemes provided by the ACT Government. I have lived in this complex for 30 years and I have formed close knit and lasting bonds to the area and the community.
19.I believe the policy of the ACT Housing and Community Services is discriminatory in that it denies a class of people ((distinguished by their sex, marital status and status as a parent and carer) an opportunity to participate in the housing purchase schemes.
20.The Respondent has stated from time to time that the potential for Throsby Court redevelopment is a major impediment to unit titling the properties and to sell the same to resident tenants. This statement conflicts with the Departments assertion...... .......that we may continue to occupy the property as a tenant. These conflicting statements make me feel anxious about my right to remain in my home. As I understand under the current policies of the Respondent I have no security of tenure. However, in previous years, it was understood that tenants did have security of tenure. As I age this is of particular concern. Had I had the opportunity to purchase my unit, I would have been in a position to ensure my security of residence.
21.I am unable to purchase a property. I have paid rent to ACT Housing for over 30 years. It concerns me that at my age and due to my change in family circumstances, I might at some stage be required to move to a smaller unit. I have also made considerable improvements to the property that I reside in and as a result of my ineligibility to purchase my property I will not be in a position to realise the same considering these current circumstance. Due to this inequitable situation I have lost the opportunity to improve my housing situation and to provide security for my future which has had a significant financial and emotional impact.
22.I wish to have the same opportunities other Government tenants that reside in stand alone properties and apply to purchase my property, or if I am unable to purchase, due to market price, then to at least enable others to be eligible to participate notwithstanding the type of property they reside in.
23.Based on my enquiries I understand that Throsby Court could be unit titled or sub-divided and such costs factored into any sale price. This would then enable the Respondent to maintain its housing stock, but at the same time enable those that could afford to, to purchase their property.
................................
The statement of the Fourth Applicant (Exhibit A4) read:
I, Robyn Craig of 1 Throsby Court, now known as 1/31 Throsby Crescent, Narrabundah, in the Australian Capital Territory state the following:
1.I am an applicant in these proceedings.
2.I believe the contents of this my Statement is true and correct.
3.I seek to rely in this statement upon .....annexures ..........to the statement of Jeanine Hedley number DT 11/23 ..............
4.I am a resident of the property described as Throsby Court. I originally came to Canberra in 1970 with my then husband and we purchased a Government house in1973. Some years later my marriage ended and I was a single parent with one daughter.
5.The Government house was transferred to me. However, in 1983, I sold the property and left Canberra.
6.I returned to the ACT in 1991 and applied for Government accommodation and was allocated a unit at Throsby Court in December of that year.
7.The Department of Disability Housing and Community Services (ACT Government) introduced the scheme in 1991 which was further expanded in 2007 and 2010 known as the Public Housing Scheme sale to tenant policy and shared equity scheme for tenants which essentially enabled eligible public housing tenants to either purchase their Government house or enter into a shared equity scheme with the Government to eventually purchase their own home.
8.I gained permanent employment from 1995 to 2008 and paid market rent for that period. Considering my financial circumstances during this period when the "Kickstart Home Purchase Assistance Scheme" was introduced in 1996, I understood that I met the eligibility requirements. As a result I contacted the Department of Housing by phone sometime in 1996 to make enquiries and to arrange a formal application to participate in this scheme.
9.At the time of making the telephone enquiry I was informed that as I resided at Throsby Court considering the property was a unit and not able to be separately titled I was ineligible to apply to participate in the scheme.
10.I was not given the opportunity to discuss any alternatives within which I could participate in the scheme. The "Kickstart Home Purchase Assistance Scheme" was an amendment to and part of the "Sale to Tenants Scheme" which has been in existence and amended from time to time since approximately 1991.
11.As my eligibility was negated at first instance due to the fact that I resided at Throsby Court there was no formal application available to me to participate in either the "Kickstart Scheme" or any other introduced scheme under the overall "Sale to Tenants Scheme".
12.I am unsure as to the exact dates when I made these telephone enquiries. However, as new amendments to the "Sale to Tenants Schemes" were announced I did make formal general enquiries with the Department Housings manager for Throsby Court whom I knew as Ross. I made these enquiries with the other Complainants herein during the period 1996 to 2012. Upon each enquiry it was reconfirmed that I was precluded from such application as Throsby Court was not separately titled.
13.Due to such reconfirmation of my ineligibility I made no further direct enquiries to the Department.
14.I was not given the opportunity to transfer to an eligible property so as to enable me as to participate in such schemes.
15.As I understand approximately 38% of housing tenants are either single women or single mothers, the majority reside in units because their family unit is not large enough to warrant stand alone housing. As each scheme was issued by the Government I applied to participate but was rejected as the property I lived in is a unit and therefore I was not eligible to apply.
16.Being a single person, my son having left home I am unable to rent any other type of property from ACT Housing, my so disentitling me to participate in the scheme.
17.I wish to have the same opportunities as other Government tenants and participate in such schemes provided by the ACT Government.
18.I have lived in this complex for approximately 19 years and have formed close knit and lasting bonds to the area and the community.
19.I believe the policy of the ACT Housing and Community Services is discriminatory in that it denies a class of people (distinguished by their sex, marital status and status as a parent and carer) an opportunity to participate in the housing purchase schemes.
20.The Respondent has stated from time to time that the potential for Throsby Court redevelopment is a major impediment to unit titling the properties and to sell the same to resident tenants. This statement conflicts with the Department's assertion ............ that we may continue to occupy the property as a tenant. As I understand under the current policies of the Respondent I have no security of tenure. As I age this is of particular concern. Had I had the opportunity to purchase my unit, I would have been in a position to ensure my security of residence.
21.I have paid market rent for a considerable number of years and due to this inequitable situation I have lost the opportunity to improve my housing situation and to provide security for my future, which has had a significant financial and emotional impact.
22.I wish to have the same opportunity as other Government tenants that reside in stand alone properties and apply to purchase my property, or if I am unable to purchase, due to market price, then at least to enable others to be eligible to participate, notwithstanding the type of property they reside in.
23.I understand that the complex that I reside in could be unit titled or subdivided and such costs factored into any sale price. This would then enable the Government to continue to maintain the housing. At the same time enabling those that could afford to purchaser their property and provide some security for themselves.
On 14 March 2013, the Respondent filed its Statement of Facts and Contentions and a statement from Peter Johns of the same date.
The Respondent’s Statement of Facts and Contentions read:
FACTS
1.The respondent adopts the facts stated in the witness statement of Peter Johns dated 12 March 2013. (Terms and abbreviations in the witness statement have the same meaning in this statement of facts and contentions.)
CONTENTIONS
2.The application of the STTS[1] and SES[2] policies to the applicants does not constitute discrimination, because it did not have the effect of disadvantaging any of the applicants because they -
[1] Sale To Tenant Scheme (This footnote is for explaining the abbreviation but is not part of the Respondent’s Statement of Facts and Contentions)
[2] Shared Equity Scheme (This footnote is for explaining the abbreviation but is not part of the Respondent’s Statement of Facts and Contentions)
(a) have a particular sex or gender;
(b) have or had a particular relationship status; or
(c) have or had the status of parent or carer.
3.Alternatively, the STTS and SES policies are reasonable in the circumstances because of the following:
(a)The policies confer an "absolute" discretion to refuse to alienate into private ownership certain publicly-owned housing stock, including multi‑dwelling housing.
(b)The objective of the policies is —
(i) to provide a home ownership opportunity to some tenants, and
(ii) to preserve the ability of Housing ACT to manage its property assets in terms of economic efficiency, by disposing of some properties, or by preserving its ability to redevelop other properties.
(c)The buildings on the block (constructed about 1950) are near the end of their economic life.
(d)The block has considerable redevelopment potential due to its location and planning considerations.
(e)The optimal method of disposal or redevelopment of the block is to deal with the whole block.
(f)The disadvantage to the applicants of not obtaining private ownership of their particular residence is minor for the following reasons.
(i) They have in effect a life tenancy of their residence (subject to the Commissioner's transfer powers).
(ii) They can access private ownership via the STTS and SES by transferring to a dwelling that is separately titled.
(iii)Some of the applicants have the financial capacity to access suitable housing in the private market.
(g)The result sought by Housing ACT is that of preserving its ability to dispose of or redevelop the block as a whole, given the age of the buildings on it, and its redevelopment potential. Any minor disadvantage to the applicants is outweighed by the disadvantage caused to Housing ACT's ability to dispose of or redevelop the block.
(h)The unit-titling of the block would activate lease and ACTPLA requirements related to the provision of resident and visitor parking on the block.
4.The application of the policies to one or more of the applicants does not contravene section 20 of the Act, or any other provision of Part 3, because the respondent provides only the facility or service of considering applications under the STTS and SES. The respondent does not provide the service or facility of necessarily acceding to such an application.
5.By virtue of section 23(1)(a) of the Australian Capital Territory (Self-Government) Act 1988 (Cth), the Discrimination Act and/or the Human Rights Commission Act do not authorise any order by the Tribunal that would compel the Commissioner to —
(a)unit-title the block; and
(b)sell and transfer one to four units so created to one or more of the four applicants, even if the applicant paid a "market" price for the unit; or
(c)sell and transfer 50%, or some other proportion less than the whole, of the property in such a unit to one or more of the four applicants; or
(d)sell and transfer proportions of the property in such a unit to one or more of the four applicants over a period of 15 years; or
(e)sell and transfer one of more of the units to one or four of the applicants on terms that are inconsistent with the relevant policy of the schemes.
The statement from Mr Johns (Exhibit R1) read:
1.I am an officer of the respondent Community Services Directorate (CSD), in the division known as Housing ACT. My position is Senior Manager of the Asset Management Branch. I am familiar with the organisation, policies and practices of Housing ACT.
2.I have read the applicants' complaints in the present matter and other associated material.
Functions of the respondent and Housing ACT
3.The respondent Community Services Directorate (CSD) is an agency of state of the ACT, under the control of a Minister of state of the ACT, the Minister for Housing.
4.The functions of CSD (in part through Housing ACT) include providing advice to the government of the ACT on housing matters, including public housing, and administering programs for the provision of public housing.
5.Housing ACT is a subdivision of SD that administers programs of public housing in the ACT. Housing ACT assists the Commissioner for Social Housing ("the Commissioner").
6.I have been authorised to give evidence on behalf of Housing ACT and the Commissioner for these proceedings.
7.The Commissioner is established as a corporation under the Housing Assistance Act 2007 and has functions under that Act and the Public Rental Housing Assistance Program (PRHAP). Those functions include the holding, disposing and acquisition of land for public housing purposes.
8.Public housing programs are administered in accordance with policies based on housing need, equity and efficiency.
9.In accordance with these policies, available public housing is allocated based on applicant income and financial circumstances, applicant family needs (measured by size of family), or based on other special needs (eg a disabled family member).
10.An applicant's income and the financial eligibility for housing assistance is prescribed in the PRHAP.
11.In accordance with its policies, Housing ACT attempts to maximise opportunities for waiting applicants to obtain housing in accordance with their family needs.
12.There is considerable unmet demand for public housing in the ACT, ie demand by persons who are eligible in income and financial terms. Housing ACT places such applicants on a waiting list. Applicants are ranked on the waiting list according to the date of their application, but they may receive an earlier allocation of housing if they have a special need.
13.In some cases Housing ACT allocates Housing assistance in accordance with declared special priorities and needs categories. A copy of the declaration of needs categories is attached as Annexure 1 (N12011-507).[3]
[3] Annexure 1 is not reproduced in this decision.
14.Housing ACT does not allocate housing based on sex or marital status. Rather the allocation in terms of size and housing type would be governed generally by need, ie the family size, or special needs.
15.For example, Housing ACT would not generally allocate a 3-bedroom dwelling to one person (regardless of their marital status or whether they were a parent, and regardless of housing type). Allocation to one person would result in an inequitable allocation of the resource. Such housing stock would be allocated to a family of 3 or more persons that needed a dwelling of that size.
16.The type of housing (detached house, attached dwelling, flat etc) offered to an applicant would be generally determined by availability, or by a special need, such as an inability to use stairs by a disabled family member, or to a lesser extent, by applicant preference. (Applicant preference is limited by the “2-offer” rule.)
17.Applicant personal preference would not be permitted to result in an allocation of a dwelling of inappropriate size or type.
18.I have qualified some of the above statements by the term "generally" because in some cases of special need or urgency, the Commissioner may allocate housing that would not otherwise be offered.
19.Housing ACT has powers to initiate transfer of tenants for purposes of repair, renovation, disposal or redevelopment. The PRHAP also contains some incentive for tenants to downsize if their needs are reduced.
20.Allocation of housing assistance is periodically reviewed in terms of the financial capacity of tenants to sustain a tenancy in the private market, with a view to releasing housing stock to meet unmet public housing demand.
21.In accordance with policy, Housing ACT maintains a variety of types housing stock (ie flats, town houses, duplexes, detached houses etc), a variety of sizes of stock (measured by number of bedrooms), in a variety of locations in the ACT. Housing stock that is “attached" housing, such as fiats or town houses, is comprised of some stock that is on a separate title, and some that is not. Types of housing stock held by Housing ACT are set out in the attached Table RI Housing Type.
22.Pursuant to its functions, Housing ACT has, since 1991, administered schemes under which public housing tenants may apply to purchase the properties in which they reside — currently known as the Sale To Tenant Scheme, and the Shared Equity Scheme ("STTS", "SES" or "the schemes").
23.Through the schemes, Housing ACT is able to - (a) reduce unnecessary reliance on public housing, and (b) release funds for programs of replacement and refurbishment of housing stock.
24.The STTS is designed to assist public housing rental tenants to purchase their residence.
25.The SES is designed to assist such tenants that are not able to fully purchase their residence upfront.
26.The schemes are administered in accordance with specific policies — the STTS Policy and the SES Policy - that are designed to give effect to the broad policies of need, equity aid efficiency.
27.Housing ACT decides applications to purchase properties in accordance with these particular policies.
28.The scheme policies exclude properties that are not separately titled. The policy underlying that exclusion is to conserve the ability of the Commissioner to dispose of or redevelop the property as a whole, as is referred to further below.
29.The schemes are generally targeted at tenants who are or have become relatively higher income earners. It is in accordance with the policy of equity that such tenants be encouraged no longer to rely on publicly-funded housing.
30.Any tenant may apply for transfer under the PRHAP. It is open to a tenant to transfer to a separately-titled property in order to access the STTS or SES.
The applicants
31.The applicants are tenants of Housing ACT in "Throsby Court" under the Housing Assistance Program.
32.An application was made by applicant Ms Hedley under the STTS. On 4 December 2008, Ms Hedley was advised that her residence could not be offered to her for sale: ..................
33.The respondent has no record of the other applicants having made any application or inquiry about the schemes: .............
34.On 27 January 2010 the Minister (Ms Joy Burch MLA) responded by letter to representations from then MLA (Ms Bresnan) concerning the reasons that the applicant Ms Hedley's property was ineligible for the STTS: .....................
35.Table R2 (attached) contains information about the size of dwellings occupied by each applicant and current rent value.
36.The tenants’ current income and family details at time of commencing tenancy are set out in the attached Table R3.
37.Table R4 (attached) is information on concerning the distribution of Housing ACT tenants by reference to their sex, child dependents and type of accommodation.
Throsby Court
38.The Commissioner is the registered owner of the Crown lease of block 1 section 52 Narrabundah (the block).
39.The block has an area of 11,1218 m2 bounded by Stuart Street, Hacking Crescent and Throsby Crescent, Narrabundah.
40.The block was previously unleased Crown land, and has never been subdivided by the ACT or the Commonwealth.
41.The block is located adjacent to the local centre (shops) of Griffith. Stuart Street is a public transport (bus) route.
42.I understand that the Crown lease restricts unit-titling and transfer of any part of the property, subject to approval of parking arrangements by the ACT Planning Authority.
43.In about 1950, the block was first developed by the Commonwealth as a site for multi-unit public housing.
44.The development on the block — known as "Throsby Court" - is a housing complex consisting of several 2-storey buildings, containing 24 dwellings in total. They are a mix of 2- and 3-bedroom dwellings.
45.The buildings are the original buildings from 1950, but have been re-furbished from time to time.
46.A block and section map and an aerial photograph of the site and surrounds are attached as Annexure 2 [not reproduced in these reasons].
47.The dwellings are served by visitor parking on two access lanes that provide internal access in the block.
48.I understand that a variety of improvements to the current parking arrangements may be required to comply with the lease, and additional changes to the units themselves, including metering of services to allow the units to be separately titled. The Commissioner would be required to meet the cost of this.
49.I understand Throsby Court is located in an area of the RZ2 "Suburban Core" zone of the Territory Plan (" the Plan"), adjacent to the local centre. I understand that the Plan allows a moderate intensification of development in such areas to maximise efficient and sustainable use of infrastructure such as utility services and transport connections.
50.I understand that the RZ2 zone was previously known in the Plan as an "A10 zone”.
51.Details of a recent valuation of the property are attached as Annexure 3 – Valuation [not reproduced in these reasons].
52.Dwellings of the type and size in Throsby court are in demand in the ACT and in the locality.
53.The present development on the block is an under-development, given its size and location, by comparison with recent development adjacent to the Griffith local centre (block 14 section 75, and block 27 section 78).
54.The block would have further development potential under mechanisms currently available to increase development rights under the lease or the Territory Plan.
55.Given the buildings are near the end of their economic life, the location of the block, and its development potential, Housing ACT considers that the block would best be utilised as a whole block - in the near term, to meet demand for public housing, and in the medium term, for disposal or redevelopment.
56.The alienation of parts of the property by unit-titling would impede the Commissioner's ability to dispose of or redevelop the property, because the Commissioner would be unable to deal with the whole property.
57.Disposal or redevelopment of only part of the block would also constrain the design and integration of development. ("Integrated development" is where a single developer is able to coordinate the design and siting of multi-unit housing and associated facilities on larger blocks.)
58.To avoid these constraints the Commissioner would be obliged to re-acquire the alienated units.
59.For the same reasons, the separately-titled units would be viewed as an impediment by any potential buyer interested in re-developing the block.
60. These problems would be compounded if-
(a)the Commissioner remained a part-owner of units that were only partly-disposed of to an applicant; and/or
(b)the Commissioner were bound by contract to transfer proportions of the property over a period of 15 years (under the SES).
61.Unit titling would expose Housing ACT (as majority unit holder) to ongoing costs of administration of the body corporate, which would be additional to its current costs in connection with the property.
TABLE R1
| CODE | DESCRIPTION | COUNT |
| AAF | Aged persons flat | 274 |
| AAU | Aged persons unit | 1430 |
| ADO | Dual occupancy | 220 |
| AFL | Flat | 1795 |
| ASD* | Semi detached house | 121 |
| ASH* | Detached house | 5684 |
| ASR* | Detached house rural | 26 |
| ATH** | Townhouse | 700 |
| BAF | Aged persons flat - external body corporate | 1 |
| BAU | Aged persons unit – external body corporate | 17 |
| BDO* | Dual occupancy – external body corporate | 10 |
| BFL* | Flat – external body corporate | 352 |
| BTH* | Townhouse – external body corporate | 306 |
| Total | 10936 |
*Separately titled
**Some separately titled
TABLE R2
| No of Bedrooms in Townhouse | Weekly Market Rent | |
| Hedley | 3 | $470 |
| Krupinski | 2 | $430 |
| Davies | 2 | $430 |
| Craig | 2 | $430 |
TABLE R3
| COMMENCE-MENT OF TENANCY IN THROSBY COURT | CONTEMPORARY MARITAL STATUS | CONTEMPORARY NUMBER, AGE OF CHILDREN | CURRENT ANNUAL INCOME (APPROX) | |
| HEDLEY DOB 1954 | 1987 | Single | 2 children, DOB 1976 and 1977 | $94,000.00 |
| KRUPINSKI DOB 1953 | 1991 | Single | 1 child, DOB 1982 | $60,000.00 |
| DAVIES DOB 1953 | 1982 | Single | 1 child, DOB 1975 | $58,000.00 |
| CRAIG DOB1945 | 1991 | Single | 1 child, DOB 1984 | $31,000.00 |
TABLE R4
| Flats/townhouses AFL, BFL, ASD, ATH, BTH | Detached houses ADO, BDO, ASH, ASR | Other (eg aged person’ accommodation) AAF,BAF,AAU,BAU | |
| SOLE OCCUPANT FEMALE | 7.1% (portfolio) 27.3% (of this category) | 10.7% (portfolio) 41.1% (of this category) | 8.2% (portfolio) 31.7% (of this category) |
| ONE TENANT FEMALE (with at least one Dependant listed) | 5.0% (portfolio) 21.8% (of this category) | 18.0% (portfolio) 78.0% (of this category) | 0.0% (portfolio) 0.2% (of this category) |
| SOLE OCCUPANT MALE | 11.5% (portfolio) 57.2% (of this category) | 3.6% (portfolio) 17.7% (of this category) | 5.0% (portfolio) 25.1% (of this category) |
| ONE TENANT MALE (with at least one Dependant listed) | 1.6% (portfolio) 37.1% (of this category) | 2.6% (portfolio) 62.0% (of this category) | 0.0% (portfolio) 0.9% (of this category) |
| TWO TENANTS ONE TENANT + SPOUSE (with at least one Dependant listed) | 1.2% (portfolio) 12.0% (of this category) | 8.6% (portfolio) 87.9% (of this category) | 0.0% (portfolio) 0.1% (of this category) |
| OTHER HOUSEHOLD TYPES WITH AT LEAST ONE DEPENDANT | 0.8% (portfolio) 11.8% (of this category) | 6.3% (portfolio) 88.0% (of this category) | 0.0% (portfolio) 0.1% (of this category) |
*Dependant as identified by household relationship
**Joint tenants may or may not be a couple
***Singles with at least one Dependant listed may have a partner listed as a Resident as opposed to a spouse
**** Percentages based on as a percentage of all 10,733 tenancies. Groupings listed here are 90.2% of total tenancies.
On 31 May 2013, the Respondent filed a report from Mr Mathew Curtis, valuer (Exhibit R2). Due to the length of the report and its ultimate limited relevance, it is not reproduced in full in these reasons. The essence of the report concerned the cost and feasibility of subdividing the properties so that the unit of each Applicant was upon a separate title. The report went to the redevelopment potential of Throsby Court given its location.
The hearing commenced with a view of the premises. Ms Duce and Mr Sharwood of counsel appeared for the Applicants; Ms Holly and Dr Jarvis of counsel appeared for the Respondent.
The view consisted of an inspection of the premises and surrounding areas including the siting of the premises within the wider Griffith suburb.
Apart from other matters, the evidence and submissions at the hearing focussed on the evidence of Mr Johns and, in particular, the housing allocation statistics contained in Annexure R4 of his statement. Those statistics did not appear to support the Applicants’ contentions. The Applicants were given leave to submit further material in support of their applications within 14 days. Following further extensions of time the Applicants advised the Tribunal on 1 July 2013 that they did not intend to lodge further material.
The decision was reserved.
The Sale to Tenant Scheme
A copy of the documents setting out this Scheme was tendered in evidence. The Scheme is of non-statutory origin.
The relevant parts of the Scheme for present purposes are paragraphs 3 and 5 which respectively provide:
3. The Sale to Tenant Scheme will be targeted at tenants who:
….
Reside in properties that have been identified for sale in order to meet Public Housing Management Strategies.
5. Housing ACT reserves the right to refuse to sell a property and retains absolute discretionary power when determining if a property is available for sale or not. To determine whether a property is available for sale, and to comply with the Public Housing Asset Management Strategy, the following factors will be considered;
…
· The location of the suburb
……..
Properties will not be sold if they meet the following criteria:
· They are not separately titled, for example, flats
Properties may not be sold if they meet the following criteria:
…
· Property with potential future redevelopment options
The Shared Equity Scheme Policy was also in evidence:
The Commissioner has the sole and absolute discretion to make properties available for purchase by tenants under the Commissioner’s Shared Equity Scheme.
When exercising this discretion the following factors will be considered by the Commissioner:
...............· The location/zoning of the property
…
· The development potential of the property
The property may not be made available for purchase by eligible Scheme Participants if it satisfies one of the following criteria:
· It is not separately titled
…
· The property has future redevelopment options
…
The issues for determination:
The issue for determination is whether the Respondent’s original allocation of housing to the Applicants between 1982-1991 and/or the Respondent’s present refusal to subdivide Throsby Court to facilitate the participation of the Applicants in the Schemes, is a breach of section 21 of the Act.
The Applicants put their case as an act of indirect discrimination within the meaning of section 8(1)(b) of the Act.
The relevant legislation:
Section 8 of the Act defines discrimination:
(1) For this Act, a person discriminates against another person if—
(a)the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or
(b)the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7.
(2) Subsection (1) (b) does not apply to a condition or requirement that is reasonable in the circumstances.
(3) In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(a)the nature and extent of the resultant disadvantage; and
(b)the feasibility of overcoming or mitigating the disadvantage; and
(c)whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement.
The attributes referred to are defined in section 7 to relevantly include sex; relationship status and status as a parent or carer;
Section 21 of the Act reads:
(1) It is unlawful for a person (whether as principal or agent) to discriminate against another person—
(a)by refusing the other person's application for accommodation; or
(b)in the terms or conditions on which 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—
(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.
Consideration of the issues:
For present purposes, I am prepared to assume without deciding that the Applicants’ exclusion from the Schemes is a ‘disadvantage’ for the purposes of section 8(1)(b). I am further prepared to assume, without deciding, that participation in the Schemes falls within section 21(2)(a) and/or 21(2)(c).
The first issue is whether the original allocation of the Applicants’ housing at Throsby Court between 1982-1991 was a decision made ‘because [the Applicants] have an attribute’ referred to in section 7, i.e. because of their gender, relationship status or status as a parent or carer.
There is no evidence on the allocation patterns and criteria in the period 1982-1991 but I am prepared to assume that it was in essentially the same terms as the present PRHAP criteria.
The PRHAP criteria make no reference to gender.
The PRHAP criteria are based on family unit size, special needs for people with disability, aged care needs and urgency factors.
Family unit size does not depend on whether people are carers or spouses or children. Formally they do not depend on whether the adults are in a relationship.
If, however, it is assumed, without deciding, that the family unit size criterion in PRHAP does implicitly raise relationship status within the meaning of section 8(1)(b), then the issue moves to whether it was reasonable for the Respondent (or its predecessor) to allocate housing stock in this period upon this criterion.
I am of the view that it was entirely reasonable for the Respondent to allocate public housing according to ‘need’, and that ‘need’ necessarily included the family unit size. It would have been entirely unreasonable to allocate a three or four bedroom stand alone house to a family of one parent and one child. Contrast the needs of a single parent with four children who may then have been required to accept the Applicants’ two bedroom units due to absence of any further three or four bedroom premises.
The Applicants were not required to accept the offer of their townhouses in 1982-1991 and could have applied to transfer to a unit on a separate title at any time since 1991.
The next issue is whether there is anything inherently discriminatory in either Scheme. The answer is no. The Scheme only reserved the right to the Respondent to manage its own housing stock and to determine which sites it wishes to dispose of and those it does not. There is nothing in either Scheme that goes to issues of gender, relationship status or parent/carer status.
The next issue is whether there was anything discriminatory in the present decision by the Respondent to refuse to subdivide Throsby Court to facilitate the Applicants’ participation in the Schemes.
The criteria in the Scheme go only to whether the premises presently stand on separate titles and/or whether the Respondent wants to keep the premises for future redevelopment. There is nothing that goes to any of the section 7 attributes and therefore there is no direct discrimination.
The real gravamen of the Applicants’ case is that there is indirect discrimination in the refusal to subdivide based on the premise that a disproportionate share of single parents are to be found in complexes that are not on separate titles.
Even if the Applicants could show such statistics, it would not follow that those statistics arose because the Respondent had a policy to put single parents into properties that did not have separate titles.
However the statistics produced by the Respondent, set out in the statement of Mr Johns (Exhibit R4) show that no such bias exists in relation to single parents. These statistics were discussed at length in the hearing and the Applicants were afforded the opportunity to adduce evidence in rebuttal. Nothing was forthcoming.
The statistics in Exhibit R4 show that the percentage of single parents (female) with one child in stand alone properties on separate title was 78% compared to only 21% in flats/townhouses not on separate titles. This is a higher percentage than for the corresponding single male parent, higher than all categories of single tenants, and not much lower than the percentage for a two adult family with children.
The figures in Exhibit R4 speak for themselves. There is simply no evidence of discrimination against single parent families in housing allocations.
However, if it is counterfactually assumed that there is some statistical bias against single parents in the present allocation, the issue arises as to whether it is reasonable for the Respondent to refuse the subdivisional request of the Applicants.
The Respondent could not reasonably subdivide just the four townhouses occupied by the Applicants. It is even questionable whether such a result could be lawfully achieved.
If the four townhouses were separately titled and transferred to the Applicants it would have a major effect on the capacity of the Respondent to redevelop or otherwise deal with the site as a whole. Any redevelopment would need to occur around the four townhouses and without adversely affecting them. This could not realistically occur and any developer would then need to buy back the titles from the Applicants, no doubt at a premium. The Respondent would probably be forced to separately title and sell off the remaining townhouses as well.
It is entirely reasonable for the Respondent not to compromise its future redevelopment options by island strata titles in the manner described above. It is entirely reasonable for the Respondent to retain prime sites for public housing developments. This is a legitimate policy consideration for the Respondent.
The Applicants are not precluded from participation in the Schemes. If they seek transfer to a property owned by the Respondent that is separately titled they may then qualify in the same manner as other public tenants.
Findings of fact
I find the Respondent’s (or its predecessors) allocation policies in 1982-1991 as it applied to the Applicants at that time, to have been reasonable in the circumstances and accordingly no act of indirect discrimination arises from those allocations.
There is nothing directly or indirectly discriminatory in the text of either Scheme.
There is no evidence of indirect discrimination in the present housing allocations.
The refusal of the Respondent to subdivide Throsby Court for the benefit of the Applicants is entirely reasonable in the circumstances.
Conclusion
The application is dismissed.
………………………………..
Mr A. Anforth – Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: | DT 11/23 DT 11/24 DT 11/25 DT 11/26 |
| PARTIES, APPLICANT DT 11/23: DT 11/24: DT 11/25: DT 11/26: | Jeannine Hedley Halina Krupinski Hilary Davies Robyn Craig |
PARTIES, RESPONDENT: | Community Services Directorate |
SOLICITORS FOR APPLICANT | J. Duce , Peter Tierney Lawyers |
SOLICITORS FOR RESPONDENT | L. Holley, ACT Government Solicitor |
TRIBUNAL MEMBERS: | Mr A. Anforth – Senior Member |
DATES OF HEARING: | 3 & 6 June 2013 |
PLACE OF HEARING: | ACAT Canberra |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
0