Hedley & Ors & Community Services Directorate (Discrimination) - [2013] ACAT 65

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] ACAT 65
Decision Date: 25 September 2013

CaseChat Overview and Summary

Ms Jeannine Hedley, Ms Hilary Davies and Ms Halina Krupinski sought relief from the ACT Civil and Administrative Tribunal (ACAT) for alleged unlawful discrimination under the Discrimination Act 1991. The Respondent, the Community Services Directorate (CSD), is a government entity responsible for administering housing schemes in the Australian Capital Territory. The applicants, all single women and former tenants of Housing ACT, alleged that they were treated unfavourably due to their marital status and parental status, resulting in their inability to participate in housing purchase schemes offered to other tenants.

The central legal issue before the Tribunal was whether the eligibility criteria for the Sale to Tenant Scheme and the Shared Equity Scheme constituted unlawful discrimination against single tenants residing in unit properties, in contravention of the Discrimination Act. Specifically, the Tribunal had to determine whether the exclusion of single tenants from these schemes, based on their residential property type, constituted discrimination on the grounds of marital status and parental status.

The Tribunal found that the eligibility criteria for the housing purchase schemes did not amount to unlawful discrimination. The Tribunal considered that the criteria were based on property characteristics rather than the applicants' personal attributes and that the schemes were not designed to discriminate against any particular group. The Tribunal held that the CSD's policy was not discriminatory as it applied uniformly to all tenants, regardless of marital or parental status, and that the exclusion of unit properties from the schemes was a reasonable and lawful condition. Consequently, the Tribunal dismissed the application.

As a result of the Tribunal's decision, the applicants' claims for unlawful discrimination were dismissed, and no orders were made in their favour.

Orders

Orders of the court

The Tribunal Orders that:

1. The application is dismissed.

Background

Background to the litigation

The Respondent’s response to the Human Rights Commissioner read:Background — Ms Jeannine HedleyMs 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 DaviesMs 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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