JONES and STATE HOUSING COMMISSION
[2006] WASAT 161
•21 JUNE 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: JONES and STATE HOUSING COMMISSION [2006] WASAT 161
MEMBER: MS J TOOHEY (SENIOR MEMBER)
MS D DEAN (MEMBER)
PROF C MULVEY (SESSIONAL MEMBER)
HEARD: 19 JUNE 2006
20 JUNE 2006
DELIVERED : 21 JUNE 2006
FILE NO/S: EOA 149 of 2005
BETWEEN: SONIA JONES
Applicant
AND
STATE HOUSING COMMISSION
Respondent
Catchwords:
Discrimination - Impairment - Homeswest - Priority housing list - Applicant needed bath and no steps - No accommodation available - Applicant not treated less favourably than a person in same, or not materially different, circumstances without an impairment
Legislation:
Equal Opportunity Act 1984 (WA), s 66A(1), s 66L
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: State Solicitor
Solicitors:
Applicant: Self-represented
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This was a complaint of discrimination on the ground of impairment in the area of accommodation.
The applicant suffers from a serious disability which requires her to take regular baths and which makes it difficult for her to negotiate steps. She complained that the State Housing Commission, through its Homeswest officers, discriminated against her by failing to provide her with accommodation that met her needs and that, in doing so, they discriminated against her on the ground of her impairment.
The Tribunal was not satisfied that the complaint was made out. It did not accept that the applicant was treated less favourably than a person in the same, or not materially different, circumstances, who did not have an impairment. In particular, she could not be compared, for these purposes, to a single parent with a child.
The Tribunal accepted that Homeswest had very limited accommodation available in the applicant's preferred area and even more limited accommodation that met her particular medical needs. It accepted that, given waiting lists at the time and the applicant's urgent need for housing, Homeswest made all reasonable efforts to find accommodation for her. The fact that accommodation that met all of her needs could not be found at the time the applicant required it did not amount to unlawful discrimination within the meaning of the Equal Opportunity Act 1984 (WA).
Background
This is a complaint by Sonia Jones that the State Housing Commission, which we will refer to here by its trading name, Homeswest, discriminated against her on the ground of impairment.
Ms Jones was living in Canberra before she came to Western Australia in 2003. She returned to Canberra in mid 2004 after the events of which she complains here.
The Tribunal has recognised throughout these proceedings that Ms Jones is representing herself and that she has had lengthy periods in hospital in Canberra during the time her complaint has been before the Tribunal. She was therefore not required to file a formal Statement of Issues, Facts and Contentions. This has not made any real difference because the extensive documentation before us details her complaint and makes it, for the most part, quite clear.
The complaint as we understand it, and as we have dealt with it, is one of direct discrimination on the ground of impairment in the area of accommodation. It concerns Homeswest's response to Ms Jones' application in September 2003 for priority housing on account of her personal circumstances including her medical condition.
What must the applicant establish?
To make out a complaint under the Equal Opportunity Act 1984 (WA) (the Act) of unlawful discrimination on the ground of impairment, Ms Jones must establish, on the balance of probabilities, that Homeswest treated her less favourably than they treated, or would have treated, a person in the same, or not materially different, circumstances, a person who did not have an impairment: s 66A(1).
To make out a claim of discrimination in accommodation, a complainant must establish, on the balance of probabilities, that:
i)she was refused accommodation because of her impairment; or
ii)the terms or conditions on which she was offered accommodation was less favourable because of her impairment; or
iii)her application for accommodation was deferred, or given lower priority, on account of her impairment. (s 66L)
Ms Jones has not claimed that she was refused accommodation. Her complaint relates to the terms and conditions on which she was offered accommodation and the priority she says Homeswest gave her application.
We will recite here all of the written and oral evidence we have heard. For the most part, there was no disagreement of substance between the parties about what occurred.
There was some disagreement about what was said during particular conversations, and there was occasional difference as to dates and the sequence of events, but we do not think any of these is material to our decision. What the parties disagree about is whether what happened amounted to unlawful discrimination within the meaning of the Act.
For the following reasons we are not satisfied that Ms Jones has been able to establish her claim.
Ms Jones' approval for priority housing: Pedder Way, Parmelia
Ms Jones was approved for priority housing in September 2003 in the Cockburn area. We have heard, and accept, evidence that the current waiting lists for housing in that area are around five years for those on the non‑priority list and up to 12 months for those on the priority list; in late 2003, when Ms Jones made her application, the waiting lists were somewhat shorter, but not by much.
When she applied for housing, Ms Jones provided Homeswest with medical and other reports, mostly from her Canberra doctors, which documented her debilitating disability. The reports stated that she needed accommodation with a bath, a separate shower and without stairs.
Ms Jones has told us that the reports also say she requires a separate, walk‑in shower. She refers us to a report by her Canberra doctor, Dr Tran, dated July 2003, which states she needs a "[d]isability large bathroom". Dr Tran does not specify what this means. A report dated October 1999 from an occupational therapist in Canberra, where Ms Jones was living at the time, says she needed a bathroom with a separate shower recess, and a bath with grab rails and a handheld shower.
In late December 2003, Ms Jones accepted an offer of a three‑bedroom house at Pedder Way, Parmelia which was suitable for her needs: it had a bath, a separate shower and no stairs. At her request, Homeswest agreed to modifications including security screens and grab rails in the bathroom.
Up to this point there is no argument about how Homeswest treated Ms Jones. Indeed, given the waiting lists at the time, the fact she was found suitable accommodation after three months and the agreement to modify the Parmelia property to meet her needs, it is evident that Homeswest did everything it could to accommodate Ms Jones' needs.
Ms Jones was offered a three‑bedroom house on the basis that her application included her daughter. On or about 8 January 2003, the offer was withdrawn when Homeswest learned that Ms Jones' daughter was not living with her but had returned to the ACT to live.
We are satisfied that the withdrawal of the Parmelia house was not for reasons of Ms Jones' impairment but because she no longer met the eligibility requirements for a house of that size. She was instead considered to be a single person.
It is what happened after this that forms the heart of Ms Jones' complaint.
After the withdrawal of the Parmelia property
On 13 January 2004, Homeswest formally notified Ms Jones that the offer of the Parmelia property was withdrawn; she was still on the priority list but, as a single person, was entitled to a one‑bedroom property only.
We have heard evidence, which we accept, that although Ms Jones was considered a single person and entitled to only one‑bedroom accommodation, Homeswest officers looked for two‑bedroom accommodation for her.
It is not entirely clear on what basis Homeswest looked for two‑bedroom accommodation for Ms Jones. It appears to be because none of the one‑bedroom accommodation included a bath, and we are satisfied that this was the reason. In doing so, Homeswest recognised her impairment.
Ms Jones has referred to her need for two‑bedroom accommodation for herself and her full‑time carer. The evidence about the carer is not entirely clear but we accept that, at least during some of this time, Ms Jones had a full‑time carer.
Homeswest's policies did not specify what percentage of time a "live‑in carer" had to live with a person to qualify for housing with them. Ms Sarah Carruthers, Manager of the Fremantle office, gave evidence that she therefore applied the policy for a single parent whose child stays with them occasionally: two‑bedroom accommodation is approved where the child stays overnight approximately 50% of the time. Ms Carruthers' approach seems to us to be reasonable.
We accept that Ms Jones was asked to provide proof that her carer would stay with her approximately 50% of the time. She did not provide any proof but she pointed us to a letter, dated 22 January 2004, from her doctor in Kwinana to Homeswest which states Ms Jones "now has a full‑time carer … He/she may need to stay overnight in her apartment". Ms Jones maintains that, on this basis, she was entitled to two‑bedroom accommodation regardless of any consideration of a bath.
A file note dated 23 February 2004 records a call from Ms Jones to Homeswest to advise she "now has a full‑time carer who at times will need to stay overnight and will require a bedroom". The file note concludes "[a]dvised will require documentation for this …".
We do not think that Homeswest was obliged, on the basis of the information they had, to accept Ms Jones as a person entitled to two‑bedroom accommodation. But, in any event, Homeswest continued to look for two‑bedroom accommodation for her.
At the time, there was very little housing of any sort available in her preferred area, Kwinana, and none which met Ms Jones' needs. In late February, the Kwinana office contacted the Fremantle office to see if they could help. We heard evidence, which we accept, that, while not as limited as in Kwinana, Homeswest's housing stock in Fremantle was also limited and in great demand. Accommodation that met Ms Jones' needs for a bath and no steps was even more limited.
Over the course of the next two to three months, four more offers of accommodation were made to Ms Jones. In late February, a one‑bedroom unit in Orelia was offered; Ms Jones declined the offer as the unit had no bath and Homeswest accepts it was not suitable.
On 3 March, a three‑bedroom property at Southlakes was offered to her in error, Homeswest mistakenly believing it was a two‑bedroom property. There is disagreement about whether the offer was withdrawn before or after Ms Jones told Homeswest's staff that the property was too far from her doctors and carer. Nothing turns on this because, whether or not Homeswest withdrew the offer, Ms Jones considered the property too far from services.
On 10 March 2004, Ms Jones contacted the Kwinana office to say she had had an argument with her carer who had "thrown her out" and she had nowhere to live; she was homeless and in desperate need of accommodation; she would take anything that was available, even accommodation without a bath, as long as it was temporary. Although there is some dispute about what was said during this conversation, in particular whether Ms Jones said she was homeless, Homeswest responded by continuing to look for two‑bedroom accommodation for her.
In mid March Ms Jones was again offered the Orelia unit and again declined it because it had no bath. Homeswest knew it was unsuitable but, no suitable accommodation being available, the unit was offered because of Ms Jones' urgent need for any housing.
On 1 April, Ms Jones was "unofficially" offered a unit in Claremont which would have been suitable in all respects but which was still under construction and some months from completion. Ms Jones declined this offer on the basis that Claremont was too far from her doctors and carer, and as completion was some months away, it did not meet her urgent need for accommodation. We heard evidence from Mr John Pynes, Regional Manager, South Metropolitan Region, that Homeswest knew that Ms Jones was unlikely to accept the offer of the Claremont unit but they were doing everything they could to find her accommodation and so offered it as there was nothing else available.
At some point in late January, Ms Jones contacted the office of the Minister for Housing and Works and there were communications between the Minister's office and Homeswest. The outcome is not entirely clear but Homeswest understood that Ms Jones was to be found two‑bedroom accommodation and continued to look for suitable two‑bedroom accommodation.
The property at 6 Wells Place, Calista
On 5 April 2004, Ms Jones was offered a two‑bedroom house with a bath at 6 Wells Place, Calista. There is some dispute about the conversations that led to the offer, and Ms Jones' acceptance, of the property.
According to Homeswest's officers, Ms Jones contacted the Kwinana office on 10 March and said she had had an argument with her carer and was homeless; she was desperate for accommodation and would take anything that was available, even without a bath. Ms Jones gave evidence before us that she told Homeswest officers that she was living with a friend. Nothing really turns on this because, in any event, Homeswest responded by offering her a property which they knew was not entirely suitable but which, taking into account her need for urgent housing and her need for a bath, they considered worth offering. The property had a bath but the shower was over the bath, rather than separate from it, and there were six front steps and five back steps.
Ms Jones says she was pressured into accepting the property at Calista. We accept that she felt she had little option because her circumstances were quite dire and nothing else was being offered to her, but we do not accept that she was pressured into accepting it by Homeswest officers in any sense which could amount to discrimination. In particular, there is no evidence that Ms Jones would have been penalised by refusing the Calista property and she concedes she was at no time penalised, or threatened with any penalty, for declining any other offer made to her.
On 4 May 2004, Ms Jones fell down the steps and sustained a serious injury. Not long after this, she vacated the property and returned to Canberra.
The essence of Ms Jones' complaint
The essence of Ms Jones' complaint is that she was not considered for three‑bedroom accommodation. Her argument is that, having been placed on the two‑bedroom priority list, Homeswest should have applied its policy such that, when there was no two‑bedroom accommodation available, she was offered three‑bedroom accommodation.
Ms Jones compares her case to that of a single parent with one child who, according to Homeswest policy, could be offered three‑bedroom accommodation if there was no two‑bedroom accommodation available.
When everything is reduced to its essentials, the relevant questions seem to us to be:
i)did a suitable two‑bedroom property become available at any time during the relevant period, being January to April 2004;
ii)if so, to whom was it allocated;
iii)if it was allocated to someone else, did that amount to discrimination against Ms Jones on the ground of impairment;
iv)did a suitable three‑bedroom property become available, at any time during the relevant period, being January to April 2004;
v)if so, to whom was it allocated; and
vi)if it was allocated to anyone else, did that amount to discrimination against Ms Jones on the ground of impairment?
For these purposes, we consider that "suitable" means a property with a bath and no stairs or steps. We do not consider it to include a walk‑in shower as we are not satisfied that Homeswest knew about, or should have known about, that requirement. We are not satisfied that the medical reports expressly support that requirement and, in any event, in the opinion of Ms Joddrell, a Homeswest occupational therapist who visited the property, Ms Jones did not need a walk‑in shower. We accept Ms Joddrell's evidence. Moreover, it is difficult to reconcile how Ms Jones could manage a bath which requires her to step into it, but nevertheless, required a walk‑in shower without a hob.
We accept the evidence of Homeswest that suitable accommodation was extremely limited, not only for Ms Jones but for all applicants, and that it was making all reasonable efforts to accommodate her within its limited stock.
Mr Pynes gave evidence, which we accept, that it was highly unlikely that any suitable two‑bedroom accommodation became available in Kwinana or Fremantle during the relevant period. Ms Jones' case was referred to Fremantle because there was no suitable accommodation in Kwinana; the Claremont property was offered because there was no suitable two‑bedroom accommodation in Fremantle. He was certain that any suitable accommodation would have been offered to Ms Jones ahead of anyone else because he and the managers of the Kwinana and Fremantle offices were all very aware of her case because she contacted them almost daily. Mr Pynes did not know if any suitable three‑bedroom accommodation became available in the relevant period but thought it unlikely.
We are satisfied that all efforts were being made to find accommodation within the two‑bedroom housing stock that had a bath and so was at least partly suitable to Ms Jones' needs, taking into account that she was on the priority list and her need for accommodation was urgent.
We are satisfied, on the evidence before us, that no two‑bedroom accommodation that would have suited Ms Jones' needs became available during the relevant period. We are satisfied that, had it become available, it would have been offered to Ms Jones.
We are further satisfied that no three‑bedroom accommodation became available during the relevant period. However, even had it become available, Homeswest was under no obligation to offer it to Ms Jones and any failure to do so would not have constituted unlawful discrimination on the ground of impairment.
It is not discrimination not to have suitable housing available to fully meet the needs of all applicants no matter how critical their needs. It is unlawful discrimination only if, on the ground of her impairment, Ms Jones is treated less favourably than someone in the same, or not materially different circumstances.
Ms Jones maintains that the Minister had directed she be put on the two‑bedroom list and seems to believe that this materially altered her position. It is not clear exactly what the Minister directed but, in any event, nothing that the Minister requested or directed put her in the same, or not materially different, position as a single parent with a child.
We do not accept that Ms Jones was in the same, or not materially different, circumstances, as a single parent with one child. A single parent with one child would be eligible in the first place for two‑bedroom accommodation. Once the Parmelia property was withdrawn because her daughter was not living with her, Ms Jones was eligible only for one‑bedroom accommodation but, recognising her medical needs, Homeswest looked for suitable two‑bedroom accommodation with a bath.
Ms Jones' position was different from a single parent with child who is entitled to be on the two‑bedroom list and who might, according to policy, be offered three‑bedroom accommodation if no two‑bedroom was available. She had been "upgraded" to the two‑bedroom list, but that did not entitle her to be treated in the same way as a person eligible to be on that list in the first place. At no time did she provide evidence of the need for a second bedroom for her carer. Such evidence might have put her in the same position as a single woman with a child. In the circumstances, it was not unreasonable, and it was not unlawful discrimination, to refuse to consider her for three‑bedroom accommodation.
Conclusion
We accept that Ms Jones has a very serious debilitating disability. We accept, as the Ombudsman found when the Ms Jones complained to her, that in some respects Homeswest's administrative procedures were wanting. Homeswest has itself accepted this and has amended its disability policy accordingly. The Ombudsman operates within a different statutory framework and her investigation is for different purposes, and her report is not evidence of matters which we are deciding in this case.
We also accept that there were most probably things said to Ms Jones that were unfortunate and could have been handled better. It is probable that at times she could have handled matters better.
However, we also accept that Homeswest was doing its best in sometimes very difficult circumstances and within its limited accommodation stock, to find housing for Ms Jones. What was available and offered was not always suitable to her needs. At the same time, she does not appear always to have been willing to compromise in order to find accommodation. We appreciate how difficult compromises like seeing new doctors in a new area, or travelling distances to see her regular doctors, could be. However, the fact that Homeswest could not meet all her needs as and when they arose is not the same as saying their conduct amounted to unlawful discrimination on the ground of her impairment.
Order
1.The application is dismissed.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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