Leonie Peisley v Havelock Housing Association Incorporated (Residential Tenancies)

[2010] ACAT 53

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

LEONIE PEISLEY v  HAVELOCK HOUSING ASSOCIATION INCORPORATED (Residential Tenancies) [2010] ACAT 53

RT 236 of 2010

Catchwords:             RESIDENTIAL TENANCIES – community housing - Commonwealth Rent Assistance – payment of rent by alterations, improvements and repairs

List of legislation:     ACT Civil and Administrative Tribunal Act 2008

Housing Assistance Act 2007, Part 4A

Housing Assistance Public Rental Housing Assistance
Program 2008 (No 1)

Residential Tenancies Act 1997, s.15

Social Security Act 1991 (Cth), ss.13(8D), 1070B and 1070C.

Tribunal:                  Mr W G Stefaniak, Presidential Member

Date of Order:  12 August 2010

Date of Reasons for Decision:         12 August 2010

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 236 of 2010

BETWEEN:

LEONIE PEISLEY

Applicant

AND:

HAVELOCK HOUSING ASSOCIATION INCORPORATED

Respondent

TRIBUNAL:            Mr W G Stefaniak, Presidential Member

DATE:  12 August 2010

ORDER

1.   The respondent, Havelock Housing Association Incorporated, is entitled to charge the applicant the rent it is charging pursuant to the Agreement signed by the parties and dated 31 July 2006.

2.   The Commonwealth Rent Assistance clause in the Agreement is a valid clause and such assistance provided to the applicant by the Commonwealth may legally form part of the rent charged.

3.   The Commonwealth Rent Assistance received by the applicant is not part of her income for the purpose of assessing rent payable by her to the respondent.

………………………………..

Mr W G Stefaniak

Presidential Member

REASONS FOR DECISION

1. I have been asked by Ms Jaleh Johannessen, Solicitor for the applicant, for reasons for my judgment.

2. As I indicated at the tribunal hearing on the 30^th July 2010, I attach a transcript of my decision. 

3. The transcript is an accurate replication of what I stated.  I would make one correction.  That is on page 5 of the transcript.  The Director, Housing ACT, on the 10^th of May 2006, is stated in the transcript to be a Moran Chien.  This is an incorrect spelling of Maureen Sheehan.  Apart from that, the transcript is an accurate reflection of what I said, albeit in a somewhat gibbery style.

4. I stand by what I said in the transcript and would summarise it in a more erudite way as follows:

   A.    Despite the confusion as to who exactly owned the property and who was actually responsible for the arrangements with the tenant, it was clear from the evidence that the Havelock Housing Association was the responsible manager at all material times. 

   I did accept that there would be some potential confusion to the tenant and indicated I was mindful of not granting the respondent the $1200 rent owed as a result of the possible confusion and any possible detriment that may have had on the tenant.   My reasons are elaborated on in the attached transcript.  I doubt if there was any significant detriment to the tenant but it would appear that the tenant should have known who she was dealing with.  There could have been some potential detriment as indicated by me in my oral judgment of the 30^th of July.  Accordingly, I indicated I would not give the $1200 were it sought.  It became academic as the respondent, quite properly, did not seek it.

B.     I also indicated I did not accept the very erudite and logical submissions by Ms Johannessen.  There was a contract entered into between the tenant and the relevant agency, which I found to be the Havelock Housing Association.  It managed the property on behalf of the government and other instrumentalities over the years.  It receives at present 100% of the Commonwealth Rent Assistance claimed by the tenant plus 25% of her income.  It was clear from the evidence that only in the last year or so has this actually occurred.  At other times, Ms Peisley was in employment but at no time did she ever pay more than 25% of her income.  It was the Havelock Housing policy and other community housing policy not to charge more than 75% of the market rent to their tenants at any rate.  I found that at no stage did Ms Peisley pay market rent nor at any stage did she pay more than 25% of her actual income.  I found that the Commonwealth Rent Assistance was not part of income for the purposes of this case.

C.     The letter dated 10 May 2006 from Ms Maureen Sheehan also clearly indicates the intention of the executive which was to allow and  indeed encourage Community Housing Providers to obtain 100% Commonwealth Rent Assistance from their clients to put towards the rent of their properties.

1. Ms Johannessen directed me to various sections of the Social Security Act 1991 (Cth). As I indicated on the 30^th of July 2010, there is nothing in sections 1070B, 1070C and 13 of the Social Security Act which, in my view, legally precludes the arrangement made with Ms Peisley and the arrangements made by community housing providers with their clients in the ACT.  As I indicated in the transcript of the 30^th of July 2010, she has not been paying the government rent and she is not in an ACT Housing property.  She is in a community housing property.  The Social Security Act clearly provides in section 13(8D) “In this section, rent assistance means an amount paid or payable under this Act to help cover the cost of rent.”

2. The tenancy agreement she signed clearly indicated that she would have to seek Commonwealth Rent Assistance with a view to help covering the cost of her rent.

3. Ms Johannessen also mentioned (and I neglected to deal with this in my reasons on the 30^th of July that), in her view, the arrangement contravenes section 15 of Residential Tenancies Act 1997 as amended. 

4. Section 15 deals with rent or a bond only. Section 15(1) states “In consideration for giving a tenant a right to occupy premises, a lessor may only require or accept rent or a bond”. Another relevant part, in my view, of that section, is subsection (3) which states “For subsection (1), a requirement that a tenant makes alterations, improvements or repairs to the premises is taken to be consideration”. The section also deals in subsection (4) with a bond and in subsections (5) and (6), it states that it does not prevent a public housing authority, namely, the Housing Commissioner, from requiring a tenant to pay an outstanding amount owed to the Commissioner in relation to a previous tenancy as consideration for giving the tenant a right to occupy premises providing the ACAT has endorsed the same.

5. In my view, section 15 is broad and clearly indicates that a lessor can only require a tenant to accept rent or a bond. Rent, however, is not restricted in its definition. I specifically mention subsection (3) above to indicate that rent can include a tenant agreeing to make alterations, improvements or repairs as part of the payment or indeed as a whole payment to be calculated as rent or part of rent, as the case may be. Clearly in my view rent assistance from the Commonwealth is not precluded from the arrangements envisaged in
   section 15. I go back to section 13(8D) of the Social Security Act which again states “In this section, rent assistance means an amount paid or payable under this Act to help cover the cost of rent”. That is self explanatory. The rent assistance helps to cover the cost of rent just like if the tenant does repairs to the premises or makes some alterations or improvements this can be counted towards the rent paid. Section 15 is broad. I do not believe it assists in
   Ms Johannessen’s argument. 

10.As can be seen from my comments on the 30^th of July, Ms Peisley is in no different situation to a person who lives in a government house.  She is paying exactly the same amount of rent she would pay if she lived in a government house.  She perhaps has the additional benefits of living in community housing in terms of it being a better property for her needs.  Indeed, (although not so much in this case) in other community housing situations tenants with like minded needs are often grouped together in community housing which is much more beneficial to the tenants than what they might find in public housing. 

11.Community housing serves a very important need for vulnerable people in our community.  It is an adjunct to public housing.  It is different.  But at the end of the day in terms of Ms Peisley’s arrangements she is in no way worse off than she would be in public housing.  She effectively pays the same rent she would pay if that property she was in was owned by ACT Housing. 

12.I do not believe there is any further I really need to add.  These comments are somewhat more erudite I would hope than my more loquacious comments made on the 30^th of July.  Hopefully, it will assist in clarifying what I said on that date.

………………………………..

Mr W G Stefaniak

Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      

APPLICANT:                LEONIE PEISLEY

RESPONDENT:            HAVELOCK HOUSING ASSOCIATION INCORPORTED

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      

SOLICITORS:  APPLICANT:          

Ms J Johannessen, Welfare Rights & Legal Centre

RESPONDENT:      Mr D Robens

DibbsBarker,
OTHER:  APPLICANT:          

RESPONDENT:      

TRIBUNAL MEMBER/S:        Mr W G Stefaniak, Presidential Member       

DATE/S OF HEARING: 4 may 2010,   PLACE: CANBERRA
11 May 2010, 31 May 2010, 8 July 2010, and
30 July 2010

DATE OF DECISION:  30 July 2010  PLACE: CANBERRA

PART B

RECOMMENDATION:

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

COMMENTS: