Miroslawski v Housing Choices SA - [2023] SASC 162

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
MIROSLAWSKI v HOUSING CHOICES SA
[2023] SASC 162
Judgment of the Honourable Justice Kimber
17 November 2023
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES - INSPECTION AND REPAIR
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - RECOVERY OF POSSESSION - GENERALLY
The applicant resides at a property with respect to which the respondent is the landlord. The applicant has been a tenant at that property since October 2016.
On 10 March 2023, the applicant was served with a notice of breach which referenced a failure to remove hard refuse and other rubbish including food scraps from inside the property. The respondent sought vacant possession. On 8 May 2023, the South Australian Civil and Administrative Tribunal made an order for possession in favour of the respondent. On 7 July 2023, that decision was upheld on review by a Senior Member of the Tribunal. It is that decision from which the applicant seeks permission to appeal.
The applicant seeks permission to appeal on grounds that the decision of the Senior Member was infected by error and was not the correct and preferable decision.
Held:
1.The Senior Member did not fail to take into account any relevant consideration nor did he take into account any irrelevant consideration.
2.It is not reasonably arguable that the decision of the Senior Member was not the correct and preferable decision.

3. The application for permission to appeal is dismissed.
South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 39, 70, 71; Residential Tenancies Act 1995 (SA) ss 93, 110, referred to.
Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Pix v South Australia Housing Trust (2016) 125 SASR 10; Upton & Anor v Fynes [2021] SACAT 84, applied.

MIROSLAWSKI v HOUSING CHOICES SA
[2023] SASC 162
Civil: Single Judge Appeal
KIMBER J:
Introduction

This is an application for leave to appeal to the Supreme Court pursuant to s 71(1) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act) against a decision of the South Australian Civil and Administrative Tribunal (the Tribunal). The Tribunal was constituted by a Senior Member (the Senior Member) and the decision being appealed will be referred to as the decision of the Senior Member. That decision was made on 7 July 2023. Pursuant to s 71(2) of the SACAT Act, the applicant requires permission to appeal.
The decision of the Senior Member was a result of the applicant applying to the Tribunal under s 70 of the SACAT Act for an internal review of a decision made on 8 May 2023 by the Tribunal (the first decision). The applicant is the tenant of a residential property at Windsor Gardens (the premises). In the first decision, the Tribunal made an order for possession in favour of the landlord. Having also found that an immediate order for possession would give rise to hardship, the operation of that order was suspended until 22 June 2023.
On 7 July 2023, the Senior Member affirmed the decision made on 8 May 2023 but stayed the order for possession until 15 September 2023 to enable the applicant to find alternative accommodation. This Court has subsequently extended that date on two occasions, most recently to 5pm on the day on which judgment is delivered.
The applicant was unrepresented by counsel before me. However, Mr Tavitian had appeared for the applicant before the Senior Member and was granted permission to appear on behalf of the applicant in this Court. Mr Tavitian made submissions orally and in writing. There were three sets of submissions in writing, one provided before the hearing of the appeal and two after. I have had regard to all submissions.
For the reasons which follow, I refuse permission to appeal.
The grounds of appeal
The amended notice of appeal sets out four grounds in the following terms:
1.The Order of the Tribunal has no provision to extend the time of compliance in the event suitable alternative accommodation is not found.
2.There is a miscalculation by the Senior Member of the required time for decluttering of the premises.
3.The Appellant's present anxiety, stress, insecurity could have been prevented by reinstatement of the tenancy.
4.The Senior Presiding Member has been requested by the Appellant on the 30^th June 2023, not to have any input in the hearing by two (2) Mr Miroslawski’s support persons and SACAT to inform them they were no 1onger required to participate in the matter. Had the Senior Presiding Member complied with the request the outcome could have been different, because he relied on their input.
The grounds of appeal are not the only matters which must be addressed. In the first set of written submissions on behalf of the applicant, what also may be treated as an additional ground of appeal complains about the approach taken by the Senior Member to the risk of fire presented by the condition of the premises. In addition, before the hearing of the appeal, an application to adjourn the appeal was refused. That issue is also addressed in this judgment.
Background
The matters below are not the subject of challenge. They are set out in the reasons of the Senior Member and within other uncontested material.
The tenancy commenced on 22 October 2016 and is under the Residential Tenancies Act 1995 (SA) (the RT Act). The respondent in this application is the landlord. An obligation of the tenant is to ‘keep the premises and any surrounding area clean and in good tenantable condition, free from vermin and free from refuse’.
On 10 March 2023, the applicant was served with a notice of breach and the landlord sought vacant possession. The breach specified within the notice was the ‘[F]ailure to remove hard refuse and other rubbish including food scraps from inside the property. Failure to comply with the tenant’s obligations by keeping the premises in a reasonably clean, tidy, safe and hygienic condition’.
In the first decision on 8 May 2023, the Tribunal found it was appropriate to make an order for possession in favour of the landlord. The reasons for making that order were:
3.1.A valid notice of breach requiring the tenant to clean the property was served.
3.2.The landlord organised a couple of inspections and took photographs. Given the extent of possessions, accessibility issues, cleaning issues, and hygiene issues the landlord was concerned about health and safety, and that it was unlikely, even with supports, that the tenant could remedy what had been a long-standing situation.
3.3.The notice of breach coupled with the failure to remedy the breach meant that the tenancy has been terminated. The breach was in any event serious enough to justify vacant possession.
The application for vacant possession the subject of the first decision was not the first such application with respect to the applicant and the premises. An earlier application had been made in 2020. With respect to that application, on 30 January 2020, the outcome was the tenant was permitted to return to the property on the condition that it be returned to a reasonable and clean condition with access to all doors and windows. Following those orders, the landlord was satisfied the tenant made an attempt to clean the property and did not return to the Tribunal until the application the subject of this appeal.
In his decision on 7 July 2023, the Senior Member found that in 2020 the property had been in ‘appalling condition in terms of the amount of rubbish and belongings in the house’; that photos taken in May 2019, June 2019 and January 2020, showed the property in ‘a condition that can only be described as filthy, appalling and unhygienic, inside and out’ and which revealed there was potential for rodent and pest infestations and safety issues for both the tenant and visitors.
The Senior Member also considered photographs of the premises taken in 2021 and 2022. The Senior Member found that by May 2021, the premises were again in a ‘position of filth’ and an equally poor state in July 2021. Although the state of the premises appeared to improve by October 2021, the Senior Member found that there had again been deterioration by November 2021. The Senior Member found that in December 2021, the photos of the premises showed some rooms to be ‘borderline acceptable’ while others, particularly the kitchen, were in an ‘unacceptable condition’. The Senior Member found that photos taken in August and October 2022 showed the premises as being in a state that was ‘mixed’.
As for the state of the premises in 2023, the Senior Member found that photos taken in March and April 2023 showed the property to be in an ‘appalling condition’. The Senior Member found that in June 2023 there was marginal improvement, but the condition was still unacceptable.
Some of the personal circumstances of the applicant
The applicant is 76 years of age. There were earlier proceedings in the Tribunal where orders for guardianship and administration were apparently made but the applicant had regained capacity and those orders were rescinded.
After the application for review of the first decision was taken, but before it was heard by the Senior Member on 4 July 2023, the applicant was admitted to hospital for a fall arising from vertigo. The Senior Member found the hospital notes referred to a ‘tendency to fall, a history of strokes and heart disease’. The applicant has a social worker. In a report before the Senior Member, the social worker set out that more than one incident had been reported since January 2023 which included four unwitnessed falls resulting in three attendances by South Australian Ambulance Services and one admission to hospital.
The availability of alternative accommodation
Before the Senior Member, in a submission that was repeated in this Court, the applicant said that he would be made homeless if his application for review was unsuccessful. That submission does not reflect the findings of the Senior Member and does not reflect additional information before this Court.
The accommodation options suggested as alternatives to the premises are regarded by the applicant as less than ideal. The applicant is settled in his desire to remain in the premises. Nevertheless, it is not disputed that the information before the Senior Member was that the tenant’s social worker had expressed a ‘high degree of confidence that suitable accommodation could be found within six weeks’. With respect to the possibility of homelessness, and in a finding that is not the subject of challenge, the Senior Member found:
I am satisfied on the evidence that this need not be the case. He has support workers who are able to assist him find alternative accommodation. Such accommodation includes supported residential accommodation which, although providing independent living, also includes meals and services being provided and many expenses covered, though the downside is that the cost to the applicant will be something like 85% of his pension. Nonetheless these options mean that he does not need to go on the streets as was submitted and would result in him being properly cared for. Another downside from his perspective, other than the cost, is that he wants to stay where he lives and does not want to move and will be distressed by moving.
On the hearing of the appeal, the respondent provided further information with respect to the progress of alternative accommodation. An offer of supported accommodation at Hahndorf was made on 11 September 2023. It appears that may be in a shared room. On 12 September 2023, the applicant advised his social worker that he wished to remain in the premises until the outcome of the proceedings in this Court. That being the position of the applicant, the social worker has not been seeking alternative accommodation and has indicated that doing so would likely to take several weeks. The foregoing was not disputed by the applicant on the hearing of the appeal. The applicant submits that he should not have to share a room and should remain in the premises or at least something equivalent.
Some further findings of the Senior Member
The Senior Member concluded the correct and preferable decision was to uphold the decision under the review. In reaching that conclusion, among the findings of the Senior Member were the following:
1.The applicant would be happy enough for others to clean ‘in a general sense’, but that it was obvious that once the cleaning has occurred, the property would quickly go back to an unhygienic state.
2.The clean-up schedule proposed by the applicant, or on his behalf, was not likely to be achievable in less than 12 months.
3.The applicant has not properly engaged with supports in the past and has not taken advantage of help available.
4.The applicant has health issues which contribute to the poor state of the property and which are likely to continue in the future.
5.Objectively speaking, the applicant would be better off in supported accommodation and any clean-up process is ultimately doomed to fail as any progress would be temporary.
6.The ‘squalid state’ of the premises affects the safety of support workers; creates a fire risk; is an eye sore for neighbours; and an unhealthy environment for the applicant.
Section 71(3) of the SACACT Act — principles
Section 71(3a) of the SACAT Act provides that an appeal under s 71 will be by way of rehearing.
In Jackson v Lepp Investments Pty Ltd,[1] Parker J set out the governing principles of such an appeal (with reference to the applicable Supreme Court Civil Rules 2006):
In deciding whether to grant permission to appeal from SACAT to this Court I consider that the ordinary principles applied when the Court decides whether or not to grant permission for a civil appeal should be followed. The over-riding principle is always the interests of justice. The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration. A failure of the first-instance decision maker to give adequate reasons will require the grant of permission.
Because SACAT is a specialist tribunal with particular expertise in determining tenancy disputes, this Court must give substantial weight to its findings…
… An appeal by way of rehearing is effectively a trial over again on the evidence used in the Court or Tribunal below, together with such additional evidence as may be received on the appeal. The Court must independently review the evidence and carefully scrutinise the findings made at first instance. Significantly, where the matter involves a question of judicial discretion, the Court is not entitled to substitute its own decision unless an error is identified in the exercise of that discretion.[2]
[1] (2016) 125 SASR 1.
[2] Ibid 6 [19]–[21].
In Pix v South Australia Housing Trust,[3] the Full Court approved of this statement of principle and, observed with respect to grounds that complain of the weight given to relevant considerations:
This court cannot substitute its evaluation of the relevant considerations for that of the Tribunal unless, having regard to the Tribunal’s specialised knowledge and experience, this Court finds that the order is manifestly unreasonable. [4]
[3] (2016) 125 SASR 10.
[4] Ibid 12 [6].
In this matter, the respondent concedes that the subject matter is of sufficient substance to justify consideration but contends that permission to appeal should not be granted as the appeal is not reasonably arguable.
The application to adjourn the appeal
Before turning to the grounds of appeal, it is necessary to address why I refused the application to adjourn the hearing of the appeal.
After the notice of appeal was filed, the applicant made a ‘complaint’ to the respondent pursuant to its published ‘Complaints and Appeals Policy’ (the policy). The complaint seeks the reinstatement of the tenancy.
The applicant provided a copy of the policy with his first written submissions. It is not necessary to refer to all aspects of the policy. It is sufficient to note that, among other things, the policy sets out its purpose; to whom it applies; the meaning of ‘complaint’; the meaning of an ‘appeal’ with respect to a complaint; and the process by which a complaint or an appeal is managed. It might be doubted that the meaning of ‘complaint’ set out in the policy (i.e. – ‘a concern that something about our products, services, staff or complaint handling is wrong or not satisfactory’) captures the situation which confronts the applicant. Nevertheless, it is not necessary to resolve that issue and I have not attempted to do so.
In support of the application to adjourn the hearing, it was submitted on behalf of the applicant that the appeal should await the outcome of the complaint. The applicant provided a letter from the respondent confirming the complaint had been made on 11 October 2023. Drawing upon the policy, it was submitted that there was some prospect of the tenancy being reinstated as a result of the complaint. It was said that given that prospect, the appeal should be adjourned to await the outcome of the complaint. It was submitted that a ‘mutually agreed resolution’ may be reached which could later be endorsed by the Court. The prospect of a ‘mutually agreed resolution’ was described as a ‘win win situation to the satisfaction of all parties’.
On 13 October 2023, I refused to adjourn the appeal. I was not satisfied there was any real prospect of the tenancy being reinstated as a result of the complaint. There was nothing which realistically supported the prospect of the outcome suggested on behalf of the applicant other than the existence of the policy and the fact of the complaint having been made. That was not sufficient to warrant delay of the hearing of the appeal. The representative of the applicant was not able to establish that the complaint process had any real prospect of resulting in the outcome suggested.
Conversely, there were compelling reasons to reach the contrary view. It was the respondent which sought the order for possession granted on 8 May 2023 and which had opposed any contrary order being made by the Senior Member on the application for review. There was good reason to conclude that the view of the respondent as to the applicant continuing as a tenant at the premises was not likely to change as a result of the complaint. The respondent submitted that it was opposed to the adjournment application and wished the appeal to be resolved in a timely fashion. The approach by the respondent in the Tribunal and before this Court was not consistent with the applicant’s hope of a ‘mutually agreed resolution’ being in any way realistic.
In the circumstances, I was not satisfied that the reasons advanced by the applicant for an adjournment of the appeal had any real prospect in resolving the matter other than this appeal needing to be heard and determined by this Court. That being the case, it was not appropriate to adjourn the appeal.
Ground 1 —The failure to make an order providing for a further extension of time
On 7 July 2023, having upheld the decision the subject of the review, the Senior Member stayed the order for possession until 15 September 2023. That was a period of about 10 weeks from the date of his decision. The applicant submits the Senior Member should also have ordered that the order for possession be further delayed in the event the applicant could not find alternative accommodation.

This ground is not arguable. There is no power to make an order in the terms contended for by the applicant.
Having made an order for possession, the orders the Tribunal may make as to when that order will take effect are set out in s 93(3) and (4) of the RT Act:
(3)The order for possession will take effect on a date specified by the Tribunal in the order, being a date not more than seven days after the date of the order unless the operation of the order for possession is suspended.
(4)However, if the Tribunal, although satisfied that the landlord is entitled to an order for possession of the premises, is satisfied by the tenant that the grant of an order for immediate possession of the premises would cause severe hardship to the tenant, the Tribunal may—
(a) suspend the operation of the order for possession for up to 90 days; and
(b) extend the operation of the residential tenancy agreement until the landlord obtains vacant possession of the premises from the tenant.
No power is provided in the above to suspend an order for possession beyond ninety days and no power is provided to order that the date by which vacant possession must be provided is contingent on a certain event occurring or not occurring.
This is not to overlook that s 110(1) of the RT Act confers several powers on the Tribunal to resolve tenancy disputes. Section 110(1) provides:
(1)The Tribunal may, on application by a party to a tenancy dispute—
(a)     restrain an action in breach of this Act, a residential tenancy agreement, a rooming house agreement, or an agreement collateral to a residential tenancy agreement or a rooming house agreement; or
(b)     require a person to comply with an obligation under this Act, a residential tenancy agreement, a rooming house agreement or an agreement collateral to a residential tenancy agreement or a rooming house agreement; or
(c)     order a person to make a payment (which may include compensation) under this Act, a residential tenancy agreement, a rooming house agreement or a collateral agreement or for breach of this Act, a residential tenancy agreement, a rooming house agreement, or a collateral agreement; or
(d)     relieve a party to a residential tenancy agreement, a rooming house agreement or a collateral agreement from the obligation to comply with a provision of the agreement; or
(e)     terminate a residential tenancy or rooming house agreement or declare that a residential tenancy or rooming house agreement has, or has not, been validly terminated; or
(f)     reinstate rights under a residential tenancy agreement or rooming house agreement that have been forfeited or have otherwise terminated; or
(g)     require payment of rent into the Fund until conditions stipulated by the Tribunal have been complied with; or
(h)     require that rent paid into the Fund be paid out and applied as directed by the Tribunal; or
(i)    require that a bond (including a bond under Part 7) paid into the Fund be paid out and applied as directed by the Tribunal; or
(j)    require a tenant or a rooming house resident to give up the possession of premises to the landlord or rooming house proprietor; or
(k)     make orders to give effect to rights and liabilities arising from the assignment of a residential tenancy agreement; or
(l)    exercise any other power conferred on the Tribunal under this Act; or
(m)    do anything else necessary or desirable to resolve a tenancy dispute.
The powers within s 110(1)(a)–(l) inclusive are specific powers, none of which can be construed as providing a power to make the order for which the applicant contends. As for the power in s 110(m), that power also does not provide the necessary power. Section 110(m) must be read in the context of the RT Act as a whole. Read in that context, s 110(m) empowers the Tribunal to take additional actions that are not the subject of a power already conferred under the RT Act. The power to make an order as to when the order for possession is to take effect is constrained by the terms of s 93 of the RT Act.[5]
[5] Upton & Anor v Fynes [2021] SACAT 84, [36].
Ground 2 – Miscalculation of the required time
To understand this ground it is necessary to set out some further aspects of the reasons of the Senior Member and the submissions he received.
The clean-up proposal
Before the Senior Member, the applicant sought the reinstatement of the tenancy. In support of re-instatement, the representative of the applicant put forward to the Senior Member a ‘clean-up proposal’. The clean-up proposal included that the state of the property be addressed by improving safety at the premises by creating a one metre corridor inside and outside; improving issues of hygiene by decluttering; and making easier access for cleaning and maintenance of cleaning. It was also proposed that decluttering would ‘be incrementally undertaken’ every week with two cubic metres of items causing clutter being permanently removed every week. In addition, there would be weekly rubbish collection by council. It was also proposed that the decluttering would continue to the ‘the reasonable satisfaction of the landlord’.
In considering the application for review, the Senior Member considered there were two options open. The first option was to uphold the decision under review. The second option was to set aside the decision and make what he described as a ‘staged clean up order’. That was one of the matters to which time was devoted during the application for review before the Senior Member. In evaluating the second option, the Senior Member considered how long it might take to clean up the premises in light of the proposal. In an approach open to him, the Senior Member was not attracted to an order to remove two cubic metres per week as it seemed ‘vague and would be difficult to monitor and enforce’. The Senior Member found that if a cleaning order were to be made, the appropriate approach would be to adopt a ‘room by room’ approach. The Senior Member said that such an approach ‘with a month in between, would take the best part of a year to clean’. The Senior Member recorded that it had not been accepted that any appropriate clean up would be done in less than about six months given the time the applicant’s advocate could devote to the task and the costs. This is not to overlook that the advocate now submits any clean-up would take ‘no more than 3‑4 months even earlier’.
In his consideration of his decision to affirm the decision subject to review, the Senior Member ultimately found:
It is not clear how realistic the clean-up proposal is. On the one hand I accept that his advocate is genuine in his promise to clean. On the other there are likely limits to what can be achieved. There is a past history that where improvements are made, they are short-lived. A clean-up process of a year or so is not desirable. A shorter time frame is not likely to be achievable.
The submission on behalf of the applicant is that the Senior Member miscalculated the time to clean up the premises. It is submitted the Senior Member fell into error in acting on the basis that a shorter time frame than a year or so was not likely to be achievable. On the hearing of the appeal, the applicant submitted that the period of a ‘year or so’ must have been identified by the Senior Member from his ‘room by room approach’ discussed earlier in his reasons. The applicant also directed my attention to the photographs available to the Senior Member and submitted that at least some rooms could be cleaned in less than a month.
This ground must be dismissed. The Senior Member did not mistake the facts nor take account of an irrelevant consideration.
Notwithstanding the proposal put on behalf of the applicant and accepting that some rooms could be cleaned in less than a month, it remained open to the Senior Member to conclude that a clean-up process of ‘a year or so’ was ‘not likely to be achievable’. That conclusion must be placed in context. On my reading, the conclusion above was not one based only upon the ‘room by room approach’ of the Senior Member and the photographs.
In the paragraph immediately preceding the impugned passage, the Senior Member drew several conclusions relevant to the time that may be taken to clean the premises. Each conclusion was open on the material before him. Each no doubt informed the impugned passage. The Senior Member stated:
It is unclear the extent to which the tenant would genuinely acknowledge that there is an issue with his hoarding. He made references to communism, and appeared to resent the suggestion that clean-up was required at times in the hearing. Reference was made to a desire to ‘collect things’ that might be of use. On the other hand, he said he supported his advocate’s plan to clean up the property. The best that can be said with confidence is that the tenant wants to stay in the property; he would be happy enough for others to clean in a general sense; but caution is required because with earlier clean up attempts through paid cleaning he was resistant to things being disposed of, and it is obvious that once the cleaning has occurred the property would quickly go back to an unhygienic state.
As may be seen, while the Senior Member made reference in the passage immediately above to the applicant supporting the plan put forward by his advocate and being happy enough for others to clean ‘in a general sense’, the Senior Member also considered that the extent to which the applicant acknowledged he had an issue with hoarding was unclear; that caution was required; and that the applicant appeared to resent the suggestion that clean-up was required. Each consideration was obviously relevant to the likely duration of success of any clean‑up process and any clean‑up being maintained. As the Senior Member identified, a relevant issue was whether any clean‑up would be maintained. The Senior Member found that it would not.
Also relevant is that in a paragraph after the impugned passage the Senior Member also made other findings relevant to the likelihood in any clean-up of the property being sustained. The Senior Member found that the applicant has ‘health issues which contribute to the poor state of the property’ which he found ‘are likely to continue in the future’. On the material before him, these were conclusions which were open to the Senior Member and were relevant to the prospect of any improvement in the condition being short‑lived and whether any clean-up would be achieved in a ‘year or so’.
In short, notwithstanding the photographs which I accept suggest that at least some rooms might be cleaned in less than a month, given all of the material before the Senior Member, the conclusion impugned was one which was open.
Ground 3 — Avoidance of anxiety, stress and insecurity by reinstatement
The applicant submits that anxiety, stress, and insecurity could have been avoided by reinstatement of the tenancy.
This was not a matter that the Senior Member overlooked. To the contrary, the Senior Member noted that the applicant had been diagnosed with depression and anxiety and noted the submission that an uncertain future could contribute to his health problems. Having referred to those matters, and others relevant to the health of the applicant, the Senior Member stated that his decision was made ‘appreciating that the decision will be distressing to the applicant’.
As the Senior Member did not overlook the issue the subject of this ground, properly understood, the contention of the applicant is about the weight given by the Senior Member to one of several relevant considerations. The Senior Member did not mistake the facts nor did he allow an irrelevant matter to affect his decision.
For the above reasons, this ground must also be dismissed.
Ground 4 — Input from support persons
The complaint in this ground is that the Senior Member considered the input of the applicant’s social worker, Ms Featherstone, and his home package coordinator, Ms Vyas. The contention is that had that input not been considered, the outcome of the application for review before the Senior Member might have been different.
There is no dispute that on 30 June 2023, the representative of the applicant had written to the Senior Member setting out that neither he, nor the applicant, required Ms Featherstone or Ms Vyas to provide any further information or participate in the matter; that Ms Vyas had been advised of this on 29 June 2023 and that the representative of the applicant would be grateful if SACAT notified Ms Featherstone and Ms Vyas that they were no longer required to participate. It appears that the letter dated 30 June 2023 followed the Senior Member having requested input at a directions hearing on 21 June 2023.
Notwithstanding the letter dated 30 June 2023, the Senior Member made extensive reference in his reasons to a report of Ms Featherstone which had been prepared in conjunction with the home package coordinator. The report was dated 25 June 2023 (the report) and set out that Ms Featherstone had been providing social work services to the applicant ‘on and off for the past 4 years or so’.
Among the matters set out by the Senior Member from the report were that the state of the premises remains a significant hazard to staff entering to provide services and supports to the applicant; that the hazards include significant amounts of clutter in all rooms of the home, the presence of vermin, rotting food in the fridge and living room, on the table and floor; that there was a general lack of hygiene within the premises; and that the premises would meet the criteria for both hoarding and squalor. The report also set out that the situation has not changed over time and is related to the physical limitations of the applicant to keep the environment clean as well as his behaviour and attitude. Given what was said to be the history of the applicant being unwilling or unable to make significant changes to the state of the premises, it was the opinion of the social worker that the applicant was unlikely to manage maintaining the property to a reasonable standard in the future. It was also the opinion of the social worker that it was likely the applicant had reached a point at which he can no longer be safely supported to remain living at home via home care package services and that the level of care needs of the applicant, both physical and psychological, exceed the funding available. The social worker also opined that the applicant had demonstrated a lack of insight into the level of his care needs and has consistently refused to engage with recommended services to enhance his quality of life and improve his health.
This ground is not arguable. In taking account of the report, the Senior Member did not consider any matter which was irrelevant. The Senior Member was not obliged to act only on the material before the first decision maker nor was he obliged accede to the request on behalf of the applicant in the letter dated 30 June 2023.
Section 39(1)(b) of the SACAT Act provides the Tribunal is not bound by the rules of evidence and may inform itself as it sees fit. Section 70(4) provides that on a review, the Tribunal ‘may as it think fit, allow further evidence or material to be presented to it’. As the respondent submitted, these provisions are not consistent with the Tribunal being limited to evidence or material that an applicant agrees should be considered.
It is necessary to address a further matter relevant to Ms Featherstone and Ms Vyas.
In the written submissions filed on behalf of the applicant after the hearing of the appeal, there is more than one assertion about Ms Vyas and Ms Featherstone including about, but not limited to, matters put to the Senior Member. Against that background, the applicant submits that what is asserted should result in a written submission filed for the purpose of the proceeding in this Court and authored by a representative of the respondent not being considered. The relevant written submission was authored by Ms Poyner who appeared before the Senior Member and is FDN 13. After Ms Poyner provided that written submission to this Court, counsel was briefed for the respondent. Counsel then prepared further written submissions and appeared on the hearing of the appeal.
As counsel filed written submissions, I have, as requested by the representative of the applicant, not had regard to the written submission authored by Ms Poyner. It follows that it is not necessary to address this issue further.
Fire risk
It is necessary to deal with a further complaint advanced on behalf of the applicant. It is a matter which is not within the grounds of appeal.
To understand this complaint, it is necessary to understand that the Senior Member referred to material before him with respect to ‘fire incidents’. The Senior Member set out the following, based upon the report of the social worker dated 25 June 2023:
[The home care provider and social worker] have expressed concerns relating to Mr Miroslawski’s mental capacity. While he has been assessed as having capacity in the past, there appears to be some changes relating to memory and insight, which may impact his ability to live independently and maintain tenancy. Of significant concern are 2 recent fire incidents that occurred in the home, due to pans being left on the stove top.
The first incident occurred on 19/6/23 which was deemed to be a near miss. A home support worker attended the home, and found a pan on the stove top and the stove top left on. When spoken to about it [the applicant] reported to the worker that he had forgotten that the pan was on the stove, and it could be turned off as he was finished cooking.
The second incident occurred while [the applicant] attended the SACAT hearing on 21/6/23. While he was absent from the premises the MFS attended due to smoke billowing from the home. The MFS broke into the home and extinguished the fire, which was caused by a pan being left on the stove, and the stove being left on. This was reported to the housing provider for follow up in relation to potential damage caused to the residence.
Having referred to the above, in affirming the decision under review, the Senior Member found as follows:
… the squalid state of the property affects the safety of entrants to the property such as support workers, creates a fire risk with a large fuel load, creates an eyesore for neighbours, and is an unhealthy environment for the applicant to live in. Access for emergency services in the event of a health emergency or a fire is also relevant.
As I have understood the submissions on behalf of the applicant, part of the complaint is about an aspect of what is set out in the submission authored by Ms Poyner which is FDN 13. As set out above, I have not had regard to that submission.
I turn to other complaints about fire and fire risk.
As I understand it, it is submitted on behalf of the applicant that was no fire on either 19 or 21 June 2023, but that there is no other relevant dispute about the events on those days as summarised by the Senior Member. For example, the representative of the applicant conceded that there was smoke on 21 June 2023, but submitted there was no fire accompanying that smoke.
In my view, it is not necessary to resolve whether there is a material difference between fire and smoke and/or whether there was a fire on either date. This is because the relevant conclusion of the Senior Member was simply that there was ‘fire risk’. On my reading, the finding of the existence of that risk was not predicated on a previous fire having occurred. It was a risk found given the squalid state of the premises. That conclusion on that basis was open. Further, fire risk was just one aspect of the consideration given to safety. As the Senior Member concluded, safety to health workers and support persons was a relevant consideration for reasons which went beyond fire risk.

It is necessary to refer to a further submission in this context. It is submitted on behalf of the applicant that he now has an induction cooktop with a timer and an electric jug to prepare hot beverages. As a result, it is submitted that there is no longer a risk of fire in relation to the use of cooking appliances by the applicant. I would not dismiss a risk of fire simply because of the induction cooktop, timer and use of electric jug. The utility of such measures is, at least, dependent upon the applicant taking steps to avoid risks. The undisputed aspects of what happened on 19 and 21 June 2023 provide good reason to conclude that the applicant may not do that on a consistent basis. In any event, even were it assumed that measures like that mentioned remove the risk of fire as a result of the stovetop being left on, there remain the balance of the risks to safety identified by the Senior Member due to the state of the property. In short, risk to the safety of emergency services in the event of a health emergency and support workers as a consequence of the state of the property remains a relevant consideration in favour of regarding the decision of the Senior Member as the correct and preferable decision.
For the above reasons, this complaint must be dismissed.
Conclusion
I am not satisfied that the Senior Member failed to take into account a relevant consideration. I am not satisfied that the Senior Member took account of a consideration which was irrelevant. I am not entitled to substitute my evaluation of the relevant considerations for those of the Senior Member unless, having regard to the Tribunal’s specialist knowledge and experience, I find that the order made was manifestly unreasonable. I am not satisfied that is the case.
The subject of this matter is of sufficient substance to justify consideration. The inability of the applicant to reside at the premises is extremely important to him. No longer being able to live in the premises is likely to cause a loss of independence, diminish his privacy and cause considerable distress. One can have sympathy for the applicant given his age; health issues and desire to remain living where he is apparently happy. Nonetheless, when all the material is taken into account, it is not reasonably arguable that the decision of the Senior Member was not the correct and preferable decision when it was made. Nothing has been put to me which has satisfied me that is not still the case.
I dismiss the application for permission to appeal. I will hear the parties as to any further orders which might be appropriate.