Moskalev v N SW Dept of Housing
[2006] FMCA 876
•30 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOSKALEV & ANOR v N SW DEPT OF HOUSING | [2006] FMCA 876 |
| HUMAN RIGHTS – Disability discrimination in the provision of accommodation – applicant with phobia of neighbours and related mental disorders – established medical need for free standing accommodation – no unlawful discrimination but need for reconsideration of the applicants’ eligibility for priority housing on the basis of medical need. PRACTICE AND PROCEDURE – The power of the Court to make orders against a respondent in the absence of proven unlawful discrimination considered. |
| Disability Discrimination Act 1992 (Cth), ss.5, 6, 25 Federal Magistrates Act 1999 (Cth), s.15 Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO |
Tyler v Kesser Torah College [2006] FMCA 1
| First Applicant: | ILLYA MOSKALEV |
| Second Applicant: | NATALIA MOSKALEVA |
| Respondent: | NEW SOUTH WALES DEPARTMENT OF HOUSING |
| File Number: | SYG1655 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 19 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2006 |
REPRESENTATION
The First Applicant appeared in person
| Counsel for the Respondent: | Mr A Jungwirth |
| Solicitors for the Respondent: | Department of Housing |
ORDERS
The respondent shall reassess the applicants’ eligibility for priority housing under the respondent’s priority housing policy upon the basis that Mr Illya Moskalev has demonstrated a medical need for free standing accommodation with a backyard.
The application is otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1655 of 2005
| ILLYA MOSKALEV |
First Applicant
NATALIA MOSKALEVA
Second Applicant
And
| NEW SOUTH WALES DEPARTMENT OF HOUSING |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) asserting discrimination in the provision of accommodation contrary to ss.5, 6 and 25(1)(b) of the Disability Discrimination Act 1992 (Cth) (“the DDA”). The applicants seek orders compelling the provision by the respondent of accommodation that meets their perceived requirements. The application is opposed by the respondent (“the Department”).
Mrs Natalia Moskaleva made a complaint of disability discrimination on behalf of herself and her husband, Mr Illya Moskalev. The complaint was terminated by a delegate of the President of HREOC on 30 May 2005 and these proceedings were commenced by application filed on 27 June 2005, upon the basis of a grant of an extension of time by me[1].
[1] Assuming that an extension of time was in fact required, which I now doubt.
In her complaint to HREOC Mrs Moskaleva asserted that Mr Moskalev suffers from the disability of anxiety and depression, complicated by panic attacks and agoraphobia. The complaint also asserted that Mr Moskalev suffers from paranoid fears about his neighbours. The complaint alleged that the Department is discriminating against Mr Moskalev by refusing to offer the Moskalev family housing that accommodates Mr Moskalev’s disability. Mrs Moskaleva alleged that the Department discriminated against her as an associate of a person with a disability.
Six members of the Moskalev family live in a three bedroom unit owned by the Department. These are Mrs Moskaleva’s father (Mr Klimentiev) who is on a disability support pension and for whom Mrs Moskaleva is the carer. He occupies one bedroom. Another bedroom is occupied by Mr Klimentiev’s granddaughter and the third bedroom is occupied by Mrs Moskaleva and her two children. Mr Moskalev occupies the lounge room.
The complaint asserted that Mr Moskalev’s disability meant that the family required a four bedroom free standing house for himself, his wife and their two children. The family required a house in close proximity to Mr Klimentiev so that Mrs Moskaleva could continue to act as his carer. Several offers of accommodation had been made by the Department to the Moskalev family but these were declined upon the basis that, although a sufficient number of bedrooms were offered, the accommodation was not in a free standing (fully detached) building. Mr Moskalev believes that he needs to live in a free standing fully detached house with a back yard because of his paranoid fears about neighbours.
HREOC was provided with medical evidence relating to Mr Moskalev’s condition. This commenced with correspondence from a general practitioner (Dr Aristoff) dated 28 February 2004 which stated that:
It is quite essential for the patient to have his own room and to be able to have access to a backyard, where he can recuperate from his attacks.
The Department asserted in its response to the complaint that it made an offer of a four bedroom townhouse with a back yard that met these criteria. Dr Aristoff wrote a further letter on 11 March 2004 in which he stated that:
It would be appropriate to consider [Mr Moskalev] for a transfer to a free standing four bedroom house situated in a direct proximity to his father-in-law.
The Department treated that letter as containing insufficient information to show the necessity for free standing accommodation.
In a further letter dated 29 May 2004 Dr Aristoff stated that Mr Moskalev has:
a definite phobia of living with his neighbours... he should be considered for living in a free standing house with minimal contact with neighbouring dwellings.
In its response the Department asserted that it was unable to accommodate that request in the eastern suburbs of Sydney where the Moskalevs currently live but could accommodate the request in an outer Sydney suburb.
A psychiatrist (Dr Kay) wrote on 6 September 2004 that Mr Moskalev’s:
request for a free standing house is not going to change his mental state completely but there is a possibility it will reduce his paranoid ideation and will reduce an implication of his illness on his family.
The Department claimed that that statement did not indicate that a free standing property was essential or was essential in the eastern suburbs where such accommodation is scarce. The Department asserted that the basis for Dr Kay’s opinion was not fully outlined.
HREOC noted that Mr Moskalev was also examined by a senior clinical psychologist, Dr Tania Alexander. She prepared a report dated 17 December 2004 which states that Mr Moskalev:
...may benefit from living in a free standing house. His delusional ideas about the neighbours may persist for a long time even if he was on anti-psychotic medication. Living away from apartment blocks may provide [Mr Moskalev] with partial relief of symptoms.
The report also provides more detail about Mr Moskalev’s persecutory delusions about his neighbours.
Mr Moskalev provided the Department with a further report from Dr Aristoff dated 18 February 2005 which states that:
Mr Moskalev has been suffering from frequent panic attacks, aggravated by anxiety – depression, suicidal ideations and para suicidal behaviour. [Mr Moskalev] has been restricted in his movements to his space and he [is] suffering from a severe agoraphobia and he has a phobia of living with neighbours. From what I have understood [Mr Moskalev’s] condition has deteriorated since his interviews by the Department of Housing. In my opinion he does require an urgent help with his housing situation. He requires a free standing house on health grounds.
HREOC noted that the Department appeared to have assessed all of the information concerning Mr Moskalev’s disability but had concluded that his need for a four bedroom detached house was not proven. HREOC noted, however, that the medical evidence suggested that free standing accommodation would be of some benefit to Mr Moskalev and a conciliation conference was held on 7 April 2005 to discuss the medical evidence and explore a settlement. Unfortunately, it proved impossible to resolve the dispute by conciliation[2].
[2] A further attempted mediation by a registrar of this Court was also unsuccessful
The application
Mr Moskalev and Mrs Moskaleva rely upon an amended application filed on 26 August 2005. They seek to be placed on the Department’s priority housing list and, further, to be allocated a particular four bedroom free standing house at number 54 Chester Avenue, Maroubra. In view of Mr Moskalev’s medical condition I sought to appoint Mrs Moskaleva as his litigation guardian but she declined that appointment. After further assessing Mr Moskalev’s state of mind I satisfied myself that he was fit to conduct the proceedings himself. Mrs Moskaleva wrote to the Court advising that she wished her husband to act on her behalf. In the result, only Mr Moskalev took an active part in the proceedings.
The Department concedes that the present housing conditions for the Moskalev family are unsuitable due to overcrowding. It has made several offers of alternative accommodation to the family but none of those offers has proved acceptable to them, because none have included a free standing four bedroom house in the eastern suburbs of Sydney close to Mr Klimentiev (who does not wish to move). The Department continues to reject the proposition that Mr Moskalev has a demonstrated medical need for a free standing four bedroom home in the eastern suburbs.
The evidence
Mr Moskalev relies upon his amended application and a bundle of documents annexed to it comprising correspondence from the Department, appeal decisions, medical records and medical expense records. He also relies upon his information sheet filed with his original application and the HREOC termination documents annexed to it. Further, he relies upon his affidavits filed on 15 March 2006 (enclosing further correspondence from HREOC) and 23 May 2006 (enclosing further correspondence from the Department). No evidence from Mrs Moskaleva was relied upon and Mr Moskalev was not required for cross-examination. The relevant medical evidence is comprised in documents tendered in the proceedings.
The Department relies upon the affidavit of Angela Cronin filed on 5 April 2006 and the annexures to it, which detail the dealings between the Moskalev family and the Department. I gave leave for counsel for the Department to lead additional oral evidence from Ms Cronin. Ms Cronin stated that she was responsible for the eastern suburbs housing area under the Department’s administration. She stated that in that area the Department, as at December 2005, had 101 four bedroom fully detached or partially detached dwellings comprising 28 four bedroom fully detached homes, 15 villas and 58 townhouses. In addition, the Department has available a number of four bedroom apartments which share common walls with neighbours. Ms Cronin was not able to say how many of these dwellings were currently vacant. She gave evidence that the property at 54 Chester Avenue, Maroubra had been transferred by the Department to a community housing association (a private organisation) and was no longer available to the Department, although the New South Wales Crown still retains the land title.
Ms Cronin confirmed that Mrs Moskaleva and Mr Moskalev were registered for the provision of public housing but were not on the Department’s priority housing register. In other words, they must await their turn for offers of accommodation to be made. A number of offers have previously been made and, because of rejection of offers, the Moskalev family has been taken off and then reinstated on the public housing register. Their current status is that they are considered to be eligible for public housing as from 4 April 1996.
Ms Cronin referred to the Department’s priority housing policy, the current version of which forms annexure A2 to her affidavit. The policy relevantly states that, to be approved for priority housing, applicants must be:
·eligible for public housing, and
·in urgent need of housing, and
·unable to resolve that need themselves in the private rental market.
Ms Cronin stated that the Department considers that the Moskalevs meet the first and second criteria but not the third. Ms Cronin has calculated[3] that, in accordance with the Department’s policy, the Moskalev family is able to devote 50 per cent of its household income ($329.91, or $390 per week with rental assistance) to obtain private accommodation and[4] appropriate private accommodation comprising three and four bedroom dwellings (many of which are not fully detached or close to Mr Klimentiev) are available within the eastern suburbs area.
[3] exhibit R1
[4] exhibit R2
Under cross-examination Ms Cronin resisted suggestions from Mr Moskalev that none of the private accommodation she has found to be available within the family budget was suitable.
Submissions
Mr Moskalev accepted that the family had available to it $390 per week to spend on private rental accommodation according to the Department’s criteria but suggested that, after taking into account medical and pharmaceutical expenses, the family disposable income was approximately $114 per week. In any event, Mr Moskalev asserts that the family would have to spend at least $600 per week in order to rent privately a four bedroom fully detached home with a backyard close to Mr Klimentiev which Mr Moskalev deems is essential. Mr Moskalev concedes that he is unable to satisfy the third criterion in the Department’s priority housing policy. He submits that that policy is indirectly discriminatory. He also submits that the Department has directly discriminated against him and his wife by not making available to him accommodation of the kind that he asserts is required by him for medical reasons.
Mr Jungwirth, for the Department, conceded that the Department does not dispute that the Moskalev family is in urgent need of better accommodation due to overcrowding in Mr Klimentiev’s apartment. The Department asserts that the offers already made to the Moskalev family were a fair and reasonable attempt to make available to them accommodation that met their housing needs. The Department submits that its priority housing policy is reasonable and that there has been no direct discrimination of Mr Moskalev (or his wife) by reason of Mr Moskalev’s disability. The Department does not accept that Mr Moskalev has a demonstrated medical need for a fully detached four bedroom home and further notes that Mr Moskalev’s requirement that the home be in the immediate vicinity of Mr Klimentiev is not related in any way to Mr Moskalev’s asserted disability. The Department submits that it would be able to offer three or four bedroom fully detached accommodation elsewhere in Sydney if Mr Moskalev was prepared to waive his requirement that the accommodation be close to Mr Klimentiev, who has indicated an unwillingness to move.
Reasoning
This case presents an intractable problem. Mr Moskalev has a fixed and inflexible view of the accommodation that he requires in order to meet his needs and those of his father-in-law. He is willing to accept nothing less and has rejected several offers of accommodation from the Department that would be a significant improvement upon the present overcrowded accommodation. There is no dispute between the parties that the present overcrowding is having an adverse impact not only on Mr Moskalev but also upon the other members of the family. For its part, the Department has rejected the proposition that the available medical evidence establishes that Mr Moskalev has a demonstrated medical need for a fully detached dwelling. The Department accepts that Mr Moskalev needs his own bedroom and that he would benefit from having a backyard. The Department does not accept that his medical condition requires a fully detached dwelling. Further, the Department asserts that it is unrealistic to expect that it provide one of its 28 fully detached houses in the eastern suburbs region to the Moskalev family, which might require the eviction of other needy persons. In any event, the Department notes that Mr Moskalev will only accept accommodation in the suburbs of Maroubra or Matraville because of the perceived need to live close to Mr Klimentiev, who is cared for by his wife. That requirement is in turn related to Mr Klimentiev’s unwillingness to move from his present accommodation.
I accept from the medical evidence that Mr Moskalev has a disability for the purposes of the DDA. In order to establish his claim of direct discrimination Mr Moskalev must prove that the Department treated him less favourably than, in circumstances that are the same or are not materially different, the Department treats or would treat a person without his disability. This requires the identification of an appropriate comparator. Mr Moskalev has not identified any actual comparator so a hypothetical comparator may be used. As is often the case, the definition of an appropriate comparator is problematic. The critical factor here, in my view, is that the Department does not accept the medical evidence as establishing a medical need for the accommodation with all of the attributes sought by Mr Moskalev. While the Department accepts a medical need for Mr Moskalev to have his own bedroom, the Department does not accept that Mr Moskalev has established a medical need for a fully detached home. The Department does not dispute that a backyard, and reduced proximity to neighbours, would be desirable. As discussed with the parties during argument, this factor must, in my view, form a part of the analysis. If the Department did accept that Mr Moskalev had a demonstrated medical need for a four bedroom fully detached dwelling with a backyard it is distinctly possible that he would qualify for the Department’s priority housing list upon the basis that the family would be unable to afford such housing in the eastern suburbs area. Mr Moskalev’s circumstances cannot be properly compared to those of a person with a different need for the same accommodation which is accepted by the Department. Neither, upon reflection, should Mr Moskalev be compared with a person without his disability with the same accommodation requirements, which are rejected by the Department. Both such comparisons would pre-determine the outcome. Rather, Mr Moskalev must be compared to a person, without his disability, who is seeking accommodation of the same kind sought by Mr Moskalev and who asserts a medical or other requirement for that accommodation.
The question then is, what would the Department do in the case of the comparator? The Department will not give priority housing to persons who are able to afford private housing and, where the Department does not accept that an applicant has a medical need for housing of a particular size or standard, that affects the analysis of what private housing is available to an applicant. The Department would not meet a demand for a four bedroom fully detached home with a backyard simply because the demand was made. It would assess objectively the need for such accommodation. In some cases the asserted need would be accepted. In other cases it would not. If a medical reason was asserted the medical opinion would be considered. It might or might not be accepted. I am unable to say that the hypothetical comparator would be treated more favourably than Mr Moskalev. It might be argued that the hypothetical comparator would be likely to succeed if he or she did not have Mr Moskalev’s mental disability, because Mr Moskalev exhibits a stubborn and inflexible attitude likely to cause a reactive bureaucratic stubbornness. However, even if it were true that Mr Moskalev’s stubbornness has prejudiced the objective consideration of his accommodation request, I have no reason to believe that a person without his disability, but who was similarly stubborn and inflexible, would not suffer the same disadvantage.
Further, Mr Moskalev cannot establish that he has been refused housing of the kind he seeks because of his disability. Rather, Mr Moskalev has been refused housing of the kind that he seeks in spite of his disability. The position taken by the Department not to accept the medical evidence as establishing a medical need for free standing accommodation may be wrong but it is not directly discriminatory under the DDA.
Neither has Mr Moskalev been able to establish a case of indirect disability discrimination. The relevant condition, requirement or practice is the Department’s priority housing policy, in particular, the third criterion that applicants be unable to resolve their housing needs themselves in the private rental market. Mr Moskalev is currently not able to satisfy that criterion because of his inability to persuade the Department that he has a medical requirement for accommodation of a size and quality that is more expensive than he can afford. There is no evidence before me that a higher proportion of persons without Mr Moskalev’s disability would be able to comply with the third criterion, especially in similar circumstances where such applicants are unable to satisfy the Department of a medical need for accommodation of a standard or size greater than they can afford.
Neither am I persuaded that the Department’s condition is not reasonable. The problem is not with the criterion but with the application of it in the face of the medical evidence. There is, in my view, no real doubt that Mr Moskalev suffers from the mental conditions he asserts, including a phobia of neighbours. The medical evidence is not consistent on the question of whether it is essential for Mr Moskalev to live in fully detached accommodation in order to deal with that phobia. However, it is clear from the medical evidence that it would be at least desirable and helpful for Mr Moskalev to be able to live in fully detached accommodation with a backyard. The medical evidence has been obtained over time from different practitioners but is broadly consistent with this basic proposition. To the medical opinions considered by HREOC should be added a letter dated 29 October 2005 from Dr Jennifer Wong, Psychiatry Registrar of the Prince Henry and The Prince of Wales Hospitals Mental Health Program, who wrote to request “urgent allocation of a free standing four bedroom accommodation” for Mr Moskalev and his family. Dr Wong made clear that a failure to address this issue will cause Mr Moskalev’s mental state to further deteriorate. That will only exacerbate the appalling impact that the present circumstances of the family is having on the two children of Mr Moskalev (see the reports of Dr Kay and Dr Alexander).
In my view, the Department has given inadequate consideration to the cumulative medical evidence. It ought to have accepted that there was sufficient evidence of a medical need for detached accommodation to justify restricting the assessment of available private accommodation to that class of dwelling. That may well have resulted in a different outcome in the application of the priority housing criterion. Regrettably, a recommendation by the Department’s Housing Appeals Committee on 6 July 2004[5] that it was “pointless” to make offers of accommodation that were not free standing and that Mr Moskalev “be listed only for free standing housing” appears not to have been accepted. In a letter dated 27 September 2004 to Mrs Moskaleva, the Deputy Chairperson of the Committee, stated that the Department had advised the Committee that future offers of accommodation would “not necessarily be free standing accommodation”. The Department should have followed the Committee’s advice and accepted that a medical need for free standing accommodation had been established.
[5] on page 85 of the annexures to Ms Cronin’s affidavit
Mr Moskalev has been inflexible in his demands and has refused offers of accommodation which would undoubtedly benefit him and his family. His requirement that he and his wife live close to Mr Klimentiev is an additional problem unrelated to Mr Moskalev’s medical condition which further restricts the range of options and may render it impossible in the short to medium term for the Department to offer accommodation that meets Mr Moskalev’s requirements. It seems tolerably clear from the medical evidence that Mr Moskalev’s stubborness is also a product of his mental condition and that should not be allowed by him or the Department to prevent steps being taken to arrange appropriate accommodation to him and his family, if it is available. If Mr Moskalev has any real insight into his condition, and the impact that it is having upon his family (especially his children), he will consider carefully and objectively, in consultation with his family, whatever future offers of accommodation are made by the Department.
While the claim of indirect or direct discrimination fails the Department should, in my view, reassess Mr Moskalev’s entitlement to priority housing on the basis that the available medical evidence points to a medical need for fully detached accommodation. It may remain impossible at present for the Department to offer appropriate accommodation to Mr Moskalev or it may mean that Mr Moskalev (and possibly also Mr Klimentiev) will need to consider moving to a different part of Sydney but the reassessment should take place. Mr Jungwirth, in argument, indicated that the Department would not find such a direction objectionable. As I noted in Tyler v Kesser Torah College [2006] FMCA 1, at [108] s.46PO(4) of the HREOC Act is not an exhaustive statement of the orders that may be made by the Court in proceedings under that Act. In my view, even where unlawful discrimination is not established, the Court may, in appropriate circumstances (as here) use s.15 of the Federal Magistrates Act 1999 (Cth) to correct administrative error.
I will order that the Department reassess the eligibility of Mr Moskalev and his immediate family for priority housing under the Department’s priority housing policy upon the basis that Mr Moskalev has demonstrated a medical need for fully detached accommodation with a backyard. The application will be otherwise dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 June 2006
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