NASSAR AND COMMISSIONER FOR HOUSING
[2006] ACTAAT 29
•29 September 2006
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:NASSAR AND COMMISSIONER FOR HOUSING [2006] ACTAAT 29 (29 SEPTEMBER 2006)
AT06/30
Catchwords: Housing assistance – serious and chronic health issue – whether housing needs were exceptional, urgent and critical.
Administrative Appeals Tribunal Act 1989, s 27
Housing Assistance Act 1987, s 12
Commissioner for Housing v Bill Ganas [2003] ACTSC 34 (16 May 2003)
Re Smith and Defence Force Retirement & Death Benefits Authority (1978) 1 ALD 374
Tribunal:Mr M H Peedom, President
Date:29 September 2006
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/30
GENERAL DIVISION )
RE: TAMARA NASSAR
ApplicantAND: COMMISSIONER FOR
HOUSING
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Date : 29 September 2006
Decision : The decision under review is affirmed.
…………………………..
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/30
GENERAL DIVISION )
RE: TAMARA NASSAR
ApplicantAND: COMMISSIONER FOR
HOUSING
Respondent
REASONS FOR DECISION
29 September 2006 Mr M H Peedom, President
The decision under review
The applicant in this case has applied for the review of a decision made by the respondent on 19 October 2004 to refuse an application made by the applicant for priority transfer from three bedroom accommodation, which she and her family presently occupy as tenants of the respondent, to four bedroom accommodation. The respondent subsequently agreed to place the applicant on a standard transfer list to four bedroom accommodation but maintained the refusal to approve priority transfer. The applicant seeks the review of that refusal.
2. The decision under review was made pursuant to the provisions of the Housing Assistance Public Rental Housing Assistance Program Approval 1989 (repealed) (“the 1989 Program”), a housing assistance program for which provision was made by section 12(1) of the Housing Assistance Act 1987. Clause 24(1) of the 1989 Program provided for an appeal to the Tribunal against such a decision.
3. The applicant’s application for review of decision was lodged with the Tribunal on 7 April 2006, outside the time within which an appeal is required to be lodged by section 27 of the Administrative Appeals Tribunal Act 1989 (“the AAT Act”). An application was made by the applicant pursuant to section 27(8) of the AAT Act for the time for lodging the appeal to be extended. That application was opposed by the respondent on the ground that a period of 19 months had elapsed since the making of the decision, because the applicant had made a further application for assistance under the 1989 Program, albeit unsuccessfully, and because her circumstances may have changed since making her application for assistance under the 1989 Program.
4. The hearing of the applicant’s application for an extension of time fixed for 1 June 2006 was adjourned due to the illness of one of the applicant’s children, her husband’s absence from Canberra due to work commitments, her lack of other support and her inability to lodge with the Tribunal, in accordance with its directions, material to support her application.
5. At a hearing on 15 June 2006 the Tribunal granted an extension of time to the date of lodging the application for review of decision. In doing so the Tribunal took account of the illness and hospitalisation of one of the applicant’s children, the applicant’s lack of understanding of the appeal process, the lack of support available to her to pursue her appeal and the likely delay in dealing with any further application by her for assistance. It rejected the submission made on behalf of the respondent that a possible change in the applicant’s circumstances since the date of lodging her appeal should be a barrier to the application for an extension of time and that she had not “reserved her rights” to appeal.
The facts
6. The applicant, her husband and four children reside in a three bedroom house allocated to them by the respondent under the 1989 Program. She and her husband have three sons aged 3, 4 and 5 and a daughter aged 1 year.
7. The house in which the applicant and her family reside comprises three bedrooms, a laundry, a bathroom with toilet and a combined lounge and kitchen.
8. The applicant and her husband have provided the furnishings within the house. The main bedroom contains a queen size bed, a cupboard, 2 small drawers and a dressing table. A second bedroom contains a bed, a bookshelf and a bedside table. A third bedroom contains a double size bed, 2 bedside tables and a dresser. There is little free space in each of the bedrooms and much of the family’s clothing and other possessions is stored in boxes under the beds. The land on which the house is located has a front and back yard. The applicant’s husband has erected a shed in the back yard to store his work tools.
9. The present living arrangements involve the applicant and her husband occupying the main bedroom, the two younger boys occupying the third bedroom and the oldest boy occupying the second bedroom. The applicant’s daughter sleeps with her parents in the main bedroom in the bed or on the floor.
10. The applicant’s daughter does not currently suffer any ill health. Her two younger sons suffer from eczema. Her eldest son suffers from impetigo.
11. According to information obtained by the respondent from the internet, impetigo is a superficial infection of the skin. It is a condition which usually begins with flat, red, 1-2mm lesions which quickly rise to little blisters or pustules and eventually to open sores, often with a soft yellow-brown scab. The lesions can spread locally or under the skin and pop up at distant sites. Each lesion teems with bacteria but the bacteria cannot enter intact, healthy skin. The condition can be spread by contact with the fingers and scratching of the skin. Others can catch impetigo if the bacteria comes in contact with a break in the outermost layer of their skin. The condition is treated by washing with a bacterial cleanser but the mainstay of therapy is antibiotics.
12. Eczema, the condition from which the younger two boys suffer is, according to the Oxford Concise Medical Dictionary, a common itchy skin disease characterised by reddening and vesicle or blistering formation.
13. The applicant provided to the respondent a medical report from Dr N Obeid dated 17 July 2006. In his report Dr Obeid stated:
[The eldest son] suffers from impetigo eczema which is highly contagious. He requires constant medications. His accessories must be sterilized and his clothes should be washed separately. He must not share bedding with anyone.
14. Dr Obeid supported the provision of a larger house for the applicant’s family close to medical facilities and the provision of a separate bedroom for the eldest boy to prevent the spread of his condition to his siblings.
15. The applicant gave evidence that her eldest son has to sleep separately from his siblings and not share bedding, towels or toys. His clothes and toys are washed separately. She has difficulty keeping the eldest boy away from his brothers. He has his own towels, sheets, clothes and accessories, all of which are kept separate from others.
16. A midwife co-ordinator from the Canberra Hospital reported in October 2004 that the applicant’s access to transport was limited and she was confined to her home all day and every day. This added to her feelings of confinement and isolation.
17. In response to questions asked by the respondent’s representative at the hearing of the appeal the applicant, who participated in the hearing by telephone, said that her eldest son did not take antibiotic medication for his condition because his treating doctor had advised that he had an allergy to that form of treatment. The skin conditions from which her sons suffered was treated by the application of a cream provided on the prescription of their treating doctors. She accepted that the condition from which her eldest son suffered was likely to be alleviated in its effect as he grew older and could cease to affect him when he was 7, 10 or more years.
18. The applicant did not accept that it would be possible to change the present sleeping arrangements within the house to address the need to provide her eldest son with a separate bedroom. She said that a bunk bed and a single bed in one of the bedrooms to accommodate her daughter and two younger sons would not be appropriate because she considered there was a potential danger for a child sleeping in an upper bunk bed, even with a safety railing and because of the cost of purchasing this kind of bedding.
Reasons for decision
19. The 1989 Program commenced with effect on 4 October 1989. After that date it was amended on a number of occasions.
20. On 15 July 2005, however, the 1989 Program was repealed by clause 31 of the Housing Assistance Public Rental Housing Assistance Program 2005 (No. 1) (DI 2005-164) (“the first 2005 Program”).
21. On 16 December 2005 the Housing Assistance Public Rental Housing Assistance Program 2005 (No.2) (DI 2006-178) (“the second 2005 Program”) came into effect. By clause 32 it repealed the first 2005 Program.
22. On 7 June 2006 the Housing Assistance Public Rental Housing Assistance Program 2006 (No. 1) (DI 2006-90) (“the first 2006 Program”) came into effect. By clause 33 it repealed the second 2005 Program. It also contained, however, a transitional provision in the following terms:
(1)A person who is an eligible applicant, as at the commencement date pursuant to DI2005-281 shall have their application reassessed under this Program and may be allocated in accordance with the need category given under this program.
(2)Notwithstanding this program, until 1 October 2006 the Commissioner may allocate assistance to eligible applicants under this program who have a demonstrated need for Housing and a capacity to maintain a tenancy notwithstanding they have not been assessed for a needs category under this program.
23. On 18 July 2006 Housing Assistance Public Rental Housing Assistance Program 2006 (No. 2) (DI 2006-178) (“the current Program”) came into effect. By clause 33 it repealed the first 2006 Program. It also contained a transitional provision in the following terms:
(1)A person who is an eligible applicant, as at the commencement date pursuant to DI2005-281 and DI2006-90 shall have their application reassessed under this Program and may be allocated in accordance with the need category given under this program.
(2)Notwithstanding this program, until 1 October 2006 the commissioner may allocate assistance to eligible applicants under this program who have a demonstrated need for Housing and a capacity to maintain a tenancy notwithstanding they have not been assessed for a needs category under this program.
24. It was submitted on behalf of the respondent that the Tribunal should assess the applicant’s entitlement in accordance with the Housing Assistance Public Rental Housing Assistance Program and any determination made pursuant to it that were in effect at the date of the Tribunal’s decision.
25. In the ordinary course of events, the Tribunal is bound to reach its decision having regard to the state of the law applicable at the time it makes it decision (see Re Smith and Defence Force Retirement & Death Benefits Authority (1978) 1 ALD 374).
26. The current Program requires that any application by an existing tenant for transfer to other housing is to be dealt with as if it were an initial application for assistance (see clause 23 of the current Program). Pursuant to clause 10 of the current Program, the respondent has determined needs categories and criteria for allocating categories to eligible applicants. A copy of the current determination (No. 2006/6) is attached to these reasons for decision.
27. It was submitted on behalf of the respondent that there was not a “serious and chronic health issue” in this case within the meaning of that expression in the allocation criterion for the priority housing needs category of the current determination. She directed attention in her cross-examination of the applicant to the fact that the applicant’s eldest son was not taking antibiotic medication, which was identified in the literature relied upon by the applicant as being the “mainstay of therapy” for her son’s condition, and to the absence of any need for him to be admitted to hospital for treatment of his condition.
28. I see no reason to not accept the applicant’s evidence that she had been advised by her son’s treating doctor that he had an allergy to treatment by antibiotic medication and find that such treatment was, therefore, inappropriate.
29. The fact that the applicant’s eldest son has not been hospitalised for treatment of his condition does not preclude a finding that his condition is serious. The supplementary principles of the priority housing category are expressed to extend to factors that are critical or detrimental in relation to members of an applicant’s family. The applicant’s two younger sons suffer from a condition which clearly renders them at risk of contracting impetigo from their elder brother. This risk is confirmed by Dr Obeid’s report. Contraction of the condition from which the applicant’s eldest son suffers by the younger boys would be seriously detrimental to the well-being of her family. The risk identified justifies, in my opinion, a conclusion that the health risk within the applicant’s home is serious. The fact that the applicant’s eldest son has suffered the condition since about the age of 2½ years and it could continue to afflict him for some years to come justifies a conclusion that his condition is chronic.
30. In order to satisfy the general description accorded the priority housing needs category, however, an applicant is required to demonstrate exceptional, urgent and critical needs that cannot be resolved by any reasonable means other than the early provision of public housing.
31. Despite the apparent risk of infection that has been identified within the applicant’s household, there was no evidence presented to the Tribunal to suggest that the two younger boys had contracted the condition from which their older brother has suffered for more than 2 years. The fact that they have not would appear to be attributable to the high standard of care provided by the applicant for the well-being of her family. That fact, however, does not enable the Tribunal to reach a conclusion that the risk to the well-being of the applicant’s family is exceptional, urgent or critical in the sense described in the general description of the priority needs category.
32. Eligibility to satisfy the high needs housing category can be achieved if one of the risk factors identified for the priority housing category is shown to exist, albeit to a degree that does not justify admission to that category. To come within the high needs housing category, however, the need must be significant and unable to be resolved by any reasonable means other than the provision of public housing within a reasonable timeframe.
33. Although the applicant and her family would likely be assisted in the management of the health of her children by the provision to them of a house with a fourth bedroom, the relevant criterion requires that the Tribunal be satisfied that the applicant has exhausted other reasonable means to adapt the house which she currently occupies in a manner that would address the need for her eldest son to sleep in a room separately from the rest of the family.
34. It is to be accepted that the housing facility made available to the applicant is drawn from a pool of resources, the supply of which is well below the level of the demand for it. As Crispin J pointed out in Commissioner for Housing v Bill Ganas [2003] ACTSC 34 (dated 16 May 2003), it is not merely a question of determining whether the applicant has a serious need which should be met by a beneficent government but, rather, whether the need is so substantial that it warrants permitting the applicant to effectively “jump the queue” and require other needy people to wait longer for their needs to be met.
35. It is not, in my opinion, unreasonable for the applicant’s family to endeavour to adjust to the problem which confronts them by accommodating their three youngest children in the one bedroom in the manner suggested by the respondent’s representative in her cross-examination of the applicant, that is, by installing a bunk bed and a single bed in one of the bedrooms. While such an arrangement is unlikely to be appropriate in the case of children of different gender and more mature age than the applicant’s children, the applicant did not suggest that there was presently any cultural or other reason that should prevent her two younger sons and her daughter from sharing a bedroom.
36. While it is to be expected that there will be some cost to the applicant in furnishing her present home in the manner suggested, it is to be expected that such cost will not be excessive and there was no evidence before the Tribunal to justify a conclusion that such a cost should not reasonably be required to be a responsibility of the applicant and her husband.
38. Should, despite the respondent’s submission which I have accepted, the matter fall to be determined in accordance with the respondent’s determination No. 2003/4 which applied under earlier versions of the Housing Assistance Public Rental Housing Assistance Programs, I would conclude that the applicant did not satisfy the requirements of that determination for priority transfer.
39. I note that under the determination No. 2003/4, to achieve higher priority than she presently has, the applicant would have been required to meet the criteria for Priority Category 2 or Priority Category 1. To meet the criteria of Priority Category 2, her circumstances would require that the Tribunal be satisfied that there was “serious medical or other reasons” that rendered her present accommodation no longer suitable. For the reasons which I have set out in paragraphs 33 to 37 above, I do not consider that she meets that criterion. Inclusion in Priority Category 1 requires a greater degree of urgency than Priority Category 2. The applicant clearly does not meet that requirement.
ATTACHMENT
AUSTRALIAN CAPITAL TERRITORY
HOUSING ASSISTANCE ACT 1987
DETERMINATION 2006/6
In accordance with the Public Rental Housing Assistance Program 2006 (the Program) and with effect from the commencement of the Program I DETERMINE the following needs categories and allocation criteria:
| Needs Category | General Description | Needs Category typically includes, but is not limited to, applicants who are/have: |
| Priority Housing | Applicants must demonstrate exceptional, urgent and critical needs that cannot be resolved by any reasonable means other than the early provision of public housing. | Able to demonstrate a range of complex needs with evidence of significant risk factors that would be addressed or substantially alleviated through the early allocation of public housing, including: · primary or secondary homelessness; · families with children; · mental health issues; · other serious and chronic health issues · disability including frail-aged, where natural supports have broken down, or are at serious risk of breaking down; · Indigenous individuals and families having difficulty accessing private rental accommodation and facing complex issues; · women with or without children escaping domestic violence; · children at risk for other reasons and their parents and carers. Supplementary principles · An applicant with a single risk factor may be considered for inclusion if that factor is assessed as being extremely critical or detrimental in relation to their well-being or that of their family. · An applicant must also demonstrate an inability to find appropriate and affordable housing on the private market; for this purpose rent on the private market will be deemed unaffordable where it exceeds 50% of household income. · Inclusion will be confined to applicants who are currently capable of independent living and with the capacity to undertake a housing tenancy to address their longer term housing needs. A clear distinction will be made between applicants who meet these requirements and those for whom crisis or short-term housing is more appropriate to their needs |
| High Needs Housing | Applicants must demonstrate significant needs that cannot be resolved by any reasonable means other than the provision of public housing within a reasonable timeframe. This includes significant affordability issues in obtaining housing on the private market. | Able to demonstrate one or more risk factors that would be addressed or substantially alleviated through the provision of public housing, including: · existence of one or more of the risk factors identified for the priority housing category but to a degree that does not justify admission to that category; · experiencing private rental barriers such as extreme affordability problems, or demonstrable and ongoing discrimination; · having a serious need for housing that addresses special needs such as a disability or a severe and chronic medical condition that cannot be reasonably catered for through the private housing market; · living in severely overcrowded conditions, placing children at an identifiable risk. |
| Standard Housing | Applicants facing significant affordability issues in obtaining housing on the private market | · Incomes within ACT public housing eligibility criteria |
Operation of Priority Housing Category
Applicants will be placed and/or ranked for the allocation of assistance in the Priority Housing Category by a multi-disciplinary panel which will assess the applications taking into account the factors set out in the category.
For the purpose of limiting the provision of housing assistance to those most in need inclusion in this category will be targeted so that no more than 150 applicants are placed in the category at any one time.
Applicants are to be allocated assistance from this category on a needs basis (rather than a chronological basis).
Interpretation
For the purposes of this Determination:
primary homelessness relates to people who have no shelter, sleep rough, live on the streets, in cars, under bridges or in impoverished dwellings;
secondary homelessness relates to people who frequently move from various forms of temporary accommodation such as emergency accommodation, or short-term accommodation with friends and relatives
Dated this 29th day of May 2006
Sandra Lambert
Commissioner for Housing
for the Australian Capital Territory
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT06/30
APPLICANT: TAMARA NASSAR
RESPONDENT: COMMISSIONER FOR HOUSING
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
PARTY JOINED:
SOLICITORS: APPLICANT:
RESPONDENT:
PARTY JOINED:
OTHER:APPLICANT: SELF
RESPONDENT: MS G BURGESS
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DATE/S OF HEARING: 25 SEPTEMBER 2006 PLACE: CANBERRA
DATE OF DECISION: 29 SEPTEMBER 2006 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENTS:
0