Occupant RT391 v Grantor RT391 (Residential Tenancies)

[2020] ACAT 43

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OCCUPANT RT391 v GRANTOR RT391 (Residential Tenancies) [2020] ACAT 43

RT 391/2020

Catchwords:               RESIDENTIAL TENANCIES – occupancy agreement – application for stay of notice to vacate pending substantive hearing – disabled occupants in shared supported housing – behavioural incidents – external care providers – exceptional circumstances

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 39, 53

Cases cited:John Morgan v Construction Occupations Registrar [2011] ACAT 18

Tribunal:  Senior Member K Katavic

Date of Orders:  22 May 2020

Date of Reasons for Decision:      18 June 2020

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 391/2020

BETWEEN:

OCCUPANT RT391

Applicant

AND:

GRANTOR RT391

Respondent

TRIBUNAL:Senior Member K Katavic

DATE:22 May 2020

ORDER

The Tribunal orders that:

1.The Notice to Vacate dated 11 May 2020 is stayed until 2 June 2020.

…………Signed…………..

Senior Member K Katavic

REASONS FOR DECISION

Introduction

1.On 21 and 22 May 2020, the Tribunal heard an application for interim or other orders in relation to an occupancy dispute. At the conclusion of the hearing, I made the orders sought staying the Notice to Vacate dated 11 May 2020 (the NTV) until 2 June 2020, pending the outcome of a mediation between the parties. If the parties could not reach agreement, it was likely the stay would continue until the date of the hearing. This was subsequently extended by consent following the mediation. A timetable was set for filing evidence and the substantive matter was listed for hearing.

2.I gave my reasons orally, what follows is an edited copy of those reasons.

3.On 5 June 2020, I also made orders pursuant to section 39(2)(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), suppressing the names of the parties, the witnesses, the premises and any other information from which the identity of the participants or the premises. The parties are now known as Occupant RT391 and Grantor RT391. I will refer to them as applicant and respondent in these reasons. All other witnesses or persons have been anonymised.

Background

4.The applicant resides in a shared accommodation arrangement provided by the respondent pursuant to an Occupancy Agreement. He has lived there since 2008. He is significantly disabled and requires 24/7 personal care. Until recently there were three occupants in the home S, R and the applicant all of whom suffer significant disabilities. S and R have lived at the premises together for approximately 30 years.

5.All of the occupants require 24/7 support for personal and domestic care. This support is provided by a third-party carer, provided under a separate agreement. Due to the shared housing arrangement this was provided with a staffing ratio based on the premises being occupied by three people with common care needs. This was in lieu of one-to-one care. At least for the applicant and R, the support is provided via an NDIS Plan. In the applicant’s case the level of support in his NDIS Plan is linked to the shared accommodation arrangement in which the support can be provided on that ratio basis.

6.S was recently relocated. Since about the end of March 2020, the applicant and R remained in the premises. The 24/7 support continued despite the reduced number of occupants.

7.Several behavioural incidents have occurred which gave rise to the respondent issuing the applicant with the NTV requiring him to leave the premises by 25 May 2020. The NTV also stated:

[The respondent] has approached Housing ACT to identify alternative accommodation. They have advised that temporary (6 month) accommodation may be available.

8.The respondent has since provided photographs of a two bedroom property in Kingston which has apparently been offered as temporary accommodation for six months. No details have been provided directly from Housing ACT regarding the property or the applicant’s occupation of it. Also, it appears to be temporary. There was some doubt as to whether the level of support provided under the NDIS plan would continue given its contingency on the shared accommodation arrangement.

9.The applicant’s representatives attempted to engage with the respondent in a form of dispute resolution which is provided for in clause 35 of the Occupancy Agreement. In a response to the request, the respondent sent an email dated 15 May 2020 stating, inter alia:

Just to clarify clause 35 is Dispute resolution process and not a vehicle for disputing the NTV – the facts as we see it are clear. If the guardians wish to engage in dispute resolution the onus will be on them to organise this.

10.As a consequence of the language of that email, the applicant’s representative applied to the Tribunal to dispute the NTV and sought a stay of the operation of the NTV until the dispute is resolved.

The hearing of the stay application

11.Mr A is one of the applicant’s legal guardians. He told the Tribunal that the current accommodation is convenient due to its proximity to the applicant’s sister who visits him regularly. The applicant is frequently unwell, and his sister is often called upon to attend on short notice. He was concerned about a lack of communication from the care provider regarding the incidents and whether the level of support could continue if the applicant was relocated. He also explained that the applicant recently had some significant medication changes which are relevant to both his past behaviour and recent improvements. There is not a lot of detail regarding the applicant’s medication, but I am satisfied it could be a factor relevant to explaining his past behaviour and provide improvement.

12.Ms P is the applicant’s older sister and one of his legal guardians. She gave evidence before the Tribunal. She gave a historical overview of the applicant and his placement in the premises. She described the dynamic between the applicant and S as fairly paternalistic with them getting on well although S has seen the applicant’s outbursts and tantrums. With R, she described more recent difficulties, but it had been historically ok for some years. She described them as having “each other’s measure”. She gave evidence regarding incidents in which R had been physically violent towards the applicant in recent times. She stated that there had been no assistance or intervention from the housing managers and R’s parents would deny or ignore such allegations. Mr and Mrs G, R’s parents, dispute there have been any incidents or any reports of alleged incidents.

13.Ms P described in detail the applicant’s complex health issues, which have most recently derived from a serious fall at the premises in 2017, which required him to be resuscitated and resulted in an acquired brain injury. Since that time, she described a program in which health professionals have tried various forms of medication to achieve some stabilisation. This has now reached a point where she said improvement was being seen. She described a deterioration in the applicant’s health from October 2019, which was attributable to a combination of factors regarding changes to his carers, the house coordinator and two of his brothers going overseas. He was prescribed a stage 3 antipsychotic medication on a PRN basis. This required monitoring due to the applicant’s other health conditions. It was administered for the first time on 27 April 2020, which was the date of one of the incident’s the respondent relies upon in support of the NTV. It has since been changed to be a regular medication at a commencement dose of 25mg with ongoing monitoring. Ms P was asked about the incident which occurred on 27 April 2020. She disagrees with some of what was reported. She also considered the care providers did not act according to instructions that had been put in place to address behavioural issues. She was not present for the remaining incidents on 2 May 2020 and 18 May 2020, but she was contacted in relation to them. She attended the premises later during the day on 2 May 2020 and was awaiting contact from the police on 18 May 2020 but was not called. She expressed her remorse at what had allegedly occurred.

14.She explained that earlier this year the care provider staff had placed the applicant in a kind of lockdown, which prevented him from going about his usual activities. She observed that this caused him distress and it was compounded by the COVID-19 restrictions being put in place from late March 2020. A new house manager had commenced which was also a factor as the new house manager was in her view not responding well to the applicant’s behaviours.

15.She gave further evidence regarding the staffing ratios and confirmed that she understood there were two staff during the day and one at night. There had been a ratio of 2:1 during the night for the applicant until recently to address bathroom safety. The care provider indicated to her that this would reduce to a 1:1 ratio due to cost and because the applicant had been sleeping better and R does not usually require assistance during the night. She rejected the suggestion that the 2:1 ratio at night was because the applicant was a risk to others. She explained it had been provided by the care provider based on a recommendation from the applicant’s doctors because of his medication and because he was a falls risk.

16.Ms P also described the convenience of having the applicant live so close to her, which was a legacy of her parents before they passed away. She bears a heavy and admirable burden in providing the level of support and care she does to the applicant. She visits him Tuesday, Thursday and Sunday at a minimum to walk him and carry out exercises. This increases at times when the applicant is unwell and her proximity to him means she is there within minutes. She also stated that he relies heavily on his family network and until the COVID-19 restrictions came into effect the family operated on a visiting and care roster.

17.Mr and Mrs G, R’s parents, both gave evidence to the Tribunal regarding his circumstances and their concerns.

18.R suffers significant disabilities and is non-verbal. Mrs G told the Tribunal that issues between the applicant and R began as far back as August 2019 and there had been police attendance. She also said that R has begun self-harming which is a stress reaction. R’s current living arrangement is most suitable as he has lived there for 30 years and it is an open plan house which allows him the freedom to pace. She said the relationship with R and S was fine, but due to the applicant’s recent behaviour she fears for the safety of her son. She said that since about 31 March 2020 when S left, three staff from the care provider have been attending to provide support. One staff member stays until late at night when another takes over in a what is called a “wake over” arrangement (where the carer does not sleep but remains at the property).

19.Mr G’s evidence was similar to Mrs G’s. He held fears that the applicant would hurt his son severely. Like his wife, Mr G visits R regularly and attends to his care needs.

20.It is obvious both families respectively love and support the applicant and R and do the best they can in circumstances where they both have complex needs. Each is concerned for each other’s wellbeing.

21.Mr C is an executive manager with the respondent. He described the respondent’s position as facilitating the separation of two people who had become incompatible, both of whom required support. His intention was to temporarily relocate the applicant until things improved with a view to restoring the applicant to the property. He has also been corresponding with the care provider regarding the provision of support. Some further information was provided on 22 May 2020 by Mr P, the chief executive officer of the care provider regarding the provision of support.

Consideration

22.Determining whether to grant a stay in this case is not an easy task. The purpose of the stay is to maintain the status quo until the substantive dispute is finally determined. This matter involves exquisitely vulnerable people who rely upon others to care for them and make decisions for them. Any change or disruption to their daily lives has an extraordinary impact which would not necessarily be experienced by the general population to the same degree.

23.Section 53 of the ACAT Act provides that the Tribunal may make interim orders, if before the hearing of an application, a party to the application applies to the Tribunal for an order under this section; and the Tribunal is satisfied that, if an order under this section were not made before the hearing of the application, the party applying for the order would be disadvantaged or suffer harm.

24.The exercise of the Tribunal’s discretion is guided by taking into account all of the circumstances of the case and the following principles[1]:

[1] John Morgan v Construction Occupations Registrar [2011] ACAT 18 at [12]-[13]

12.     In a regulatory context, the jurisprudence can be summarised by reference to four factors, namely:

(i)whether the material before the tribunal indicates that there is a serious issue to be tried on the substantive application;

(ii)whether any prejudice would be suffered by any party if a stay was not granted;

(iii)whether public safety or the public interest would be imperilled if a stay is granted; and

(iv)whether the substantive application would be pointless or rendered nugatory if the stay is not granted.

13.     The last three factors can be characterised as related to a broader consideration of the balance of convenience.

12.Those principles have been applied by this Tribunal in a regulatory context as opposed to the residential tenancy context. It might also be said that granting a stay will generally not be exercised unless the party seeking the stay demonstrates special or exceptional circumstances. These are captured in the test set out above.

13.Special circumstances may be found to exist where the applicant is able to demonstrate that there is a real risk that it will not be possible to restore the applicant substantially to his or her former position if the NTV is effective before the hearing of the dispute. In other words: is the application rendered nugatory or pointless?

14.An applicant should also demonstrate that there is at least an arguable case.

15.With these principles in mind and having regard to the circumstances of the case I consider it appropriate to grant the stay, but for a short period of time, meaning a hearing of the substantive matter should be expedited.

16.I am satisfied that there is a serious issue to be tried and a factual dispute regarding the incidents the respondent relies upon in support of the NTV. There is a dispute about what has been reported, with Ms P indicating she had her own incident reports to reflect on. There is also some context which would need to be explored in order to decide the substantive issue regarding termination of the occupancy agreement. This would include evidence from all witnesses involved in the incidents upon which the NTV is based and potentially health and care providers.

17.I am satisfied that if the stay were not granted the applicant would be forced to relocate. The essence of the NTV is to bring to an end the respondent’s obligation to provide accommodation and the applicant’s entitlement to occupy the premises. If the NTV were effective, that relationship comes to an end. There is no mechanism in the NTV by which it can simply be restored when ‘things improve’. The NTV operates to end the occupancy agreement. If the stay were not granted, the application regarding the dispute would be rendered nugatory. Even if it were not pointless, the applicant will have been relocated in the meantime, only to find himself being restored to his current premises if he is successful. Such circumstances might be regarded as inconvenient rather than rising to a level of harm or disadvantage. However, we are not talking about ordinary circumstances. Such upheaval could be significantly more detrimental. Despite Mr C’s intention to restore things, it may not be that straightforward.

18.Further, there are scant details about the alternative accommodation and the lack of certainty regarding Housing ACT’s position. These factors and the temporary nature of it cause me concern. There is also the issue of support provided by the care provider and any impact on the NDIS plans regarding the level of support provided.

19.While the recent email from Mr P suggests the care provider may be willing to continue, the NDIS may not agree and it may affect the funding level in the plan. To disturb that, part way through the life of the plan and given the time taken to engage with the NDIS for any changes to the plan, it would seem too disruptive. The email from Mr P dated 22 May 2020, still identifies conditions upon which the support would be provided at a new location. While it may not be uncommon for the support to follow the client and not be tied to the location, I am not satisfied that such an arrangement could be facilited quickly enough if the applicant was required to relocate on 25 May 2020. Further, there is no evidence that the location requirements identified as a condition by the care provider are met at the Kingston property and the adequacy of funding under the current NDIS plan is not a matter for the care provider, but dependant upon the support coordinator seeking approval from the NDIA and the NDIA agreeing. How long that will take is unknown. Mr C, with likely the best intentions, may not be relevantly authorised to discuss on the applicant’s behalf what arrangements might be appropriate or put in place for his care. That is the role of his guardians. Further, the respondent manages the premises not the care that is provided nor how it is provided. Issues regarding the internal arrangements and staffing issues are a matter between the care provider and the occupants.

20.Against that, I have had to balance the respondent’s concerns regarding R’s safety. I appreciate those concerns are real and genuine. The reported incidents describe concerning physical and verbal abuse are serious and not appropriate. They may be explained by both the disabilities suffered by the applicant and his medication.  There are primarily two factors which I have considered against this concern.

21.The first, is the change in the applicant’s medication which suggests there has been improvement. It was submitted that the incident reported on 18 May 2020, contradicts any suggestion of improvement, however, the circumstances and context of that incident should be tested at a substantive hearing. Further evidence regarding the impact of his medication would be relevant to the substantive dispute.

22.The second, is the level of supervision at the premises. There is at least one carer if not more in attendance at all times. The applicant and R are not left alone together. There are instructions that have been put in place regarding de-escalation and diversion should they arise. These should be followed by the care provider. In the context of both the applicant and R’s disabilities, there will not always be smooth sailing. There are also family members that visit them regularly. To some extent, the safety concerns are met by that continued supervision. It is not a complete answer to the safety concerns raised, but in the circumstances the balance of convenience favours granting a stay of the NTV.

Conclusion

23.The Notice to Vacate dated 11 May 2020 is stayed until 2 June 2020.

24.Upon making that order, the respondent requested I also make an order restraining the applicant from engaging in any verbal or physical abuse. I declined to make such an order on the basis that it lacked utility. The applicant’s disabilities mean he lacks the cognitive capacity to understand such an order and in the absence of any such comprehension it would be futile.

………………………………..

Senior Member K Katavic

HEARING DETAILS

FILE NUMBER:	RT 391/2020
PARTIES, APPLICANT:	Occupant RT391
PARTIES, RESPONDENT:	Grantor RT391
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	Canberra Community Law
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Senior Member K Katavic
DATES OF HEARING:	22 May 2020