P AND COMMISSIONER FOR HOUSING
[2007] ACTAAT 6
•5 April 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:“P” AND COMMISSIONER FOR HOUSING [2007] ACTAAT 6
(5 APRIL 2007)
AT06/89
Catchwords: Housing assistance – determination of type of accommodation – priority of allocation – complex health issues – reasonable accommodation needs of applicant – need to provide respite to daughter suffering mental illness – health issues – transport difficulties – domestic violence
Administrative Appeals Tribunal Act 1989, ss 25A, 25B, 34
Housing Assistance Act 1987, s 12
Tribunal:Mr M H Peedom, President
Date:5 April 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/89
GENERAL DIVISION )
RE: “P”
ApplicantAND: COMMISSIONER FOR
HOUSING
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Date : 5 April 2007
Decision :
The decision under review is set aside and substituted by a decision that the applicant is allocated two bedroom accommodation in the area of her preference on a priority housing needs basis.
……………………………
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/89
GENERAL DIVISION )
RE: “P”
ApplicantAND: COMMISSIONER FOR
HOUSING
Respondent
REASONS FOR DECISION
5 April 2007 Mr M H Peedom, President
The decision under review
This is an application for review of a decision of a delegate of the respondent made on 1 December 2006 to refuse the applicant’s application for priority transfer from a one bedroom apartment which she currently occupies to two bedroom accommodation.
2. In response to the application the respondent approved her placement on the High Needs Housing list for one bedroom accommodation in the Woden area. At the applicant’s request the areas of preference were changed to include Belconnen/Gungahlin. No change was made to the decision to refuse approval to the allocation to the application of two bedroom accommodation.
The applicant’s case
3. The applicant explained the basis of her application in written statements and medical and other reports which she had provided to the respondent and the Tribunal and in oral evidence given by her at the hearing of the appeal. She gave as the reasons for her application, medical problems from which she suffered; a need for more suitable accommodation to enable her to provide support for her daughter who suffered health problems; transport difficulties; and issues related to domestic violence.
4. The applicant has 3 adult children, a son and two daughters, who live in their own accommodation. She currently lives in [deleted – see paragraph 34] in a one bedroom apartment on the first floor of an apartment building as a tenant of the respondent under the Public Rental Housing Assistance Program (“the Program”). Her apartment comprises one bedroom, a small kitchen, a lounge room and a bathroom. She experiences dizziness on climbing the 14 steps to her apartment. She was diagnosed with breast cancer more than 3 years ago. She suffers from high blood pressure, asthma, depression, thyroid/goitre problems and a loss of hearing. She attends her doctor every 3-4 weeks for medical treatment. When her health permits, she undertakes voluntary work.
5. One of her daughters, who suffers from schizophrenia, lives in an apartment close by the applicant in the same apartment building. The applicant provides occasional support to her daughter by assisting her to take care of herself in her home and by ensuring that she takes her medication when her daughter’s case worker does not come to assist her. The close proximity of her daughter’s apartment allows her to have contact with and provide support to her. However, her daughter’s behaviour is sometimes affected by alcohol and drugs and her conduct towards the applicant is aggressive and makes her feel apprehensive for her own wellbeing.
6. The applicant relies upon public transport. Because of the infrequent bus service to the [deleted – see paragraph 34] she has to walk to Queanbeyan to catch a bus to do her shopping and attend medical and dental appointments and her place of voluntary work. The walking time for her to Queanbeyan is about 15-20 minutes. She finds this difficult, particularly when she feels unwell and when the weather is bad. She feels unsafe when she is required to travel after dark. The bus service that is available to her requires a number of changes of bus to reach her destination and the service she uses is considerably more expensive than those operating within the Australian Capital Territory because of the concessions that would be available to her there and which are not available on the service she is now required to use. She occasionally has to rely on taxis. This imposes a significant financial burden on her.
7. The applicant was a former victim of domestic violence and, despite counselling, has not fully recovered from the effects of it. Although she does not have any current problem with her former partner, she continues to feel apprehensive for her safety because her former partner is aware where she resides and she fears that she may be subjected to further abuse. She is disturbed by acts of domestic violence in apartments which surround her apartment and avoids contact with other residents in the building. She feels socially isolated and suffers claustrophobia from the environment in which she lives and the small size of her present accommodation.
8. The applicant expressed a preference to live in the Belconnen area near shops and buses and to have a second bedroom to enable her daughter and other family members to stay with her, to enable her to have more room to store her own possessions and to have space for her computer. She also wished to have a garden as an aid to her recovery.
9. At the hearing of the appeal, evidence was also given on behalf of the applicant by Ms L Hayden, the co-ordinator of Aleta, an organisation which provides support to women who are experiencing housing problems. Ms Hayden said that she had provided support to the applicant to assist her deal with overcoming the effects of domestic violence and health issues.
10. Ms Hayden said that during 2005-06 the applicant had attended a domestic violence support group which had assisted her considerably. Her condition improved and she got out a lot. The perpetrator of the violence towards her had then recommenced making aggressive contact with the applicant and she had been unable to prevent the contact. She was traumatised by over-hearing domestic disputes that occurred in the apartments surrounding her.
11. Ms Hayden said that the applicant had initially thought that she would be well placed to care for her daughter by living close to her and that they would be able to support each other. Because of their close proximity, however, the applicant was unable to set boundaries around her own well being as well as looking after her daughter. The environment of [deleted – see paragraph 34] made it difficult for them both to be stable and calm. When her daughter was unwell she would bash on the applicant’s door and would not leave. This aggravated the chronic trauma that the applicant had experienced in her life.
12. Ms Hayden said that to her observation the impact of domestic violence and issues associated with the applicant’s daughter had caused the applicant’s condition to deteriorate. A move to two bedroom accommodation had the potential to improve the situation for them both. It would enable the applicant to provide respite to her daughter during periods when she was unwell by coming to stay with her.
13. A letter from the applicant’s treating doctor, Dr S Moulding, stated that the applicant needed to have two bedroom accommodation in order to allow her daughter to come and stay with her at times. He said that her daughter was mentally ill and needed the support of her mother. He considered that it would be beneficial to the medical condition of each of them to enhance the mother-daughter relationship by having frequent contact. He said that the applicant needed to see him frequently and had difficulty doing so because she had to travel on three buses to attend an appointment with him. He said that the applicant was claustrophobic and felt isolated. She took sedative medication at night, antidepressants and had ongoing counselling. She had ongoing stress and anxiety about her health and family circumstances.
14. The applicant also relied on a letter dated 21 February 2007 from Ms M Lee. Ms Lee is an occupational therapist and the clinical manager of Mental Health ACT. She said that the applicant’s daughter struggled with mental illness and, although it was not appropriate for the applicant and her daughter to live together permanently, it would be helpful for them both if they could stay together at times. She considered that the respite that the applicant could provide to her daughter would be very valuable in terms of enhancing the practical and emotional support the applicant could offer. While the applicant was keen to support her daughter in whichever way she could, she acknowledged that living together full time presented too many challenges for them both. She said that flexible support solutions were crucial to meeting the needs of people with mental illness, especially when a parent was trying to support an adult daughter.
15. A letter dated 10 June 2006 from a support worker at the Women’s Information and Referral Centre expressed serious concern for the applicant’s psychological and physical wellbeing as she was suffering from symptoms of severe stress. The fact that her ex-partner knew where she was living made her vulnerable to further abuse. The experience of the Women’s Information and Referral Centre suggested that the applicant’s application for priority housing was justified as access and safety were of critical importance.
16. Dr P Barry, in a letter dated 6 November 2006, said that he had advised the applicant to have surgery for two separate surgical problems. Due to social issues, including her inability to access public transport to the hospital, she had not undergone that treatment.
17. The applicant also produced in evidence a letter dated 27 February 2007 from Ms D Walsh, a family support worker. She said that occasional use by the applicant’s daughter of a room at her mother’s home would assist greatly in her daughter’s recovery.
The respondent’s case
18. No evidence was presented to the Tribunal on behalf of the respondent. In a submission to the Tribunal on behalf of the respondent, Ms G Burgess said that, in refusing the applicant’s request, the respondent had relied upon policies adopted by the respondent to determine the type, size and location of rental housing to eligible applicants. The applicant, as a single tenant, only met the criteria under those policies for bedsitter or one bedroom accommodation. She submitted that the proximity of the applicant’s present accommodation to her daughter’s apartment provided the applicant with the ability to offer her daughter emotional support and to have their own space and privacy. She also submitted that the evidence relied upon by the applicant did not show that the applicant required two bedroom accommodation for her own medical needs but rather was desirable for the wellbeing of her daughter.
The Housing Assistance Program
19. Provision for the allocation of housing by the respondent is made by the Program which was approved by the Minister pursuant to section 12 of the Housing Assistance Act 1987.
20. Clause 10 of the Program provides for the respondent to determine needs categories and the criteria for allocating categories to eligible applicants. Clause 14(1) of the Program provides that the respondent may decide the size, type and location of rental housing to be provided to an applicant by way of assistance or on transfer. In making a decision under clause 14(1) the respondent must take into account:
(a) the availability of different sizes and types of dwellings in various locations;
(b) the reasonable accommodation needs of the applicant; and
(c) the preferences expressed by the applicant.
(see clause 14(2) of the Program).
21. Pursuant to clause 10 of the Program the respondent has, by a determination (No 2006/8) determined needs categories and allocation criteria for the allocation of housing to eligible applicants. The categories, in descending order, are priority housing, high needs housing and standard housing. In relation to the priority housing and high needs categories the determination provides as follows:
| 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 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. |
22. For the purpose of administering the Program and, in particular, the determination of the size and type of accommodation to be allocated in accordance with clause 14, the Director, Housing ACT has issued an instruction (No 2006/02) which contains Housing Size Guidelines in accordance with which public housing is to be allocated.
23. The guidelines are as follows:
HOUSING SIZE GUIDELINES
| Household | Bedsitter | IBR | 2BR | 3BR | 4BR | 5BR |
| Single Tenant | X | X | ||||
| Single Tenant 1 Child | X | |||||
| Couple | X | X | ||||
| Couple 1 Child | X | X | ||||
| Single/Couple 2 Children (depending on gender of children) | X | X | ||||
| Single/Couple 3 children | X | |||||
| Single/Couple 4 Children (depending on gender of children) | X | X | ||||
| Single/Couple | X | |||||
| Single/Couple 6 Children (depending on gender of children) | X | X |
Notes:
1.The above are guidelines only to assist in the equitable allocation of properties.
2.Some flexibility may be exercised where there are special circumstances. These might include:
·Where a partner, in a family situation, requires a separate bedroom on strong medical grounds (must be supported by medical evidence);
·Where an additional bedroom is required under the criteria adopted by the Family Court for child access arrangements; and
·Where there is a large age gap, e.g., 7 years between children of the same gender.
3.Generally, no more than two children are expected to share a bedroom and children of different gender are entitled to separate bedrooms.
Reasons for decision
24. In view of the fact that the applicant is currently housed in accommodation made available to her under an earlier version of the Program the principle issues to be resolved by the Tribunal are whether she should be transferred to other accommodation of larger size and, if so, the priority that should be accorded such transfer.
25. No issue was taken by the respondent, for the purpose of clause 14(2)(a) of the Program, as to the availability of the size or type of dwelling in various locations to which the applicant sought to be transferred. Her expressed preference is, pursuant to clause 14(2)(c) of the Program, also a matter which the Tribunal is required, in making its decision, to take into account.
26. To the extent to which the Housing Size Guidelines give adequate recognition to the reasonable accommodation needs of an applicant as required by clause 14(2)(b) of the Program they provide a convenient administrative guide for the allocation of housing on a generally consistent and equitable basis. By themselves, however, they are incapable of fettering the proper exercise of the discretion required to be exercised pursuant to clause 14 of the Program. It is to be noted also that, according to their terms, the Guidelines allow a degree of flexibility in their application and that the examples of “special circumstances” that they identify and which permit departure from the standards of accommodation they specify are not exhaustive.
27. Those needs of the applicant which she has identified in relation to problems associated with transport and domestic violence may be sufficiently addressed by relocation to another area in ground floor accommodation that is close to shops and public transport to those places to which she is required to travel for medical treatment and shopping facilities. To some extent a move to another location may also alleviate some of the effects of claustrophobia she experiences as a consequence of inability to more freely travel to and from her apartment and her concern to avoid the contact with other residents of her apartment building that aggravates the effects of trauma attributable to domestic violence. It would not necessarily alleviate that condition that is attributable to the confined nature of the apartment in which she lives.
28. The evidence did not establish that all of the applicant’s health problems would be addressed or substantially alleviated by relocation in two bedroom accommodation. The principal justifications relied upon by the applicant to be allocated two bedroom accommodation relate to the confined size of her present accommodation and the provision of a place for her daughter to stay with her on those occasions when she was unwell.
29. Without more compelling medical evidence there would be difficulty in making a decision which involves the provision to those most in need of a limited resource, to allocate two bedroom accommodation to the applicant solely because of the claustrophobia of which she complains due to the confined space of her one bedroom unit. Conceivably, many other tenants of the respondent in bedsitter or single bedroom accommodation may experience the same effect.
30. To satisfy clause 14(2)(b) of the Program, the applicant’s wish to have another room in which her daughter suffering mental illness could stay at times when she needed her mother’s support, would be required to be accepted as a reasonable accommodation need of the applicant.
31. To the extent to which the respondent appears to have taken a view that the provision of physical and emotional support by a mother to her daughter suffering serious illness only meets a need of the daughter and not the mother, I consider that such a view should not be accepted by the Tribunal as it ignores the basic human instinct and responsibility of a parent to safeguard the well being of his/her child. It also fails to take account of the evidence which suggests that the applicant’s state of ill health is partly attributable to concern for her daughter and her inability, because of her own state of health, to cope with her daughter’s occasional aggressive conduct.
32. The applicant’s case that, in her present state of health, her close proximity to her daughter is deleterious to her condition and that the physical and emotional needs of them both would benefit considerably by the provision to the applicant of two bedroom accommodation, is strongly supported by medical evidence and the evidence of social workers. The evidence relied upon by the applicant was neither contradicted nor effectively challenged. On the basis of the evidence available to the Tribunal, I conclude that the reasonable accommodation needs of the applicant justify the allocation to her of two bedroom accommodation.
33. In my opinion also, the evidence demonstrates that the applicant has a range of complex needs and that there is evidence of significant risk factors that would be addressed or substantially alleviated through the early allocation of public housing. The risk factors include mental health issues, other serious and chronic health issues and women escaping domestic violence. These factors justify her being categorised as priority housing.
Confidentiality order
34. Because of the medical conditions from which the applicant and her daughter suffer, as well as the fact that the applicant is apprehensive of the risk of domestic violence, the Tribunal was satisfied that it was desirable to make an order pursuant to section 34 of the Administrative Appeals Tribunal Act 1989 with the effect of prohibiting disclosure of the applicant’s identity.
Notice of decision and review rights
35. There is a further matter of an administrative nature that calls for comment in this case.
36. It is a requirement of section 25A(1) of the Administrative Appeals Tribunal Act 1989 that a person who makes a reviewable decision take reasonable steps to give persons whose interests are affected by the decision written notice of the making of the decision and of the rights of that person to have the decision reviewed. It is also a requirement of section 25A(3) that such notice comply with the requirements of the code of practice in force under section 25B(1).
37. The current code of practice is contained in a disallowable instrument (DI1994-148) that was notified in the Gazette on 11 November 1994. The explanatory statement to the code states that it is designed to ensure that affected persons are advised of reviewable decisions and are aware of their rights to seek review of those decisions on the merits. It is said to contain minimum standards of practice that are encouraged to be supplemented within the relevant area of operation.
38. Clause 4 of the code provides as follows:
Contents of notices
4. (1) Every notice of rights of review should, in simple and brief terms, inform the person to whom it is given of the following information –
(a) a succinct explanation for the decision;
(b)any statutory right of the person to ask for reasons for the decision (if a form of reasons has not already been given);
(c)the name, location, postal and document exchange addresses and the telephone and facsimile numbers of the review authority;
(d)whether the review authority is independent of the agency which made the decision and whether the authority has the power to overturn the decision;
(e)how applications for review are to be made and any time limits applying to applications;
(f)whether or not fees are payable for applications for review and, if so, the amount of the fees and when they are payable;
(g)whether a waiver of fee payment may be applied for and, if so, the basis of the application;
(h)any time limits within which the review authority must review the decision; and
(i)any right that the person has to obtain access to documents about the decision under the Freedom of Information Act 1989 or any other Act or administrative arrangement, and the basic procedures for exercising that right.
(2) Subclause (1) does not, by implication, limit the information that may be given, and you should consider for inclusion, where appropriate, information concerning –
(a)the availability of legal, financial and other forms of advice and assistance;
(b)whether or not there are provisions permitting costs to be awarded against parties to the proceedings; and
(c)procedures of the review authority about which the persons to whom notices are directed should particularly be aware, such as whether attendance is required at hearings and the availability of interpreter services.
39. The notice of decision in this case was contained in a letter dated 1 December 2006 which advised the applicant that should she be dissatisfied with the decision she could apply to the Tribunal for further review within 28 days of the date of the letter. The letter stated that the applicant could contact the Tribunal on a specified telephone number for further information. The letter plainly fails to provide the information required by the code.
40. The kinds of decisions of the respondent that are reviewable by the Tribunal often affect the interests of persons who suffer from disadvantage of various kinds. Many of those persons are unrepresented and find difficulty in understanding the rights conferred on them by the appeal process. Any failure of a decision-maker bound to comply with the statutory obligation imposed by section 25A(3) of the Administrative Appeals Tribunal Act to do so can act as an impediment to citizens availing themselves of the rights of review conferred on them by law.
41. The failure of the respondent to ensure that the statutory obligation imposed upon her and those who make reviewable decisions pursuant to delegated authority appears to have been long-standing and should be immediately rectified.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT06/89
APPLICANT: “P”
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: 15 MARCH 2007 PLACE: CANBERRA
DATE OF DECISION: 5 APRIL 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
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