State of Queensland Housing and Homelessness Services v Pham

[2011] QCAT 540

CITATION: State of Queensland Housing and Homelessness Services v Pham [2011] QCAT 540

PARTIES:	State of Queensland Housing and Homelessness Services (Applicant)
v
Chung Pham (Respondent)

APPLICATION NUMBER:   MCDT360-11

MATTER TYPE: Residential tenancy matters

HEARING DATE: 20 October 2011

HEARD AT: Richlands

DECISION OF: William LeMass, Adjudicator

DELIVERED ON: 8 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

1.    That the respondent ensure that on or before the 18^th day of November 2011 the property is thoroughly and professionally cleaned both inside and out and that failure to do so will leave the respondent liable to early termination of her lease.

2.    That the applicant obtain the advice or report of a properly qualified case or social worker as to the insight and understanding of the respondent with respect to the immediate potential loss of her home and of what her circumstances will be in that eventuality.  Further that such persons report as to agencies they have liaised with in order to assist the respondent to comply with order [1] above.

3.    That the applicant provide evidence upon the hearing of this matter that there is emergency accommodation available either together or separately for all members for the respondent and all members of her family.

4.    That the matter be adjourned for a period of 5 weeks to allow the completion of the above.

CATCHWORDS:  Tenancy – Department of Communities Housing and Homelessness Services – mental illness

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	State of Queensland Housing and Homelessness Services was represented by Mr Kerr, Senior Housing Officer
RESPONDENT:	No appearance

REASONS FOR DECISION

1. The respondent occupies premises situated at Marion Street, Goodna with her children aged 9 and 7.

1. The representative of the Department, Mr Kerr, is also the relevant Senior Housing Officer for the property.

1. Mr Kerr has given evidence and submitted information to the effect that Ms Pham is in substantial breach of the lease and has been for some time whilst Mr Kerr has, it would appear, made every effort to regularise the situation.

1. The particulars are, that the external parts of the property are left in a state of disarray with what would appear to be large amounts of rubbish and other unsanitary material.

▪   The lawn and gardens are completely overgrown.

▪   Mr Kerr has provided photographs of the external veranda to the property which is quite obviously heavily soiled with dog faeces on carpet.

▪   With respect to the inside, Mr Kerr has also provided photographs which is if anything worse than the outside.  He says that it is heavily soiled with evidence of cockroach infestation, cluttered inside with the concern of fire safety and there is a large fish tank located on an unstable bench in direct contact with the occupants and in particular children.

1. Mr Kerr says and I accept that he has worked with Ms Pham to address these matters since November 2010.  Any number of Form 11s have been issued and served by him personally.

1. For the tenant’s part Mr Kerr says that she avoids him at the front door, is dismissive to the point of abusive.  Mrs Pham has not appeared. 

1. Mr Kerr remarks that at the time of his visits the children are always home, whether or not it is a school day, and that there are a number of complaints from neighbours with respect to the aggressiveness of the tenant and the children.

1. I accept as a matter of fact that the tenant here is in breach of her lease and that the Department has given satisfactory notices and served those notices in compliance with provisions of the Act.

1. The applicant Department seeks an order for the termination of the tenancy and a warrant for vacant possession of the home.

1. It is apparent to me from the circumstances described above that the tenant lacks the necessary insight into her personal and residential circumstances sufficient to enliven the concern of the Tribunal.

1. I say this because the respondent tenant is living in an independent home with her two children as state supported accommodation.  Mr Kerr advises that she pays a sum of $100 per week rent for a home which would in the private market command at least three times that amount.  She communicates with Mr Kerr by telephone and I accept that it has been explained to her that the ultimate result of her actions is that she will be removed from the home and state supported accommodation and that she and her children will either need to find alternative accommodation or indeed be homeless.

1. Faced with such a prospect, the respondent Ms Pham, has failed to do what all parents would do in the circumstances to simply clean up.

1. So in summary to lose a state supported home and be looking for emergency accommodation for ones children and having to go in the private market and pay three times as much for the same property when so little is required to maintain the status quo.  

1. The matter of Department of Communities, Housing and Homelessness Services v Kairouz[1] considered this matter in July of last year. 

   [1] [2010] QCAT 355.

1. In that particular case the respondent similarly was living in supported accommodation paying $80 per week with her daughter who had severe asthma.

1. Her continuing to live away from home threatened the continuance of the tenancy and in that matter the Tribunal referred to section 337 of the Residential Tenancies and Rooming Accommodation Act 2008 to the effect that an order for the making of a warrant possession to remove the tenant from the property was a discretionary matter and took a similar course to this matter. 

1. The Tribunal needs to be mindful of section 337(3) “in deciding if the breach justifies terminating the agreement”.

1. I note in this case that the tenant continues to pay her rent on a regular basis. 

1. I have considered that there is a very real prospect of the respondent as a single mother with 2 children, aged 9 and 7, becoming homeless as a relevant consideration when exercising this discretion.  I have also considered the potential future burden that this respondent will be upon the state in its manifestation as other agencies and also charitable organisations when considering what an equitable order would be.

1. As with the decision referred to above, I consider that this matter should be adjourned for a period of 30 days as such that the Tribunal can be informed by an independent person with the skills of a Social Worker that they have visited the respondent and ensured that she does have the necessary insight as to what is her exact plight if a termination order were to be made and also that she understands that she is bound by the terms of the lease and needs to take certain action to ensure the cleanliness, safety and health of the occupants of her home.  Such person may also be able to introduce agencies who can assist in dealing with the physical problems of the home.

1. I am going to require the applicant being in a position of some specialist skills in this regard to find emergency accommodation available to the respondent in the event that a termination order is made.  I want to be in the position of knowing that on the date that the warrant is executed that there will be a plan to remove the respondent and her children to a position of relative safety. 

1. Further that the respondent comply with the terms of the lease as set out in the directions of the Housing Officer, Mr Kerr.  I make the following orders:

[1]That the respondent ensure that on or before the 18^th day of November 2011 the property is thoroughly and professionally cleaned both inside and out and that failure to do so will leave the respondent liable to early termination of her lease.

[2]That the applicant obtain the advice or report of a properly qualified case or social worker as to the insight and understanding of the respondent with respect to the immediate potential loss of her home and of what her circumstances will be in that eventuality.  Further that such persons report as to agencies they have liaised with in order to assist the respondent to comply with order [1] above.

[3]That the applicant provide evidence upon the hearing of this matter that there is emergency accommodation available either together or separately for all members for the respondent and all members of her family.

[4]That the matter be adjourned for a period of 5 weeks to allow the completion of the above.