Commissioner for Housing v G [2003] ACTSC 21 (10 April 2003)

Last Updated: 11 April 2003

COMMISSIONER FOR HOUSING v "G" [2003] ACTSC 21 (10 April 2003)

LEASES AND TENANCIES - Public housing program - provision for priority for ACT housing tenants whose current housing is no longer suitable - tenants given temporary accommodation by parents because circumstances relating to public housing flat aggravating psychiatric condition - whether "current housing" refers to public housing flat or temporary accommodation provided by parents - provision for housing to be allocated in order applicant registered - initial application approved for two bedroom unit in different location - application for priority refused at that time - urgent need for accommodation developing whilst applicant awaiting allocation of such unit - further application for priority and/or transfer to other public housing - application refused - successful appeal to Administrative Appeals Tribunal - whether effective date of registration based on first or second application.

Housing Assistance Act 1987 (ACT), s 12, subs (2)

Residential Tenancies Act 1997 (ACT), s 7

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

No SCA 73 of 2002

Judge: Crispin J

Supreme Court of the ACT

Date: 10 April 2003

IN THE SUPREME COURT OF THE )

) No. SCA 73 of 2002

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: COMMISSIONER FOR HOUSING

Appellant

AND: "G"

Respondent

ORDER

Judge: Crispin J

Date: 10 April 2003

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed.

1. This is an appeal against a decision of the Administrative Appeals Tribunal upholding an appeal from a delegate of the appellant effectively refusing an application for an "early allocation transfer" to public housing of a more suitable nature than the unit he already occupied.

2. The respondent, who is now 32 years of age, suffers from schizophrenia and depression and has a history of anxiety, paranoia and drug dependency. He is separated from his former partner and has two children who live with their mother.

3. By letter dated 4 June 1998, he was advised by ACT Housing that his "ACT Housing Registration for Assistance" had been approved "for public rental accommodation for the following applicant's list:

(2) 2 BEDROOM FLAT TUGGERANONG

(1) 2 BEDROOM FLAT WODEN".

4. The letter assured him that every effort would be made to house him in, or close to, his preferred location and added:

Your current circumstances were assessed for a priority allocation and carefully considered but priority assistance has not been approved at this stage. If in future your housing circumstances change, or if any additional information becomes available, you may lodge another application for assistance.

5. About a month later he was offered a property in Red Hill but declined the offer and continued to live with his father and step-mother in their home in Tuggeranong. He left that home in early November 1999 and during the course of the same month informed the respondent of his changed circumstances and asked for accommodation in Woden or Tuggeranong. In response to this request he was apparently offered a one bedroom flat in a large apartment complex in the city region and accepted that offer.

6. In the proceedings before the Tribunal there was some dispute as to whether the respondent had been informed that "his application for a two-bedroom flat in Woden or Tuggeranong" would be affected by his acceptance of this flat, but the Tribunal found that he would not have accepted it had he understood that it could have done so. The Tribunal also found that he had believed he had been assured that his acceptance of the flat would not affect his application "on the two bedroom waiting list".

7. The respondent lived in that flat until October 2000, when he left to live temporarily with his mother. At this stage, he consulted a medical practitioner and was diagnosed as suffering from paranoid schizophrenia and depression. He returned to the flat in December 2000, because he was unable to stay with his mother on a permanent basis and wanted to spend Christmas Day with his children in his own home. However, after two or three weeks he moved out again and began to live with his father. He continued to pay rent for the flat and visited regularly to check on its condition and collect his mail.

8. On 29 October 2001, he again filed an application form headed "ACT Housing Registration for Assistance" but was advised, by letter dated 7 November 2001, that what was described variously as his "request" and "application" for an "early housing transfer" had not been approved. He subsequently provided further information in support of his application but was advised by letter dated 4 December 2001 that the application had been again refused.

9. On the hearing of his appeal to the Administrative Appeals Tribunal, the Tribunal found that the flat had been unsuitable. It said that there had been a breakdown in his mental health that could be attributable to the living conditions in the flat but also found that it was unsuitable for him, "regardless of the fragility of his health". The Tribunal noted that he was no longer living in the flat and that, due to circumstances in the housing complex, he had been obliged to seek accommodation in his father's home in order to regain his mental health. It held that he fell within one of the criteria for "Priority 2" in the priority categories and allocation criteria, contained in a determination of the appellant dated 2 January 2001, namely:

ACT Housing tenants whose current housing is . . . no longer suitable because of serious medical or other reasons.

10. The Tribunal ordered that the decision of the appellant be set aside and that the following decision be substituted:

The [respondent] is assigned to Priority Category 2 for an early allocation transfer to Tuggeranong or Woden 3, areas the effective listing date to be 4 June 1998.

11. On the hearing of the appeal to this Court, the appellant challenged both aspects of the decision. However, whilst maintaining that the assignment to Priority Category 2 had been based upon an error of law, the appellant had provided what was described as a "letter of comfort" advising the respondent that he would be permitted to remain ensconced within this Priority Category regardless of the outcome of the appeal and Mr Kettle, who appeared for the appellant, confirmed that assurance.

12. The determination of Priority Categories and allocation criteria referred to earlier was purportedly made pursuant to sub cl 6(1) of the Public Rental Housing Assistance Program 1 which was in turn made pursuant to s 12 of the Housing Assistance Act 1987 (ACT). Subs (2) of that section states that:

A program may provide for -

(a) The housing agreement to apply to it; and

(b) the Commissioner to determine, in writing, fees payable under the program; and

(c) the reconsideration of stated decisions of the commissioner; and

(d) application to be made to the administrative appeals tribunal for review of stated decisions of the commissioner under the program.

13. The section seems to be less remarkable for what it contains than for what is omitted. The term "housing agreement" in par 2(a) clearly refers to an agreement between the Territory and the Commonwealth for the provision of financial assistance to the Territory for housing assistance. However, apart from the matters referred to in the succeeding paragraphs, (b), (c) and (d), the section neither expressly requires nor authorises the inclusion of any particular matter and it contains no statement as to what the effect of such a Program may be. One is left to deduce from the objects of the Act, the term "Housing Assistance Program" and the fact that a Program is a disallowable instrument, that a Program made pursuant to the section is intended to provide subordinate laws akin to regulations for the provision of housing assistance.

14. In the present case, I was provided with a copy of the Program apparently made by the appellant. The document was undated and did not purport to have been authorised by the ACT Parliamentary Counsel but, since it was provided to me by consent and no point was taken as to its accuracy, I am prepared to assume it was validly made under s 12 of the Housing Assistance Act, that its terms reflect the provisions of the Program and that those terms were in force at all material times. The Program contains a number of clauses concerning the priority of applications and the order in which housing assistance should be provided.

15. Clause 6 provides that:

(1) The Commissioner shall determine Priority Categories for the purpose of this Program having regard to the relative need of applicants, including criteria for the allocation of those Categories to applicants.

(2) The Commissioner shall, upon determining that an applicant is eligible for assistance, assign a Priority Category to that application.

(3) The Commissioner may from time to time vary the Priority Category assigned to an application.

16. Clause 7(2) provides that "the names of eligible applicants are to be entered on the Register in the order in which their applications are received".

17. Clause 8(2) provides that:

Subject to the provisions of this program and the suitability of accommodation available, the Commissioner must provide assistance to applicants in the order in which their names appear on the Register having regard to the Priority Category assigned to each applicant and the requirement for sustainable tenant communities.

18. Clause 18(1) provides that "a tenant may apply to the Commissioner for a transfer to alternative housing". The clause adds:

An application under this subclause 18(1) shall be treated in the same manner as an application for assistance under this Program.

19. The determination by the Commissioner for Housing on 2 January 2001, provides for four priority categories, with the first to have priority over the second and both the first and the second to have priority over the third and fourth, which are themselves to have "equal status".

20. The first ground of appeal falls to be determined by reference to the construction of the term "current housing" in the criteria for Priority Category 2. Mr Kettle submitted that there had been no valid reason for the Tribunal to construe this term as being applicable only to public housing. It had been contrary to the objects of the Act to adopt a construction which might permit an applicant to gain priority for public housing when other suitable accommodation was available to him. In the present case, the respondent's father and step-mother had indicated that they would not have ejected him from the home and there had been no evidence to establish that the accommodation they had provided for him had been unsuitable.

21. On the other hand, Mr Clark, who appeared as amicus curiae on behalf of the Welfare Rights and Legal Centre Ltd, submitted that, in the context in which it appears in the determination, the reference to the "current housing" of ACT Housing tenants was obviously intended to refer to the premises which the applicants rented from ACT Housing and not to temporary accommodation to which they might have been obliged to resort due to illness or some other emergency. I accept that submission.

22. The issue raised by Mr Kettle is a potentially important one. The objects of the Act make it clear that assistance should be provided to those most in need and the scarce public resources that may be devoted to the provision of public housing should not be wasted upon people who are able to provide accommodation for themselves when others are in desperate need. However, this is not a problem that could be cured by adopting the construction for which Mr Kettle contends. Applicants for public housing, whether granted priority or not, must satisfy a means test and the problem is likely to arise only when there has been a subsequent improvement in the fortunes of a person who has previously demonstrated a need for assistance. No strained construction of the criteria for inclusion in Priority Category 2 would enable the appellant to regain premises from a tenant who no longer needed them and reallocate them to a more deserving applicant. At best, it would prevent such a tenant from gaining priority for an upgrade to more suitable premises. Yet, surprisingly, there is nothing in the Housing Assistance Act dealing with this contingency and, as Mr Kettle pointed out, the appellant would presumably be required to rely upon cl 24 of the prescribed terms imposed by s 7 of the Residential Tenancies Act 1997 (ACT) which enables a tenancy agreement to be terminated without cause on 26 weeks notice.

23. In any event, I do not accept that the words in question can be interpreted out of context and in a manner that would deny priority to people whose government housing had proved to be unsuitable because of "serious medical ... reasons" merely because, given the severity of their illnesses, they were unable to endure continued occupancy and others had offered to provide them with temporary accommodation while they recovered. In my opinion, the criterion is satisfied if the accommodation provided by ACT Housing is no longer suitable for the tenant for the reasons specified and an entitlement to priority is not dependent upon either stoically remaining in occupancy, no matter how distressing, or demonstrating that any good Samaritan who had provided more suitable accommodation on a temporary basis has run out of patience and is about to withdraw the offer.

24. Having regard to the findings of fact mentioned earlier, I am satisfied that it was open to the Tribunal to find that the circumstances of the respondent fell within those required for inclusion within the Priority 2 Category. No error of law has been demonstrated in relation to this aspect of the Tribunal's decision.

25. In support of the second ground, Mr Kettle argued that cll 6, 7 and 8 of the Program required that all applications, whether for initial assistance or for a transfer to another dwelling, be entered on the Register in the order received and that assistance be provided in the order of registration, subject only to the Priory Category assigned to each applicant and the requirement for sustainable tenant communities. There was nothing in the Program that enabled the appellant or, on an application for review, the Administrative Appeals Tribunal, to effectively treat one application as being backdated to the time of another so that it could effectively "jump the queue". Furthermore, even if there had been power to do so, the exercise of that power would have involved giving one application preference over others even if they had a similar priority category and that would be contrary to the objects of the Act and the provisions of the Program. Accordingly, the Tribunal's decision involved an error of law.

26. In answer to these contentions, Mr Clark submitted that the appellant had failed to deal with the initial application for housing assistance by allocating the approved accommodation and that this application remained in effect despite the allocation of the one bedroom flat. Hence, the relevant date of registration was 4 June 1998. The subsequent application had merely led to a change in the priority category assigned to the earlier application.

27. Mr Clark pointed out that the Program provides for priority to be determined from the date upon which eligible applicants are entered on the Register, rather than the date upon which applications are accepted as falling within a particular priority category and that the priority category may subsequently be varied pursuant to cl 6(3). The fact that the subsequent application had apparently been made on the same form as the initial application should not be seen as a second substantive application, rather than an application for a change in the priority category assigned to the initial application, because the letter of 4 June 1998 advising the respondent that priority had been refused had actually suggested that if his circumstances changed or additional information became available he could "lodge another application for assistance."

28. In other circumstances I would have accepted Mr Kettle's submission that an application for a transfer to new premises constitutes a new application for assistance which, if approved, should result in the name of the respondent being again entered on the Register and, subject to the other factors mentioned in cl 8, taking his or her "place in the queue" by reference to the new entry in the Register, rather than that made as a consequence of some earlier application. There is nothing in the Program to suggest that anyone who has been in public housing for an extended period of time should have an entrenched right to have any subsequent applications for better or more suitable premises given priority over earlier applications by others. In the present case, however, accommodation of the kind approved in June 1998 had not been provided and, in view of the facts found by the Tribunal, it cannot be inferred that the respondent had accepted the one bedroom flat in lieu of that accommodation. On the contrary, he apparently believed that this flat was being offered as an interim measure pending the provision of the two bedroom unit already approved. In the absence of any common understanding or at least a clear indication of the Commissioner's intention, it should not be assumed that, if a person in pressing need accepts some less appropriate accommodation, the earlier approval is thereby varied or revoked and he or she will be obliged to re-apply for the accommodation already approved.

29. Such an assumption might lead to injustice and hardship. To take but one example, if a mother with several young children had an application for a three bedroom home approved but was subsequently forced to accept a one bedroom flat as an interim measure, it would be quite unfair to require her to submit a fresh application and effectively start again in the "waiting list" for the house that had already been approved. There is nothing in the Program or the objects of the Act to require such an approach. The language employed in the relevant clauses of the program suggests, rather, that an application for assistance remains on foot until the approved accommodation has been provided or at least until some other event, such as revocation or a variation of the approval, causes it to come to an end. No doubt, such a variation may be implied and, if an applicant is offered and accepts other accommodation, it may be necessary to consider whether that accommodation has been accepted in lieu of that previously approved or merely as an interim measure pending an allocation of the approved accommodation.

30. On the findings made by the Tribunal I am satisfied that the latter was the case. Consequently, the relevant registration date was that referred to in the letter of approval, namely 4 June 1998. It is true that the form of the latter application is appropriate to an application for further assistance. However, one must look to the substance rather than merely the form of the application, especially in a case such as the present when the tenant had a serious psychological condition, had been advised to make a fresh application if he wished to revisit the question of priority, had believed that the allocation of the flat had not affected the earlier application and had applied on a printed form presumably supplied by ACT Housing. In these circumstances, I do not accept that the later application effectively displaced the former or that it should have been treated as a separate and unrelated application for housing assistance or transfer.

31. I am not satisfied that any error of law has been demonstrated. Furthermore, even if, contrary to my opinion, the Tribunal made the decision appealed from in a mistaken belief that it was notionally back-dating the second application, such an error would be of academic interest only, because the decision actually made was entirely consistent with the assignment of a priority category to the initial application and 4 June 1998 was the listing date of that application.

32. The appeal must be dismissed.

33. The respondent filed a consent appearance and it was common ground that this was an appropriate case for the Welfare Rights and Legal Centre Ltd to intervene as amicus curiae to ensure that the relevant issues were duly ventilated and that no order for costs should be made irrespective of the outcome of the appeal. Hence I will make no order as to costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 10 April 2003

Counsel for the appellant: Mr D Kettle

Solicitor for the appellant: ACT Government Solicitor

Counsel for the respondent: Mr J Clark, amicus curiae

Solicitor for the respondent: Welfare Rights & Legal Centre Ltd

Date of hearing: 31 March 2003

Date of judgment: 10 April 2003