ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ANYAR v COMMISSIONER FOR SOCIAL HOUSING (Administrative Review) [2017] ACAT 33

AT 65/2016

Catchwords: ADMINISTRATIVE REVIEW – social housing – rental transfer – valid offer – number of valid offers – applicant’s reasonable accommodation need – human rights – tenant’s right to protection of the family and children

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 68Housing Assistance Act 2007 ss 19, 21, 32Human Rights Act 2004 ss 11, 30, 40B

Subordinate Legislation cited:

Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) cl 17, 20, 21, 31(4)(b)

Cases cited: Bradley v The Commissioner for Social Housing [2015] ACAT 18Castles v Secretary, Department of Justice [2010] VSC 310Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Little v Commissioner for Social Housing [2017] ACAT 11Miller v Commissioner for Social Housing [2017] ACAT 10

Tribunal: Senior Member T Foley

Date of Orders: 2 May 2017Date of Reasons for Decision: 2 May 2017

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 65/2016

BETWEEN:

ELIZABETH ANYARApplicant

AND:

COMMISSIONER FOR SOCIAL HOUSING Respondent

TRIBUNAL: Senior Member A Foley

DATE: 2 May 2017

ORDER

The Tribunal orders that:

1. Pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008

the reviewable decision dated 5 September 2016 to remove the applicant’s name

from the High Needs Housing list on the register is set aside.

2. The reviewable decision is substituted with a decision that the applicant’s name

is to be returned to the High Needs Housing list in relation to the application for

rental transfer (no.95352) with effect from 21 June 2012 for a three (3) bedroom

Social Housing accommodation in the Belconnen/Gungahlin area.

………………………………..Senior Member T Foley

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REASONS FOR DECISION

1. Elizabeth Anyar (the applicant) seeks review of the decision made by the

delegate of the Commissioner for Social Housing (the respondent) on

5 September 2016 (the reviewable decision) confirming the earlier decision by

the respondent on 23 February 2016 (the original decision) to remove the

applicant’s name from the register of applications for social housing assistance.

2. Jurisdiction to review the respondent’s decision is conferred on the tribunal by

section 32 of the Housing Assistance Act 2007 (the Housing Assistance Act)

which is an authorising law for the purposes of section 9 of the ACT Civil and

Administrative Tribunal Act 2008 (the ACAT Act). The review is an application

for review by the ACT Civil and Administrative Tribunal pursuant to section 68

of the ACAT Act.

3. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT

Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the

member who heard the application.

The hearing4. The matter was heard on 21 February 2017. The Tribunal had before it the

documents provided by the respondent on which its decision was based (the

T documents), the submissions and statements of facts and contentions of the

parties, witness statements and other exhibits tendered in evidence. The

applicant was represented by Ms I Nursoo solicitor from Canberra Community

Law and the respondent was represented by Mr R Ostopowicz.

5. The applicant gave evidence on her own behalf through a Dinka interpreter from

the Telephone Interpreting Service. The respondent called no oral evidence and

relied on the visual evidence on video footage of the internal areas of two social

housing properties offered to the applicant in Melba and Latham in the ACT.

6. At the conclusion of the hearing the Tribunal reserved its decision.

Relevant legislative and other provisions7. Section 19 of the Housing Assistance Act empowers the Commissioner to

approve a ‘housing assistance program’. Pursuant to this provision the

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respondent approved the Housing Assistance Public Rental Housing Assistance

Program 2013 (No 1) DI2013-52 (the Housing Program). A number of clauses

of that program are relevant and it is best to consider these slightly out of

numerical order.

8. Clause 20 of the program provides:

20 Rental housing assistance - Rental transfer (1) A tenant may apply to the housing commissioner for a transfer from

a dwelling provided by way of rental housing assistance by the housing commissioner to a new public housing dwelling, which will be a rental transfer for the purpose of this program.

Note If the housing commissioner approves a form for an application, the form must be used.

(2) This program applies to an application for a rental transfer as if it were an initial application for rental housing assistance.

(3) The housing commissioner may approve the application for a rental transfer.

(4) Despite subclause (2), if a tenant applies for a rental transfer which will result in the transfer to a dwelling with fewer bedrooms, or to other housing where the housing commissioner considers that the transfer will enable more efficient use or management of the public housing stock, the following clauses do not apply to the application:(a) clause 9(1);(b) clause 13;(c) clause 16;(d) clause 18(3).

(5) Also, if the tenant has agreed with another tenant (the second tenant) that the second tenant applies to the housing commissioner to transfer to the dwelling occupied by the tenant, the following clauses do not apply to the application:(a) clause 9(1);(b) clause 13;(c) clause 16;(d) clause 18(3).

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9. Clause 21 of the program provides:

21 Rental housing assistance - Type of accommodation to be provided

(1) The housing commissioner may decide the size, type and location of a dwelling to be provided to an applicant by way of rental housing assistance.

(2) In making a decision, the housing commissioner must take into account—(a)the availability of different sizes and types of dwellings in various

locations; and

(b) the reasonable accommodation needs of the applicant;

(c) and the preferences expressed by the applicant; and

(d) whether the applicant has been identified as a special needs applicant

with an entitlement to a special needs dwelling.

10. Clause 17 of the program provides:

17 Removal from register(1) The housing commissioner may remove an applicant’s name from the

register if the applicant—(a)fails to accept an offer of rental housing assistance in accordance with

clause 18; or(b)does not respond to a written offer of rental housing assistance; or(c)refuses an offer of rental housing assistance; or(d)fails to advise the housing commissioner of a relevant change in

circumstances in accordance with clause 15; or(e)fails to enter into a tenancy agreement with the housing commissioner

in accordance with clause 18 (5) or 22 (2) or 22(3) (as applicable), unless otherwise agreed by the housing commissioner; or

(f) fails to provide the housing commissioner with information or further information when requested; or

Note If the information is not provided in accordance with a notice under section 24(3) or section 25(2) of the Act the application may be refused.

(g) ceases to be an eligible applicant for whatever reason.

(2) The housing commissioner must take all reasonable steps to notify the applicant if the name of the applicant has been removed from the register.

(3) An applicant’s name removed from the register under subclause (1) may be returned to the register if the applicant asks the housing commissioner to do so within 1 month after the day it was removed (or such longer period as the housing commissioner permits) and the housing commissioner is satisfied that the applicant remains an eligible applicant and was so for the whole period during which the applicant’s name was removed from the register.

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11. Section 21 of the Housing Assistance Act empowers the Commissioner to issue

guidelines for the management or operation of approved housing assistance

programs. Pursuant to this provision the respondent has issued guidelines in the

form of an ‘Allocations Policy’ for allocation by the Commissioner for Social

Housing of public rental housing assistance ACT (the Allocations Policy). This

is a detailed policy of more than 200 pages but only a few of its provisions are

directly relevant here. Consistent with Presidential Member Symons’

concurrence in Little v Commissioner for Social Housing1 with the statement of

principle in Director of Housing v Sudi2 the Allocations Policy is not a

legislative instrument. As such is not binding on the Tribunal where there is an

inconsistency with legislation or delegated instruments. The Tribunal must

consider whether it is appropriate to depart from this policy in certain

circumstances.

12. The Allocations Policy provides inter alia :

Purpose

This policy describes the requirements for allocating public rental housing assistance to an eligible applicant. Its objectives are to:

•provide reasonable choice for those in need of social housing

•use resources effectively and efficiently

This policy is consistent with the Public Rental Housing Assistance Program (PRHAP).

Background

Housing ACT maintains a register of applications (Applicants List) within which there are three categories of application - Priority Housing, High Needs Housing and Standard Housing. Applicants with the most critical/urgent needs are assigned to the Priority Housing or High Needs Housing categories. Applicants on incomes within the social housing eligibility criteria are assigned to the Standard Housing category.

...

Valid offer

An offer of housing is considered valid if the offer corresponds with:

• the applicant's reasonable housing preferences, including location

• the policy relating to Housing Size Guidelines1 [2017] ACAT 112 [2011] VSCA 266 Per Warren J at [34]

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• any confirmed medical or special needs of the household that affect their housing requirements.

...Number of valid offers

A total of two valid offers can be made to an applicant on the standard allocation list. If two valid offers are refused, the application is cancelled and removed from the Applicant List (see Clause 17(1) of PRHAP). The application may be re-instated in certain circumstances (see Clause 17(3) of PRHAP).

Acceptance of valid offer

An applicant must enter into a tenancy agreement within two (2) working days of accepting an offer.

Valid offer refused

First offer - If the applicant refuses the offer, the refusal is counted as one of two valid offers made to the applicant.

Second offer - If the applicant refuses a second valid offer, the application is cancelled.

13. The Tribunal is obliged to interpret the relevant legislative provisions, as far as

is possible, consistently with the Human Rights Act 2004 (the HR Act). In the

context of its administrative review jurisdiction and in making this decision the

Tribunal is obliged to give proper consideration to the applicant’s human rights.

14. Contextually the HR Act provides:

30 Interpretation of laws and human rightsSo far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

40B Public authorities must act consistently with human rights(1) It is unlawful for a public authority—

(a) to act in a way that is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a relevant human right.

...

15. Specifically section 11 of the HR Act provides:

11 Protection of the family and childrenNote Family has a broad meaning (see ICCPR General Comment 19 (39th session,

1990)).

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(1) The family is the natural and basic group unit of society and is entitled to be protected by society.

(2) Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind.

Examples of distinction or discriminationDistinction or discrimination because of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.

Note 1 A child also has the other human rights set out in this Act.

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Background16. The following paragraphs set out the history of this matter, based on the

information available to the Tribunal.

17. The applicant is a Dinka woman and used the assistance of an interpreter

provided by telephone during the hearing.

18. The applicant is a single parent with four children – Apajok aged seven, Anna

aged six, Joseph aged four and Nathaniel aged 19 months. Her sole income is

Centrelink benefits.

19. In August 2010 the applicant applied to be placed on the social housing list with

the respondent.

20. In 2011 the respondent provided the applicant with social housing rental

accommodation at Latham. She and her family have resided at this property

since that time. It is a two bedroom ground floor unit. Three children now share

one bedroom with the two girls in a bunk bed and Joseph on a mattress on the

floor. The applicant shares the second bedroom with the baby Nathaniel.

21. On 21 June 2012 the applicant lodged an application for transfer with the

respondent advising that she was then expecting her third child Joseph.3 On

19 July 2012 the applicant was approved for the High Needs Housing list for a

three bedroom property in Belconnen.4

3 T-documents filed 14 November 2016 pages 1-364 T-documents page 37

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22. Being placed on this list is subject to regular review and is open to

reassessment. The applicant supplied additional information as to the

circumstances of overcrowding in her current property to the respondent on at

least six occasions between 2012-2015 when reassessed as to her housing needs.

Following each of these reassessments her application has remained on the High

Needs Housing.

23. The applicant’s daughter Apajok suffers from dermatitis and eczema. The

applicant first noticed her symptoms of severe itchiness, rash and sneezing in

2009. Apajok has been treated for the condition by Dr Paek at the Ginninderra

Medical Centre since 2009. Dr Paek’s assessment is that her symptoms are

exacerbated by large exposure to dust mites in carpets. The applicant’s current

home is carpeted. The applicant has attempted to alleviate her daughter’s

symptoms by laying rubber mats over the floor carpet in the home and regularly

vacuuming the carpet with a heavy duty vacuum cleaner purchased in 2014.

These measures reduced her daughter’s symptoms, but by 2015 it was her view

this was not sufficient. Neither the severity of her daughter’s condition nor its

apparent cause was brought to the respondent’s attention during this time.

24. On 7 July 2015 the applicant’s fourth child Nathaniel was born.

25. On 1 September 2015 the applicant lodged a request for review of her housing

needs assessment so as to place her on the Priority Housing category list. The

request was refused.5

26. On 22 February 2016 the applicant was offered two properties one in Melba (the

Melba property) and one in Latham (the Latham property). Before viewing

these properties the applicant was told if she refused both offers her application

for transfer would be removed from the High Needs Housing list. The applicant

viewed both properties that day in company with a representative of the

respondent.

27. The applicant refused both offers and this refusal and the applicant’s stated

reasons for refusal were recorded on the respondent’s ‘Notice of Refusal of

Property Offer’ as:6

5 T-documents page 96 6 T-documents page 112

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Melba – laundry tiles coming out, stairs, carpet dirty, walls damaged and just painted over, colour all different. Latham – no wardrobes, carpet dirty, lots of dogs – kids scared of dogs.

28. On 23 February 2016 as a consequence of these refusals the respondent

removed the applicant’s name from the High Needs Housing list.

29. On 9 March 2016 the applicant completed an application for review of decision.

It was in this application that the applicant first disclosed that her daughter

Apajok suffered from dermatitis and eczema.7 The existence of this condition

and its likely exacerbation from carpets was supported by a medical certificate

from Dr Paek dated 19 April 20168 and a letter from the Migrant and Refugee

Settlement Services (MARSS) dated 15 March 2016.9 It seems this application

for review did not reach the respondent until 28 April 2016 which was outside

the review period. On 6 May 2016 the applicant completed a second application

seeking the reinstatement of her application and the application for review was

reinstated.10

30. The respondent considered this application as a first level review and completed

a detailed review.11 Amongst the matters before the respondent on review were

the content of Dr Paek’s report and the MARSS’s letter of support.12 The

delegate denied the request citing in its review of decision form that “the

property offers were considered valid offers based on all available information

at the time of decision”.13 On 3 June 2016 the respondent advised the applicant

of its decision confirming the 23 February 2016 decision to remove the transfer

application from the register.

31. On 22 June 2016 the applicant made a request for review of the 3 June 2016

decision.14 This application was referred to the Housing Assistance and Tenant

Review Panel (HATRP) which considered the matter on 21 July 2016. In its

consideration HATRP had regard to Dr Paek’s report dated 19 April 2016 and a

7 T-documents page 1158 T-documents page 117 (exacerbation from ‘carpeted places’)9 T-documents page 116 (exacerbation from ‘dirty carpet’)10 T-documents pages 126-12711 T-documents pages 119-12512 T-documents pages 122-123 13 T-documents page 12314 T-documents pages 150-151

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further support letter from the MARSS received 22 June 2016.15 HATRP found

the applicant successful in a second level review “based on new additional

information.” The “additional information (GP’s report) provided in the second

level review request indicates that one of Ms Anyar’s children was allergic to

carpet.”16

32. HATRP recommended that a further property offer be made to the applicant and

that “consideration should be given to Ms Anyar’s GP’s report in making the

offer to her.”17

33. Clause 31(4)(b) of the Housing Program provides that the respondent may refer

the matter to an advisory committee for recommendation but that such

recommendation is not binding on the respondent who may ‘accept, vary or

reject’ a recommendation made by the HATRP. On 26 August 201618 the

respondent’s delegate (the reviewable decision maker) rejected the HATRP

recommendation.

34. On 5 September 2016 the reviewable decision maker wrote to the applicant

advising that her name would not be returned to the register (the reviewable

decision).19 The applicant was advised that her application for second level

review had come before HATRP on 21 July 2016. The respondent’s letter did

not advise her of her successful review nor of HATRP’s recommendation that

she be granted a further property offer. At the hearing the respondent’s

representative advised that its practice was not to provide applicants with the

results of a HATRP review when the reviewable decision maker does not accept

the HATRP recommendation. In this case the applicant was simply advised

“The [HATRP] considered your matter on Thursday 21 July 2016.”20

35. The letter of 5 September 2016, the reviewable decision, did not come to the

applicant’s attention until she visited the respondent’s office on 6 October 2016

to provide additional information on her daughter Apajok’s medical condition.

15 T-documents page 15316 T-documents page 13017 T-documents page 13818 T-documents page14019 T-documents pages 128-12920 T-documents page 128

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36. On the 14 October 2016 the applicant applied to ACT Civil and Administrative

Tribunal (the ACAT) for review of the reviewable decision.

37. Two substantive matters of fact are in contention between the parties:

(a) the condition of the public housing properties that the applicant inspected

on 22 February 2016; and

(b) the health condition of the applicant’s daughter Apajok and the

respondent’s knowledge of that condition.

Applicant’s contentions

Condition of the public housing properties 38. The applicant contends with respect to the condition of the properties that she

inspected on 22 February 2016 that neither property met her reasonable

accommodation needs as they were not carpet free. As such she contends

neither was a valid property offer.

39. It was contended on behalf of the applicant that the limited reasons she provided

for refusal of both offers at the time of inspection as listed in paragraph 27

above should be seen in the context of her limited English language skills. It

was submitted that it was not until the applicant was assisted to complete an

application for review on 9 March 201621 by a representative of MARSS that

she first articulated the significance of the ‘dirty carpets’ as to each property’s

unsuitability:

Especially the dirty carpets were not suitable as my daughter has asthma and allergic to dust.

Health condition of the applicant’s daughter 40. The applicant contends with respect to the health conditions of her daughter

Apajok that she has provided the respondent with medical evidence that her

daughter:

(a) has been suffering from atopic dermatitis since November 2009;

(b) has persistent and recurrent aggravated eczema dermatitis;

(c) is severely allergic to grass and dust mites;

21 T-documents pages 114-115

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(d) [her] eczema has been frequently exacerbated by large exposure to house

dust mites in carpets;

(e) has ‘very high’ levels of dust mite allergens;

(f) is being prescribed eye drops (two drops, three times per day) for the dust

mite allergens in the carpet.

41. The medical evidence which the applicant says supports the need for a carpet

free property due to this condition is contained in:

(a) medical certificates of Dr John Paek dated 19 April and 30 November

2016;

(b) patient health summaries from Dr Safwat Soliman of Main Surgery

Blacktown dated 27 August 2016 and 18 January 2017.

42. The applicant contends that the approach the Tribunal must take in deciding the

matter is as stated in Bradley v The Commissioner for Social Housing22

(Bradley):

…to have regard to all of the relevant information available at the time the decision. It is the Tribunal’s role to make the correct or preferable decision. It is not the Tribunal’s role to make an assessment of any previous decision made by the Respondent.

43. The applicant further contends that the Tribunal’s approach should be consistent

with Drake v Minister for Immigration and Ethnic Affairs23 (Drake) to the effect

that:

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination by the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.

Respondent’s contentions 44. The respondent’s contention is that the decision made by the Delegate for the

Commissioner on 5 September 2016 was correct, taking into consideration the

reasons for rejecting the property made by the applicant at the time of decision.

The respondent’s further contention is that based on the information provided

22 [2015] ACAT 1823 (1979) 2 ALD 60

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by the applicant subsequent to the decision being made, the decision made by

the Delegate is still the correct decision.

Condition of the public housing properties45. The respondent contends with respect to the condition of the public housing

properties that the applicant inspected on 22 February 2016:

Re [Latham Property]

• The applicant listed 'lots of dogs' being in the neighbourhood of the property as a reason for refusal in her Notice of Refusal.24 The Respondent cannot control the amount of dogs or animals in a neighbourhood, nor prevent a neighbour from owning a dog in the future. This is a request outside the scope of the Commissioner's responsibilities.

• The applicant listed as a reason for refusal that the property did not include built-in wardrobes. The respondent contends that a request of the applicant for built-in wardrobes is not a ‘reasonable accommodation need’ but a preference and is therefore outside the scope of what is required for a valid property offer.

• The applicant listed as a reason for refusal that the carpets in the property were dirty or very dirty. The respondent submits that the carpets were not dirty and were of a reasonable standard. The carpet can be seen to be in reasonable condition in the scoping video. The respondent submits that the condition of the property as depicted in the scoping video recording on 16 February 2016 show them to be of a reasonable standard and that the carpet was substantially in the same condition as when the applicant viewed the properties on 22 February 2016. The respondent submits that if the carpets were dirty that this is not a reason for refusal as this could be remedied by the carpet being vacuumed and cleaned.

Re [Melba Property]

• The applicant listed as a reason for refusal was because the walls of the property were painted different colours. The respondent submits that absent any medical evidence this objection should be characterised as a ‘preference’ and not a ‘reasonable accommodation need’. The respondent submits that even if such evidence were provided, that a wall could be repainted to a different colour and is not a valid reason for refusal.

24 T-documents page 112

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• The applicant listed as a reason for refusal was because the laundry tiles were ‘jutting out’. The respondent submits that the tiles can be seen not to be jutting out in the scoping video. The respondent submits that the condition of the property as depicted in the scoping video recording on 18 February 2016 were substantially in the same condition as when the applicant viewed the properties on 22 February 2016. The respondent submits that the replacement of a tile is a quick process and would not be a valid reason for refusing a property.

• The applicant listed as a reason for refusal was that the property had ‘stairs’. The respondent submitted that there are no stairs in the internal part of the property and that the stairs are only at the entrance, comprised of three steps as can be seen in the scoping video. There is no medical evidence relating to mobility issues and the impact the stairs would have on either herself or her family. The property can be accessed from the rear entrance rather than using the front entrance steps.

• The applicant listed as a reason for refusal that the carpets in the property were ‘dirty’ or ‘very dirty’. The respondent submits that the carpets were not dirty and were of a reasonable standard. The carpet can be seen to be in reasonable condition in the scoping video. The respondent submits that the condition of the property as depicted in the video recording on 18 February 2016 was substantially the same condition as when the applicant viewed the property on 22 February 2016. The respondent submits that if the carpets were dirty that this is not a reason for refusal as this issue could be remedied by the carpet being vacuumed and cleaned.

Health condition of the applicant’s daughter 46. The respondent contends that evidence provided by the applicant in Dr Paek’s

medical certificate of 19 April 2016, in her review request of 9 March 2016 and

in the MARSS support letter dated 15 March 2016 is insufficient as the

evidence does not go to the impact, severity and consequences of carpet on the

child, or the management of carpet, rather it simply states it would be preferable

that she not have carpet.

47. The respondent contends that the applicant has known of the child's medical

condition since November 2009 and despite living in a carpeted house has not

requested that the carpets be removed. The applicant has managed living in the

current family home for seven years.

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48. The respondent contends that before it engages in modifying accommodation

for an applicant with a disability, in this case by the removing of carpet from a

carpeted property, the Commissioner routinely requests from applicants more

substantial information such as a specialist’s report to prevent unnecessary costs

to the Commissioner. The respondent submits that the medical evidence

provided does not provide a sufficient causal link between the carpets at either

of the properties and the daughter’s allergies.

49. The respondent contends that the approach the Tribunal must take in deciding

the matter is as further stated in Bradley:

The Tribunal's decision rests on the failure of the properties to meet the reasonable accommodation needs of the Applicant…not the failure to meet their expressed preference.

Review by the Tribunal50. The decision made by the respondent on 23 February 2016 and reviewed by the

respondent on 3 June 2016 and on 5 September 2016 were all decisions within

the operation of sub-clause 30(1)(a) of the Housing Program. The reviewable

decision was made pursuant to Clause 31(4)(b) of the Housing Program. The

Tribunal must either confirm, vary or set aside the reviewable decision.

51. In its consideration of the matter the Tribunal is to have regard to all of the

relevant information available at the time of its decision. It is the Tribunal’s role

to make the correct or preferable decision. It is not the Tribunal’s role to make

an assessment of any previous decision made by the respondent.

Rental transfer applications 52. Pursuant to clause 20 of the Housing Program, an application by a public

housing tenant for transfer from one public housing property to another is a

‘rental transfer’. The Housing Program applies to a rental transfer as if it were

an initial application for rental housing assistance.

53. Pursuant to Clause 21 of the Housing Program, the respondent has a discretion

to decide the size, type and location when allocating housing assistance. The

respondent must, when making this decision, take into account, relevantly:

(a) the availability, size and type of accommodation;

(b) the applicant’s reasonable accommodation needs; and

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(c) the preferences expressed by the applicant.

54. The respondent’s Allocations Policy describes a ‘valid offer’ of housing

assistance in relation to an application (in this case for a rental transfer) as,

relevantly, one that corresponds with the “applicant’s reasonable housing

preferences” and “any confirmed medical or special needs of the household that

affect their housing requirements.”

55. Up to two ‘valid offers’ are to be made to ‘applicants on the standard housing

list’. The Tribunal notes that, as other parts of the Allocation Policy refer

specifically to the Priority and High Needs Housing lists, it is not clear if this

limit of two offers also applies to applicants on the Priority and High Needs

Housing lists. The Allocation Policy states that if both ‘valid offers’ are

‘refused’ by the applicant, then the application is cancelled. Cancellation in

these circumstances is dealt with in clause 17(1) of the Housing Program.

56. Consistent with the decision in Bradley, the Tribunal accepts that the Allocation

Policy is consistent with the Housing Program and that as no specific reference

is made under the heading ‘valid offer’ in the Allocation Policy to applications

on the Priority or High Needs Housing list, that up to at least two valid offers

should be made to these applicants as well.

57. Pursuant to clause 17(1)(a) and 17(1)(c) of the Housing Program, the respondent

may remove the name of an applicant from the register if the applicant “fails to

accept an offer of rental housing assistance” (clause 17(1)(a)) or “refuses an

offer of rental housing assistance” (clause 17(1)(c)). There seems to be no

discernible difference between the two grounds.

58. There was no dispute that the applicant was an eligible applicant on the High

Needs Housing list at the date of the decision on 23 February 2016 and the

Tribunal accepts that the applicant would have remained an eligible applicant on

the High Needs Housing List for a rental transfer had her name not been

removed from the register.

Findings of fact59. The evidence in this matter has primarily addressed the two matters in

contention as stated in paragraph 37.

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Condition of the properties offered on 22 February 201660. The applicant inspected the two properties on 22 February 2016. There was no

evidence as to the condition of the two properties inspected by the applicant

save for the video image shown and tendered of each property. The videos were

made on the respondent’s behalf respectively on 18 February 2016 for the

Melba property and 16 February 2016 for the Latham property shortly prior to

the applicant’s inspections. The respondent contended the properties were

substantially in the same condition when viewed by the applicant and the

applicant did not dispute this.

61. The Tribunal finds that:

(a) the condition of the properties when viewed by the applicant on

22 February was in substantially the same condition as the video of the

property made on the 18 February (Melba) and 16 February 2016

(Latham);

(b) the properties were in relatively good condition. There were no internal

stairs. Not all bedrooms had built-in wardrobes. The properties were

carpeted throughout and the carpet appeared in reasonable condition; and

(c) there are no other matters relating to the condition of the properties which

are relevant to this decision.

Health conditions of the applicant’s daughter Apajok62. The applicant’s evidence both in her written statement and orally before the

Tribunal is that she first noticed her daughter’s symptoms of severe itching,

rash, sneezing, runny nose and eyes in 2009. It was about this time she first

connected these symptoms with contact with carpet. Her current home is

carpeted throughout. She subsequently took steps to minimise the effect –

placing rubber mats over the carpet, purchasing and using a high quality

vacuum cleaner, purchasing and using various skin lotions – which reduced the

effects but were insufficient. She also sought medical assistance from her GP.

63. The medical evidence of Apajok’s condition and its connection with carpet that

was made available to the respondent is limited because:

(a) at the time of the original decision on 23 February 2016 the respondent

had no knowledge or evidence of the condition;

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(b) at the time of the first level review25 the condition was referred to in the

support letter from MARSS dated 15 March 201626 and medical evidence

of the condition and its connection with carpet was contained in the

medical certificate of Dr Paek dated 19 April 2016;27 and

(c) at the time of the second level review by HATRP28 the respondent had a

further support letter from MARSS received on 22 June 2016 repeating

the claim.29

64. This evidence though limited was before the respondent at the time of its first

and second level reviews. In the first level review the evidence was not taken

into account. The review outcome reason for decision notes “The decision to

cancel Ms Anyar’s application was correct at the time based on all available

information. The property offers were considered valid offers base on all

available information at the time of decision”.30 In the second level review the

evidence was taken into account by the HATRP in upholding the appeal and

recommending that a further property offer be made. That recommendation was

rejected by the respondent in its second level review decision of 5 September

2016.31

65. The Tribunal had before it additional evidence:

(a) Medical certificate of Dr Paek dated 30 November 2016.

(b) Patient Health Summary of Dr Soliman dated 27 August 2016 and 18

January 2017.

(c) Support letter from MARSS dated 3 January 2017.

(d) Series of photographs showing mitigation measures taken by the applicant

(rubber mats, vacuum cleaner, treatment lotions).

66. The most cogent evidence is in the Patient Health Summary of 27 August 2016

which shows the results of clinical testing. The child Apajok is reported as

25 T-documents page 12226 T-documents page 11627 T-documents page 11728 T-documents pages 134-13629 T-documents page 15330 T-documents page 12331 T-documents page 140

19

showing ‘very high’ reactions to grass pollen and dust mites. The examining

doctor provides the opinion that as a consequence “she need to live in a carpet

free accommodation.”

67. The medical evidence supports, and the Tribunal is satisfied, that Apajok has a

severe dust mite allergy which is exacerbated by carpet and she needs to live in

carpet free accommodation as a consequence. It is therefore appropriate that this

be included in the consideration of the applicant’s rental transfer application and

that proposed accommodation offers should address this in considering the

applicant’s ‘reasonable accommodation needs’.

68. The respondent submitted that the very brief reports do not support this

conclusion and that further more detailed medical information is required. The

reports are indeed brief. However the evidence available raises a strong

presumption that a property that was carpet-free was needed by the applicant to

meet her and her family’s reasonable accommodation needs.

69. As both the Melba and Latham properties are carpeted throughout, the Tribunal

finds that neither of the properties complies with the requirements of the

Allocations Policy that a valid offer correspond with “any confirmed medical or

special needs of the household that affect their housing requirements.” The

Tribunal is therefore satisfied that the offers made to the applicant on

22 February 2016 were not valid offers.

70. The Tribunal notes that the applicant also expressed preferences in her

application for review32 for a property inter alia without stairs, and with built-in

wardrobes in the bedrooms.

71. The respondent must consider the preferences expressed by an applicant when

making decisions about allocation. The Tribunal accepts that the properties did

not meet these preferences. However the Tribunal considers that the properties

could have been ‘valid offers’ – had they otherwise met the reasonable

accommodation needs of the applicant despite the fact that they did not

correspond to these expressed preferences.

32 T-documents page 114-115

20

Human Rights Consideration72. At the Tribunal’s request the parties’ representatives made oral submissions as

to the relevance of the HR Act.

73. The respondent is a public authority within the meaning of section 40(1) of the

HR Act. The Tribunal, standing in the shoes of the respondent, is bound to

exercise its function in accordance with its duty to give proper consideration to

and to act compatibly with human rights in making its decision. The Tribunal is

also required pursuant to section 30 of the HR Act to interpret Territory laws

consistent with their purposes in a way that is compatible with human rights.

74. In Little Presidential Member Symons concurred with the statement of principle

of Emerton J in the Victorian Supreme Court decision of Castles v Secretary,

Department of Justice33 that “consideration of human rights compliance is

intended to become …a ‘common or garden’ activity for persons working in the

public sector, both senior and junior.”

75. It does not appear that the applicant’s and her family’s human rights were given

such routine consideration as a part of the respondent’s decision making process

in this matter as to suggest it was the respondent’s ‘common or garden activity’.

76. As Presidential Member Symons noted in Little “in determining whether the

reviewable decision was unlawful the Tribunal does not have jurisdiction to

declare that a Territory Act is incompatible with section 30 of the HR Act, in its

administrative review jurisdiction. The declaratory power in section 32 of the

HR Act vests in the Supreme Court.” Nonetheless the respondent and the

Tribunal standing in its shoes must act consistently with the principles of the

HR Act.

77. Specifically relevant here is section 11 of the HR Act which protects the rights

of “the family and children”, specifically the family’s entitlement “to be

protected by society” (section 11(1)), and each child’s right “to the protection

needed by the child because of being a child” (section 11(2)).

78. The applicant contended that by cancelling her application for transfer the

respondent has left her and her family residing in clearly inappropriate

33 [2010] VSC 310

21

accommodation which is aggravating her daughter’s medical condition and is

likely to result in further deterioration of her health. Notably the condition was

not known to the respondent when it provided two properties for inspection on

22 February 2016. It has been aware of the claims of the condition from the time

of its first level review on 3 June 2016. There is no evidence that a consideration

of the child’s needs were considered in its review process.

79. The Tribunal reaches a similar view to that expressed by Presidential Member

Symons in Little :

The Tribunal is not satisfied on the evidence that the respondent demonstrated an understanding of the human rights of this applicant which were engaged by the exercise of its powers. Nor is there evidence that the respondent demonstrated an understanding of the factors that would otherwise be considered in determining whether a limitation on those rights was proportionate.

80. The Tribunal finds that the respondent’s decision not to accept HATRP’s

decision upholding her application for review and its recommendation that “one

more property offer should be made to Mrs Anyar” and that “consideration

should be given to Ms Anyar’s GP’s report in making the offer to her”34 was an

unreasonable and arbitrary interference with her and her family’s right to

protection in section 11 of the HR Act. As expressed by Presidential Member

Symons in Little “such…interference was not in accordance with the provisions,

aims and objectives of the HR Act. It was not the correct or preferable

decision.”

81. The respondent’s failure recognised here, and in Little and separately in Miller v

Commissioner for Social Housing35 suggest its practices do not consider its HR

Act compliance obligations as a ‘common or garden activity’. The Tribunal

makes a number of recommendations for changes to the respondent’s policy and

practice to remedy this.

Recommendations for changes to the respondent’s practices 82. The respondent should adjust its policy and practice in a first level review so as

to have regard to all newly available information, such that the review decision

is not based solely on information available at the time of the original decision.

34 T-documents page 13035 [2017] ACAT 10

22

83. The respondent should adjust its policy and practice in a second level review so

as to provide applicants with the outcome of the HATRP review and any

recommendations made on review. This should occur regardless as to whether

the reviewable decision maker affirms, varies or rejects the second level review,

or accepts or does not accept its recommendations.

84. The respondent should adjust its policy and practice such that evidence of

consideration of tenants’ human rights is transparent as a routine part of its

decision making process.

Conclusion85. The Tribunal is satisfied that the applicant has demonstrated that because of her

daughter’s Apajok’s medical condition her reasonable accommodation needs

include a property that is carpet free.

86. The Tribunal is satisfied that neither the Melba nor Latham properties met the

reasonable accommodation needs of the applicant set out in paragraph 85 above.

87. The Tribunal is satisfied that the offers made to the applicant on 22 February

2016 were not valid offers. Consequently there is no basis for a decision to

remove her name from the register pursuant to clause 17(1)(a) or 17(1)(c) of the

Housing Program. The reviewable decision should be set aside.

88. The Tribunal is satisfied that the applicant has at all times remained an ‘eligible

applicant’ subsequent to the 22 February 2016 decision.

89. The Tribunal is satisfied that further ‘valid’ offers should be made to the

applicant. Although the Tribunal is not certain that the number of valid offers

appearing in the Allocation Policy necessarily applies to applicants on the High

Needs Housing list, for the reasons set out in paragraph 56 above, the Tribunal

accepts that at least two ‘valid offers’ should be made.

90. Any offer must take into consideration the reasonable accommodation needs of

the applicant. These would include the accommodation needs set out in

paragraph 85 above.

………………………………..Senior Member T Foley

HEARING DETAILS

FILE NUMBER: AT 65/2016

PARTIES, APPLICANT: Elizabeth Anyar

PARTIES, RESPONDENT: Commissioner for Social Housing

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 T Foley

DATES OF HEARING: 21 February 2017