A standard Registration form is used for all applications for housing assistance, including transfer applications. Housing ACT has produced a kit which includes the form, a checklist of documents required, some fact sheets and other useful information including a map of Canberra showing the 4 areas into which the ACT is divided for the purposes of the applicant’s nomination of preferred area(s) of residence.
Since September 2010 there has been a common registration form for all applicants for Social Housing that is both public housing and community housing. The application kit now includes fact sheets about registered community housing providers which provide long term housing and report to the ACT Government. There are currently 5 providers. These are:
- Argyle Community Housing,
- Environmental Collective Housing Organisation (ECHO),
- Havelock Housing Association,
- Salvos Housing, and
- Tamil Senior Citizens Association.
Some other community organisations, which offer a range of support services, are also registered as community housing providers. Community Housing providers provide long term rental housing for people on low to moderate incomes. Unlike public housing they may require a tenant to pay a bond. If eligible, some community housing providers may also require tenants to pay an amount equivalent to 100% of any Commonwealth Rent Assistance (CRA) entitlement. Public housing tenants are not eligible for CRA payments.
Affordable Housing, in the context of rental housing, is a branch of community housing but has different entry criteria and a different rental subsidy basis from other kinds of social housing. Currently the primary provider of affordable rental housing in the ACT is Community Housing Canberra (T/A CHC Affordable Housing). Affordable rental housing caters essentially for people whose incomes are higher than Centrelink income support payments but not high enough to afford rent on the current private rental market. Affordable housing renters pay 74.99% of the market rent. More information regarding the eligibility criteria for particular community housing providers is contained in the Housing Assistance Public Rental Housing Assistance Program (Community Rental Housing Assistance – Modified Eligibility Criteria) Determination 2012.
An application for social housing may be posted to or lodged by hand at the Applicant Services Centre in Housing ACT’s Belconnen office. An assessment interview will then be arranged with the applicant(s) to check that all necessary documentation has been provided and to give the assessing officer a fuller understanding of the applicant’s needs. An assessing officer will also clarify whether the applicant wishes to register for public housing or community housing or both. If an applicant does not meet the criteria for public housing, but does meet the criteria for affordable rental housing, the application will be placed on the Social Housing Register accordingly, effective from the date the application was received.
Thereafter the management of public housing applications is different from that of community housing applications. The difference is clearly articulated in clause 3 of the Program:
The object of the program is –
- to provide assistance to eligible people in the Territory who are most in need; and
- to facilitate the provision of community rental housing assistance (including affordable housing assistance) by housing providers through the administration of a register that includes community applicants.
In effect, all the processes of public housing applications, from assessment to allocation, are managed by the Applicant Services Centre of Housing ACT. Community housing applications, on the other hand, are held by Housing ACT but the process of allocation is a decision of the community housing provider. The provider will notify Housing ACT when they have a vacancy. Housing ACT will supply the provider with a list of eligible community housing applicants from the Register, having regard to the date of the applications, the particular needs of the applicants, and the size and location of the available dwelling. More information about Housing ACT’s facilitation role is contained in the Housing Assistance Public Rental Housing Assistance Program (Facilitation of Community Rental Housing Assistance) Operation Guideline 2010 (No 1).
In relation to public housing applications, which are the focus of this chapter, the first step in the assessment process is whether the applicant meets all the Eligibility Criteria. The second step is an assessment of need for the purposes of determining into which category of waiting list the application will be placed.
3.1. Eligibility Criteria
Clause 9 of the Program sets out the eligibility criteria as follows:
(1) An applicant is eligible for rental housing assistance if the applicant satisfies each of the following criteria –
- each applicant is in Australia lawfully;
- each applicant’s presence in Australia is not subject to any time limit imposed by law;
- each applicant is resident in the Territory and has been so resident for a period of six months immediately before the assessment date;
- each of the applicants is at least 16 years of age;
- none of the applicants has any interest in residential real property in Australia;
- the combined value of assets of the applicants is not more than the asset eligibility limit;
- if the household is 1 person only, the person’s weekly income is not more than 60% of AAWE;
- if the household is made up of 2 persons only, their combined weekly income is not more than 75% of AAWE;
- if the household is made up of more than 2 people, the weekly income of the applicants plus 10% of the combined weekly income of all other independent people in the household is not more than 75 % of AAWE plus 10% of AAWE for each person in the household in excess of 2 people.
(1A) However, if the household is made up of only a sole applicant and one or more dependent children, the following criteria are substituted for subclauses (1) (h) and (i)—
- their combined weekly income is not more than 75% of AAWE plus 10% of AAWE for each dependent child; and
- for paragraph (a), unless the housing commissioner decides otherwise in particular circumstances, “dependent child” means a child under 18 years of age who is part of the household of a sole applicant and in relation to whom the applicant receives or is entitled to receive dependent child payments as defined in clause 25; and
- for paragraph (a), “combined weekly income” is the weekly income of the applicant plus 10% of the combined weekly income of all other independent people in the household (if any).
For the purposes of clauses 9(1)(h) and 9(1A), Housing ACT periodically publishes updated Housing Income Barriers setting out the income ceilings for applicants in the single and family categories. As at 24 August 2018 the income ceilings are:
- $724 gross per week for a single applicant;
- $905 gross per week for a family of 2 or joint applicants;
- $905 plus $121 for each additional person in a family of 3 or more.
What constitutes income is set out at clause 11 in terms that largely mirror the definition of income under the Social Security Act 1991. It should be noted that clause 11(2) provides for the exemption of income “that the housing commissioner determines is not income for the person for this program”. Exempt income is set out in the Housing Assistance Public Rental Housing Assistance Program (Exempt Income and Assets) Determination 2012 (No.1). For example, Family Tax Benefit (Part B) is exempt income, as is a resident’s Youth Allowance where this is the young person’s sole income.
Clause 12 sets out the process for determining weekly income. This is generally the higher of 2 figures: the average gross weekly income of the applicant for the 26-week period prior to the assessment date, or the person’s gross income for the week immediately before the assessment date. There is some discretion to disregard both figures depending on the circumstances of the case (for example, a significant change in income which would not be reflected using either of the above methods of calculation).
For the purposes of clause 9(1)(f) the asset eligibility limit is set at $40,000 in the absence of any Determination.
The Housing Commissioner has discretion to disregard any of the eligibility criteria apart from the minimum age requirement at clause 9(1)(d). The exercise of the discretion is tied quite specifically to certain circumstances. Regarding a time limit on an applicant’s presence in Australia [cl 9(1)(b)], the housing commissioner may decide “that a certain time limit imposed by law is not relevant to eligibility”. The exercise of this discretion has enabled refugees on Temporary Protection Visas to qualify for housing assistance.
Similarly, an interest in residential real property [cl 9(1)(e)] does not apply to property in which an applicant has an interest if “the housing commissioner decides it is not reasonable for the applicant to live in the property” on certain specified grounds, including pending action under the Family Law Act 1975, and is satisfied that the applicant has made or is making reasonable efforts to dispose of the applicant’s interest in the property.
Clause 10 provides a more general discretion under the heading HARDSHIP:
If the housing commissioner is satisfied that, relative to the circumstances of eligible applicants generally, an applicant is suffering severe hardship that cannot be alleviated by any other means, the housing commissioner may, in his or her absolute discretion, disregard any criteria mentioned in clause 9 (other than paragraph 9 (1) (d)) in deciding whether the applicant is eligible for assistance.
The inclusion of the phrase “relative to the circumstances of eligible applicants generally” has the effect of limiting the exercise of this discretion. A decision under clause 10 is not reviewable.
3.2. Needs Categories
The Needs Categories and the criteria for allocating an application to a particular category are set out in the Housing Assistance Public Rental Housing Assistance Program (Housing Needs Categories) Determination 2011 (No 2).
There are 3 categories: Standard, High Needs and Priority. An approved application will be placed on the waiting list in the Standard category, unless the applicant is able to demonstrate a more urgent need.
To be placed on the High Needs waiting list an applicant must demonstrate “significant needs that cannot be resolved by any reasonable means other than the provision of public housing within a reasonable time frame”.
To be placed on the Priority list an applicant must demonstrate “exceptional, urgent and critical needs that cannot be resolved by any reasonable means other than the early provision of social housing”.
Allocation to the Standard or High Needs categories is made by the assessment officer and team leader. Allocation to the Priority category is a decision of a committee called the Multi-Disciplinary Panel (MDP), following a recommendation by the assessment team. It is necessary to satisfy the MDP that:
- the applicant has a range of complex needs with significant risk factors (or a single, extremely critical risk factor) that will be substantially alleviated by the provision of housing;
- the private rental market is unaffordable for the applicant because rent would be more that 50% of the household income; and
- the applicant has a capacity to live independently and sustain a tenancy.
For those on the Priority Needs list an offer of housing is made on a needs basis rather than in the chronological order of assessment date used for the other 2 categories.
Initially a time frame of 90 days was set for allocating applicants in the Priority category, but Housing ACT no longer offer any time frame because economic conditions have led to a large increase in Priority applications without a corresponding increase in housing stock.
3.3. Other applicant entitlements
Whether the applicant is anticipating a long wait to be offered housing (the Standard list) or a shorter wait (the Priority list), the applicant must meet the eligibility criteria throughout the waiting period. An applicant’s eligibility and needs category may be reassessed at any time by way of a written request for information to be provided by a stated date [clause 14]. The applicant’s name may be removed from the register if he/she fails to respond to the request for information or fails to accept an offer of housing [clause 17].
Irrespective of the category, an applicant is entitled to 2 offers. When a property becomes available and is identified as appropriate for a particular applicant, it is deemed to be an offer when the applicant is invited to view the property. If it is established the property did not meet the identified needs of the applicant, the offer may be withdrawn and 2 offers remain available to the applicant.
Type of accommodation and bedroom entitlement
A single applicant is entitled to a bedsit or 1-bedroom dwelling. For a single person with a child the entitlement is 2 bedrooms. A couple is entitled to a 1- or 2-bedroom dwelling and a couple with one child is entitled to a 2- or 3-bedroom dwelling. Generally, no more than two (2) children are expected to share a bedroom and children of different genders are generally not expected to share a bedroom. Also, where there is a large age gap, e.g. 7 years between children of the same gender, they would generally not be expected to share a bedroom. The bedroom entitlement criteria are fairly rigidly applied, though there is a discretion to allocate an extra bedroom in certain demonstrated circumstances; for example, a disability which makes it imperative for a child to have her/his own bedroom, or an extra bedroom is needed to accommodate a regular carer or a child/children on regular overnight contact visits.
Some public housing is designated for particular groups of people; for example, Aged Persons Units for applicants aged 65 and over, Older Persons Flats for applicants aged over 50, and some modified dwellings for people with disabilities.
Otherwise, the need for a particular type of dwelling (for example, low density complex, or no stairs, or an enclosed outdoor space) is determined by the provision of medical or other evidence as to the particular needs of the applicant.
When an offer of housing is made, and the applicant signs a tenancy agreement, the requirement to pay initial rent is waived under clause 27 of the Program. Initial rent is rent for the remaining part of the week in which the tenancy agreement is signed, plus 1 full fortnight.
This provision does not apply where the applicant is transferring from one Housing ACT tenancy to another or a new tenancy has been created by the addition or vacation of a tenant.
Rent only is payable in respect of Housing ACT tenancies; bond is not a requirement of these tenancies.
The effect of debt from a previous tenancy
Clause 19 (8) of the Program allows Housing ACT to refuse assistance to an applicant if that applicant owes a debt or has breached a term of a previous tenancy agreement with Housing ACT. This provision only comes into effect at the point the assistance is to be provided and does not affect the right to apply for housing and be registered on a waiting list. In practice, debts owed or past breaches are raised at the time of application in order to give the applicant an opportunity to repay a debt and/or demonstrate their capacity to sustain a new tenancy well before the point of allocation.
The housing commissioner has a discretion to make an offer of housing despite a debt or past breach. The discretion is more likely to be exercised in cases where there is a history of regular repayments towards the debt and/or the impact of refusal would cause significant hardship e.g. homelessness.
Where a debt is statute-barred or expunged by bankruptcy, the power to refuse assistance will be invoked on the basis of a breach of a previous tenancy agreement and the applicant will be encouraged to enter into a “voluntary” repayment plan. This may have the effect of reactivating a statute-barred debt and an applicant should seek legal advice prior to entering into any repayment arrangement.
At any stage a person may seek review of a debt arising from a previous tenancy – see 5.2 below.
In some circumstances it is appropriate to seek waiver of a debt. Whilst an application for debt waiver goes initially to Housing ACT, the decision-making power rests with the ACT Treasury Directorate. There is no transparent policy in relation to waiver and decision‑making has tended to be very slow.
Another method used by Housing ACT to recover debt is to make the repayment of the debt a condition of a new tenancy agreement – see 4.1 below: Endorsed Terms.
An application by an existing Housing ACT tenant for transfer to a different dwelling is subject to the same processes and considerations as any other application for housing assistance. However, there are some additional provisions in the Program governing transfers.
Clause 28 of the Program empowers Housing ACT to require a tenant to transfer to an alternative dwelling in situation where:
- “The physical condition … of the dwelling occupied by the tenant is likely to cause serious harm to the health and safety of the household or the public; or
- A member of the household should be transferred in the interests of community harmony”.
The power is broad, but infrequently used.
Transfer may also be required for the purpose of repair, renovation, disposal or redevelopment. These are grounds for termination of a periodic tenancy under the Standard Terms of the RTA, but Housing ACT will transfer rather than evict a tenant in these circumstances.
Transfer to a dwelling with fewer bedrooms
Where a tenant applies to transfer to a smaller dwelling, the eligibility criteria set out in clause 9 and the provisions relating to needs categories and waiting lists do not apply, on the basis that such transfer promotes the efficient use of housing stock [clause 20].
Where 2 tenants wish to swap dwellings an exchange of tenancies can be approved by Housing ACT, providing that both households remain eligible for housing assistance and both are entitled to the house size to which they wish to swap. The exchange will also be subject to an inspection of each property and the requirement that neither tenant is in rent arrears. Housing ACT holds a register of applicants seeking to exchange dwellings. This is updated on a fairly regular basis, but no other assistance is provided to promote mutual exchange.
This chapter contains general information available at time of publication. It does not constitute legal advice. If you have a specific legal problem, please contact Canberra Community Law on (02) 6218 7900.
Canberra Community Law is entirely independent of Housing ACT. All assistance is free.