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22. Housing ACT’s Growing and Renewing Public Housing Program

What is Housing ACT’s Growing and Renewing Public Housing Program?

The Growing and Renewing Public Housing Program (‘the Growing and Renewing Program’) is an ACT Government program that identifies public housing properties to sell or redevelop, to raise revenue for new public housing stock. The ACT Government has identified certain properties to sell or redevelop under the Program. Housing ACT will tell you if your property has been included in this Program.

Until earlier this year, this was a voluntary program. If your property was identified by the
Growing and Renewing Program you could agree, or disagree, to your home being sold or redeveloped.

Now, the ACT Government is saying that tenants living in properties which have been identified for sale or redevelopment will be required to relocate to another Housing ACT property.

Housing ACT may ask that you sign some documents in relation to this Program. You should immediately seek legal advice before signing any documents.

How to Read this Factsheet

This factsheet is divided into two sections:

Section 1: I do not want to move to another home. Do I have to?

Section 2: If I agree to move, what can I expect?


Section 1: I do not want to move to another home. Do I have to?

Do you have to move to another home?

If you do not want to move, you can ask Housing ACT to let you remain in your home. You have a right to apply for an exemption if you do not wish to relocate.

If you are granted an exemption, Housing ACT may decide to put off selling or re-developing your home so that you can continue to live there.

Applying for an Exemption

If you intend to apply for an exemption, we recommend that you notify the Housing ACT Tenant Relocation team.

Housing ACT have put together a FACT SHEET titled “Tenant Relocation Exemption Fact Sheet”. You should contact your tenant relocation officer and ask for a copy of this Fact Sheet if one has not been provided to you already.

To apply for an exemption, you need to complete Housing ACT’s Application for Exemption form. You can request this form from your Tenant Relocation Officer

Complete all questions on the application form as fully as possible. You can also attach any supporting documentation which explain your circumstances, why you should not be forced to relocate and how a forced relocation will impact on you. This could include letters from treating professionals such as a GP, social worker, psychologists, or community organisations.

Housing ACT’s Application for Exemption Form, asks you to explain how the following applies to you and any members of your household:

  • Exceptional Need – What are the exceptional circumstances that you will experience if forced to relocate?
  • Substantial risk of significant harm – What are the risks if you are required to relocate? Will relocating cause significant harm to health, mental health, wellbeing, identity, independence and/or quality of life?
  • Older Age – How will your age impact on your ability to relocate?
  • Health considerations: Do you have any health conditions that may be impacted or worsened by relocation? For example, mental illness, chronic or terminal illness or a disability.

Housing ACT’s Application for Exemption Form also asks whether there are any other additional considerations and comments that you would like to be considered. In answering this question, it is important to address the following factors if they are relevant to you:

  • Whether it would be unsafe for you to relocate – for example, due to suicidal ideation and/or culturally inappropriate to move and/or where
    a move may trigger the effects of trauma.
  • Impact and proximity to your supports – How relocation will impact on your family, health services, carers, social supports and other key services and relationships that are important to you.
  • How your current property meets your needs and any additional challenges that you would face moving to another property
  • Impact to older tenants – tenants aged 80+ and to Aboriginal and Torres Strait Islander tenants aged 70+.
  • Property underutilisation – if your property is underutilised (that means if you are living in a property with 2 or more bedrooms over your entitlement) and any additional reasons for why you should be allowed to stay.

Contact us at Canberra Community Law to seek further advice about the application form and the exemption process.

Canberra Community Law can:

  • provide you with legal advice specific to your circumstances;
  • advise you on the supporting documentation that you should obtain to support your application; and
  • assist you to apply for an exemption.

Our phone number is (02) 6218 7900. Our legal assistance is free.

You can submit your Application for an Exemption and any supporting documentation by:

  • Emailing the application to growthandrenewalrelocations@act.gov.au
  • Posting the application to Housing ACT at Locked Bag 3000, Belconnen ACT 2617
  • Returning the application to your Tenant Relocation Officer

It is very important that you keep a copy of your application and supporting documents for your own records. We recommend that you send your application by email so that you have proof of lodgment. If you hand your application to your Tenant Relocation Officer, we recommend that you ask them to copy it and provide you with a date stamped copy as proof of lodgment.

The Tenant Relocation Exemption Panel (the panel)

Your application for exemption will be considered
by a panel called the Tenant Relocation Exemption Panel (the panel). The panel is made up of representatives from community service organisations and Housing ACT.

In deciding your application for exemption,
the Tenant Relocation Exemption Panel is legally bound by the Human Rights Act 2004.

Relevantly, rights protected include:

  • the right not to have your home and family interfered with unlawfully or arbitrarily; and
  • the rights of Aboriginal and Torres Islander people.

Housing ACT’s Application for Exemption form asks you whether you want to attend the panel meeting or nominate a representative to attend on your behalf. Please note that your attendance at the panel is entirely optional.

You will usually receive a decision from the panel within 14 business days of your panel meeting. Housing ACT has stated that the decision will be in writing and will include reasons for decision.

What will happen if the application for exemption IS granted?

If your application for exemption is granted you will not be required to relocate under the Growing and Renewing Public Housing program.

What will happen if your application for exemption is NOT granted?

You should immediately seek legal advice. If your exemption is refused, we can provide you with further legal advice. The decision made by the panel is not subject to merits review. This means it cannot be appealed the way some decisions can be. Housing ACT has stated that an application for exemption will only be reconsidered if it is provided with new information that has not previously been considered.

If you would like our assistance, please contact us on (02) 6218 7900 and provide us with a copy of the decision.

You should also write to the Tenant Relocation Team requesting reasons for the decision to include your property in the Growing and Renewing Public Housing Program. Canberra Community Law can provide you with a template letter to assist you to make this request.

What else can I do?

1. ACT Housing Minister Responsible for the Growing and Renewing Program

You can write to the ACT Housing Minister Responsible for the Growing and Renewing Program raising your concerns:

Minister Yvette Berry
Email: berry@act.gov.au
Telephone: (02) 6205 0233
Postal Address: GPO Box 1020,
Canberra ACT 2601

You can also write to Minister Rebecca Vassarotti,
Minister for Homelessness and Housing Services.
Email: vassarotti@act.gov.au
Telephone: (02) 6207 8975

2. ACT Human Rights Commission

You can contact the ACT Human Rights Commission if you believe that you have been discriminated against.

If you wish to make a complaint, you can contact the ACT Human Rights Commission on 02 6205 2222 or HRCIntake@act.gov.au.

3. ACT Ombudsman

You can make a complaint to the ACT Ombudsman about how the Growing and Renewing Program is being administered by Housing ACT and its impact on you.
You can phone them on (02) 6276 3773 or use their online form to make a complaint at https://www.ombudsman.act.gov.au/contact-us

4. Local Federal Member of Parliament

You can write to your local Federal Member of Parliament asking that they contact the Housing ACT Minister, Ms Yvette Berry on your behalf and advocate for you to be able to remain in your home. You should keep your letter simple and outline in summary form your concerns about the Growing and Renewing Program and why you do not want to move.

There are currently three Federal Electorates in the ACT.

You can find your federal electorate at https://electorate.aec.gov.au/ by typing in your postcode.

There is also a handy Federal Electorate finder table and list of Senators at the end of this factsheet.

What may happen if I refuse to relocate?

Housing ACT has advised that if a tenant refuses to relocate they will take steps to end their tenancy as a ‘pathway of last resort’. This would mean issuing you with a Notice To Vacate and asking the ACT Civil and Administrative Tribunal (ACAT) to make an order evicting you from your property. You should contact Canberra Community Law if you receive any written correspondence from Housing ACT which asks you to vacate your home.

IF YOU ARE THREATENED WITH EVICTION, YOU SHOULD IMMEDIATELY SEEK LEGAL ADVICE

1. If Housing ACT intends to sell or redevelop your home

Housing ACT can give you a Notice to Vacate if Housing ACT genuinely intends:

  • to sell your home, or
  • to reconstruct, renovate or make major repairs to your home that cannot be reasonably carried out while you are living there.

A Notice to Vacate tells you to vacate by the end of the period given (i.e. it will specify a date).

If the reason for the Notice to Vacate is that Housing ACT intends to sell your home, the Notice must give you a minimum of 8 weeks’ notice.

If the reason for the Notice to Vacate is that Housing ACT intends to redevelop your home, the Notice must give you a minimum of 12 weeks’ notice.

The Notice to Vacate must include the reason why Housing ACT is giving you the notice.

2. If Housing ACT says your home is unsafe

Housing ACT can also end your tenancy if your home is not fit for habitation. This could be because it is unsafe, or the conditions are so bad that it is inappropriate for you to live there. Housing ACT must give 1 weeks’ notice of termination of the tenancy, and you are not liable for rent from the date that the premises are uninhabitable.

A NOTICE TO VACATE DOES NOT END YOUR TENANCY AND YOU DO NOT HAVE TO MOVE OUT IMMEDIATELY

Canberra Community Law can provide you with free legal advice if you are threatened with eviction.

Our phone number is (02) 6218 7922.

Does Housing ACT still have to complete repairs on my home?

Housing ACT has a responsibility to maintain your home in a reasonable state of repair right until the end of your tenancy. For the duration of your tenancy, Housing ACT must make sure that your property (including any yard) is:

  • Fit for you to live in;
  • Reasonably clean;
  • In a reasonable state of repair; and
  • Reasonably secure.

However, Housing ACT is not required to make new additions or improvements to the property.
For example, while Housing ACT may be responsible for fixing damage to a shed on the property (a repair) it is not required to erect a new shed if the property did not already have a shed (an improvement).

Section 2: If I agree to move, what can I expect?

Does Housing ACT have to offer me another property?

No. However, Housing ACT says you will be offered an alternative public housing property that suits your needs and public housing entitlement. Housing ACT will allocate a Tenant Reallocation Officer to work with you.

If I agree to move, how many offers will I get?

Housing ACT does not have to make you multiple offers. However, in practice, Housing ACT is likely to offer you at least two properties to help find you a new home that suits you.

If you have specific housing needs, it is very important that you tell Housing ACT in writing what they are and provide any supporting documents, for example, a letter from a doctor.

Housing ACT has stated that it is committed, where possible, to supporting tenants to relocate within their existing community if that is asked for.

If I move, will my rent go up?

If you have been granted a rental rebate, the rent you pay is equal to a percentage of your weekly household income. This means your rent will not change if you move to a new public housing property.

If you are not eligible for a rental rebate, the rent you pay is the market rent for the property. If Housing ACT offers you a new property, your Tenant Relocation Officer should tell you if the rent for the new property is more than you are currently paying.

If I agree to move, will my new house be better than my current house?

Housing ACT says that a Tenant Relocation Officer will work with you on your individual needs to find a home that best suits those needs.

You may not be offered a new property however the property offered should not be in worse condition than your current property.

Will Housing ACT help me to move house?

Housing ACT says that they will provide financial assistance of up to $1750 for relocation costs which may include:

  • utility connection fees (electricity, gas, water),
  • reconnection to existing services (telephone and internet), or
  • reasonable removalists expenses.

Housing ACT has also stated that they may provide other types of support to help you to move house and settle into your new home, including:

  • arranging for you and any support person to inspect your new home in person,
  • providing a skip bin if you need one, or
  • working with supports you have in place or new supports to make sure you can stay connected throughout the move and afterwards.

Tenant Relocation Officers can also contact a removalist directly on your behalf to organise your move date if you would like them to.

Housing ACT will generally not assist with packing and unpacking.

My house is old or in need of repairs and I would like to move. Can I ask to be part of the Growing and Renewing Program?

Yes. You can contact the Tenant Relocation Team at Housing ACT and ask to move as part of
this program. However, Housing ACT is under no obligation to place you within this program.

Access to Interpreters

The ACT Government is committed to ensuring that all Canberra residents, regardless of their background have equal access to its programs and services. It is ACT Government policy to use these professional interpreters when speaking with people who have difficult communicating in English.

You are entitled to an interpreter free of charge when dealing with an ACT Government directorate or agency (such as Housing ACT). Simply ask
the staff member you are dealing with to arrange
an interpreter.

Handy Federal Electorate Finder Table

Federal Electorate

Area Covered

Local Federal Member of Parliament

Bean

The Division of Bean covers an area in the south of the ACT consisting of the Districts of:

  • Booth,
  • Coree,
  • Cotter River,
  • Mount Clear,
  • Paddys River,
  • Rendezvous Creek,
  • Stromlo,
  • Tennent,
  • Tuggeranong,
  • part of Jerrabomberra,
  • part of Molonglo Valley,
  • part of Weston Creek, and • part of Woden Valley
  • The Division of Bean also includes Norfolk Island.

Mr David Smith, MP, Australia Labor Party

Email: david.smith.mp@aph.gov.au
Telephone: (02) 6293 1344
Postal address: 205 Anketell Street, Tuggeranong, ACT, 2900

Canberra

The Division of Canberra covers an area in central ACT consisting of the Districts of:

  • Canberra Central,
  • Kowen,
  • Majura,
  • part of Belconnen,
  • part of Jerrabomberra,
  • part of Molonglo Valley,
  • part of Weston Creek, and • part of Woden Valley

Ms Alicia Payne, MP, Labor Party
Email: alicia.payne.mp@aph.gov.au
Telephone: (02) 6247 8475
Postal Address: 221 London Circuit, Canberra, ACT 2601

Fenner

The Division of Fenner covers an area in the north of the ACT consisting of the Districts of:

  • Gungahlin,
  • Hall, and
  • part of BelconnenThe Division of Fenner also includes the Jervis Bay Territory.

Dr Andrew Leigh, MP, Labor Party
Email: Andrew.Leigh.MP@aph.gov.au
Telephone: (02) 6247 4396
Postal Address: Shop G&H, 33 Hibberson Street, Gungahlin, ACT, 2912

ACT Senators

Senator David Pocock
Telephone: (02) 6207 8975
Postal Address: PO Box 6100
Senate Parliament House Canberra ACT 2600

Senator Katy Gallagher
Email: senator.katy.gallagher@aph.gov.au
Telephone: (02) 6230 0411
Postal Address: Unit 3, 40 Corinna Street, Phillip ACT 2606

Disclaimer

This factsheet contains general information available at the time of printing. 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.

Last updated: June 2022

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21. Disability Modifications to Public Housing

1. What is a disability modification to public housing?

People with disabilities may need changes, or modifications, to their homes so they can live independently, comfortably, or move more easily and safely. For example, an access ramp may need to be installed in housing to accommodate for a wheelchair. Housing ACT is responsible for making modifications to public housing to accommodate people with disabilities. Housing ACT’s Property Condition and Responsibility Guide provides that Housing ACT will modify existing housing or provide newly constructed/upgraded housing to meet the essential needs of people with disabilities subject to assessment.

Housing ACT recognises a disability modification as any modification “to meet the essential needs
of people with disabilities.” This should include anything essential for your disability. It commonly includes:

  • internal grab rails and external hand rails;
  • hand held showers or hobless showers;
  • lever handled taps and door handles;
  • door wedges for wheelchairs, access ramps, wheelchair accessible paths; and
  • large rocker switches.

Where disability modifications are required, Housing ACT has to make sure the modifications meet certain standards. For example, the type and height of taps and latches should enable you to use them; ramps should give easy access and not be slippery, and all corners and entry ways should have enough clear turning area for a person in a wheelchair to turn unaided.

2. How do I apply for a disability modification through housing ACT?

You can apply for a disability modification in your Housing ACT property by contacting the Disability Modifications Officer at Housing ACT (the relevant contact information is listed at the end of this factsheet).

When you speak to the Disability Modifications Officer, they will start by assessing your request. They will decide if your request requires an assessment by an Occupational Therapist (OT). You may be asked to complete Housing ACT’s Application to Modify a Housing ACT Property form. Housing ACT can provide you with a copy of this form. Housing ACT has a form that your GP could complete in support of a modification request, otherwise you can ask your treating health professional (such as an OT) to provide a letter supporting your application.

How is my request assessed?

Some disability modifications can be approved by the Disability Modifications Officer without an OT assessment based on the evidence you can provide. For example, the following alterations can be approved if you provide Housing ACT with a letter from your GP:

  • lever taps and lever door handles;
  • hand rails along the side of steps;
  • handheld showers; and
  • clothesline height adjustments.

For other modifications, Housing ACT will need an OT to assess your situation. Some examples of modifications that Housing ACT will need an OT assessment for include:

  • installing grab rails or hand rails;
  • widening doorways;
  • installing ramps; and
  • major bathroom or kitchen upgrades.

If you already have an OT, they are often able to make the assessment. Your OT will need to send their report directly to the Disability Modifications Officer. If you don’t have an OT, the Disability Modifications Officer can refer you to the Housing ACT Occupational Therapy Service. They will provide a reference number and phone number for you to contact an OT to arrange your assessment. Once the OT has conducted their assessment, they will send their report directly to the Disability Modifications Officer.

Further information on OT services can be found on this website: https://www.communityservices.act.gov.au/hcs/policies/occupational-therapy-services.

What happens if my request is approved?

If the OT’s report to the Disability Modifications Officer recommends disability modifications to your property, or if the Disability Modifications Officer approves your request without an OT assessment, the Disability Modifications Officer will ensure a request is lodged with Housing ACT’s Maintenance provider. The time frames for completion may vary depending on the modifications.

3. My application for a disability modification was rejected, are there any further steps I can take?

If Housing ACT rejects your request for a disability modification, this is not a decision that can be reviewed through Housing ACT’s appeals process. However, you may be able to make a disability discrimination complaint to the ACT Human Rights Commission or the Australian Human Rights Commission.

For more information on making disability discrimination complaints, see our Fact Sheets
on “Disability Discrimination Complaints in the ACT Human Rights Commission” and “Disability Discrimination Complaints in the Australian Human Rights Commission”.

You should seek legal advice if you are not sure about this avenue.

Can the NDIS fund my disability modifications?

The NDIS does not fund disability supports which are more appropriately funded by another system. However, if you are a participant, the NDIS might fund your public housing modifications on a case-by-case basis if the modification is not part of Housing ACT responsibilities to meet the needs of disabled people. For example, the NDIS is unlikely to fund major renovations to a Housing ACT property to make it a fully accessible property. In addition to not being Housing ACT’s responsibility, the modification will still need to meet all the other requirements under the NDIS, including being a reasonable and necessary support and representing value for money.

Often, it might be best to apply first for a modification to Housing ACT. If they refuse, you can apply for the modification under the NDIS. You might be able to use the rejection as evidence that Housing ACT does not consider it their responsibility.

The process for applying for funding to modify your home under the NDIS will depend on whether you are already a participant and what is in your support plan. If you already have a Local Area Coordinator or Support Coordinator, you can ask them for help. Otherwise, you can contact the NDIA (see contact details at the end of this factsheet).

If the NDIS is funding your disability modifications (or if you want to pay for your own modifications), you will still need to request permission from Housing ACT to modify your public housing as described below.

Can I make disability modifications at my own cost?

If Housing ACT does not approve your request for a disability modification, you may also request permission to make modifications to your Housing ACT property at your own cost. Modifications made at your own cost will need to be carried out by a qualified tradesperson and/or a licensed builder and needs to meet Housing ACT property standards. You will be responsible for maintaining these modifications. To request permission to modify your housing at your own cost, you should contact your Housing Manager and request an Application to Modify a Housing ACT Property form.

In the ACT, if you are making a modification to assist with your disability, for example, access ramps or safety rails, and have provided a written recommendation by a health practitioner in support of your request, a lessor can only refuse consent for the modification with approval from the ACT Civil and Administrative Tribunal (‘the Tribunal’). The landlord must apply to Tribunal for this approval. If the tenant requests consent for a special modification in writing from the landlord and the landlord does not respond within 14 days, the landlord is taken to have consented.

4. Useful contacts and information

  1. Canberra Community Law: 02 6218 7900
  2. Housing ACT Disability Modifications Officer: 6207 3091 / HousingMaintenance@act.gov.au
  3. Disability Modifications, Asset Management Branch, Housing ACT, Locked Bag 3000, Belconnen ACT
  4. Housing ACT Occupational Therapy Service
  5. https://www.communityservices.act.gov.au/hcs/policies/occupational-therapy-services
  6. Canberra Community Law, Disability Law Resources
  7. https://canberracommunitylaw.org.au/resources/disability-law/
  8. ACT Human Rights Commission:
    02 6205 2222 / human.rights@act.gov.au
  9. Australian Human Rights Commission: 1300 369 711
  10. NDIS: 1800 800 110 / NAT@ndis.gov.au / GPO Box 700, Canberra, ACT
  11. https://www.ndis.gov.au/
  12. Housing ACT Property Standards Condition and Responsibility Guide
  13. https://www.communityservices.act.gov.au/__ data/assets/pdf_file/0003/141717/Condition_ and_Responsbiility_Guide.pdf
  14. Tenant’s Guide to Repairs & Maintenance
  15. https://www.communityservices.act.gov.au/hcs/policies/tenants-guide-to-repairs-and-maintenance/section-questions-and-answers

Disclaimer

This Fact Sheet contains general information available at the time of printing. It does not constitute legal advice. If you have a specific legal problem, please contact us on 6218 7900.

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20. What Happens to My Belongings That I Left Behind in My Housing ACT Property?

When you move out of your Housing ACT property you must take all your belongings unless you agree with Housing ACT to do something else. You should put the terms of any agreement you reach with Housing ACT in writing. It is good to check your tenancy agreement to see what it says about goods that you leave behind. There are rules about how Housing ACT may get rid of these items.

1. What if I leave my ID behind?

Housing ACT can get rid of personal documents, including ID, photos and financial documents, by:

  • returning them to the issuing authority where practicable; or
  • any other lawful way that stops personal information about the document owner being publicly available (eg shredding).

Housing ACT’s practice is to securely dispose of personal documents. They believe that this is the safest means to prevent any identity fraud.

2. What happens if I leave behind food?

Housing ACT can get rid of perishable goods, such as food, as soon as your tenancy ends if there is no agreement in place between you and them about what to do with them. In practice Housing ACT will also get rid of any goods which are soiled and/or damaged despite what their monetary value might otherwise be.

3. What does Housing ACT have to do before getting rid of other items?

Housing ACT must give you a chance to recover any goods by asking you to collect them. This request:

  • must be in writing;
  • include a short description of the goods and explain where and when the goods can be collected;
  • must state that the goods may be disposed of if they are not collected within 7 days of the request; and
  • must state what Housing ACT’s costs are in relation to the goods that you must meet before the goods will be released.

This request must be sent to:

  • your last known address;
  • if Housing ACT does not have your last known address, or an address cannot be found after making reasonable enquiries, Housing ACT must give public notice that they are going to get rid of the goods. Public notice can be either on an ACT Government website or in the Canberra Times.

If a request has been made and you do not collect your belongings in 7 days, Housing ACT may dispose of them. The applicable timeframes start 7 days from the date of the request.

Type of goods How it can be disposed of When it can be disposed of
Goods of no value ($20 or less) By sale, appropriation or destruction After 1 week
Goods of low value (between $20 and $500) After 1 month
Goods of significant value ($500 or more) By public auction.
Where goods are disposed of by way of public auction, Housing ACT must give public notice at least 7 days before the auction, describing the goods and the time and place of the auction. Housing ACT may get rid of any goods that are not sold at the auction however they choose.
After 3 months

4. Do I have to pay to get my goods back?

Before releasing the goods, Housing ACT may require you to pay:

  • the relevant storage and maintenance costs;
  • the amount of any unpaid rent you owe; or
  • any reasonable costs incurred by them in complying with the law.

Any time before the disposal of the goods, you can apply to the ACT Magistrates Court for a review of the costs that Housing ACT is requiring you to pay. The Court may disagree with the Housing ACT’s costs, in whole or in part, or order that the Housing ACT does not get rid of the goods until the court has made a decision.

5. Who receives the money from the sale of the goods?

If the uncollected goods have been sold, Housing ACT can keep any unpaid rent, relevant costs for storage and maintenance and any other reasonable costs.

After these reasonable costs have been taken away, whatever amount of money left over must be paid to the ACT Government’s Uncollected Goods Trust Fund. You may recover all or some of that money by making a claim to the Trust Fund within three years of when the money was paid to it.

Access to Interpreters

The ACT Government is committed to ensuring that all Canberra residents, regardless of their background, have equal access to its programs and services. It is ACT Government policy to use professional interpreters when speaking with people who have difficulty communicating in English.

You are entitled to an interpreter free of charge when dealing with an ACT Government directorate or agency (such as schools, hospitals and Shopfronts).

Simply ask the staff member you are dealing with to arrange an interpreter.

Disclaimer

This factsheet contains general information available at the time of printing. It does not constitute legal advice. If you have a specific legal problem, please call us on 02 6218 7900.

Canberra Community Law is entirely independent of Housing ACT. All assistance is free.

May 2019

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19. Incarcerated Tenants and ‘26 Week No Cause Notices’

1. When can Housing ACT terminate a tenancy?

Under ACT law, Housing ACT can seek to terminate your tenancy if you breach your tenancy agreement (for example, by not paying rent or not keeping the property in a reasonable condition).

Housing ACT can also seek to terminate a tenancy without giving a reason, if they give you 26 weeks’ notice to vacate your property. These notices can be given even if you have not breached your tenancy agreement. This is sometimes called a ‘26 week no cause’ notice.

Housing ACT are using ‘26 week no cause’ notices for incarcerated tenants as a way of managing housing properties. If you receive a ‘26 week no cause’ notice, it is important that you get legal advice about your options. This factsheet provides some general information about what to do if you get a ‘26 week no cause notice.’

2. What happens when I receive a ‘26 week no cause’ notice?

Housing ACT will send you a Notice to Vacate, stating that you have 26 weeks (or six months) to vacate your property.

Even though the notice says that you must leave by the date in the notice, you do not have to move out by this date. Housing ACT need to get an order from the ACT Civil and Administrative Tribunal (ACAT) before they can force you to leave.

When the date in the notice passes, if you have not moved out, Housing ACT can apply to ACAT to get an order terminating the tenancy. You will receive a Notice of Hearing from ACAT which tells you when the hearing will be. If you receive a hearing notice, you should get legal advice about it straight away.

ACAT will conduct your hearing and consider whether to terminate your tenancy. ACAT usually organises with the jail for you to link into the hearing by phone or video link.

ACAT will then make a decision about your tenancy.

3. How can I defend my tenancy?

‘26 week no cause’ notices can be very difficult to defend because Housing ACT do not need to have a reason to give you this type of notice. This means that you cannot argue that you have not breached the tenancy agreement, or that you are able to remedy a breach. It’s important that you get some legal advice about your specific situation once you get a hearing notice.

There are some arguments that you can raise under the Human Rights Act 2004 (ACT). This is because Housing ACT is a public authority, so it cannot unreasonably interfere with your protected rights. Under this law, your rights to home (section 12) and family (section 11) are protected.

This means that Housing ACT should not seek to terminate your tenancy if that would be an unreasonable interference with your rights.

4. Does termination of my tenancy interfere with my human rights?

If a tenancy termination unreasonably interferes with your human rights, ACAT will take this into account when deciding if it is appropriate to terminate your tenancy and may find in your favour.

For the interference to be unreasonable, ACAT must find that the harmful impact on you outweighs any other relevant considerations.

Some factors that ACAT will consider are:

  • When you are due to be released or when you will be eligible for parole. If you will be released soon, it is more likely that it’s unreasonable to evict you;
  • Whether you have any physical or mental health issues. If your property was allocated to you because it is suitable for your medical requirements (for instance, it has no stairs or is in a particular location), it is more likely that evicting you will unreasonably interfere with your rights;
  • Whether you have strong links to your community. If you live close to your support networks, or have strong links with your neighbours and community, it is more likely that evicting you from that place is unreasonable;
  • Whether having stable housing, especially in a particular place, is important for ongoing rehabilitation. Evidence about your rehabilitation work is usually helpful;
  • Whether you have any alternative accommodation options. If you would have no other accommodation options with friends or family, or anywhere else to go, it is more likely that evicting you is an unreasonable interference;
  • Whether you have children, and the impact that losing your tenancy would have on your ability to have care of your children restored; and
  • Other factors that are relevant to you.

5. What else can I do?

There are some important things you should do when you receive a ’26 week no cause’ notice.

5.1. Get some legal advice

As soon as you receive a hearing notice from ACAT, it is important for you to get legal advice about your situation and what options you might have. You can call Canberra Community Law on (02) 6218 7977. We specialise in public housing law and our assistance is provided free of charge.

5.2. Make sure your rent is being paid

It can be very helpful to your case if your rent is being paid. Your caseworker can help you to arrange to have your rent paid while you are incarcerated.

It is Housing ACT policy to drop your rebated rent to $5 for tenants who are incarcerated or in a residential rehabilitation program. If you believe you are being charged more than this, you can complete a Housing ACT rebate form or get legal advice.

5.3. Appoint a caretaker for your property

It is also important to appoint a caretaker to look after your Housing ACT property while you are incarcerated. Your caretaker must not live in your property unless Housing ACT and you agree that they can.

5.4. Get supporting letters and evidence

You will need to provide evidence to ACAT about your circumstances so that ACAT can decide whether terminating your tenancy would unreasonably interfere with your human rights.

Some evidence that can be helpful includes:

  • Parole applications, or other parole documents
  • Pre-sentencing reports can sometimes include information about your circumstances
  • Prison Medical records, or medical records from your regular doctor if you have access to them;
  • Supporting letters from your case worker, doctors and psychologists, family and friends, and other support workers; and
  • Evidence of your work towards rehabilitation while you have been incarcerated.

6. How to contact us

You can contact us by calling our Housing Law service on 02 6218 7977. Our phone number is on the list of phone numbers you can call.

If you need an interpreter please call the Translating and Interpreting Service (TIS) on 131 450 and ask them to ring us.

If you are deaf or have a hearing impairment or speech impairment, contact us through the National Relay Service at www.relayservice.gov.au

Access to Interpreters

The ACT Government is committed to ensuring that all Canberra residents, regardless of their background, have equal access to its programs and services. It is ACT Government policy to use professional interpreters when speaking with people who have difficulty communicating in English.

You are entitled to an interpreter free of charge when dealing with an ACT Government directorate or agency (such as schools, hospitals and Shopfronts).

Simply ask the staff member you are dealing with to arrange an interpreter.

Disclaimer

This fact sheet contains general information available at the time of printing. It does not constitute legal advice. If you have a specific legal problem, please contact Canberra Community Law’s advice line on 02 6218 7900.

Canberra Community Law is entirely independent of Housing ACT. All assistance is free.

May 2019

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18. Inspections

Tenants of Housing ACT have the same rights and obligations as all other tenants in relation to providing access for inspections. Your rights are set out in your tenancy agreement, the Standard Residential Tenancy Terms (SRTT) which is the Schedule to the Residential Tenancies Act 1997. The relevant terms are clauses 75 to 82.

In summary, Housing ACT can only require access to your home in accordance with the law, or by order of the ACT Civil and Administrative Tribunal (ACAT or ‘the Tribunal’). You can allow access as often as you like and whenever you like, but there are certain times when access cannot be demanded without your agreement. These are:

  • On Sundays, or
  • public holidays, or
  • before 8 am and after 6 pm.

The exception would be if there were serious health and safety reasons, requiring urgent access.

1. Inspections – How Often?

Generally, Housing ACT may only inspect your home 2 times in any 12-month period, apart from an additional inspection within the first month of a new tenancy and within the last month of the end of a tenancy.

In practice, Housing ACT generally conducts 1 inspection per year. If there are concerns about the condition of the property, they may conduct an additional inspection within that year. However, Housing ACT must not impose 3 monthly, 6 weekly or monthly inspections on any tenant without an order of ACAT, unless the tenant agrees to such frequent inspections. It may be put to you that it is in your interests to agree to a time frame for tidying up or cleaning your home bit by bit, with an inspection at regular intervals to help you stick to that time frame. You may find that helpful and you may agree to it. However, you do not have to agree to this if you do not feel it is necessary or helpful.

2. Notice of Inspection

Housing ACT must give you 1 weeks’ notice in writing of an inspection. This is usually in the form of a letter which is headed “Client Services Visit” and states a date and time at which the visit, for an inspection, is scheduled. The day or time may not be convenient for you. You have the right to propose an alternative time.

Under clause 79 of the SRTT, “the inspection must take place at a time agreed between the parties with reasonable regard to the work and other commitments both of the tenant and of the lessor (or their agents)”.

The same clause also says that “If the parties are unable to agree on an appropriate time, the lessor or the tenant may apply to the tribunal for an order permitting access at a specified time”.

In practice, Housing ACT regularly makes an application to the tribunal after 2 failed attempts to schedule an inspection. In some cases, the failure is not the result of the tenant simply refusing an inspection, it is a result of a lack of negotiation.

It is important for the tenant to communicate directly with the Housing ACT Manager to negotiate an alternative time and then be at home to provide access at that time.

Housing ACT does not have the right to, and will not, enter your home in your absence. If necessary, you can authorise another person to provide access on your behalf, but Housing ACT will require this authorisation in writing, using the Client Service Visit Representative form.

3. What happens if Housing applies to ACAT?

You will receive notice from ACAT of Housing ACT’s application for an access order. It is important that you attend the hearing otherwise an order is likely to be made in your absence. If you attend the hearing it is likely that ACAT will make an order for an inspection at a time that both you and Housing ACT agree upon.

However, this whole process can be avoided if you actively respond to the notice of an inspection. Even after Housing ACT has made an application to the tribunal for an access order, it is possible to negotiate a time for the inspection and, providing it takes place prior to the date of the access hearing, Housing ACT will usually withdraw their application as it is no longer required.

4. What happens if ACAT makes an order for access?

Usually an access order made by ACAT will state the day and time access is to take place, and it will state that Housing ACT may enter the premises if the tenant does not open the door to them.

5. Access for Repairs

Clause 82 of the SRTT says that the lessor may give the tenant 1 weeks’ notice and “may enter the premises at a reasonable time” for making or inspecting repairs.

In practice, the making and inspecting of repairs is done by Programmed, Housing ACT’s maintenance contractors, and very little notice may be received by the tenant that Programmed is coming to do a repair. If Housing ACT has the perception that there are any difficulties in gaining access for repairs, they will generally make an application to ACAT for access.

Access to Interpreters

The ACT Government is committed to ensuring that all Canberra residents, regardless of their background, have equal access to its programs and services. It is ACT Government policy to use professional interpreters when speaking with people who have difficulty communicating in English.

You are entitled to an interpreter free of charge when dealing with an ACT Government directorate or agency (such as schools, hospitals and Shopfronts).

Simply ask the staff member you are dealing with to arrange an interpreter.

Disclaimer

This fact sheet contains general information available at the time of printing. It does not constitute legal advice. If you have a specific legal problem, please contact Canberra Community Law’s advice line on 02 6218 7900.

Canberra Community Law is entirely independent of Housing ACT. All assistance is free.

May 2019

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17. Repairs

1. Overview

Tenants of Housing ACT have the same rights as other tenants under the Residential Tenancies Act 1997 (RTA) to have repairs made by their lessor, the Commissioner for Housing in the ACT. Your rights are set out in the Standard Residential Tenancy Terms (SRTT) which is Schedule 1 to the RTA. The relevant terms are set out in clauses 54 to 62.

You may be asked to be directly in touch with the contractor who does the repair work for Housing ACT (Programmed); this in no way removes the responsibility from your lessor to ensure that the repairs are made in accordance with the law. If they fail to do this, you have the right to seek orders from the ACT Civil and Administrative Tribunal (ACAT):

  • requiring the repairs work to be done;
  • for payment of compensation for any breach of the residential tenancy agreement by Housing ACT; and/or
  • for reduction of rent.

A failure to do repairs that are required by law could also lead to a breach of the lessor’s obligation not to interfere with the reasonable peace, comfort and privacy of the tenant.

1.1. Important Points

There are some important things to remember:

  • It is essential to make a complete check of the premises when you move in and note any defects in the condition report.
  • Always report the need for repairs as soon as possible—it is only when a lessor has notice of the need for repairs that they have a legal duty to perform them.
  • A restriction on repairs is that the lessor is not obliged to repair damage caused by the negligent or wilful act of the tenant.

2. During your Tenancy

Housing ACT is required to maintain the premises in a reasonable state of repair, having regard to the condition of the property at the beginning of the tenancy. This is why it helps to have a good record of the condition of the premises when you moved in.

Your tenancy agreement makes a distinction between standard and urgent repairs.

2.1. Standard Repairs

Housing ACT is obliged to make non-urgent repairs within 4 weeks of being notified of the need for repairs.

2.2. Urgent Repairs

In recognition of the need for some repairs to be made within a shorter time frame, clause 60 of the SRTT sets out what are urgent repairs:

  • A burst water service;
  • A blocked or broken lavatory system;
  • A serious roof leak;
  • A gas leak;
  • A dangerous electrical fault;
  • Flooding or serious flood damage;
  • Serious storm or fire damage;
  • A failure of gas, electricity or water supply to the premises;
  • A failure or breakdown of any service essential for hot water, cooking, heating or laundering;
  • A fault or damage likely to be unsafe or insecure;
  • A fault or damage likely to cause injury to person or property;
  • A serious fault in any door, staircase, lift or other common area which inhibits or unduly inconveniences the tenant in gaining access to or use of the premises.

In these cases, Housing ACT is required to carry out repairs ‘as soon as necessary,’ having regard to the nature of the problem.

In most cases this should mean within 24 hours of being notified.

3. Tenant’s Obligations

Clause 63 of the SRTT sets out the tenant’s obligations to look after the premises. Specifically, during the tenancy the tenant must:

  • Not intentionally or negligently damage the premises or permit damage of the premises (by persons under control of the tenant like children or guests, or by pets);
  • Notify the lessor of any damage as soon as possible; and
  • Take reasonable care of the premises and keep them reasonably clean, having regard to their condition at the start of the tenancy and the normal incidents of living.

4. Insurance

It is important to know that you could be liable for accidental damage done to the premises by you or your guests. Insurance against this possibility is a good idea and relatively inexpensive. Many home contents insurance policies provide such cover.

5. Alterations and Renovations

You can only make alterations/renovations with written permission of Housing ACT. However, while you are not permitted to add fixtures or fittings without consent, this is balanced by a requirement that the lessor’s consent should not be unreasonably withheld. Keep in mind that if you act without permission, you risk eviction for breach, and improvements or fixtures you install may become the property of Housing ACT without compensation.

6. Getting Housing ACT to do Repairs

Housing ACT’s policy is that a tenant reports the need for repairs to Programmed via the Maintenance Call Centre (6207 1500). They will ask you some questions about the problem and then either raise a Work Order for the repair or arrange an inspection to assess the problem. They should also indicate the time frame for the action to occur. You should keep a record of when you rang, who you spoke to and what was said.

If the repair does not happen within a reasonable time frame or you are not satisfied that the repair is effective, you have several options for taking the matter further, depending on the type of repairs.

6.1. Standard Repairs

You should write a ‘Notice to Remedy,’ pointing out Housing ACT’s obligations under clause 55 of the Standard Residential Tenancy Terms of the RTA, outlining how they have breached the clause and setting a time limit for the ‘remedy’ (the completion of the repairs)—7 to 14 days is reasonable since they have already had 4 weeks to do the repairs.

If the Notice to Remedy does not achieve the desired result, you may have grounds for termination of the agreement for breach. You should get specific advice before embarking on this course of action. Most tenants of Housing ACT will want their tenancies to continue so it will probably be better to consider applying to the ACAT for appropriate orders.

The ACAT may make an order requiring the repairs to be done (it will usually set a deadline for this), and/ or requiring payment for compensation for breach of the agreement. The ACAT may also order a reduction in rent for the period when your quiet enjoyment of the premises was disrupted.

6.2. Urgent Repairs

If Housing ACT fails to do the urgent repair (as defined above) within a reasonable timeframe, you may arrange for repairs to a maximum value of 5% of the rent of the property over a year. For example, if you pay rent of $100 per week, your annual rent is $5200, and you could authorize urgent repairs to the value of $260 (5% of $5200).

The strict procedure for authorizing repairs is set out in clause 62. The reality is that, if you pay a rebated rent, the value of the repairs you are permitted to authorize is likely to be too low to cover the cost of the repair you need. In general, it may be more effective and safer to apply to the ACAT for orders requiring the repair to be done.

DO NOT HOLD BACK THE RENT. Though tempting, it is not a good idea to refuse to pay rent because Housing ACT has failed to do the repairs. You have a continuing obligation to pay rent and only the ACAT can order that you pay less rent or that you should be compensated for Housing ACT’s breach of your tenancy agreement.

7. Damage as a result of the lessor’s failure to repair

f you believe your personal property has been damaged as a result of Housing ACT’s failure to maintain the premises or any appliance, furniture or facility supplied in a reasonable state of repair, you may be able to ask Housing ACT to compensate you for the loss.

You can take the following steps:

  • It is important to deal with the maintenance issue to avoid any more damage occurring. This should be done using the steps above for standard or urgent repairs.
  • It is also important to do what you can to avoid damage happening. For example, move your personal items out of harm’s way, if it is safe to do so. If you do not take care of your item, and try to avoid damage, you may not be compensated for its damage (or you might only be partially compensated).
  • Attempt to resolve the issue directly with Housing ACT. In the first instance you should contact the Housing ACT Complaints Management Unit on 02 6207 1515. Explain what damage you have suffered, and how that damage is connected to the failure to repair.
  • If you cannot resolve the issue directly with Housing ACT, you can make an application to the ACAT for orders to compensate you for the damage to your personal property as a result of Housing ACT’s breach of the tenancy agreement. As explained at 6.1 Standard Repairs, the ACAT may also order a reduction in rent for the period when your quiet enjoyment of the premises was disrupted.

7.1. What do you need to prove?

When asking for compensation from Housing ACT it is important to show that there is a clear connection between the damage to your property and the failure of Housing ACT to maintain the premises or any appliance, furniture or facility supplied in a reasonable state of repair.

It is also important to show that you own the property you believe has been damaged. If you have a receipt, that is the best way to prove this.

The value of any compensation you can get will probably be the value of the item at the time it was damaged. Factors such as its age and condition can be considered. It is unlikely you will be compensated for the value of buying the same item new.

When contacting Housing ACT in the first place, writing your Notice of Remedy, and making an application to the ACAT you should provide copies of the following to help support your claim:

  • Your tenancy agreement
  • Your Notice to Remedy
  • Any correspondence with Housing ACT (e.g. letters and emails)
  • Start of tenancy condition report
  • Inspection reports
  • An itemised list of damaged property/goods
  • Detailed photographs of damaged property/goods
  • Receipts and invoices for all damaged property
  • Quotes for repairing or replacing the damaged property
  • Rental records showing payment history, amount owing of rent, daily accrual rates

It is a good idea to take multiple photos of the damage (both close ups and longer shots) in the best lighting possible, and also include a point of reference in the picture (like a ruler) so that the ACAT can easily understand the size of the damage.

Photographs that are going to be filed with the ACAT in support of your application should be in hardcopy, in colour, large enough to show relevant details, marked with the date and time they were taken and numbered for reference.

You should see Fact Sheet 11 Applying to ACAT for further information on how to make and lodge an application using the form ‘Application for Resolution of Tenancy Dispute’.

Please also see our in depth repair guides.

Access to Interpreters

The ACT Government is committed to ensuring that all Canberra residents, regardless of their background, have equal access to its programs and services. It is ACT Government policy to use professional interpreters when speaking with people who have difficulty communicating in English.

You are entitled to an interpreter free of charge when dealing with an ACT Government directorate or agency (such as schools, hospitals and Shopfronts).

Simply ask the staff member you are dealing with to arrange an interpreter.

Disclaimer

This fact sheet contains general information available at the time of printing. It does not constitute legal advice. If you have a specific legal problem, please contact Canberra Community Law’s advice line on 02 6218 7900.

Canberra Community Law is entirely independent of Housing ACT. All assistance is free.

May 2019

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16. Defending Eviction

Housing ACT, like any private landlord, can apply to the ACT Civil and Administrative Tribunal (ACAT) for termination of a tenancy. It is not safe to assume that because you are a public housing tenant you will not be evicted. Public housing tenants are evicted for many reasons.

If you think Housing are going to try and evict you, please contact us on 6218 7977 as soon as possible.

1. How will I Know I’m Being Evicted?

(see Fact Sheet 15: Eviction from Your Home)

There are two categories of termination proceedings:

  1. Termination where the tenancy agreement has been breached; and
  2. Termination where the tenancy agreement has not been breached.

2. Termination for breach

2.1. Notice to remedy

If Housing ACT allege that you have breached your tenancy agreement, they may issue a Notice to Remedy. A notice to remedy will identify a breach of one (or more) of the Standard Terms of your tenancy agreement and will ask you to fix the situation within either 7 days (if it is rent related) or 14 days (if it is not rent related).

For example, the notice could say that you have failed to pay your rent, that you have failed to keep your property in a reasonable condition, or that you are making too much noise and interfering with the neighbours.

If you remedy the breach by the date specified on the notice, no further action will be taken.

2.2. Notice to vacate

If you fail to comply with the notice to remedy, that is, you fail to fix the problem identified, Housing may issue a Notice to Vacate. This notice will ask you to leave your property within a certain period of time (at least 14 days).

You do not have to leave the property in response to this notice. If you do not leave, the only way the tenancy can end is by order of the ACAT.

2.3. Application to ACAT

If you do not vacate, Housing ACT may then apply to the ACAT for a termination and possession order.

ACAT will send you a copy of Housing ACT’s application for a TPO. The documents from ACAT will include a Notice to Respondent (that’s you) telling you the date of the hearing and the date by which you should lodge any defence you want to make.

3. Deciding whether to Defend the Eviction

If you want to keep your home, you will need to defend the eviction.

4. If you don’t agree with the reason for the notice

The easiest way to defend an eviction is to show that you did not breach your tenancy agreement. If you believe you have not breached the tenancy agreement in the way Housing ACT thinks you have, you simply need to show ACAT there is no breach and therefore no basis to end your tenancy.

For example, you have not failed to make a rent payment and Housing ACT’s calculations are incorrect; or the noise being complained about does not come from your place but from somewhere else.

5. If you acknowledge that there has been a breach

5.1. If you have remedied the breach

In most situations, if you have remedied the breach Housing ACT will not pursue their application in ACAT.

If you find yourself in ACAT and Housing ACT are still trying to evict you, you should explain to ACAT how you have fixed the problem, and why the problem is unlikely to happen again.

For example, since Housing ACT has applied to ACAT, you have removed all of the furniture on your front lawn and mowed the lawn.

5.2. If you have not remedied the breach: not rent related

If you have not remedied the breach, and the breach is not rent related, Housing ACT will need to prove that the breach of your tenancy agreement justifies termination. Usually, this will involve ACAT looking at the circumstances, like how bad the breach is, the likelihood that you will fix the situation, the impact on those around you, and the impact that eviction will have on you.

For example, if you have installed a garden shed without the written consent of Housing ACT, but this does not undermine the tenancy in any way, and you undertake to remove the shed and make good any damage to the lawn when you vacate, it is unlikely that breach would justify termination.

5.3. If you have not remedied the breach: rent arrears

If you have fallen into rent arrears and have been unable to repay Housing ACT by the time you get to ACAT, and you wish to stay in your property, in most situations the best outcome is a payment order. Please see our factsheet entitled ‘Payment Orders’, Fact Sheet 12.

Your best chance of getting a payment order is being able to show you are willing and able to pay rent (and something towards your arrears) in the future.

6. Lodging a Defence

The documents from the ACAT Registry will include a form headed “Response – Resolution of a Dispute under the Residential Tenancies Act 1997”. Although the Notice of Hearing will also indicate the date by which your response should be lodged (usually about a week prior to the hearing), you do not have to lodge a response. Most tenants will defend the eviction at the hearing itself.

If you don’t lodge a defence, the hearing begins with the ACAT Member knowing only one side of the story. It may make no difference to the outcome, but advance notice of your position may give the ACAT Member a better and more sympathetic understanding of your circumstances.

If you wish to give ACAT advance notice of the fact that you will contest Housing ACT’s application, you can complete the form and lodge it at ACAT by the due date. You can hand-write on the form as long as it is neat and easy to read, and/or you can type an accompanying statement. A copy of your Response will be sent to Housing ACT prior to the hearing.

7. Before the Hearing

There are some other things you can do to prepare:

  • Hearings are open to the public and it can be very helpful to attend other hearings before your own to see what the processes are. The ACAT registry officers can tell you when there are hearings in the week before your own, and which are eviction matters.
  • Organise all your documents into a folder, put them in chronological order and label them so you can find them easily during the hearing.
  • If you have any witnesses, make sure they are able to attend on the day and know where to go. On the day, witnesses need to remain outside the Hearing Room until called to give their evidence.
  • Assemble your evidence. ACAT is not a court and is not bound by the Rules of Evidence, but in order to convince the ACAT Member that you should not be evicted, you need to have reliable evidence to support the statements you make in your defence. For example, a receipt is evidence that a payment has been made; a dated photograph is evidence of the condition of the property; a statement from a neighbour that there has been no loud music for the last 2 weeks is evidence that you have remedied the breach.
  • There are usually a number of matters listed in ACAT for the same time. It’s important to be at ACAT on time, but you also need to be prepared to wait while other matters are heard before yours.

8. What if I Can’t Attend the Hearing?

It is possible to get the hearing date changed by seeking an adjournment, but you need to have a good reason for requesting this. For example, illness, a death in the family, a court appearance on the same day.

If you need an adjournment, it can be helpful to contact Housing ACT first to see whether they will agree to this and, if so, then fax, email or hand in a letter to the ACAT Registry saying that the parties have agreed to an adjournment and why.

If Housing ACT do not agree to an adjournment, you should ask ACAT for an adjournment. Usually, you would need to provide ACAT with a medical certificate or other evidence of incapacity to attend.

Do not assume that your matter has been adjourned. It is really important to follow up with ACAT prior to the hearing to confirm the outcome of your request.

9. What if the Hearing Goes Ahead Without Me?

If you do not turn up to a hearing and the ACAT Member has only Housing ACT’s application to go on, the ACAT Member is not likely to adjourn the matter, unless Housing ACT suggests or agrees to an adjournment in your absence. If Housing ACT opposes an adjournment and the Member is satisfied that the grounds for eviction exist, it is likely that orders ending your tenancy will be made. These orders are known as ex parte (without one of the parties).

If you do not agree with these orders when you receive notice of them, you can apply to have them set aside. However, ACAT will only set aside the ex parte orders and agree to hear the matter again if satisfied on 2 issues:

  1. You had a reasonable excuse for not turning up to the first hearing; and
  2. There may be a basis for making different orders.

10. The Hearing

When your matter is called, you take a seat at the tables in the Hearing Room. The Housing ACT representative sits on one side, you on the other side and the ACAT Member sits in the middle. The ACAT Member usually introduces him/herself and invites the 2 parties to introduce themselves. The proceedings are taped so you should speak clearly.

It is intended that the hearing process is fairly informal, and the parties understand what is going on. If you find the language unfamiliar and confusing, you should ask the ACAT Member to explain anything you don’t understand.

Generally, the Housing ACT representative will speak first, and give their reasons for seeking your eviction. You should take notes of any statements you don’t agree with or want to comment on, so you don’t forget when it’s your turn to speak. The ACAT Member may also ask you questions. The important thing is that you should have the opportunity to say everything you want to say. As long as you don’t interrupt either the ACAT Member or the Housing ACT representative while they are speaking, there is no strict order as to who speaks when.

Sometimes either the ACAT Member or the Housing ACT representative will suggest that the outcome of the hearing could be worked out by agreement or ‘by consent’. This is often a good outcome for a tenant, if Housing ACT is agreeing that the eviction will not proceed, but it is very important to know exactly what you are agreeing to, and what will be required by the consent orders.

11. What Orders can ACAT Make?

ACAT can decide to do any of the following:

  • Refuse to make an eviction order, and allow the tenancy to continue;
  • Order that the tenancy terminates immediately;
  • Order that the tenancy is to terminate but allow a period of time (up to 21 days) for the tenant to vacate;
  • Order that Housing ACT be compensated for any loss arising from the tenant’s breach of the tenancy agreement. For example, any rent owing.

In addition, where rent arrears is the reason Housing ACT is seeking an eviction, ACAT can make a payment order.

Please see our factsheet entitled ‘Payment Orders’, Fact Sheet 12.

12. What if I Disagree with ACAT’s Orders?

You can appeal an ACAT decision to evict you. The first avenue of appeal is within ACAT itself. The law allows 28 days (from the date of the decision) to lodge the appeal, but in practice you would need to act very quickly in order to stop the eviction from going ahead. An appeal may be based on a question of fact or law.

It is important to seek legal advice before lodging an appeal.

13. Variation of Payment Order

You can apply for a variation of an ACAT payment order. This would generally be on the basis that there has been some change in your circumstances since the orders were made. For example, you could ask ACAT to reduce your rent repayment instalment from $40 per fortnight to $20 per fortnight because your income has significantly reduced. You should seek legal advice if you are thinking about making this type of application.

14. If you decide to move out

If you decide to vacate without defending Housing ACT’s application, you should pay whatever you can towards the arrears, advise Housing ACT that you are leaving, leave the house clean and undamaged as far as possible, and return the keys. In this way you can ensure that the tenancy has ended and you do not owe rent beyond the day you vacated. You may also be able to avoid a further debt for “tenant responsible maintenance”.

15. Need legal help?

Canberra Community Law provides a free, independent and confidential duty lawyer service at ACAT each Thursday for the residential tenancy public housing list.

It is a good idea to arrive at ACAT at least 60 minutes prior to the hearing time to ensure you have time to speak to our duty lawyer about your matter.

It is important that you bring to ACAT, the tribunal documents and any other documents you think may be relevant (eg receipts for rent payments, support letters, proof of income).

If you have problems finding our duty lawyer ask ACAT staff at the front counter for assistance.

If you need legal assistance at ACAT when our duty lawyer is not there, phone us on 6218 7977 and ask to be urgently put through to a lawyer. If you cant get through to us please tell the ACAT member and Housing ACT that you would like to obtain legal advice before the hearing goes ahead.

Access to Interpreters

The ACT Government is committed to ensuring that all Canberra residents, regardless of their background, have equal access to its programs and services. It is ACT Government policy to use professional interpreters when speaking with people who have difficulty communicating in English.

You are entitled to an interpreter free of charge when dealing with an ACT Government directorate or agency (such as schools, hospitals and Shopfronts).

Simply ask the staff member you are dealing with to arrange an interpreter.

Disclaimer

This fact sheet contains general information available at the time of printing. It does not constitute legal advice. If you have a specific legal problem, please contact Canberra Community Law’s advice line on 02 6218 7900.

Canberra Community Law is entirely independent of Housing ACT. All assistance is free.

May 2019

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15. Eviction from Your Home

1. What Could Cause Your Eviction?

In general, there is no fixed term in the tenancy agreement of a Housing ACT tenant. You have a periodic tenancy which may continue indefinitely until you decide to leave and give the required 3 weeks’ notice of your intention to vacate.

However, it is a mistake to believe that Housing ACT cannot or will not end your tenancy.

What Breaches Could Lead to Eviction?

1.1. Rent Arrears

The most common breach of the tenancy agreement is getting into “rent arrears”. This means you are behind in the rent because you have not paid on the due date or you have paid less than the amount due.

There are lots of reasons for getting into rent arrears and sometimes the circumstances are beyond the control of the tenant – for example, if you suddenly lose your income.

Housing ACT will not usually start eviction proceedings the minute you miss one payment or make a payment that is short of the full amount due. However, if for any reason you are unable to pay the rent as due, you should immediately advise Housing ACT and say why this has happened and how and when you will make up the shortfall. You should then do what you have undertaken to do. You may experience pressure to catch up immediately with a lump sum payment. Do not agree to this unless you know you have the means to do it. It’s much better to pay by instalments that you can (and will) manage.

1.2. What if You Don’t Agree that You’re in Arrears?

Mistakes and misunderstandings can occur, so check your method of payment, and ask Housing ACT to check their records. Sometimes the problem is that your rebate has expired, and you have been charged the full market rent for your home. (For more information on rebates, see Fact Sheet 2: Rent and Rent Rebates).

DON’T ignore any sign that you may be in rent arrears; and

DON’T hold back the rent because of some other problem. Even if you think Housing ACT is breaching the tenancy agreement in some way, you still have an obligation to pay rent.

1.3. Other Breaches

There are a few other ways you can breach your tenancy agreement – for example, by failing to take reasonable care of the property, making alterations to the property without Housing ACT’s consent, being a nuisance to the neighbours, using the property for illegal purposes, refusing access to Housing ACT, or subletting without Housing ACT’s consent.

2. Other Reasons for Eviction

Although in general Housing ACT tenants have security of tenure, there are some situations where Housing ACT may require you to leave your home even though you are not in breach of your tenancy agreement. For example, Housing ACT may have decided to sell the property or otherwise dispose of it. This is usually because there are major problems with the property that Housing ACT has decided cannot be fixed, or are too expensive to fix. In such a case, you should not be made homeless; you should be offered transfer to a suitable alternative home.

WHATEVER THE REASON, IF YOU ARE THREATENED WITH EVICTION YOU SHOULD SEEK LEGAL ADVICE.

3. The Eviction Process

Generally, before an eviction can take place the law requires all lessors, including Housing ACT, to take a series of steps.

3.1. Notice to Remedy a breach of the agreement

This is the first step in the eviction process. This notice advises you that Housing ACT considers you are breaching your tenancy agreement and gives you a period of time in which to remedy that breach (that is, fix whatever is the problem).

If the breach is rent arrears, the Notice to Remedy will give you 7 days to make up the arrears. The rent has to be at least 7 days in arrears before this notice can be issued.

If the breach is something other than rent arrears, the notice will give you 14 days to fix the problem.

If Housing ACT is satisfied that the breach has been remedied within the notice period, no further action will be taken. In practice, you can generally negotiate with Housing ACT so that a process for remedy is worked out that is acceptable to both parties. For example, it may be agreed that the rent arrears of $100 are to be made up by extra payments of $20 per fortnight over the next 5 fortnights, or it may be agreed that the overgrown garden will be got under control over a period of 6 weeks.

3.2. Notice to Vacate

This is the notice you will receive if Housing ACT is not satisfied that you have remedied the breach within the required (or agreed) time.

NOTE: if during your tenancy you have previously received 2 Notices to Remedy for failure to pay rent, and you then fail to pay rent again, Housing ACT can issue a Notice to Vacate without a further Notice to Remedy. In relation to other breaches of the tenancy agreement, if you have previously received 2 Notices to Remedy on any grounds and Housing ACT believes you are in breach of the agreement again, they can issue a Notice to Vacate without first issuing a 3rd Notice to Remedy.

A Notice to Vacate tells you to vacate by the end of the period given. If the reason for the Notice is a breach of the tenancy agreement, the Notice to Vacate must give you a minimum of 14 days’ notice.

A NOTICE TO VACATE DOES NOT END YOUR TENANCY AND YOU DO NOT HAVE TO MOVE OUT IMMEDIATELY.

It may not be too late to try to negotiate an agreement to resolve the problem. There is no formal internal process for appealing a Notice to Vacate. However, if you believe there are some particular circumstances which caused your breach of the tenancy agreement, and Housing ACT may not be aware of these circumstances, you can write a letter explaining the circumstances and requesting that no further action be taken to terminate your tenancy.

If Housing ACT decides to act upon the Notice to Vacate they must apply to the ACT Civil and Administrative Tribunal (ACAT) in order to evict you.

YOU CAN ONLY BE MADE TO LEAVE YOUR HOME IF ACAT ORDERS THAT THE TENANCY HAS ENDED AND A WARRANT FOR YOUR EVICTION IS ISSUED.

In order to evict you Housing ACT must apply to ACAT for a Termination and Possession Order (TPO). ACAT will send you a copy of this application which is usually quite bulky as it contains a copy of your tenancy agreement and all the relevant correspondence between you and Housing ACT. There will also be a Notice of Hearing that will tell you the date ACAT will hear the matter, and the date by which you should lodge your defence, if you intend to defend the matter.

IF YOU WANT TO TRY TO SAVE YOUR TENANCY, YOU MUST GO TO THE HEARING.

4. Defending the Eviction

For more detailed information see Fact Sheet 16: Defending an Eviction.

In brief, to defend an eviction:

  • Be at ACAT at the right time on the right day;
  • Be prepared – have a list of the points you want to get across to the ACAT Member, for example, how/why you got behind in the rent, what steps you have taken and what you propose for the future;
  • Have ready and in good order any documents you want to show the ACAT Member; and
  • Keep cool and be polite, no matter what the ACAT Member or the Housing ACT representative says.

5. Need Legal Help?

Canberra Community Law provides a free, independent and confidential duty lawyer service at ACAT each Thursday for the residential tenancy public housing list.

Access to Interpreters

The ACT Government is committed to ensuring that all Canberra residents, regardless of their background, have equal access to its programs and services. It is ACT Government policy to use professional interpreters when speaking with people who have difficulty communicating in English.

You are entitled to an interpreter free of charge when dealing with an ACT Government directorate or agency (such as schools, hospitals and Shopfronts).

Simply ask the staff member you are dealing with to arrange an interpreter.

Disclaimer

This fact sheet contains general information available at the time of printing. It does not constitute legal advice. If you have a specific legal problem, please contact Canberra Community Law’s advice line on 02 6218 7900.

Canberra Community Law is entirely independent of Housing ACT. All assistance is free.

May 2019

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14. Rent Increases

1. The law in the ACT

A rent increase refers to the market rent for a property. Rent increases for tenancy agreements (leases) are covered by the Residential Tenancies Act 1997 (RTA).

The standard terms contained in the RTA specify that:

  • Housing ACT is entitled to increase the market rent for your property provided an increase in rent has not occurred in the last 12 months.
  • Housing ACT must give you 8 weeks’ notice in writing of their intention to increase the rent. The notice must include the amount of the increase and the date on which the increase will occur.
  • If you believe the increase is excessive, you may apply to the ACT Civil and Administrative Tribunal (ACAT) for a rental rate review.
  • If you decide to remain in the property without applying for review, the new market rent will take effect from the date specified in the notice.

Remember: if you are on a rebated rent, a rent increase will not change the amount of rent you pay, unless you lose your entitlement to a rebate.

2. Challenging Rental Increases

If you receive a notice of a rent increase and you believe that the increase is excessive, you can write to Housing ACT advising why the increase is excessive and asking that it be lowered or withdrawn (keep a copy of the letter).

If there is no satisfactory response, you may apply to the ACAT to have the increase reviewed. If you wish to retain this option, you must file an application with the ACAT at least 14 days before the rent increase is due to come into effect. There are some special circumstances where the ACAT will accept applications up until the day before the increase is due to come into effect, but don’t count on this. The ACAT does not have the power to hear an application disputing a rent increase once the increase has come into effect.

If you wish to leave open the option of applying to the ACAT while you are also seeking internal review, you still need to apply to the ACAT within the time limit. If the ACAT hears the application before the internal appeal has been completed, you can ask for the hearing to be adjourned while you wait for the outcome of the internal review.

3. Are there any limits on the amount of a rent increase?

The ACAT may disallow part or all of the increase if they find it to be excessive, initially based on a formula provided by the RTA. If the increase is more than 20% greater than the relevant increase in the Consumer Price Index, as it relates to housing in the ACT, Housing ACT must satisfy the ACAT that the increase is justified. If the increase is less than 20% but you still believe it is excessive, you must satisfy the ACAT why the increase is excessive.

Under the RTA, in deciding whether an increase is excessive, ACAT will also consider:

  1. the rent before the proposed increase;
  2. whether it has been increased previously, the amount of that increase, and the period since that increase;
  3. Housing ACT’s costs in relation to the premises;
  4. services provided by Housing ACT to you;
  5. the value of fixtures and goods supplied as part of the tenancy;
  6. the state of repair of the tenancy;
  7. rental rates for comparable premises;
  8. the value of any work performed or improvements made by you, with Housing ACT’s consent; and
  9. any other matter the ACAT considers relevant.

In considering these matters, no one factor carries more weight than the other. The weight to be attached to each factor may vary depending on the circumstances of each case.

Access to Interpreters

The ACT Government is committed to ensuring that all Canberra residents, regardless of their background, have equal access to its programs and services. It is ACT Government policy to use professional interpreters when speaking with people who have difficulty communicating in English.

You are entitled to an interpreter free of charge when dealing with an ACT Government directorate or agency (such as schools, hospitals and Shopfronts).

Simply ask the staff member you are dealing with to arrange an interpreter.

Disclaimer

This fact sheet contains general information available at the time of printing. It does not constitute legal advice. If you have a specific legal problem, please contact Canberra Community Law’s advice line on 02 6218 7900.

Canberra Community Law is entirely independent of Housing ACT. All assistance is free.

May 2019

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13. Death of a Tenant

1. Overview

Section 127 of the Residential Tenancies Act 1997 (the RTA) says that if at least one tenant remains, the death of a tenant in a shared tenancy does not end the agreement. This applies equally to private and Housing ACT tenants. What this means is that if your joint tenant dies, you should advise Housing ACT and lodge a new rebate application as soon as possible, and your tenancy continues.

2. Effect on Non-tenant Residents

Where there is a Housing ACT tenancy, the tenant dies, and the remaining people living in the house are residents only (not tenants), the situation becomes more complex, as the residents will have no automatic right to stay in the property. However, there are several ways the residents could remain in the property.

3. Tenancy by Implication

A tenancy by implication may arise where Housing ACT is aware of the fact that the tenant has died, but continues to accept rent from the remaining residents and takes no action to evict them. In these circumstances there is a strong argument that a new tenancy will arise in favour of the residents, starting from the date that Housing ACT became aware of the changed circumstances. In order for this to happen, all the elements of a tenancy (most importantly the payment of rent and exclusive possession by the occupants) must be satisfied.

4. Allocation of Tenancy to the Residents

Housing ACT has a discretionary power under the Public Rental Housing Assistance Program to allocate a tenancy to the remaining residents of the property in circumstances where the tenant dies. It may be, however, that Housing ACT will choose not to allocate the tenancy to a surviving resident if the resident would not qualify for housing assistance (particularly in relation to income or assets) or if the house isn’t within their entitlement (e.g. it has too many bedrooms).

5. Tenancy Inherited by Surviving Residents

Under the law a public housing tenant may bequeath the tenancy through their will to another resident in the property. However, Housing ACT may apply to the ACT Civil and Administrative Tribunal (ACAT) to adjust the rent or to terminate the agreement. In deciding about such an application, the ACAT must consider whether or not the resident(s) in the property meet(s) the eligibility criteria for public housing.

It is advisable for residents to seek expert legal advice before relying on either of these possibilities for remaining in the property.

Access to Interpreters

The ACT Government is committed to ensuring that all Canberra residents, regardless of their background, have equal access to its programs and services. It is ACT Government policy to use professional interpreters when speaking with people who have difficulty communicating in English.

You are entitled to an interpreter free of charge when dealing with an ACT Government directorate or agency (such as schools, hospitals and Shopfronts).

Simply ask the staff member you are dealing with to arrange an interpreter.

Disclaimer

This fact sheet contains general information available at the time of printing. It does not constitute legal advice. If you have a specific legal problem, please contact Canberra Community Law’s advice line on 02 6218 7900.

Canberra Community Law is entirely independent of Housing ACT. All assistance is free.

May 2019

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