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Appealing a decision by the Director of Housing

Last updated: 29 Mar 2021

Appealing a decision

Many decisions made by the Director of Housing (DOH) in relation to public housing can be appealed under the Department of Families, Fairness and Housing (Department) (formerly the Department of Health and Human Services) Housing Appeals Policy.

Generally speaking, all decisions relating to public housing managed by the Department can be appealed, except certain decisions which fall under the Residential Tenancies Act 1997 (Vic) (RTA) and which are subject to the jurisdiction of Victorian Civil and Administrative Tribunal (VCAT) (see Housing Appeals Policy, ‘Appealable and non-appealable matters’).

What matters can be appealed?

Common matters that can be appealed include:

  • Decisions about housing applications such as:
    • eligibility for social housing;
    • eligibility for priority access housing;
    • removal of an application;
    • special accommodation requirements;
  • offers of public housing;
  • relocations;
  • rental rebate assessments:
    • cancellation of a rebate;
    • backdating a rebate assessment;
    • rental subsidies;
  • tenant responsibility maintenance charges;
  • bond assistance;
  • requests for disability modifications;
  • movable units;
  • mutual swaps; and
  • transfers of tenancy.

This list is not exhaustive, and the grounds are not limited to those grounds contained in the Housing Appeals Policy.

Practice tip

In advising and advocating for renters in relation to housing appeals it is necessary to identify:

  • a decision by a housing service or agency;
  • the relevant policy governing the decision; and
  • the way in which the decision breaches or is inconsistent with the policy.

In order to demonstrate inconsistency between the decision and policy, it may be necessary to obtain a copy of the renter’s file. A freedom  of information request (FOI) may be required for this purpose). See Obtaining information from the Director of Housing.

What matters cannot be appealed?

Most decisions made under the RTA which are subject to VCAT’s jurisdiction cannot be appealed.

The Housing Appeals Policy lists the following as examples of non-appealable matters:

  • rental arrears recovery procedures, such as:
    • orders for possessions;
    • evictions;
    • notices to vacate;
      • legal agreements;
    • requests for emergency and responsive maintenance;
    • breaches of the RTA or tenancy agreement;
    • subletting; and
    • water charges.

Some issues that fall within the jurisdiction of VCAT (e.g. transfers of tenancy) can be appealed under the Housing Appeals office but only if the matter has not yet been subject to a hearing at VCAT. Issues relating to tenant responsibility maintenance charges can be appealed, regardless of whether or not the matter has gone to VCAT.

What principles govern the appeals process?

The Housing Appeals Policy sets out three governing principles for the appeal process:

  • Accessibility: ‘All clients have the right to appeal against departmental decisions relating to the provision of housing services they believe are incorrect (some exceptions apply). The appeal process must be client focussed and ensure clients can exercise their right to appeal quickly and effectively.
  • Redress: ‘The appeals process allows for decisions to be overturned where policy has not been correctly applied…’
  • Accountability: ‘The Housing Appeals Office must document all decisions clearly and openly to ensure the integrity of the process…’

Practice tip

Request reasons for decision in your housing appeal. A request for reasons is supported by the ‘accountability’ mandate in the housing policy and the Administrative Law Act 1978 (Cth) (‘ALA’). See Requesting written reason under the Administrative Law Act for more information.

How to appeal

If possible, parties should continue to negotiate and seek to resolve disputes before issuing an appeal.

If after speaking to the relevant local housing office the issue cannot be resolved, then a Housing Appeals application form should be lodged (see below). All relevant documentation and evidence should be included with the application. 

Case workers, housing workers and lawyers can assist with collecting evidence and completing and lodging the form.

Practice tip

Ideally parties will have received a copy of their housing file before lodging a Housing Appeal. Alternatively, if time does not permit, it may be worth lodging a FOI request at the same time as lodging a Housing Appeal and noting that further material /amendments /adjournments may be required following receipt of this material.

Housing Applications should generally address the following:

  • Facts: Provide a chronological summary of relevant facts;
  • Decision: Identify the decision in issue;
  • Policy: Identify the policy and specific provisions of the policy which relate to the decision; and
  • Inconsistency/breach: Relate the facts and the decision to the specific policy provisions. Demonstrate the way in which the decision breaches or is inconsistent with the policy.

Note it may also be worth referring to special circumstances of the client (illness, family responsibilities or other hardship) that may be relevant to issues of delay or inconvenience arising from the decision.

Download this Housing Appeals form.

Housing Appeals Process

There are 2 stages to the appeals process:

  • ‘tier one’ relates to internal review of a decision by staff at the local housing office and then by the Manager, Tenancy and Property, if the local office staff member does not support upholding the appeal;
  • if the appeal is unsuccessful at the first stage, it then proceeds to ‘tier two’ (referred to as ‘independent review’) where it will be considered by the Housing Appeals office.

The appeal automatically passes through each of these stages without need for further application by the appeal applicant.

Interview

At the tier two stage, the housing file is checked to ensure it contains all relevant information and supporting material. The Housing Appeals Office may arrange an interview with the appeal applicant to ensure the reasons for the appeal are clear, and to provide an opportunity for the applicant to provide their reasons for appealing and any information not previously available.

For more information see the Department website.

Access to information

The Housing Appeals Policy does not refer to the ability to obtain information relied upon by housing workers in their decision.

The Housing Appeals Policy does state that the local office is to ‘provide clear and concise information to clients regarding departmental policies and procedures’ and ‘ provide advice and information in regard to the appeal application and the basis on which the original decision was made.’ Despite this there is no clear directive suggesting the Department is to provide a tenant file where a Housing Appeal is to be (or has been) made.

Such documents can likely be obtained through making an FOI request. See Obtaining Information from the Director of Housing.

How else can matters be appealed / reviewed?

There are a number of potential ways in which issues can be reviewed or appealed, including:

  • the Minister of Housing;
  • VCAT (for matters arising under the RTA);
  • Victorian Ombudsman (jurisdiction to investigate decisions, actions and conduct of Victorian government departments and statutory bodies);
  • Victorian Equal Opportunity & Human Rights Commission (in relation to discrimination matters); and
  • the Victorian Supreme Court (judicial review).

Ministerial appeal

As suggested above, it is possible to write directly to the Minister for Housing in relation to matters of concern.

Ultimately it is likely that a ‘ministerial’ appeal will be dealt with in a manner similar to appeals under the Housing Appeals Policy. That is, the Minister will request information to confirm that any decision has been made in accordance with housing policy and is unlikely to intervene if housing policy has been followed.

Despite the similarities with the Housing Appeals Policy, it may still be worth writing to the Minister in relation to matters where there are special circumstances which apply to the client or where the matter may broadly be considered to be in the ‘public interest’.

Homeless Law lawyers should consult with their team leaders or the Homeless Law team before writing to the Minister.

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