Renters and prospective renters that are affected by decisions of a CHP on ‘matters relating to rental housing’ can make complaints under division 5, subdivision 2 of the Housing Act 1983 (Vic) (Housing Act): see s 96(1) of the Housing Act. Matters ‘relating to rental housing’ can include applications for housing, rental agreements, rent, tenure, and condition of the property.
Under s 96(2) of the Housing Act, complaints cannot be made about matters that can be referred to VCAT under the Residential Tenancies Act 1997 (Vic) (such as eviction issues). However, complaints can be made about a failure to follow (or provide) a CHP’s policies, unprofessional conduct, breaches of the Housing Act or breaches of the Performance Standards. Importantly, the performance standards include performance standard six: CHPs should ensure “transfers are minimised and eviction is treated as a mechanism of last resort”.
How can the appeal be resolved?
Complaint to the CHP
All CHPs are required to establish an internal complaints procedure that can accept complaints from tenants and prospective tenants who are affected by decisions of a CHP on ‘matters relating to rental housing’ under s 96(1) Housing Act of the Housing Act: see s 97(1). Complaints procedures are often presented by CHPs as informal “feedback”, but their existence and the external dispute resolution (EDR) remedies they enliven are derived from statute.
It may be prudent to first raise the relevant issue or decision with the CHP. However, in order to enliven the formal complaints process required by statute, it is important to be clear that the complaint is made under the formal complaints process (as opposed to being considered by the CHP as merely raising an issue).
Once a complaint is made, the CHP must take all reasonable steps to resolve the complaint within 30 days: s 97(2) Housing Act.
In making this complaint, it is important to identify the CHP’s decision (or purported decision) that your client wishes to complain about. It is also important to maintain clear written records of any correspondence with the CHP regarding the complaint (including acknowledgment of receipt of the complaint and advice regarding the outcome of the complaint) because it will be relevant if an escalation to the Housing Registrar is necessary.
Escalation to the Housing Registrar
If a CHP fails to resolve a complaint satisfactorily within 30 days, your client is entitled to escalate their complaint to the Housing Registrar for EDR under s 98(1) Housing Act.
A complaint can be made to the Housing Registrar:
in writing (Housing Registrar, Department of Treasury and Finance, Level 5, 1 Treasury Place Melbourne 3001); or
via email (email@example.com).
how your client’s complaint has not been addressed fairly or appropriately by the relevant CHP;
why the outcome (if any) is unsatisfactory for your client; and
how you want your client’s complaint to be resolved or addressed.
You should also include all relevant correspondence between your client and the CHP, including any documentation or advice from the CHP. By way of example, this could include an acknowledgment from the CHP of receipt of your client’s complaint; and/or advice from the CHP about the outcome of your client’s complaint.
Timely escalation is important. The Housing Registrar may refuse to investigate the complaint if your client fails to escalate their complaint within a reasonable time after the end of the 30 day period: s 98(2) Housing Act.
Once a complaint is escalated, the CHP must cooperate with the Housing Registrar’s investigation, and the Housing Registrar may appoint an employee of the Department of Families, Fairness and Housing: s 99 Housing Act. When the investigation is completed, the Housing Registrar has the ability under s 100(1) Housing Act to make binding determinations on the CHP, requiring them to remedy the relevant matter or to take other action to reduce the likelihood of future non-compliance.
To preserve the relationship with the CHP for Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) based negotiation and any post-possession order negotiations, it is best to frame internal and Housing Registrar complaints as a statutory entitlement to EDR under the Housing Act, rather than a “threat” or “punitive” measure.
It may be useful to signpost to the CHP early in the process that the client would like to follow their complaint/feedback procedures and exercise EDR rights before a matter proceeds to a Tribunal hearing and/or request that the CHP agree to an adjournment of any existing Tribunal proceedings while the matter proceeds through EDR.
Homeless Law pro bono lawyers should contact your Homeless Law in-house legal contact if the CHP refuses to hold off from taking steps while the Housing Registrar complaint process is being investigated to discuss next steps.