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Negotiating with public and community housing providers in rental matters

Last updated: 29 Mar 2021

Whilst the steps involved in negotiating with the Director of Housing (DOH) (for public housing properties) and community housing providers (CHP) will depend on the issue at hand, the following steps should be kept in mind.

Identify the relevant decision

It is important to identify the DOH or CHP decision (or purported decision) that is subject to negotiation. Some common decisions include:

  1. Issuing a Breach Notice
  2. Issuing a Notice to Vacate
  3. Applying to VCAT for a possession order or compliance order
  4. Purchasing a warrant of possession

Obtain information and documentation about the decision

A written copy of the decision, and reasons for the decision should be obtained.

It may also be necessary to obtain other documents on the client’s file in order to be able to provide advice. See Obtaining information from the Director of Housing for more information.

Consider the relevant dispute resolution mechanism

It is important to keep in mind the available mechanisms for resolution of the dispute with the DOH or a CHP. In some situations, prospects of successful negotiation with the DOH or a CHP will be enhanced where a decision is appealed, a VCAT proceeding is commenced or another dispute resolution method is initiated.

Internal appeals through the Department of Families, Fairness and Housing appeals policies

For public housing, some decisions can be appealed through the Department of Families, Fairness and Housing (Department) (formerly the Department of Health and Human Services) internal dispute resolution procedures. See Appealing a decision of a public housing provider for more information.

CHP complaints procedures

For more information about CHP complaint procedures see Appealing a decision of a Community Housing Provider.

When dealing with a CHP (either a registered housing provider or a registered housing association), it may become appropriate to escalate a matter through to a complaint to the Housing Registrar.

Under s 97(1) of the Housing Act 1983 (Vic) (the Housing Act) 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) of the Housing Act. Complaints procedures are often presented by CHPs as informal “feedback”, however their existence and the external dispute resolution (EDR) remedies they enliven are derived from statute.

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 (including performance standard 6: CHP’s should ensure “transfers are minimised and eviction is treated as a mechanism of last resort”). Complaints cannot be made about matters that can be referred to VCAT under the Residential Tenancies Act 1997 (Vic) (RTA) (s 96(2) Housing Act).

Where a CHP fails to resolve a complaint within 30 days, renters are entitled to escalate their complaint to the Housing Registrar under s 98(1) of the Housing Act for EDR. A complaint can be made to the Housing Registrar in writing or via email (housingregistrarcomplaints@dtf.vic.gov.au). The Housing Registrar has the ability under s 100(1) 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.

VCAT

Some issues are not appealable through Housing Victoria’s appeals process, but are reviewable by VCAT, such as:

  1. Rental arrears recovery procedures (notices to vacate, possession orders, eviction etc); and
  2. Breaches of the Residential Tenancies Act 1997 (Vic) (RTA);
  3. Miscellaneous complaints that can be referred to VCAT for determination, such as disputes over service charges under s 57(4A) RTA.

For more details about these options, see Ending a rental and Tenancy at the Tribunal.

Judicial Review

The DOH and CHPs’ conduct and decision-making are amenable to judicial review, and in certain circumstances social housing tenants can take legal action in order to directly challenge the lawfulness of their landlord’s conduct and decision-making. Homeless Law considers that CHPs are functional public authorities for the purposes of the Charter of Human Rights and Responsibilities (Charter) (see Metro West v Sudi (Residential Tenancies) [2009] VCAT 2025, Goode v Common Equity Housing Limited (Human Rights) [2016] VCAT 93) which means they are obliged to comply with the Charter in making decisions under s 38 of the Charter.

Note that in the recent case of Durney v Unison Housing Ltd [2019] VSC 6, the Victorian Supreme Court found that a decision of Unison Housing to give a notice to vacate was not a function of a public nature under the Charter. It is Homeless Law’s position that it remains arguable that community housing providers are functional public authorities under s 4(1)(c) of the Charter despite the decision in Durney, noting that the Court did not consider this exact issue in Durney. It is therefore still arguable that community housing providers are bound to follow the conduct obligation under s 38(1) of the Charter.

Note that since the Supreme Court decision in Burgess & Anor v Director of Housing & Anor [2014] VSC 648, the decision to issue a notice to vacate can only be challenged prior to a VCAT hearing. Once VCAT makes a possession order, the opportunity to challenge the notice to vacate decision is gone, and a judicial review challenge must then be lodged in-between purchase and execution of a warrant, which can be a very narrow time-frame.

Other options

Other dispute resolution mechanisms include approaching the Minister, Victorian Ombudsman and the Victorian Equal Opportunity & Human Rights Commission (see Appealing a decision of the Director of Housing).

Negotiate with the DOH or a CHP

Ensuring that the DOH or the CHP have complied with their policies and procedures

The DOH’s policies, procedures and operational guidelines are available online in the Tenancy Management Manual. CHP policies are usually available on their website. If they are not available online, they can be requested directly from the CHP (though they may not be provided).

It should be confirmed that the DOH or the relevant CHP has complied with any relevant policies, policy statements and operational guidelines. If not, the non-compliance should inform the negotiations.

Ensuring the DOH or the CHP have complied with their Charter obligations

As the DOH is a public authority (and CHPs are on balance considered functional public authorities), it is unlawful for them to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right under the Charter.

See Using the Charter to advocate and negotiate for more information.

If the DOH of CHP is not willing to negotiate, the lawyers may consider lodging a complaint with the Department or the CHP about its obligations under the Charter (see above).

Ensuring DOH or the CHP have complied with their obligations under the RTA

Recent amendments to the RTA, fully implemented in March 2021, restrict the circumstances in which a residential rental agreement may be terminated.

It is therefore important to confirm that any notice to vacate issued by Housing Victoria or a CHP falls within one of the categories for valid termination contemplated under Division 9 of the RTA, and that the former RTA termination  provisions and the COVID-19 temporary measures are not being relied on.

Note that the DOH has more bases to terminate a tenancy that private rental providers or CHPs. See Checking Notices to Vacate for more information.

Making DOH or the CHP aware of the client’s hardship

The DOH or the CHP should be made aware of any mitigating factors or hardship that the client has suffered which has contributed to the issue at hand (e.g. family violence leading to property damage or financial stress causing leading to rental arrears).

This might include outlining in a letter:

  1. the negative impact that the DOH or the CHP’s proposed course of action will have on the tenant;
  2. any relevant personal or financial hardship the client has been suffering;
  3. the client’s personal or family circumstances which make them vulnerable; and
  4. the measures the client will take to address the issue at hand.

Escalate the issue to a DOH or CHP team leader

If any difficulties are encountered during negotiations with the DOH or the CHP, contact Homeless Law for advice about escalating the matter to a DOH or CHP team leader or manager.

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