Specialist disability accommodation

Introduction

Part 12A of the Residential Tenancies Act 1997 (Vic) (RTA) ensures that safeguards are in place and rights are fully protected for people with disability living in Specialist Disability Accommodation (SDA). SDA is a form of accommodation provided to national disability insurance scheme (NDIS) participants who require specialist housing support.

What is SDA?

SDA is housing designed for people with extreme functional impairment or very high support needs and aims to give people with a disability the ability to live independently.

Part 12A imposes obligations on SDA providers, being a person who (s 498B):

• is a registered National Disability Insurance Scheme (NDIS) provider that provides specialist disability accommodation; and
• is the owner or leaseholder of an SDA enrolled dwelling,

SDA residents are defined (s 498B) as:

1. a person who is an SDA recipient. This means an NDIS participant who is funded to reside in an SDA enrolled dwelling; or
2. a person who is a CoS supported accommodation client. This means an older person who is receiving continuity of supports under the Commonwealth Continuity of Support Programme in respect of specialist disability services for older people; and who is not an NDIS participant.

An SDA enrolled dwelling is a permanent dwelling that provides long-term accommodation for one more SDA residents and which is enrolled as an SDA dwelling under the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) or the National Disability Insurance Scheme Act 2013 (Cth): s 3 RTA.

Note that SDA enrolled dwellings differ from residential services provided under the Disability Act 2006 (Vic). Victoria is still transitioning to the NDIS residency regime and some disability accommodation may still be regulated by the Disability Act 2006 (Vic). The exact regulatory regime the accommodation is governed by should be carefully considered for any clients living in supported accommodation.

Residential agreements

There are three types of residency agreements available for SDA. The resident can either:

1. enter into or establish a Part 12A RTA residency agreement;
2. entered into a Part 2 RTA residential rental agreement for a short-term lease (five years or less); or
3. entered into a Part 2 RTA residential rental agreement for a long-term lease (more than five years).

The advantage of setting up a residency agreement under Part 12A is that it gives the resident additional rights and protections.

Section 498I RTA requires an SDA residency agreement to be in the prescribed standard form, available on the Consumer Affairs Victoria website.

Obligations

Under the RTA, all SDA must:

1. meet National Disability Insurance Agency (NDIA) requirements; and
2. be enrolled with the NDIS (SDA enrolled dwellings). New providers wishing to deliver NDIS supports and services in Victoria must apply for registration directly with the NDIS Commission, in accordance with the National Disability Insurance Scheme Act 2013 (Cth). NDIS providers already registered with the National Disability Insurance Agency will have their registrations automatically transferred to the NDIS Commission.

The RTA imposes duties on SDA providers, which include to:

1. make sure SDA enrolled dwellings are maintained in good repair (s 498M);
2. install fixtures required for residents’ daily living, use and enjoyment of the dwelling (s 498M);
3. give an information statement to residents at least 7 days before they (s 498D(1)):
4. enter into or establish an SDA residency agreement; or
5. enter into a residential agreement.
6. disclose the relevant information under s 498LB;
7. explain the information statement and SDA residency agreement or residential rental agreement using terms and methods that residents can understand. They can do so verbally or in writing (s 498E).

What is the required content of information statements?

Section 498D requires an SDA provider to give an SDA resident an information statement summarising the rights and duties of SDA providers and SDA residents who enter into SDA residency agreements or residential rental agreements.

Under s 498D(3), an SDA provider must provide an information statement to:

1.  an SDA resident entering into or establishing an SDA residency agreement; or
2. an SDA resident entering into or establishing a residential rental agreement.

These information statements outline the features and protections of both types of residency agreements that can be offered to existing and new SDA residents. These statements are available on the CAV website.

SDA providers must provide an SDA information statement to existing residents at least seven days before they enter new residency agreements: s 498D(1) RTA.

For new residents, SDA providers must provide them with information statements at least seven days before entering into or establishing an SDA or rental agreement: s 498D(1).

Explanation requirements for SDA providers

Section 498E requires SDA providers to explain notices or information given to SDA residents under Part 12A in a language, mode of communication and terms they are likely to understand. This can be done verbally or in writing. T

The documents that must be explained in this way include:

1. information statements under s 498D;
2. information under s 498LB; and
3. other notice that can be given under Part 12A, such as a notice of rent increase or a breach of duty notice.

SDA providers must also explain Tribunal orders or directions made under the RTA in relation to SDA residents if the SDA resident was not represented by their guardian, administrator, carer, person chosen by them, Tribunal appointed litigation guardian or Australian lawyer: s 498EA RTA.

Protections

SDA residents are afforded various protections under Part 12A including:

1. the right to apply to the Tribunal for an order requiring the SDA provider to carry out specified urgent repairs which must be heard within 2 business days after the application is made (s 498P);
2. the right to make a complaint to the Director about excessive rent (s 498ZG);
3. the resident is not required to pay a bond (s 498ZL(1));
4. the resident does not breach their duty not to cause damage if the damage is because of fair wear and tear; their disability or reasonable use of the property or room (s 498N(3));
5. the resident can end the agreement at any time by giving the SDA provider a notice of intention to vacate (s 498ZZA);
6. in some circumstances, the resident cannot be asked to vacate property without first finding them suitable temporary accommodation (s 498ZX(3)(a)).