Protecting the rights of tenants in disability accommodation settings – Advance Your Advocacy Practice panel session

Melissa Hale

Good morning everyone welcome to Advance Your Advocacy Practice. My name is Melissa Hale and I’m the manager of the Disability Advocacy Resource Unit and it’s a pleasure to be your host of this session today. Before we start I would like to acknowledge that we’re meeting today on the land of the unceded land of the Wurundjeri people of the Kulin Nation and pay my respect to their eldest past and present. I would also like to pay my respect to all other Aboriginal and Torres Strait Islander people on this call today. Today’s session is about advancing your practice as advocates so please make sure you add to your learning by asking questions in the Q&A box, not the chat box, and I will put them on our put them to our presenters. We have Auslan interpreters available and we’re sorting out some technical issues with the captioning and they should be available shortly. If we run out of time our presenters will follow up with answers after the session concludes. The session will be recorded and available on the DARU website for your reference along with any other resources that I mention today.

Today’s session is about protecting the right of tenants in disability accommodation settings. Since the separation of specialist disability accommodation or SDA and supported an independent living or SIL there has been a range of changes in the disability accommodation arena including the law, the available option, compliance mechanisms and more. So today we have Naomi Anderson, Legal Practice Manager from Villamanta Disability Rights Legal Service and Miles Brown, Managing Lawyer Economic and Social Rights Program from Victoria Legal Aid who will take you through some of the steps that you can take as Advocate to assist your client to assert their rights in relation to where they live. So please extend a warm welcome to Naomi and Miles.

Naomi Anderson

Thank you is my video working? No it doesn’t seem to be now. It was when we tested it a moment ago. Miles do you want to get started on the first couple of slides while I fix that?

Miles Brown

Of course, welcome everybody the next slide please. The agenda, this is just an outline of the agenda for today, I won’t take you through it in detail but you’ll get a sense of the issues that we’re going to cover in this session. Next slide please. So the first big issue which I think Naomi is going to speak to is what is a SIL house and the context for this is obviously as Melissa introduced I think we’re all grappling as advocates with the rather complex arrangements around housing rights with the introduction of various types of housing under the National Disability Insurance Scheme. In my presentation later on I will talk about a bit of the history of that and the move which we’re all familiar with from Victorian government paid for and managed and regulated housing for people with disability through to a much more privatised market where individuals are engaging directly with service providers in a range of kind of complicated arrangements for Specialist Disability Accommodation and SIL housing. When Naomi and I first talked about the idea for this session part of it was our own desire to get our heads around a very different environment. As advocates who work closely with tenants and renters in accommodation settings to advise them about their rights and as people who were concerned about ensuring that new provisions that had been introduced by the Victorian government were able to be effectively used to protect the interests of our clients and residents, and that those who were providing services, particularly in a private market were sure that they were being properly regulated, and that residents were aware of their rights. So that’s kind of the overall kind of context for this session. Now Naomi how are you going with your camera? It doesn’t feel like it’s going that great.

Naomi Anderson

It’s not going that great, I might have to log out and come back in. But yes I would just add that the SIL house is something we just like to cover off quickly if we can go to the next slide Damian. The big shift that we’ve been seeing in accommodation settings is the difficulty with there being absence of accommodation options and various providers  making arrangements and putting things in place in an attempt to get around that, because they can’t actually provide SIL Services unless there is a home, a place for that to happen. So the term SIL house has been around for a couple of years now and it’s not a term with any legal meaning. It’s used to describe a range of setups where providers have attempted to address the fact that the client needs a place to live, but the tenancy is not part of a SIL contract and it must be separate. So the use of the word SIL house implies that the housing and the SIL come together and SDA and SIL are supposed to be separate as in any tenancy and SIL should also be separate. So we have this situation that is really murky and nobody’s really clear what it is. So what we’ll be doing is looking at what the options are today and trying to understand how they differ from each other and what the various rights and responsibilities are within each of those, and then we’ll double back towards the end to have a bit of a chat about SIL houses and where does that lead us. As it says on the slide it’s unclear what VCAT will make of these arrangements there is yet to be a case before VCAT but I think that’s only a matter of time. So I’ll let you crack on with the next few slides that are yours Miles and I’ll log out and come back in.

Miles Brown

Sounds great, good luck! Next slide please. So a little background, many of you would be aware of this background but I before the National Disability Insurance scheme came in there are a number of pieces of legislation that regulated housing in Victoria. So we have tenants and rooming house residents who were covered by the residential tenancies act and that includes, as well public housing and community housing. We have a range of kind of government funded services for people with disability or who need health support through the Disability Act, which includes as well forensic environments. And then we had since 2010 Supported Residential Services and at the time that legislation came in there was around 6,000 Victorians living in Supported Residential Services which are privately owned businesses providing accommodation and support to residents and where the Supported Residential Service provider determines the services that are offered in the fees payable. They were previously regulated under another piece of legislation. So that was the kind of rights environment and the legislative environment for a range of housing for our clients.

The National Disability Insurance Scheme led to a number of changes, firstly those people living in Disability Act type accommodation were prioritized for transition to the National Disability Insurance Scheme as it was rolled out. So we had the first kind of agreements around specialist disability accommodation funding and SIL funding in those plans. We also had in 2019, so six years after the National Disability Insurance Scheme,  formally became part of Australian society we had the Victorian government creating in the Residential Tenancies Act the concept of an SDA enrolled dwelling, and the idea there was that by the end of 2019 all of the people living in  group homes under the Disability Act would be effectively transferred into NDIS plans and would have coverage under the Residential Tenancies Act as SDA residents. I’ve put in a case here, I won’t go into a lot of detail, but basically at the beginning of 2023 it became clear that those arrangements that were anticipated in 2019 were not working for a number of reasons. Quite a few people in group homes did not get SDA funding so the government was working with them to get them SDA funding in terms of engaging with the NDIS about tha3t. Ultimately others were not eligible for SDA funding. And then there are, and so what what you had was, oh there was also, sorry, issues with getting people to sign agreements during COVID. There was a preference, very understandable one, for those conversations around SDA agreements to be in person.

As a result, in that case, it was found that in fact the transition wasn’t effective, and so what we’re seeing with this new legislation is a reconsideration of how to fund the, or how to move people from that group home environment into SDA type regulation, under the Residential Tenancies Act what was originally envisaged. So that’s kind of the context for what we’re about to talk about around SDA dwellings. Next slide please. I’m going to race through this because we’ve got a lot to cover, but just thought I’d quickly set out particularly in the slides the various or the the key accommodation arrangements that still are continuing under the Disability Act. So we have Residential Services which the definition was tightened but we should expect to still have clients in residential services arrangements and the key thing here as that they’re provided by a disability service provider with rostered staff and where the admission to the home is approved by the secretary. And there’s a list of those providers that you can click on when we share the slides with you after the session. Now the thing to know here is that the termination of residency here is under the Disability Act and there’s really no role for VCAT, so these are this is probably the least protections that anybody in Victoria has in terms of housing who is in disability accommodation. Next slide please.

As mentioned group homes, so these are a type of residential service considered as a group home. Under the new legislation the government is making a further attempt to transition these to SDA dwelling. So we will only see these operate I think as or the Disability Act protections referred to here will only apply until July 2024. But there is termination provisions people can go to VCAT but there’s no reasonable proportionate test which you will see under under the other protections that we’re about to talk through. And then just to note the specialist forensic disability accommodation as well, which is a type of residential service. Next slide please. I also mentioned the private operators regulated under the Supported Residential Services Act. Quick summary here for people to have a look at once they get the slides. I might just flip to next page please.

The key things to know as I mentioned, is that they’re run by providers, private providers on a commercial basis, and some of the key differences are set out there. But again these matters can go to VCAT. But again there is no reasonable proportionate test for these types of matters, different fee structures and the thing to reiterate as well is you need, the residents will need to have an agreement both about accommodation and services. All of the SDA dwellings, sorry all of the Supported Residential Services dwellings in Victoria you can access online and I meant to add a link here sorry. But so I think many of us would be familiar with those Services. Next slide please. Finally the Residential Tenancies Act, as I explained earlier, covers rental agreements and rooming houses. I think the key thing I wanted to say here, because it kind of feeds into our conversation about SDA dwellings, is if you have exclusive possession of a room or a whole premises then you do not need a written agreement to establish that you have a tenancy for that room or rented premises. That’s simplifying it a little bit but I guess the thing to say is the idea of this legislation is that it is to provide protections to people who have entered an agreement to rent a property or are living in a rooming house. Regardless of what the terms of the particular agreement are so, it’s what we call statutory protections.

I think the tricky thing with SDA dwellings, and I’ve referred to it here, and something we’re going to be working through as advocates over the next year I think, will be that there is a carve out in the legislation for residents where there’s health or residential services being provided. And whilst the Residential Tenancies Act makes clear that SDA enrolled dwellings aren’t impacted by that carve out, and the idea is that they are covered by the Residential Tenancies Act, I think there’ll be some work for us to do to unpick the scenarios where you have an SDA enroll dwelling or health or residential services and it’s clear that the government intention is that anything that looks like an SDA enroll dwelling should be covered under the legislation. The question will be making sure VCATS doing the same thing. Next slide please. It’s probably, I’ve just captured here or tried to capture here in this rather confusing slide, this is the current definition of an SDA enrolled dwelling in the Residential Tenancies Act. I think the key thing to know here is that currently it needs to be an SDA dwelling under the National Disability Insurance Scheme rules, so that is quite narrow. The intention of these, of the most recent reforms to come in July is to expand that, and if we can go to the next slide, so that the wording will change to SDA dwelling not SDA enrolled dwelling. It no longer needs to be enrolled as an SDA dwelling under the NDIS. So it now includes either an SDA dwelling or any other permanent dwelling that provides long-term accommodation and where Daily Independent Living support is provided to one or more residents with a disability funded service by a specified entity or program. But the additional layer is there needs to be either an SDA residence agreement or a residential rental agreement. So again this is some of the things we’ll be working through once this legislation comes in, to ensure our clients are protected under what is intended to be the protections from these reforms and I think that will be a continuing work for us as a group of advocates. Next slide please.

I’m going to quickly just take you through a handout that we’ve prepared that we are going to share with you. The idea of the handout is to summarise the different forms of tenant. The key ones that we encounter of tenant, people with disability in Victoria and the protections that people have under it. We’ve limited it to three, which is Residential Tenancies Act, Specialist Disability Accommodation, i.e what we’re talking about today, and then the Supported Residential Services, which I’ve referred to briefly, which is the private providers. We’re going to just the, it’s a three-page handout, which Villamanta did the bulk of the work on, and I think I found incredibly helpful in terms of pulling out the different roles of services, how rents calculated, upfront fees such as Bond, different rights, summary of the key duties, complaints processes and dispute resolution processes. I think the termination provisions are really useful to have here because they are all operate quite differently in terms of how you can evict someone, standards and registration, and then access to community visitors, so and with some links as well. So I’m hoping this will be a really useful tool and we’re not going to go through all of those rights in detail but Naomi is going to pick out some key ones over the rest of the session. Next slide please. Over to you Naomi.

Naomi Anderson

Thanks Miles and I’m back, yay! Okay so going back to the SIL house just briefly, we have seen a lot of these so-called SIL houses actually advertised as SDA, and part of the difficulty is that the resident has no way of knowing, pardon me, if they are SDA or not. You can’t just call up the NDIA and say is this an enrolled dwelling. You can’t call the NDIA, there’s no list, so unlike the SRS where you can actually jump online and look at the list and see is this one of them, with SDA you can’t actually do that. Do note there actually is a list of the providers that could be providing a residential service, so if somebody is claiming that they are a group home, which we have seen  and we’re fairly confident that they’re not, you look on that list that Miles was referring to and see if they’re actually one of the providers on the DFFH website. Big hint, if they’re a brand new provider, pretty sure they’re not going to be a group home because the group homes are those old legacy properties that were transitioned from DFFH to a small handful of large providers a few years back. If this service provider has just arrived on the scene in the last year or so there’s no way they’ve gone and registered with DFFH to become a provider of Disability Services under the Disability Act. So one thing of making sure they’re not a group home, if you check that list if they’re not on that list, it’s not a group home. That only gets you so far, so then having a look at what the other options are.

What space do they occupy, as Miles alluded to, so in a mainstream tenancy you get the lot exclusive possession, means you get the key and you can tell everybody else not to come onto the property. The only people who can come onto the property or into the home are people you invite, it’s yours, pardon me. With SDA it depends on the occupancy, for those who have sole occupancy it’s effectively exclusive possession. It’s the same as a mainstream tenancy, it’s your property, nobody else can come in but if you’re in a shared premises then you’re going to have some form of  a room, maybe a bathroom, maybe a shared bathroom, some common areas, and there’ll be areas that you can’t go into. I’m in an SRS because they’re so much larger you’re going to have your room and you’ll have access to shared areas. With a SIL house any or all of the above because there are arrangements that are being made up as people go along it could reflect any of those, but that is one of the questions that you’re going to want to ask fairly early on in establishing what exactly is going on here. Does the person have a key to the door and they can exclude everybody else? Or do they only have one room and are only allowed in certain areas? What does the tenancy agreement say? Now I acknowledge not everybody has a tenancy agreement and we’ve seen all kinds of agreements that are tenancy agreement, services agreement, tenancy services agreement, all of these things that people have made up. When you get the slides those three links will give move you to the end of the presentation where there is an image of what each of those agreements looks like. That will give you a bit of a sense of what the  proprietor thinks they’re offering you. You also may be able to tell from it what they’ve started, use they’ve used it as a starting point to make whatever agreement it is that they’re now offering. Who is the landlord? So in a mainstream tendency it’s the rental provider, in SDA it’s an SDA provider, noting what Miles has said about legislation changing next year and that becoming a little murkier, and in an SRS it’s an SRS proprietor and all SRS’s are regulated so the proprietors must be on a list. Next slide please.

So in terms of you looking at those tenancy agreements or residential agreements and trying to understand what it is. Quick tip is that towards the end, at the signature section, it’s going to probably say this agreement is entered into under section whatever  that tells you that is what they intended to be governed by. Now if they’ve taken one of these and they’ve changed it, at least from this you’ll know where they started and that’ll give you an idea of what the purpose or the the plan was at the beginning. Next slide  please.

Now I know none of you want to read any of these things, they’re all links and when you get the materials you will be able to click through to the links and you can have a look, and I know that you’re all thinking we’re not lawyers, you’re lawyers, you read it, we don’t want to know. Totally accept that, but it’s going to be important to know they exist when we get a little bit further into some of the examples. Next slide please. Okay we’ll be using SDA as an example to work through some of the topics today. Your handout, as Miles has shown, has the relevant information for mainstream tenancy and SRS. We know SIL houses are generally not SDA but if you understand what SDA is supposed to be like then you can at least understand what the problems are in relation to what is being offered for a SIL house. And please feel free to ask any questions as we go along Melissa can always interrupt if she feels the need and we will circle back to SIL houses at the end. Next slide please.

Miles Brown

Naomi there is a question. What’s the difference between a group home and a SIL house?

Naomi Anderson

Okay a group home is under the Disability Act and a group home was once managed by DFFH and then was transition to one of the large providers. If the organisation or entity running the so-called group home is not on that registered list it’s not a group home. So a group home is only what the legislation says it is you can’t just sit up and say oh we’re a group home! That’s not a thing. So if somebody has set up a property and they’re renting it out and providing services there it’s probably these SIL houses which as we’ll go through you’ll see that they combine tenancy and services in a way that shouldn’t be happening. And part of the job is to unpick that so that you can see what is actually a tenancy and what kind of tenancy is it, and what rights do they have as tenants versus receiving services. So in

relation to services on that topic, zero. Next slide please.

Or at least it should be. So the whole point of separating SDA out from SIL was to separate those two so that you receive your services and if you’re not happy with the services you could change your services, but you don’t actually have to change your home. So the tenancy is separate from service. This was a major shift and was intended to have all sorts of protections for tenants, but not unfortunately not all service providers are clear on this. A lot of the arrangements that we’re seeing have some uncanny relationships to what group homes used to look like. So it would seem that people who have experience in group homes have gone out and started setting up these SIL houses, or advising, or something. One of the first complications that arise obviously in any of these situations when you’re talking about the relationship to services is when co- residents share SIL and have differing views on who the provider should be. If you have four residents in a house and two are happy with the current provider and two are not, then what? But we’ll get to that further down the track. Next slide please.

Just by the by an interesting little thing that has appeared in the standard template for agreements for SDA and these are posted on the consumer affairs website and are available for everyone. These house rules, these seem to have come from group homes but if you think about what we just talked about, that the SDA and the services should be separate. Why is an SDA provider sticking their nose in what happens in the house? Surely people who live together can make their own agreements as to what happens in the house, and surely the SDA provider should not be involved in that. So even the template agreement provided by consumer affairs has some unfortunate legacy, mixing of roles, embedded in the way that they’re discussing things. Next slide please. So space occupied. We talked about exclusive possession, and we talked about a single room, and so those of you who’ve been around for a while have probably seen one of both of these. And these are examples only from Housing Hub. Not making a point about either of those, but you do have people who are in single occupancy SDA and here’s an example of a new apartment that is single occupancy, one person. And they would have the whole place to themselves. They have the key, they can let in who they do or don’t want, and they can choose whichever SIL provider they want. Completely separate SDA and SIL they just rent the property and then they can choose who they use for services. And then you compare that with your old style group home with multiple residents. Next slide please.

The rent for both of those scenarios is calculated in the same way as the reasonable rent contribution. So I’ve just taken the standard  pension rates there and worked it through, which gives you weekly amount of $229.49. So the person who has the whole entire apartment to themselves and the person who has one room and some shared common areas both paying the same thing. Next slide please.

$229.49 for the entire apartment, $229.49 for a room. Next slide please.

So what are they getting for that amount? The single occupancy and this is is just off the Housing Hub. I haven’t added any editorial. Brand new apartment in Brunswick, one bedroom, one bathroom, whole range of facilities, they have 24-hour access to the shared laundry room and dry space on the rooftop, which is partially covered. There’s a shared bath house and tool shed, and there’s a guest house available for visiting family and friends. Sounds very lovely! Not sure about the hydronic heating wall panel plumbed into building heating system I’ve never seen one of those very fancy.  Compared to that to the group home, you’ve got five bedroom, four bath, four other residents, plus staff, which would suggest somebody doesn’t have a bathroom. In Thornbury there are three other houses on the property and two shared living areas. The current residents are men aged between their 20s and their 50s. It’s surrounded by gardens with a large barbecue area. Family and friends to come and see they got a food forest, beautiful oasis, whatever that is,

and the vacant bedrooms have separate split system heating and cooling and they have a television in the bedroom, excellent, and built-in wardrobes. So you get a bit of a sense of a brand new modern facility versus one that perhaps is calling a television the feature, but anyway. Next slide please.

How does that compare to market? Well if you’re looking for one bedroom in apartment in Brunswick, and it’s quite new, you would be paying around $400 to $550 a week and this SDA tenant would be paying approximately half of that. So cost effective for them. The five bedroom house in Thornbury in reasonable condition, bit hard to find something to compare, but it’s $800 to $1200 a week. If you divide that by five you could be paying considerably less than this SDA tenant is paying, or you could be paying around that much. So it’s not clear that this is great value for money for the shared property. Next slide please.

So the question it was called in that calculation a reasonable rent contribution. Is it reasonable for the Thornbury resident and the short answer is we don’t know. It’s not been tested. But I would expect that if I were a resident in the Thornbury property, and there were four other residents, and all I had was a room with a TV, and I knew somebody in a brand new apartment who had the whole place and I was paying the same rent. I might have some questions. Next slide please. Bond, pardon me. There is no provision for the payment of bond for SDA. So if your client has paid a bond and it is SDA, either they’re not living in SDA or it needs to be refunded. There is no bond in SDA. Next please.

Board. Now this is again the part where I think whoever was involved in old group homes has had a say in how this has all been set up. Because it’s uncannily similar. So the SDA pricing arrangements say that the board must not exceed 50% of pension plus 100% of energy supplement. Now remembering that they’re already paying 25% of their pension and 25% of pension supplement and 100% of rent assessment for bond. This is leaving them with really not very much money. It must include meals and consumables, utilities, white goods, furnitures and fittings in common areas. But the interesting thing is that the provider must allow the participant to obtain these items from another source if they choose to, and the provider must not disadvantage the participant if they choose to do this. So if the participant was to say, “I hate the food that you have on offer here, it’s awful, I can’t eat it and I don’t want to pay for it,” they do have the right to say I’m not paying for food I’m going to get my own. Consumables, a little trickier, utilities, an interesting question and we will come back to this further down in the presentation. But if the participant has the right to obtain these items from another source, if they choose to, then they also have a right to understand how much is being paid for what and to have a breakdown of this expenditure, which  traditionally SDA providers are very reluctant to do. But just remember they do have the right to ask and they do have the right to that information, because otherwise how could they make an informed decision about whether they obtain those items from another source? So while providers will say that this is the price and it’s locked in, and you have no choice, that’s not entirely true. Next slide please.

So looking at some of the rights that residents do have under the Residential Tenancies Act they have a right to request a pet and I am quite sure that many people in a group home would love to know that they have a right to request a pet. And I would be fairly confident not many of them have been told that they can request a pet. Now obviously requesting is not the same as guaranteeing that they can have one, but it’s a conversation, and there are limitations on when the provider can say no. They can’t say no for just no reason at all. Privacy, and I suspect that privacy is quite new concept to many people in group homes. There  are in the ACT rights to privacy for people in SDA, quiet enjoyment and they they can have the community visitors to come and check on them. As an NDS provider of SDA the rights of the residents have are choice and control over who their SIL provider is that the SDA complies with various standards, that there is respect for rights to freedom of expression, decision-making and that one again privacy. Next slide please.

Of course residents have some responsibilities as well and nothing there that’s shocking to anyone. Pay your rent on time. Don’t use the SDA to set up a drug trade. Don’t damage or destroy the property, endanger people, don’t have fire hazards. Only have a pet if you have permission and etc. Next slide please. Again these slides and the handout will be available to you after the session, so if we are flying through it a little quickly you can always come back and read it in your own time. What responsibilities do providers have? Well some are entrenched in our responsibilities in the Act. For example not using the information provided by an applicant for other purposes. So if somebody applies to live in an SDA property not using the information would mean not then contacting the SIL provider in your same organisation and having them try to convince them to use their SIL. I suspect that there is a lot of information sharing that shouldn’t be occurring. So just keep in mind that your residents do have the right for that information to be used solely for that purpose. I’m sure we’ve all heard about the residents who have applied for various accommodations and had their reputation besmerched by people talking about them and then they can’t find accommodation anyway. So the information should be protected. Providers need to notify the resident if the SDA is to be sold. Not engage in misleading or deceptive conduct. Treat people with dignity. Keep it in good repair, reasonable things. Not require rent paid more than 30 days in advance, which is an interesting one especially after the case of Manning that Miles mentioned.

Most of you would be aware that group homes required payment of rent a month in advance, while some months have 31 one days frankly I don’t know why anyone pays month a rent by month, because everyone else in the world pays it weekly or fortnightly, which is when they get paid. So but keep in mind they can’t require it more than 30 days in advance. Next slide please. Some other duties – don’t charge a bond, don’t ask the resident for a guarantee about their duties, which makes me go back to those house rules of aren’t you asking them to guarantee some things? Don’t charge some various other dodgy things. I’ve listed the section there, you can go and have a look if you’re curious, and arrange initial utility check connection, and importantly not overcharge the resident for utilities. You will recall that you have the right to get your utilities from somewhere else. Well there’s also a requirement not to overcharge, which again if you don’t know how much you’re paying and for what, how do you know if you’re being overcharged? So always ask the question. If there are high expenses that don’t seem quite right, and on the utilities and rent front I would also mention that quite often we see the provider has a room in the accommodation. So it’s four bedroom but there’s also a living space that’s been turned into an office. Should they not be paying a share of rent? Should they not be paying a share of utilities? They’re effectively running a business from that property, they’re receiving income from the SIL that they’re providing on the premises. Anyway interesting questions. Next slide please.

Sorry back one. We’ve just gone to, thank you. Relationship to services, okay, massive conflict of interest. We will look through a couple of examples in a moment as to why, but effectively are they there as the landlord, or are they a support? So do you have your landlord in your lounge room watching what you do and noticing if you knocked the wall or if you banged it with your hand? So they know whether it was an accident or wear and tear? Does your landlord just turn up and walk in? Does your landlord know everything you do? No because they’re your landlord and there are only certain contexts in which they are allowed to turn up, and there are only certain contexts in which you must let them in and there are notice requirements. But if your landlord and your SIL provider are the same, and especially when staff are very aware of that, are they there to support you or are they there to keep evidence for your landlord? Are they respecting the privacy that you’re entitled to from your landlord when they’re your SIL provider? And we’ll go through some examples in a moment. Providers are expected to act with integrity, honesty and transparency. You know the NDIS code of conduct. If there is a combination of landlord and services that integrity, honesty, and transparency can be tricky, because who are they in any given moment? What are they doing? What is the basis for it? What if you have a falling out with the staff member and they say I’ll get you kicked out of here? Can they? Maybe? Your SIL provide as your landlord there’s a massive power imbalance effectively and you’re doubling down on that power imbalance when the SDA and SIL provider are the same. For people who have been in these situations for decades they understand what the problem is and those historical practices and assumptions have been there and are still there. The very reason SDA and SIL was supposed to be provided was so that the resident has more confidence and security and that power imbalance is reduced. So a couple of examples on the next slide.

An SDA provider can issue a breach of duty notice if an SDA resident has breached their duties. But they can’t do it in certain circumstances, for example if the act or a mission was of somebody who’s not the SDA resident. So if something wasn’t done or was done by the SIL provider then the SDA provider can’t issue a notice. But if the SIL provider is in the house and has all of the information and is the SDA provider that’s going to get messy. Any behavior arising from the SDA residents disability. Okay so if the SIL provider doesn’t do their job properly, the SDA resident becomes very distressed and then becomes very vocal and frustrated and bangs a wall, all of this is being noted by the SIL provider Any money that the incident report starts at the moment the resident did something and not what the SIL provider didn’t do, and now their landlord can issue a breach of duty notice because the SIL provider’s given them the notes. I’m sure you can see the same would apply for any of the others.

Failure to comply with a support plan or BSP, unauthorized use of restrictive practices or where there is abuse or neglect. Basically having a SIL and an SDA providers being the same brings your landlord into your home to allow them to do what they would not otherwise be able to do. Next slide please. Okay so just remembering there are all those other documents we talked about before. So there are SDA design standards and just giving you some examples of the sorts of things that are in there. Size of the the bedroom, size of the wardrobe above and beyond the bedroom,  the bathroom, with toilet shower and hand basin, must be an entry level or available to access by lift, kitchen with a must have a cooktop with a range hood and inbuilt oven.  Lockable windows, covered roof over the entire landing area at the main entrance, so when you’re coming in the front door you you’ve got cover to get in the front door there. Noting these are improved livability, so they’re very basic standard and the other other types – robust fully accessible and high physical support have additional requirements on top. So always good to remember that these exist and if you’re thinking this is kind of a small room, and this is kind of a lousy kitchen, check the standards. You never know it could be that they’re actually not complying with them. Next please.

Okay bringing all of that together, what do you do if there’s a problem? So this is why I said that we need to know all of those rules regulations etc because there are different forms and there are different ways of tackling the problems, and once you get to this point is when I would suggest get in touch with ourselves or Legal Aid or any of the other services at the end of this presentation. So excessive rent, there is the process where consumer affairs can investigate and there could be an application to VCAT for an order and that’s under the Tenancies Act. Excessive board – consumer affairs can investigate based on not being able not being allowed to pay, to overcharge on utilities, but also the NDIS Quality and Safeguards can look at it because it’s included in the SDA pricing arrangements. So you’ve got the choice, or you could do both. Notice to VCAT to vacates – VCAT breach of privacy though is a breach of duty notice then vacant for an application or the NDIA Quality and Safeguards Commission. So in each of these cases you’ll find that there is a State and a Commonwealth mechanism and it’s really a matter of deciding which is the preferable one in the circumstances or potentially using both. Next slide please. The pointy end, can the provider evict your client? Well there are multiple steps and in most of the cases that we see coming through, the provider hasn’t carried any of them out, a conversation, suggestion, meeting, or letter are not any of those steps and I can’t tell you the number of people say that oh no they’re evicting so and so. Okay well what did they do? Oh they told us! That’s not an eviction. So all tenancies have processes around this. We’ll go through the SDA one today, but remember that just a standard tenancy and SRS, they all have a process and there are steps that must be followed. Next slide

please.

Okay depending on the reason most of all or all of these steps will be required. So there might be a breach notice first, or it might be able to go to notice of temporary relocation immediately, then it needs to go to a notice to vacate. I’m going to keep mixing those up. At which point there can be an application to VCAT and then it needs to go to application for possession order. So until the provider has a possession order anything they say about, we’ll throw your stuff out, we’ll get the police to take you out, we’ll change the locks, no, no, no, no. Application for possession order is the point at which they ask VCAT to make an order that actually can be enforced until then no. Next slide please.

Okay a temporary relocation – there certain grounds they can make that not issue that notice and things like endanger safety and a range of other reasons around what the resident has or hasn’t done, that they’re no longer providing SDA, or they’re repairing renovating etc. It can be immediate but it can’t be for longer than 90 days, and there’s a range of other parties they need to notify. The resident must be relocated to suitable alternative by the provider and they can’t move another tenant in except for emergencies or very short-term accommodation. And at the end of that period the resident can move back unless a notice to vacate has been issued. In the meantime the SDA provider must be taking reasonable steps to resolve the issue. Remembering if the issue is a behavioral one, there need to be steps being taken to resolve. Next slide please. Okay so the person’s been add in temporary relocation, times ticking and a notice to vacate is the next step. So some of the reasons that that can be issued – the tenant owes 14 days or more rent, they’re endangering safety, serious disruption, etc, repair, renovate, reconstruct the dwelling or it’s just not going to be SDA anymore. Next slide please.

Now if it’s because they owe rent they must have actually been a breach notice issued first about the unpaid rent. So the breach notice has been issued and then the resident didn’t pay the rent within 14 days of receiving the breach notice. So 14 days overdue, then they issue the notice, then the resident still hasn’t paid within another 14 days, so you’re up to 28 days now before they can even issue the notice to vacate. So it can’t just come out of the blue. There has to have been all of these steps first. Next slide please.

Resident endanger safety – so they must have issued a notice of temporary relocation on the same grounds at least 24 hours before, and there needs to be a reasonable belief the conduct will continue to occur. So if there was a one-off bad incident and everybody acted badly and it was all horrible but it’s finished, that’s not enough. It needs to be ongoing behavior. Some examples of things that can’t be. So if it’s property damage, it can’t be just wear and tear, or an accident. The problem must be the resident and not something somebody else did. It can’t be a behavior related to their disability, or a result of a failure to implement their BSP etc. Next slide please.

The notice must specify the grounds, it must tell the resident they can apply to VCAT  within 90 days, and it must give them at least 90 days before they’re out. So those 90 days the resident can apply to VCAT, must be signed, must continue to provide the temporary relocation, and most importantly they have to actually provide evidence that what they’re saying happened. So which VCAT will call, made out so if they’re saying you know they put a hole in the wall, okay well where’s the picture tell us what happened. How do you know they did it? Next slide please. Alright we are running very short on time. So I’m going to go through this one quite quickly and then at the end we have some slides about who can help. We won’t take you through those but all of the information will come to you in the slides and the various organisations are listed there.

So when a notice to vacate is issued there are two choices. We recommend the first but the second one is still there. So challenge it – so this stops the clock effectively. So if the provider has said you need to be out by next Wednesday when you apply to VCAT to review the notice to vacate, everything stops. So they can’t kick you out until it gets to that Possession Order stage. But it can’t get to the Possession Order stage until VCAT has heard the review. So there’s going to be at least an initial hearing and if the notice was absolute rubbish then it will be thrown out and they’ll have to start again. Or if it actually was not a bad notice, but you need to go through the process of actually proving it, then possibly a full hearing, that gives them time. So depending on the scenario, maybe they’ve had enough and they want to go but they need time to find somewhere else that buys time, or maybe they want to stay and the provider is completely wrong and shouldn’t be doing any of this and it goes to full hearing and they haven’t had to move in the meantime. We always suggest challenging simply because it tells the provider you can’t just do whatever you want to do and it tells the resident you do have some rights, let’s go through this process and make them prove what they’re saying is true. If that hasn’t happened, if by the time you are aware of it, they haven’t done that and now there’s a request for a possession order, and remember that a lot of providers don’t even know they need to apply for a possession order, so they may not have done it, and there are time limits there as well. If it goes to VCAT for the Possession Order the resident still has an opportunity at that point to actually make their case and explain what the situation is. So just because they didn’t challenge it doesn’t mean they don’t get to have a say down the road at the Possession Order hearing.

If we can just have a quick skim through the next slide so that  people can see the organisations listed VLA, Villamanta, Community visitors, Mental Health Legal Center, Tenants Victoria, AMIDA, Consumer Affairs, NIDS Quality and Safeguards commission and then there’s some example residency agreements at the back. So all of that will be made available to you to look at in your own time. Melissa did I make it in time?

Melissa Hale

You did have time to spare! Well done, so thank you so much. There so, so much to unpack here and many changes to get our head around, but it’s really really helpful for advocates to have these tools in their kits and also to have the knowledge of what you guys do and all that sort of stuff. So when I come across cases like this I can get in touch with you and unpack some of the things further. Now we’ve had a number of questions in the chat so  we probably only got time for about two. So I try to pick two that we haven’t covered in the presentation already. So the first one is regarding the new definition of SDA dwelling, would this in the future also then cover individuals to receive 24/7 support from the NDIS in their own home, for example public housing even though their tenancy rights might be protected under the RTA anyway, would the obligation be on the housing provider change if the person is in receipt of support?

Miles Brown

I think that’s a really great question and I don’t, I was trying to come up with an answer, but I don’t think I have an immediate answer because I think it’s the type of things we should be asking over the next six months as we grapple with the new legislation. But I think it does seem to me that it could fit but I need to go back to the legislation and see if there’s a reason why it might not. But yeah great question and great for us to be thinking about and very happy to come back to you when I’ve done another look at legislation.

Naomi Anderson

Yeah and I think these are the sorts of things that we will be contemplating creatively where there is the possibility that they could be covered under the SDA Provisions. We’d be arguing that a Public Authority ought to make that available to the resident if they can opt in, why wouldn’t they, why wouldn’t they want to do the right thing as a Public Authority? So there could be some room in this space for interpretation because it’s not clear.

Melissa Hale

Great thank you. Let’s go with if a person is legible for SDA but their partner is not, can they live together?

Naomi Anderson

So my reading of this is if they’re renting a whole house, yes, it can be an SDA dwelling. If you have a look back at the definition page, which I know you can’t access now, the third there’s a third limb which is around a dwelling as a whole occupied under a residential rental agreement by at least one SDA resident, and other occupants who may not be SDA residents. I think it’s a different question around if you are in a room and your partner is sharing that room with you or in another room. And again I’m happy to have a closer look at that and come back to you, it’s a really great question. And it’s those kinds of scenarios I think that have led us to this situation where there are different settings because traditionally people with disabilities lived with other people with disabilities and why should they have to not live with their partner like the rest of the community does just because they need a special accommodation setting? And so things have adjusted to try to work around what people want and what providers are doing, but it’s not entirely perfect just yet. So we would hope that that is offered as an option and that the changes in legislation can adjust around it to make that work.

Melissa Hale

Yeah fantastic and I’ll go to one last question before we close. How are residents in SIL property protected from eviction?

Naomi Anderson

And that’s the burning question it’s really going to come down case by case to trying to fit them into one of these categories of what are they, at the least as Miles mentioned, that the residential Tenancies Act provides protections to people even where they don’t have a written agreement. So we would be saying that at the least they should have the protections of a residential tenancy even if it’s not at the SDA level that has those additional disability related protections. At the very minimum they should have the protections of just a standard tenancy. Yeah, Miles do you have a different view?

Miles Brown

No, no I mean I think if you, if I think there’s sometimes a bit of complexity around it, but I think that they’re good ones for us to be collectively working through and so do feel free to reach out to Naomi and me particularly me, but I think we’re both really keen to see examples of this and worked collectively to try to ensure that these provisions do what they’re supposed to do. And I appreciate that this session hasn’t had a lot of answers, it’s had quite a few, but not there’s some critical ones that we haven’t been able to answer. But I think we’re pretty committed to working with all of you to kind of make sure that there’s more clarity around this for our clients in the future.

Well thank you everybody, so we’ve come to a close for this session today so thank you very much Naomi and Miles from VIllamanta  and Legal Aid for your time and your contribution it’s been really fantastic and it’s clear to me that there is so much more to talk about and there’s so much more to unpack and just an hour isn’t enough really. Perhaps we need to go offline and talk about how we can unpack this a little bit more further. So we will take the questions that are left in the chat and then we will have a conversation offline about how we’re going to get back to everybody and attempt to answer some of these questions.

So thank you very much for your time today, thanks everyone, thank you everybody who attended this session today. So please watch out for a survey that will appear on your screen when you leave this session so we can see what other topics that you would like to learn about to advance your advocacy practice further. Thank you to the Auslan interpreters and captionist, wish you all a wonderful holiday season and we’ll see you in 2024.