This was the second session at the Advocacy Sector Conversations forum held at Queen Victoria Women’s Centre on 14 November 2019.
Overview
Using consumer law to test the fairness and validity of Service Agreements within the context of an NDIS plan is a new and evolving area. The Consumer Law Action Centre has been tracking developments.Hannah Dodd, Solicitor at CLAC, shares some emerging trends and tips. Then Natalie Staub, Project Manager, Specialist Disability Accommodation Implementation Project at the Department of Justice and Community Safety, explains the changes to specialist disability accommodation (SDA) rental agreements in Victoria which are now regulated by Consumer Affairs Victoria via the Residential Tenancies Act 1997(RTA). This came into effect on 1 July 2019 and impacts Victorians who need SDA, residents already living in SDA, and SDA providers.
Links to resources mentioned in this presentation can be found at the bottom of this post.
Transcript & Audio
MELISSA HALE, DARU COORDINATOR:
The next presentation is in two parts but in one presentation. The first speaker is Hannah Dodd from Consumer Law Action Centre talking about using consumer law in the NDIS context. The second speaker is Natalie Staub from the Specialist Disability Accommodation Implementation Project at the Department of Justice and Community Safety around the reform to the specialist disability accommodation tenancy legislation. Welcome.
HANNAH DODD, CONSUMER LAW ACTION CENTRE:
Hi, everyone my name is Hannah I’m a lawyer at Consumer Law Action Centre. Today I will spend a short amount of time going through with you some ways that hopefully you can use the consumer law or even just be aware that the consumer law is available to assist clients that you may be helping as an NDIS participant.
I will start by saying this is standard disclaimer for a legal service, it’s not legal advice. It’s information only but we do have a worker advice line, I will be providing the contact details for you at the end. I’ll leave the pamphlet out at the door. We hope you really do contact if you have any issues that you see about what we might be speaking with today.
For my part of the presentation, what I’m hoping to go through is just flagging how the consumer law is linking with the NDIS now. Then going through a few of the key issues we’ve seen come up from people working with NDIS participants. Mainly for you to see it as a flag that if you see these things happening you think maybe CLAC can help with that, maybe I can give them a call because there might be more options in your toolkit of ways you can help your clients.
Then I can go through briefly a few ways that you can help us to assist your clients and also ways that you yourself if you have capacity can help your clients with consumer law issues. I will say generally we won’t be discussing anything today about the NDIS system broadly or any eligibility for the NDIS. Our service is by no means experts in the NDIS that’s you guys.
We are specialists in consumer law and we applied for this grant because we identified when the NDIS started that that meant consumer law now applied and we wanted to be across what issues were likely going to come up for participants who are now dealing with a new service that’s covered by the consumer law.
Equally, we won’t be discussing anything about reviewing plans under the NDIS or appealing decisions made by the NDIA. Things like that aren’t covered by consumer law. There’s a whole other set of legislation, which I’m sure you’re much more across than me. That’s something that is separate to the stuff we’re speaking about today.
Can I get an idea if anyone has heard of Consumer Law Action Centre before – that’s a good start. Has anyone called our worker advice line – no, that’s okay. Hopefully by the end of today you might be interested to do that if it’s something I can help with.
I guess with the NDIS like I said consumer law is only one small part of it but it is a big issue we’re seeing coming up more and more. We are trying to reach out to disability support workers and this sector generally to really come and contact with us.
We’re a campaigns based centre, so we’re a legal centre but we also have a big policy and campaigning team and also we run the national debt helpline for Victoria. We have a big financial counselling team.
We’re very strategic in the advocacy and the legal work we take on. We really want to know from you if there are issues that are cropping up over and over again with the NDIS. That means people like me can push the managers and campaigning team to take action on it and take more cases.
The NDIS when they came in, it meant that the Australian consumer law now applies to service agreements between NDIS participants and the service provider. The reason for that change is because previously all service provider agreements were between the Government and the service provider. I’m probably telling you things you already know but now they are an agreement between the service provider and the individual participant directly.
That enters them into the consumer market place and the Australian consumer law is available to those agreements. This is quite a significant change and I’m wondering that it’s something that previously disability support workers didn’t have to worry or the disability sector generally hadn’t needed to be across the consumer law because it’s a new thing that’s come into your space.
Just to give you a sense of the kind of issues that we’re trying to discover or be mindful of when helping clients that are NDIS participants I’ve got some phrases up on the board of some comments that might be made to people. Things like ‘this isn’t what I paid for, I was given the wrong impression about the service I was getting given,’ ‘they were misleading,’ ‘they pressured me into the decision’, ’the sales were made over the phone,’ or ‘they knocked on the door at my house,’ ‘the contract is really unfair, the business gets more out of it than I do,’ or ‘there’s debt collectors that are hassling me.’
All of those phrases of people probably in your own personal life at least if not with clients you’ve probably been familiar with having these things happen to you. If these are coming up there’s a good chance that there is an application of the Australian Consumer Law and there might be rights under the consumer law that could help clients in those positions.
I won’t be going through all of them today but I will be touching very generally on some of the key issues that like I said we have seen or that have been fed back to us by people working with NDIS participants.
The first one is consumer guarantees. The Australian Consumer Law has guarantees written into the law that when businesses sell goods or provide a service they must guarantee that those goods or those services come with certain guarantees.
They don’t have to be written into the contract they’re in the law already and they’re separate from any warranty or guarantee that’s already written into the contract. Suppliers cannot contract out of these guarantees. They can’t say they don’t apply to us. They can offer you more but they can’t take this is the base level.
In relation to goods the three guarantees I’ve put up on the slide there; the first is that the goods will be guaranteed to be of acceptable quality. Next, the goods will be fit for the purpose that they are being supplied for. That could be something that you’ve specifically asked for. For example, if you go to buy a car you say I want an automatic car I can’t drive manual and they go don’t worry we’ve got just the car for you and it comes out the lot and it’s a manual car it’s a car that works but it’s not fit for the purpose that you needed it for.
The goods also need to accurately match the description particularly this is relevant when you haven’t had an opportunity to view the goods before purchasing them. I’m not sure if this is something that happens when people receive products from NDIS providers. You maybe call up and order it and it comes in and you haven’t actually viewed it first.
One example of this happening is if someone is needing a new wheelchair. They receive the wheelchair but it’s pretty evident as soon as they get it it’s too large, can’t even reach the arms over the wrest and moving around in the wheelchair causes pain. When you contact the company, they say this is nothing to do with us we can’t fix it.
Has anyone had an experience like that – yep okay. I say in this circumstance the example I’ve got there is with Sally. Sally would probably have rights to say to that service provider regardless of anything with their NDIS package you sold me a wheelchair that is not fit for the purpose that I need it for and you knew what I needed it for so you need to either resolve this issue by making adjustments to the wheelchair at your own cost or if that can’t be done and it’s a significant problem that can’t be remedied they need to either give you a refund or replace it.
Equally, with service providers, service providers have an obligation to ensure that when they provide a service it’s done with due care and skill. They also need to ensure again that the service is fit for purpose and if there’s been no time frame allocated for when they’re going to deliver that service that it’s provided within a reasonable time frame.
I will say the third one is most often used against tradies who you’re trying to get work done at your house, that’s the most common complaint we get about the reasonable time frame. No disrespect to tradies but that’s the one there.
In relation to NDIS participants, the example that we’ve got there just to give you an idea is Mark who needs an OT he’s got a funding package that says they will deliver three hours a week. He verbally agrees with the OT that will be one hour three times a week. A few weeks later the OT changes the decision and says don’t worry I’m just going to come three hours once a week.
Strictly, the OT is not breaching the contract because the contract maybe isn’t written very well or the NDIS package he’s breaching the consumer guarantee to ensure the service provider is fit for the purpose Mark has made known to him. There may be rights there to be able to negotiate and push back with the OT to make sure the service is delivered in a way that’s fit for Mark’s purpose.
Has anyone got any examples of service providers or having issues like this, have you seen problems – there’s a few nods. Did you want to share with us?
RESPONDENT:
I have a particular case with a client with multiple sclerosis has been provided with some modifications to the home. Office of Housing are funding that and there’s long delays.
HANNAH DODD:
That’s a very good example of reasonable time frames and seems to be linked to tradies I alluded to earlier. The guarantees are often a good way of when the contract doesn’t help you or when there’s nothing written down you can’t refer them to anything. You say this is your baseline you have to do this for me.
If you do see issues like this please do contact us.
The next issue that comes up that we have been hearing from NDIS is deceiving and misleading conduct. This is one of the key issues why consumers generally contact our service; when a business has engaged in conduct that is misleading or deceptive or likely to mislead or deceive.
We have heard of service providers that are using logos or colouring that is very similar to the NDIS logo or colouring, which is potentially creating a false impression for consumers about what that service is or the integrity of the service or what it’s providing.
Misleading and deception conduct can be done by omission. It could be a silence, it could be allowing someone to go down a path of thinking a certain way by not correcting them when they form assumptions about the product or service that they’re providing.
I think that is the one that most often comes up where people say well they just sort of gave me this idea that I was going to get this service which was whatever it is but the contract doesn’t say that, and they didn’t tell me in the contract the bits that were different to what we’ve spoken about.
I’ll say generally that misleading and deceptive conduct because it is often done verbally can be a bit difficult to litigate on and to go to court with. At a level where you’re trying to negotiate with a service provider it can be quite powerful to put in writing that what your clients told you about the circumstances of the conduct, the allegation is quite significant.
The next one coming along is high-pressure sales tactics. This is generally something where a client is taken advantage of because of a vulnerability or perhaps a limitation on what they understand about the contract that they’re entering.
Traders being dishonest about the service or the goods that they’re selling and in some cases high-pressure sales or those kind of tactics could be considered unconscionable conduct, which is a more serious allegation and a very silly word that courts are not very good at defining.
I guess the key thing to look out for with high-pressure sales is if you’ve got vulnerable consumers who are being contacted by traders who are perhaps door knocking, which I’ll get to in a moment or contacting them by phone, pressuring them into signing up for things with the incentive of maybe getting a free iPad.
We’ve heard that from NDIS providers or pressuring them to sign up to a bundle package where they’re saying I only want this service. They say we only offer it with these three other services that are going to cost you more money but that’s your only option.
We are really interested to know about that happening in the NDIS sector. Our experience is in previous circumstances where there is government funding given or grants to organisations, for example Vet fee help a bit like NDIS giving a free marketplace is a good idea in some ways it also creates huge areas for exploitation by shonky providers who are there to make a quick buck.
We are guessing it’s happening at the moment because we haven’t had a lot of intel but you guys are seeing it every day so we really do want to know about it if it’s something that’s happening.
A little bit linked to that is unsolicited sales. This is basically door knocking is what most people see as unsolicited sales. Unsolicited selling is anytime someone approaches you to sell as opposed to you going into the shop and asking for it. It could be by telephone and it could also be by a door knock.
There is a prohibition on people coming to door knock. If you have a sticker on your door like the one I’ve got up there, if that’s of interest to anyone, I think we could arrange to send some out. It’s equally prohibited by law if you door knock someone that that person says I don’t want you to continue this conversation or I want you to leave they must immediately leave. They can’t continue to pressure the sale.
There is cooling off rights in the law when if you do purchase something through an unsolicited sale but the time limits are quite limited you do need to act quickly. If you do have a client who you see has sold something as a door-knocking outcome or by phone, please do call us. We have template letters that we can help you to send out to just stop the process or at least activate their cooling off rights.
We have seen this a lot with companies who sell health products or very extravagant extremely expensive beds or expensive chairs that they promise will assist people who don’t sleep well at night or have particular back issues or various different things that just simply aren’t true most of the time.
I guess the key issue with these is that because someone is invited into your home they sit down at your couch and they wear you down for an hour and people very easily get drawn into purchasing goods that they don’t need.
Do you have a question?
QUESTION:
Can that also apply to over the phone sales as well?
HANNAH DODD:
Yes, unsolicited sales is included as both telephone and door knocking. One thing I will note with this is the unsolicited sale laws will only be in effect in the first point of contact.
If they call you and say, I’ve got this product how about you think about it I will call you back tomorrow and the sale is made in the second phone call then it may not necessarily be these rights may no longer apply. It’s likely the consumer guarantees will still help you there because it’s probably a good chance that the goods aren’t fit for the purpose that you’ve made known.
The other one that I want to spend a bit of time on is unfair contract terms. The biggest feedback that we’ve received through people working in the NDIS space is the service agreements have some shonky terms in them that are causing quite a lot of problems for people to either get out of their agreements or being forced into.
Shifting to a different service provider or maybe a different location is that resonating with people that that’s a problem – yeah. There are laws that protect consumers from unfair contract terms in standard form contracts. A standard form contract is a contract where the business gives it to you and says take it or leave it.
We’re not negotiating the terms and writing it together. Here’s my contract and you can have it. Most contracts in this base are standard form and this law will apply. Some examples of an unfair term or some light bulbs that might be going off as warning signs is if there’s big penalties for cancelling the contract. For example, it might say something like if you cancel you’ve got to pay it all out regardless of whatever if you’ve only been here for a month.
Also opportunities for the service provider to make changes to the contract that the consumer doesn’t have. They might be allowed to change the location of where the service is delivered, change whose delivering the service if that’s particularly relevant. Use different subcontractors, which will have a significant change in how the service is delivered.
I’ve just got up on the slides and I can make these available if anyone it interested, we can send them out. I’ve just noted the three key things to look at with an unfair contract term. This is essentially taken from the legislation. For it to be proved to be unfair there needs to be causing a significant in balance in the party’s rights, it needs to be not reasonably necessary to protect the businesses interests.
That really means while it’s probably reasonable sometimes for a business to charge a cancellation fee or a penalty if you cancel late because that means they can’t fill the appointment and they lose out, it’s probably not fair that they require you to pay out the entire contract just because you miss one appointment for example.
The third element is relying on the term would cause the consumer detriment. When deciding whether a term is unfair or not it’s relevant to look at the contract as a whole. While the specific term if you’ve read it by itself might not be seeming unfair if it’s in the tiny fine print at the bottom of Page 74, of a contract that no one ever reads because who does read them, then it’s probably a good indication that you’ve got an argument there to bolster the fact that it’s unfair.
I guess just to this point, the transparency is a really big issue that comes up in gym contracts that they’ll be sale sale sale, here you go off you go don’t worry sign that $20.00 an hour, there you go. They don’t point you to the bits that say by the way you’ve only signed up for a month but it will automatically roll onto a 12-month contract once that month is over and the cancellation fee is the whole contract.
I think there are some similar providers in the NDIS space that we’re having these issues with, cleaning companies as well having arduous terms there.
If you do come across an unfair term in a contract generally the legal remedies, the outcome at law if you can prove the term is unfair is that the term will be stricken from the contract it will just not apply. The court will sort of put a line through it.
If you do see them, you can try and negotiate with the provider and you could maybe suggest to them it is an unfair term for the reasons we’ve set out in that slide. Like I said if that doesn’t work, ultimately the next step is to go to a court of a tribunal. In most cases for this sort of work it will be through VCAT which I think is a bit of a barrier for most people to go to. That’s not always a very practical solution but it is the way that it’s working at the moment.
If you do see terms like this, like I’ve said in the past please call us. We can help you to draft letters, we can help you give advice or ideas to sort of throw into an email if you’re trying to sort it out with the service provider. In some cases, we can take on the clients directly so you can make referrals.
What we’ve discovered through our sort of service implementation modelling and checking how it’s best to help the most people is us connecting with workers is a much more productive way of us assisting clients. You have the relationship with your client, and you often have resources to be able to help scan documents or send things through.
We’re only in Melbourne but we do help Victoria wide. We’re really keen to try and engage with you and we’re happy to make multiple calls or to help on going where we can.
I guess in summary in relation to what I’ve covered today if you do identify a consumer problem please call us if you want to talk about it. We really want to help you in this space and we want to do what we can. Like I said this is not our core work, so if we don’t hear about it, we can’t push through our policy and campaigning team to start taking action on it.
We are a very campaign and strategic organisation so if there is a big drive for it we can push it through as an issue that we can take up. Like I said, we can help you to complain to the business or the service provider. We have a worker advice line, you can give us a call we can chat it through. If you need to call us five times for the same thing, we’re more than happy for that. Generally, we try and keep you with the same lawyer so they’ve got the notes and they know how it’s going.
Question at the back there.
QUESTION:
Hi, just had a question around who owns an NDIS plan. If you’re with a provider and you want to change to another provider and you have a record of your NDIS plan, I’m just wondering who actually owns it. Is that a document that the individual owns or does that belong to the service providers?
HANNAH DODD:
If you’re talking generally about the contract – I can’t speak to how it works with the NDIA whether they control the plans, but if you have a contract with the service provider I guess we don’t really own contracts but it’s one between the both of you. You should both have a copy of it and that should be provided at the start of the service.
QUESTION:
They’re not providing it because they go away after you produce an NDIS or you discuss a NDIS plan and they put numbers in and all sorts of things to come up with what your budget would be. I self-manage but they won’t give me access to all that detail. I’m just wondering who actually owns it so I can put some pressure on them.
HANNAH DODD:
Okay. I think it would be about putting pressure to get access to the contract you’ve entered. If they’re not providing you with the terms or conditions in that contract it’s going to be very difficult for them to rely on those terms and conditions at a later date. If they’re not giving it to you, you could argue well it’s not part of our contract. Even though I’ve signed it, I have never seen it so I can’t be held to it.
I’m wondering if that’s something that potentially would be worth raising with the Quality and Safeguards Commission. There is code of conducts they can look at there. Again, this is not really our space but we are quite interested to see how they deal with these issues and I would say that’s an ideal one for them.
The other thing that I will touch on is making complaints to regulators for example Consumer Affairs Victoria or the ACC, is also quite a powerful way to get action taken on systemic shonky provider who shouldn’t be in the business anymore.
The more people that can make complaints to the regulator or make it known that this particular provider is not doing what they should be the better nous we have to get the regulators to take action. Again, we have template letters that we can help you with if you need them. If you’ve got clients that need to advocate for themselves that, we could also help them with.
In terms of the steps, you can take with your clients or directly yourself, I guess identifying the issues that your client has is the best place to start in terms of what’s gone wrong, what’s the most important thing for them. Sometimes what’s important for them or what they really want out of it is not what the law is going to give them. There is no point going to VCAT writing a big legal letter if it’s not going to help the outcome that they actually want.
If you do want to contact us about an issue like this the best, way we can help you is if we get evidence and documents first. We’ve got an email address as well that you can send it through and then we can set up a time to call you. So contracts pretty much we’re always going to ask for that particularly if it’s about an unfair term. Any emails or text message communications, your own file notes if you’ve been there from the beginning negotiating the contract. And also, receipts and bills and things like that can be really useful for us to see.
We can help you to identify the options of what your client could do potentially with consumer law. We can help you write the letters if you need helping hand. Sometimes just because it’s not your core work you’re like can someone look at it, I don’t know if it’s right. We want to do that for you, that’s exactly what we want to be helping.
We want to help you do what you can. I am fully aware that most people have very limited capacity as most of us do in community sector. We can also talk to your client together with you if you think that’s valuable. We can set up appointments to have the three of us speaking together.
I’ve just got a slide up there about our contact details. We’ve got a worker advice line like I said it’s open Monday to Friday 10 till 5 but closed for an hour at lunch time. We’ve got a worker portal or a resources toolkit and I will leave this form at the front door. It’s an issue-spotting sheet about money problems that might come up with NDIS or people who are helping people with a disability. It’s got our contact details on the bottom to the advice line and the email address if you want to contact us.
We do also have an advice line for consumers directly if you’ve got a client who wants to speak to us directly, that is available. I will say our public advice line is very difficult to get through to sometimes because we do have limited resources like all of us do. It’s only open from 10 till 1 but we also have a Koori help line that’s open all day, 10 till 5.
I would say if you are helping a client, the best way to get access to us is through you. If you can, call us to get the idea and then we can assess whether it’s something we could help the client on going with. That’s all I have time for if there are any questions.
QUESTION:
A simple question, what’s the cost of your service?
HANNAH DODD:
We’re a free legal service and we’ve also got free financial counselling as well.
Fantastic I will pass over to Natalie then.
NATALIE STAUB, DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY:
Good morning everyone, thank you for having me today. My name is Natalie Staub. I’m the project manager for the Specialist Disability Accommodation and I’ll use SDA from now on, Implementation Project.
A little about us I’m not sure if you’ve had much to do with Consumer Affairs Victoria, we’re basically Victoria’s consumer regulator. Some of the work we do we provide advice to tenants, landlords, property owners, consumers on their rights under our relevant acts. We also enforce consumer law in Victoria.
Today I’m talking to you about the changes to SDA tenancy law. On the 1st July this year, changes were made to the Residential Tenancies Act, which introduced a section, which covers now specialist disability accommodation. This new section as it’s set out is Part 12A, if you ever need to dig into the legislation and it does a few things.
Probably most significantly is it creates a new type of agreement called an SDA Residency Agreement. What that is it’s been designed specifically for SDA residents, it brings across many of the protections that formally existed under the Disability Act for a residential statement and it brings it into the Residential Tenancies Act.
While it continues some of the protections from the Disability Act, it also increases some of the protections available to SDA residents and it brings it into line with the rights available to other tenants in Victoria. Limiting a landlord’s right to enter a property, being able to seek the help of the Director of Consumer Affairs for non-urgent repairs and also go to VCAT if they have issues with their tenancy.
Under the Residential Tenancies Act, there is the SDA Residency Agreement but what will also be available to SDA residents potentially is a regular Tenancy Agreement. That’s like a standard lease that people enter into when they are entering into a rental agreement. There are some limitations around that but there are two types of agreements that are potentially available.
The purpose of that was to allow the choice and control for a person, which is in line with the policy of the NDIA. What that does enable is for an SDA resident to live with family, or friends. We’ve had a case of a mother who has MS and she wants to live with her child and they can now enter into a tenancy agreement. Also, a case of a couple who want to live together, he’s got a physical disability so now they can enter into a tenancy agreement as a couple and stay together.
One of the additional features that’s been introduced to the Residential Tenancies Act is protections for an SDA resident who enters into a Tenancy Agreement, a regular kind of lease against coercive or deceptive conduct. It’s really important to note and this will be important for the advocacy sector, is that someone entering into a Tenancy Agreement has a reduced level of protection as compared to an SDA Residency Agreement.
It’s really important to note they cannot be forced or coerced to enter into a Tenancy Agreement. We can talk about that a little more in a minute.
A little bit about the role of advocates under the act. The Residential Tenancies Act explicitly recognises support people in the act. Some of the – you will be recognised as kind of a chosen person is the language. Some of the explicit roles in the act for support people are
- To help the resident under the agreement that they’re entering into with the SDA provider.
- To help the resident understand any forms or notices that they’re given by the SDA provider.
- To help the resident apply for urgent or non-urgent repairs and there’s other general support. It doesn’t limit the support you can provide but it’s explicitly built into the Act.
I’m going to talk about the two types of agreements in a bit more detail and note some of the key differences, and talk about your role during that. I thought it was important to highlight some of the differences between the two types of agreements that will be available to SDA residents under our act.
Up here, I’ve got the SDA Residency Agreement and the Tenancy Agreement. The SDA Residency Agreement is only available to SDA residents that is NDIS participants with SDA funding. It’s also available though to Commonwealth Continuity of Support clients. They’re the two people who qualify for an SDA Residency Agreement. A Tenancy Agreement is open to all Victorians. It’s just a regular tenancy agreement.
There are really important distinctions in starting an agreement between the two agreements. For an SDA Residency Agreement there’s a process of entering into which means both the SDA provider and the resident will sign the agreement or you can establish the agreement, which is consistent with NDIS policy where the resident doesn’t have to sign the agreement in order for it to be valid.
There’s some steps the SDA provider needs to talk to establish the agreement but only the SDA provider needs to sign it at the end and this is because the person may not be cognitively able to enter into a contract. That’s the reason for that.
With a Tenancy Agreement, the provider and the resident has to be able to sign the contract. There is a test it’s not built into the legislation about a resident needs to have the capacity to enter into a contract in order to become a tenant under a regular Tenancy Agreement. This is really important and we realise this is going to be an area that may get tested. We’ve been talking with Tenants Union of Victoria. I wanted to highlight that as an important distinction today.
Some of the things we’re kind of hearing is the SDA providers trying to understand about these new types of agreements. The SDA Residency Agreement is an agreement between the provider and each resident in a property so they’re individual agreements. A Tenancy Agreement is one agreement for the whole property. All the tenants need to be able to sign it.
There are some provision for subletting but they’re really important distinctions and maybe something to look out for if you do have a client who has a Tenancy Agreement and just to look at how that may have been set up. This is something we’re hearing that maybe there is a little bit of confusion about how these agreements might work in practice.
Another important distinction between the two agreements is damages. Under an SDA Residency Agreement a resident does not pay for damage caused by their disability, their behaviour related to their disability or any equipment needed for their day-to-day living. In a general Residency Agreement, the tenants are responsible to pay for any damages. That’s a really important protection built into the SDA Residency Agreement that doesn’t extend to a Tenancy Agreement.
QUESTION:
I have a question about people with intellectual disability, if they’re unable to sign a Residential Tenancy Agreement but they’re not granted SDA in their NDIS plan. What happens, is there anything in between, what does the law say?
NATALIE STAUB:
I can’t speak to that. I suppose it depends on what kind of agreement they’re living under currently. I would recommend for those kind of questions on a case-by-case basis that you do give Consumer Affairs Victoria a call. Like I said, it’s not written into the Act about there’s no test of capacity but a contract needs to be between two people who can understand and enter into it. Please give us a call in those cases just so we can explore that further if that’s okay.
I’ll move onto notices to vacate. This is an SDA provider asking a resident to leave. Under a SDA Residency Agreement, a resident needs to be given a notice of temporary relocation before giving a notice to vacate and that’s for a minimum period of 90 days. You can’t ask someone to leave without first finding them suitable temporary accommodation.
There are also notification requirements that an SDA provider needs to notify the NDIA, the Office of the Public Advocate, the Director of Consumer Affairs and the Resident SIL provider I believe when they’re given a notice of temporary relocation and they have to notify those PEOPLE within 24 hours. The purpose being is that it then triggers kind of a support around that person to make sure that the accommodation is suitable and they’re given appropriate accommodation.
Under a Residential Tenancy Agreement, there are laws around giving a notice to vacate but it’s more around minimum notice period. Those protections aren’t in place.
With regards to ending an agreement and this is looking at the SDA resident, under an SDA Residency Agreement an SDA resident can end the agreement at any time by giving a notice of intention to vacate to the provider. Under a regular Tenancy Agreement, there are time periods associated with it and there might also be lease break costs as well.
They’re just a few of the kind of key distinctions and just to say everything I’m talking to today is available on our website and there is a section for support people as well where that information has been a bit tailored to that group. Please do go online and there will be more information about these agreements.
I thought it would be worthwhile, what’s happening at the moment. The legislation came into effect on the 1st July and SDA providers have until the 1st of January 2020 to enter into an SDA Residency Agreement or a regular Tenancy Agreement with their existing residents. The purpose being that after the
1st January 2020, the protections available under the Disability Act, residential statements will no longer exist and will become void.
If they haven’t entered into a new agreement, the resident won’t have the protection of a Residential Tenancies Act or the Disability Act. They’ll become a tenant at will. There are some safe guards in place but that’s the reality of what will happen around that time. We’re working with the Department, the NDIS Quality and Safeguards Commission and the NDIA around making sure there are protections in place for residents around the 1st January.
The process that’s happening and this is a process for entering into or establishing an agreement; the first step is the SDA provider gives an SDA Residency Agreement or a Residential Tenancy Agreement to the SDA resident.
Ultimately, the SDA provider can decide which type of agreement that they will offer in their SDA dwelling. We have been attending some sessions with SDA providers to set this out. Kind of noting that the type of agreement they chose will then determine the type of residents that they can welcome into their property if someone was to leave.
They choose the type of agreement that they want to offer. We know DHHS will be only offering SDA Residency Agreements in their property not withstanding that there are some TAC clients for example who don’t fit under the SDA resident definition and they’re looking at that on a case by case basis.
Step 2, is the SDA provider gives the resident the agreement and there’s also an information statement for the SDA Residency Agreement and the Tenancy Agreement. They have to give both things to the SDA resident. They also have to explain the agreement and the information statement to the SDA resident.
If they believe that that resident would benefit from support in understanding it they are also required under the legislation to give a copy of the agreement and the information statement and explain those documents to a support person or a chosen person, which could be really anyone chosen by the SDA resident so family, carer, advocates for examples are listed out.
It’s built into the legislation that the SDA provider must seek support for that client if they need help in understanding it. If the resident doesn’t have a chosen person then the SDA provider must find them someone and that person can’t be employed or associated with the SDA provider.
Also, I wanted to note that the SDA agreements and information statements are prescribed products, which means that they’ve been prepared under regulation and approved by the Director of Consumer Affairs. The SDA Residency Agreement can’t be changed. An SDA provider can’t make amendments to the agreement. It’s as is.
There is a space in the document for additional terms, which is something that’s probably really important to look out for. Everything in the SDA Residency Agreement aligns with the NDIS terms of business and protects the rights of the SDA resident. If there are additional terms that links back to what Hannah was saying about unfair contract terms they have to make sure they comply with Australian Consumer Law and they don’t take away any of the existing rights within the Residency Agreement or within the Residential Tenancies Agreement.
If you are seeing additional terms, I would recommend keeping an eye out for them and if you’ve got any concerns please call us at Consumer Affairs Victoria so we can help answer any of your questions around that.
Also, if you’re noticing there are some changes to the agreements please also give us a call. We’re really interested because this is a new piece of legislation, please do let us know. We’re interested in understanding how this is actually being rolled out in practice. The agreements been explained to the resident and any support person. The resident has to have a minimum of 7 days to consider the agreement.
The next step is the SDA provider and the SDA resident, if the SDA resident agrees to the agreement they enter into where they both sign the document or establish the SDA Residency Agreement. The establishing is only for the SDA Residency Agreement, if it’s a Tenancy, they both need to sign.
The SDA provider then gives a copy of the agreement to the SDA resident and keeps a copy for themselves. If they’ve entered into a SDA Residency Agreement, the SDA provider must notify Consumer Affairs Victoria within 14 days and we maintain a register of SDA Residency Agreements. That register is available to the Office of the Public Advocate for their community visitors program.
Another thing to point out is community visitors have rights of entry like they do now for people for properties where they’ve entered into SDA Residency Agreements. If it’s a Tenancy Agreement they don’t have the same rights of entry, they can be invited to come and visit the property but they just can’t go out and visit as they have normally done. That’s how the Office of the Public Advocate will be made aware of who is living under a SDA Residency Agreement in a SDA dwelling.
I’ve flown through what is kind of significant change. I would really encourage you, we do have a lot of resources available. If you’ve got any questions or concerns you want to understand the Act further, you’ve got a client entering into an agreement and you’ve got some questions, please contact us on our SDA enquiries line.
We’ve got staff who have been trained in this legislation and on the NDIA too and they will be your best first point of call for answering general questions on these new agreements and on the Residential Tenancies Act. Please start there it’s Monday to Friday 9 am to 5 pm.
Please also call them too even during the agreement if there’s any concerns about notices that have been given, urgent and non-urgent repairs, the enquiries line can answer all those type of questions.
As I said earlier our website Consumer Affairs Victoria has information for residents, providers and specifically for support people which goes through in detail all these new requirements under the Residential Tenancies Act. If you haven’t already please go and have a look. You can download a copy of the Residency Agreement and Information Statements.
The Information Statement is quite a comprehensive document, which will help you understand the different types of agreements and the rights and responsibilities for providers and residents.
I want to also note that we have produced easy English versions of both a Tenancy and a SDA Residency Agreement and the Information Statements. They’re available on our website. We will be producing easy English versions for all the forms and notices that are related to SDA.
We’re also developing a visual aid for SDA Residency Agreements to help SDA providers or support people guide SDA residents through the transition to new agreements or entry into new agreements down the track.
That’s all my presentation, I know it was very quick – if there are any questions.
[NO QUESTIONS]
Thanks very much.
Consumer Action Law Centre website (off-site)Consumer Affairs Victoria SDA info (off-site)Download SDA Information Statements (off-site)- Author:
- DARU
- Date published:
- Thu 14th Nov, 2019