Sticking it to the man!

As a student of law, my primary area of interest is employment and industrial relations law. But I will never forget a job interview I had where a lawyer said I had the personality for litigation. I didn’t get the job, but I still chortle over that remark.

As I discussed in my last post, the NSW Liberal Government is planning on selling almost 300 public housing properties at Millers Point, The Rocks, and Gloucester Street. Minister Pru Goward said the main reason for the sale was the high cost of maintaining heritage-listed homes.

That got me thinking. If the NSW Government is not complying with its obligation to maintain properties, it might be leaving itself open to attack. Housing NSW has obligations under statute and contract. Under section 63 of the Residential Tenancies Act 2010 (NSW), a landlord must provide and maintain residential premises in a reasonable state of repair. This is a term of every residential tenancy agreement. An action could be based on tort like breach of statutory duty.  

If NSW Housing is breaching its legal obligations, the time might be ripe for some kind of group claim. Grouped proceedings provide a remedy where many persons have suffered small losses and it is not economically feasible to recover via individual proceedings. This might be the case here. Part 10 of the Civil Procedure Act 2005 (NSW) allows for grouped proceedings in the NSW Supreme Court.

That is not to say there aren’t any obstacles. Residential tenancy laws usually specify landlord and tenant disputes are to be resolved by tribunals rather than courts. Under regulation 23 of the Residential Tenancies Regulations 2010 (NSW), the NSW Civil and Administrative Tribunal (NCAT) has jurisdiction to determine tenancy disputes. It is limited to $30,000 for rental bond matters and $15,000 for other matters. Can we get around this? You might not know what a claim is worth before an order is actually handed down. And there is no requirement that a claim be for a reasonable amount. And plus, a claim on behalf of a group might just be more than the set amount.

Grouped proceedings could facilitate access to justice for the residents of Millers Point, and other public housing tenants. It is a David and Goliath fight. Grouped proceedings could potentially mediate the power imbalance between tenants and the government. Tenants could consolidate their power base by litigating as a group. This is a simple matter of power in numbers. There are other advantages. One advantage is that time limits can be avoided. Residential tenancy laws usually specifies that claims must be lodged within a certain time frame. Another advantage is that group members need not be named. This means tenants would be protected from retaliation.

I don't know whether these arguments would fly, but a grouped proceeding could form part of a well-stocked arsenal.

 

 

Money, money, money

In my last post, I explored the relationship between the media and government. I analysed an online article about public housing tenants that trash houses. Little did I know NSW Community Services Minister Pru Goward was softening up the public for a sale of public housing on Sydney's harbour front. The article by the Daily Telegraph is an obvious example of forward-thinking strategy.

The NSW Liberal Government is planning on selling almost 300 historic properties at Millers Point, The Rocks and Gloucester Street. The sale includes the landmark Sirius building at The Rocks, a concrete brutalist high-rise apartment complex close to the Harbour Bridge, containing 79 units.

The sale is expected to raise hundreds of millions of dollars. It’s a blatant cash grab. Professor Phibbs from the University of Sydney says the policy seems ‘driven by people trying to get their hands on some quick cash rather than thinking about things from a policy perspective’. If you watch the video of the announcement, Minister Goward provides three reasons for the historic sale. They are as follows:

1. the cost of maintaining heritage-listed buildings is exorbitant
2. the distribution of housing subsidies is inequitable
3. public housing needs to be sustainable in the long-term

Minster Goward made the announcement while her henchmen delivered the news to devastated tenants. There was no consultation. There was no procedural fairness. I have seen this tactic before. Holdfast Bay Council held a confidential meeting to evict permanent residents when it approved a redevelopment of a caravan park.

 

Minister Goward tries to frame the sale as a matter of fairness and equity. I am not convinced. And plus she looks like Cruella Deville from 101 Dalmatians. The resemblance is quie remarkable. But I suppose she can’t help that. The Barry O’Farrell government is selling off houses when the waiting list is miles long and New South Wales has a huge homelessness problem. It’s classic political strategy at its best. They are saying they are helping tenants, when really, they are hurting them.

 

Minister Goward said proceeds from the sale of the historic properties would be reinvested into the social housing system. Somehow I doubt this very much. Shelter NSW's executive officer Mary Perkins says,

We've had a long-time issue with the transparency around the promises that have been made about the sale of stock. They say 'we'll sell this to gain this', but there's never been any evidence produced about the gains...At the end of the day, we've got a really big concern about the geographic divide happening in the city, between these areas [that] are for rich people and these areas [that] are for poor people.

Diversity usually results in better outcomes for the community as a whole. We know that housing estates simply do not work because they localise entrenched disadvantage.

Despite overseeing similar sell-offs, the NSW Opposition has condemned the Liberal Government’s decision. Shadow Minister Linda Burney said Minister Pru Goward could not be trusted to reinvest any proceeds. The Liberal Government has overseen an increase in the public housing waiting list, and a decrease in the number of houses it is building. It has cut $42 million from the budget for maintenance, and $22 million from the budget for building. A report by the NSW Land and Housing Corporation shows that the O’Farrell Government has cut more than 1300 properties from its books.

I am not convinced by the argument older properties are more expensive to maintain. A diverse stock of housing will always involve a range of costs. I seriously doubt NSW Housing will be selling off old government houses in less well-to-do areas of Sydney. The government should not be able to get away with manufacturing excuses by failing to comply with its legal obligation to repair. We know that public housing is ageing and increasingly unfit for purpose. If state and territory governments keep selling off public properties, there is going to be none left. The NSW Government is clearly trying to push a core government responsibility off onto private providers. It is privatisation by stealth.

 

I am also concerned that the human rights of the tenants are not being respected. They are being evicted from their HOMES. It is not humane or compassionate to move elderly residents away from their communities and social ties. Many residents at Millers Point have connections to the area going back generations. The O’Farrell Government has even ignored the advice of its own consultants on evicting vulnerable tenants with minimal damage to their health and well-being. If things get that far, I would suggest pickets to stop police evicting residents from their homes. I don’t think the police would be too keen on physically ejecting the elderly and disabled.

 

I really hope I see media outrage. So far there has been significant coverage. On the whole, it has been fairly sympathetic to the plight of residents. I only hope that it continues. A community action group has already sprung up. You can like the FB page here. We have two years to turn this thing around. So let's do it.

 

See More:

• ‘Long-term public tenants to be forced out of Sydney’s heritage Rocks area’, The Australian, 19 March 2014
• Nicole Hasham & Leesha McKenny, ‘O'Farrell government ignored consultants' advice on plan to sell public housing at Millers Points’, The Sydney Morning Herald, 21 March 2014

 

 

Because tenants do this..

I keep on top of media reporting in relation to tenancy, housing, and homelessness. I have noticed a disturbing trend. The media love reporting on trashed houses in public housing or in the public sector. Unfortunately, the narrative really impacts on tenants when they campaign for fair and equitable treatment.

 

One recent article by the Daily Telegraph screamed out - Trashers and abusers keep cheap public housing despite growing dope and causing destruction. Linda Silmalis reported as follows,

The hardline approach comes after repair bills soared above $11 million last year — up from $8 million in 2012. The bond would apply to tenants viewed as being at “high risk” of damaging homes. Photographs of trashed properties taken by the Land and Housing Corporation for future legal action provide a shocking glimpse of the state in which some tenants have left their properties. In some cases tenants were evicted for failing to pay rent, while others abandoned their homes. Families and Community Services Minister Pru Goward said too much money was being spent on repairing homes and on legal bills, instead of improving properties.

 

What proportion of this large amount was actually for legitimate repairs that tenants are legally entitled to under housing law as an incidence of the landlord and tenant relationship? The way this article is drafted is very misleading. View the whole article here.

 

I am concerned about the concerted attack on tenants we see in the media. I really don’t understand why tenants are being demonised. Reporting is quite different in other parts of the western world. I have read articles from other countries about discrimination, unsafe houses, and unfair evictions. The media here tends to focus on stories that shock and appal their readers, such as trashed houses. Tenant stories do not usually have this characteristic. And tenants are usually timorous about approaching the media in case their prospects of obtaining future housing are affected.

 

But why aren’t we shocked when landlords intimidate blackmail or abuse their tenants? Why aren’t we shocked when families can’t access housing appropriate to their needs? Why aren’t we shocked when real estate agents steal rent moneys?

 

I am also really surprised that the media didn’t take up the fight of Vanessa Robinson. Her two young boys died of carbon monoxide poisoning in their rental home. Despite the outrageous nature of this incident, the media still didn't take up the cause of renters.

 

Articles such as this disrespect every other tenant out there that looks after their homes. It is a small minority of tenants that abuse their housing. But the issue is so conflated the public thinks it is a huge problem. We know there are people out there that abuse our socialised system of income transfer, but people don't suggest that we get rid of it. And that is what I fear is happening with public housing.

 

This article is well and truly on the path of characterising homeless persons as criminals i.e. homeless people deserve to be homeless. If criminals don't deserve housing, where are they going to go? The streets most likely. The focus on problem tenants removes attention from government incompetence. A recent NSW report concluded as follows:

 

Public housing is ageing and increasingly not fit for purpose. It is declining as a proportion of overall New South Wales housing. There is an increasing shortfall between the supply of and demand for public housing. There is no clear direction for managing the shortfall between need and demand for public housing, although HNSW and LAHC are working towards one.

 

Public dialogue tends to focus on education and healthcare...but not housing. This is quite odd considering the essential nature of housing. People need housing to have good health, and to access schooling and employment. State and territory governments are decreasing spending on public housing. But if government was to decrease spending on education or health, we would see expressions of outrage in the media. Why aren’t we outraged that governments are selling off government housing to private investors well below their real value?

 

The media should not just take the word of government as gospel. Think and ask questions. I’m pretty sure there are journalists out there with a brain. What is the government's agenda here? 

 

Cash bonds could be another way for whingeing state governments to recoup costs from the Commonwealth Government via the tenant. I am told this usually happens when the federal government increases the pay of pensioners, and the state and territory governments raise the rent of its tenants. Public housing is supposed to be accessible and affordable. It is there for the vulnerable and disadvantaged in our community.

There is also potential for cash bonds to be abused by governments seeking to minimise spending on public housing i.e. claims for wear and tear things that really should be the landlord’s responsibility anyway (just as in the private sector).

I also think we need to look at root causes. Why aren’t these tenants maintaining their houses properly? I can think of few situations where the behaviour while not justifiable is at least understandable.  What about domestic violence? What about kids with ADHD? What about people with intellectual disabilities? Are these people getting the support they need to maintain their tenancies? Women subject to domestic violence should not lose their housing because they are being abused in their own home.

 

And think about the impact of these policies on children and the severely disabled. It is not their fault that their parents or carers cannot meet the obligations of their tenancies. Watch this segment by A Current Affair. See how the mother cries and apologises to her child.

 

So think twice before you write from the commercial imperative. Think about the implications of your article. We know that trashed houses happen. But it does not obviate the need to think critically and ask questions.

NT Housing: Deaf and Blind to the Needs of Tenants

This is the fourth instalment on Michael's fight with NT Housing. He is fighting tooth and nail to keep his family home. In this post, I am going to talk about maintenance issues. I have previously looked at how NT Housing charged Michael for excessive water usage despite numerous complaints. But the problems don't stop there.

A couple of years ago, Michael removed a kitchen cupboard. He had been asking for it to be removed for about five years. The damp was spreading, the cupboard was slowly disintegrating, and there were cockroaches. It got the point that Steven's health was being affected. Recall that Steven has partial use of lungs. He was struggling to even breathe. 

Michael called NT Housing and advised he was removing the cupboard himself. He took the cupboard and placed it on the driveway. NT Housing's record of events is quite interesting. According to NT Housing, they were just about to install a new kitchen. I find this pretty hard to believe. Michael had requested renovations for many years. I would recommend that anyone fighting NT Housing to take independent witnesses to meetings, and record any conversations with staff.

Mr Squire attended the property a few days later without notice and took pictures of the cupboard. On the communications history, he notes Michael's bad 'attitude' and 'damage to our property'. I wish I could be a fly on a wall. Alas that is not possible, and I am restricted to freedom of information (FOI) materials. Note the contemptuous attitude towards matters of health and safety. See how Mr Squire neatly characterises Michael's actions as property damage. 

The first priority for NT Housing should be the health and safety of its tenants. And secondly, public housing belongs to the community, not to NT housing. We need to look at the link between health and well-being and housing. It is well known that the life expectancy of indigenous peoples is significantly less than white people. I have seen John Pilger's Utopia. We really need to look at the state of government housing in the Northern Territory. A review of NT Housing's policies and practices would be a step in the right direction.

I am also concerned NT Housing is charging excessive amounts for maintenance. One day, Michael's kids were playing football in the backyard and a window got broken. It happens. So NT Housing charged Michael for the replacement window. But Michael was charged $63 to remove broken glass when his son had already cleaned it up. It is a lot of money for a task that would take 5 minutes, and it is a lot of money for persons on fixed incomes such as the pension. 

Public housing is supposed to be accessible and affordable to people in need of assistance. No wonder tenants can't get ahead if NT Housing is charging like a wounded bull. And no wonder tenants can't afford to improve their properties if they are paying for costs like this. In the end, Michael didn't have to pay for the charge. But what about people who are scared to challenge NT Housing?

I am also concerned that NT Housing might be hindering necessary and essential repairs. It has elevated bureaucratic intransigence to an art form. One strategy is to tell tenants to put their complaints in writing. This is quite amusing. I have reviewed Michael's file numerous times. He complained about the underground water leak almost every time he contacted NT Housing. 

Recall that Michael requested a bayonet so he could install a heater. Steven needs a heater in winter because of his asthma. Michael had to go to the local media to even get NT Housing to pay up. NT Housing also withhold repairs when tenants are in arrears. This is totally irrelevant. It is about the house, not the tenant. It's not about whether the tenant is paying rent, it's about ensuring public housing is safe and in good condition. 

 

We know that disadvantaged persons experience difficulty navigating bureaucracy, particularly those with little education. Michael says, 'I just wished I had a better education i.e. brain to work out how best to go about fighting this injustice. I feel I have let my family down'. I am told many indigenous persons find official processes difficult. For many, English is their second language. They grow up speaking their native dialect. Basic literacy shouldn't be a prerequisite to obtaining repairs. If they could request repairs over the phone, it would really help. 

 

I think that NT Housing has lost sight of what their original mission is (or should be) - support vulnerable people by providing housing. It's more focused on rules and bureaucracy than results or helping tenants. Paperwork must be kept, but it can be minimised. To be effective, NT Housing needs to change. 

Another strategy is to tell tenants to ask for permission to renovate premises themselves. This practice puts the financial burden of maintaining public housing on tenants. Tenants should not have to pay for repairs and improvements. A stock of well-maintained public housing benefits everyone, not just individual tenants.

NT Housing puts the onus of repairs on tenants. It is making tenants pay for things that should be its responsibility. NT Housing goes in and inspects houses. Tenants are told what they need to fix. If the tenants don't make arrangements, they have to pay for the cost of repairs as estimated by NT Housing. It doesn't matter if tenants are paying their rent on a consistent basis, they will get behind as these charges are added to their account. I am quite disgusted. 

Despite repeated requests, the house hasn't been painted for fifteen years. Michael's family made the best of a bad situation by putting up posters. The ceiling is flaking and there is mould everywhere. In some places there are holes because of water leaks. Michael even threatened to go to the health department. That didn't work either. I also asked Michael about the writing on the wall. He tells me the only wall with writing is the one where he measures the height of his children.

Another strategy that NT Housing uses is one known to lawyers as the 'receding horizon'. It makes promises about repairs, upgrades and improvements that never eventuate. In 2004, the NT Government promised that the public housing would be upgraded. Then in 2012, NT Housing told Michael that it would be renovating his house. This never happened. After 20 years of waiting, I'm pretty sure it's never going to happen.

I am quite concerned about the attitudes of some workers at NT Housing. A comment here is quite telling. In response to a request for repairs, Ms Joy says, 'Basically tenant wants everything for nothing'. She explains to Michael that the ability of NT Housing to make repairs is dependent on funding. Excuse me, I thought tenants were entitled to repairs as a consequence of paying rent. Under s 57(1) of the Residential Tenancies Act 2000 (NT), landlords must maintain premises in a reasonable state of repair. I wouldn't be surprised if NT Housing is breaching its statutory obligation.

NT Housing is in dire need of a major overhaul. NT Housing is deaf and blind to the needs of its tenants. It presents as arrogant, paternalistic, condescending, and uncaring. And moreover, it is resistant to transparency and accountability. And that is just not good enough. 

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