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Department of Housing (DOH) accommodation

Eleven participants reported living in DOH accommodation, a major provider of accommodation to people with a mental illness.⁹⁰ A number of legal issues were raised by both stakeholders and participants in relation to DOH.

Eligibility

To be eligible for public housing, applicants must meet a number of criteria that includes possessing citizenship or permanent residency in Australia, having a certain household income and also the “ability to sustain a successful tenancy”.⁹¹ To prove that they can sustain a successful tenancy, the applicant must show that they can pay their rent, look after their property, not create a nuisance to their neighbours and live independently on an ongoing basis.⁹² DOH can order an “independent living skills report” that assesses the ability of the applicant to meet these requirements.⁹³

The Tenants’ Union of NSW (Tenants’ Union) suggested that people with a mental illness can have problems proving their eligibility for DOH accommodation because of their potential inability to pass an independent living skills report or comply with a residential tenancy agreement:

If they have got problematic behaviour then, yes, it may stop them getting public housing. It depends on whether the department can be convinced that they have the independent living skills and they are capable of complying with the residential tenancy agreement.⁹⁴

A mental health worker working with young people also observed that young people with a mental illness face difficulties accessing DOH accommodation because they are often unable to prove that they can sustain a successful tenancy:

… it’s like getting gold from a dragon getting Department of Housing accommodation for a young person.⁹⁵

One of the aims of the independent living skills report is to determine whether an applicant needs support services in order to sustain a successful tenancy.⁹⁶ A legal officer from the Tenants’ Union argued that people with a mental illness may need a lot of support to prove they are eligible, and to be able to stay in DOH accommodation.⁹⁷ Although they can refer people to support services, it is not the responsibility of DOH to provide such support directly to tenants.⁹⁸ One legal worker believed that a lack of available mental health and other support services in rural and regional areas may make it difficult for some people with a mental illness to comply with their residential tenancy agreements.⁹⁹ This worker also highlighted the dilemma in using a person’s mental illness as a reason for applying for housing, as it can be used as a reason for not giving it to them.¹⁰⁰

Eviction and debt

Service providers also argued that people with a mental illness may face eviction and accrue housing related debt as a result of unpaid rent and property damage.¹⁰¹ In its submission to the NSW Legislative Council Select Committee on Mental Health, Shelter NSW pointed out that people with a mental illness can be forgetful, and forget to pay rent and fall into arrears.¹⁰² Property damage may be committed by the people themselves or by family members. One participant provided an example of where he had been held responsible for damage committed by a family member:

Four months ago I had one of my sons staying with me. It was because of him I had to move out of the house. It was just a nightmare. He got into the house after I moved out and trashed it. I got a bill there.¹⁰³

There is a Joint Guarantee of Service (JGOS) between DOH, NSW Health, DoCS, the NSW Aboriginal Housing Office and the Aboriginal Health and Medical Research Council of NSW, which outlines the roles and responsibilities of each agency in relation to housing people with a mental illness.¹⁰⁴ The aim of the guarantee is to enhance the coordination of service delivery between the agencies.¹⁰⁵ Guidelines as set out by the JGOS are to be implemented at the local level.¹⁰⁶ However, Shelter NSW has maintained that the application of these guidelines across NSW depends on local circumstances, and they are therefore not always completely upheld.¹⁰⁷ In consultation, policy officers from DOH said that where the behaviour of people with a mental illness leads them to experience difficulties maintaining their tenancy, under the JGOS, DOH workers are to refer people to appropriate mental health support.¹⁰⁸ Be that as it may, they argued that it may not be obvious to DOH workers that a person has a mental illness, or people themselves may be unwilling to disclose that they have a mental illness.¹⁰⁹

Ultimately, DOH has the discretion to allow a person to remain as a tenant, even if the department has successfully taken a client to the Consumer, Trader and Tenancy Tribunal (CTTT) and had an eviction order made. A legal officer from the Tenants’ Union held that DOH does not necessarily enforce every termination and possession order it gets:

Sometimes DOH, having got orders of termination and possession, uses those orders to convince other organisations to provide the support that the person needs to remain in public housing, and maybe transfer them to better premises for that arrangement. So it’s not the case that every time they get orders they actually do make somebody with a mental illness homeless. But it is something that does happen.¹¹⁰

In addition to being evicted, people may be left with significant debt arising from rent arrears or property damage, which can also act as a barrier to people re-entering DOH accommodation in the future.¹¹¹

Neighbourhood disputes

As public housing stock is diminishing, it is being increasingly allocated to households with the greatest needs, with a significant emphasis placed on disability, homelessness and health problems.¹¹² This suggests that in certain public housing areas there will be a high concentration of complex needs among public housing tenants. Exacerbated by the limited availability of mental health and other support services to people with complex needs in such areas, disputes between residents can occur. Many people with a mental illness may either feel harassed, intimidated or discriminated against by their neighbours, contributing to a feeling of insecurity and, often, an exacerbation of their mental illness, or indeed they may exhibit behaviour that is problematic to others, likewise jeopardising the security of their housing.¹¹³

The most common issue relating to DOH raised in the consultations for this study were neighbourhood disputes between residents with a mental illness and other public housing residents:

We do tend to get complaints about people with particular behaviours that neighbours don’t agree with or the housing authority doesn’t agree with.¹¹⁴

Disputes ranged from small disputes over privacy to theft and harassment:

I had a problem: my next door neighbour put some excrement on the garden. I asked DOH to come out and tell her to stop it [but] it’s still going on. The same woman looks in my window if I have my blinds open, stands there and stares at me, or through the hole in my back gate.¹¹⁵

I have only lived here for three months. They have been there for three years. It’s like their turf; I feel like I am the one that has to be locked in the flat all day and not make an appearance out the front, otherwise they will stare at me or something.¹¹⁶

I have had conflict with neighbours; some have gotten over it and responded to me, others haven’t. What did I do? Have I offended people? Is it because I have been in trouble with the police?¹¹⁷

Acceptable behaviour agreements

Quite recently, the NSW Parliament passed the Residential Tenancies Amendment (Public Housing) Act 2004 introducing acceptable behaviour agreements (ABAs), in an attempt to curb neighbourhood disputes and address problematic “anti-social” behaviour in public housing. The legislation statutorily recognises the concept of renewable tenancies, so that a fixed term can be imposed on a public tenant’s residential tenancy agreement. The second part of the legislation allows DOH to require tenants who have been identified as exhibiting “anti-social” behaviour to sign an ABA.

The legislation stipulates that following an application from DOH, the CTTT must order that the tenancy be terminated in either of two situations:

• a tenant refuses DOH’s request to sign an ABA¹¹⁸
• a tenant or a member of a tenant’s household persistently breaches the ABA.¹¹⁹

Given the fact that public housing tenants with a mental illness may be involved in neighbourhood disputes and exhibit problematic behaviour, tenancy workers and legal workers are concerned that ABAs will be likely to disproportionately impact upon people with a mental illness.¹²⁰ The MHCC reports that DOH has finalised a policy framework that will ensure people with disabilities will receive a proper assessment, placing them outside the ABA regime. For example, when considering whether to put a person on an ABA, DOH must consider whether there are any special circumstances that need to be taken into account.¹²¹

This may however be problematic for people who do not disclose or who actively deny that they have a mental illness. Furthermore, a legal officer from the Tenants’ Union was concerned that this policy would not be always implemented:

DOH has said in writing that they do not want to use these amendments to evict people with mental illness. But people with a mental illness are obviously vulnerable to this if it’s used other than according to the department policy.¹²²

Tenants may appeal to the CTTT within 14 days of an order of termination being made.123 However, as discussed in Chapter 5, this may be problematic for people with a mental illness who face many barriers to participating in legal processes such as the CTTT.