Rental rebates on public housing are subject to policy and may vary from time to time. Guests may be deemed residents if they visit frequently and their income may be included in residents’ assessable income. Sole tenants may be entitled to reduced rent during an absence of up to six months.
Social housing (community and public housing) is a type of rental housing that is provided and/or managed by the government or non-government organisations. Social housing is an overarching term that covers both public housing and community housing.
Social housing often adopts policies that are in addition to the criteria of the RTA. These polices as designed to regulate and protect the accessibility of financially supported housing.
Housing policies may vary from time to time, but generally serve to regulate the discretion of the social housing provider. For the purposes of the RTA, unless clearly stated to the contrary, social housing providers are treated the same as any private landlord.
It is paramount to note that VCAT cannot consider policy-based decisions, such as a social housing provider deciding to serve no reason Notice to Vacate, unless it could be shown to be retaliatory.
The fact such a decision may be contrary to a social housing’s purpose or constitution is either a matter for internal appeal, external intervention by an overseeing body such as the Housing Registrar, or in the case of a decision by public authorities such as the Officer of Housing, a matter of judicial review. With respect to the latter, and similar to appeal, such a decision must have the qualities of an error of law.
Many social housing providers mirror or seek to mirror the policies as adopted by the Director of Housing. These policies are available online via the DHS website at www.dhs.vic.gov.au.
It is important to note that according to section 8 of the Freedom of Information Act 1982 (Cth), policy documents used for decision making should be made available for inspection unless an exemption applies. Further, in section 9, if a policy is not made available where it should have been under section 8, then the ability of a public authority to rely upon that policy, if not otherwise clearly stated in law, may be unlawful.
For community housing providers, policies should be available (or at least available upon request from the housing provider), as they form part of the terms of a tenancy agreement. If policies are not provided, parties should look at making an internal formal complaint, and then approaching the Housing Registrar or applying to VCAT under a general dispute.
The most important policy for social housing tenants to understand is the rental rebate policy. You can get this on request from your social housing provider, or for tenants in public housing, find the relevant information on the Office of Housing website at www.dhs.vic.gov.au – search on “public housing policy and procedure manuals”.
The rental rebate supposes a “market rent.” This is the amount the premises would be let at, if there was no subsidy.
The total household income is then assessed in accordance with the Director of Housing or relevant rebate policy.
By applying the policy, the rent is then discounted or “rebated.” This calculation is usually based on the relevant landlord seeking to ensure that tenant pay no more than a particular percentage of their household income as rent. For details regarding what income is counted as assessable income for rebate purposes, parties should refer to policies available on the Office of Housing website www.dhs.vic.gov.au – search on “public housing policy and procedure manuals”.
It is important to note that parties should ensure that they comply with the policy, as certain guests or licensees may be deemed as “residents” under the rebate policy for residing in the premises frequently. While they do not become tenants, the policy may effectively count their income as part of the household income, causing the rent to effectively increase.
As matter of practice, the policy can be retrospectively applied, to cause an increase or decrease in rent.
If parties disagree with a particular assessment, they may wish to lodge an internal appeal. If the application of a rebate policy appears in error after an internal appeal, parties should seek legal advice.
It is critical in relation to rent arrears matters to ensure the rebate has properly been assessed and is up to date, as this may dictate the validity of a Notice to Vacate for rent arrears.
For more information, see the “Rental Rebate” chapter of Public Housing Policy and Practice Manual available at www.dhs.vic.gov.au – search on “public housing policy and procedure manuals”.
Generally, if a sole tenant is going to be absent for period of six weeks or longer, tenants should let the Office of Housing know in writing, to reduce any issues of perceived abandonment or subletting. If a tenant is absent, they should ensure up-to-date contact details have been provided, or an emergency contact is nominated.
In special circumstances, a sole tenant may be eligible for reduced rent for the duration of their absence (up to six months, generally).
During this period, rent is reduced to $15 a week. Recogised reasons that may entitle a party to reduced rent include being temporarily relocated to a nursing home, rehabilitation, respite or incarceration (remand or sentenced) facility.
Parties should discuss these policies and the relevant documentation with their social housing provider.