Housing and Tenancy

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Appealing a decision by the Office of Housing

This page considers matters which may be appealed under the Office of Housing (OOH) appeals policy (Appeals Policy).

Generally speaking, all decisions relating to the application of Office of Housing (OOH) policy can be appealed, except those decisions which are subject to the jurisdiction of VCAT.

When can a person appeal?

The Housing Policy states '[a]ll decisions relating to the application of OOH policy may be appealed except those decisions that come under the jurisdiction of a statutory body such as VCAT.'[1]

A person can appeal decision by the OOH in relation to:

  • policy decisions regarding
    • eligibility for rental housing
    • eligibility for special housing needs program
    • eligibility for recurring homelessness program
    • eligibility for supported housing program
    • allocation/offers of accommodation
    • relocation policy and relocation agreements
    • mutual swaps
    • revival of rental applications
  • rental rebate policy assessments (cancellation / backdating / calculations
  • requests for special maintenance work (including disability modification)

Please note that this list is not exhaustive, and the grounds are not limited to those grounds contained in the Housing Policy.

Practice tip

In advising and advocating for tenants in relation to housing appeals it is necessary to identify:

  • A decision by a housing service or agency
  • The relevant policy governing the decision
  • The way in which the decision breaches or is inconsistent with the policy

Note: In order to demonstrate inconsistency between decision and policy it will likely be necessary to obtain a copy of the tenant's file (a Freedom of Information request may be required for this purpose).

For more information see the Office of Housing website.

Can you appeal decisions of housing agencies?

Yes. You can appeal a decision by a housing service or agency in relation to reoccurring homelessness applications where the decision has been made;

  • Not to assess a person's application for priority access to public housing,
  • Not to refer it to the Department of Human Services Regional Panel.

 

This appeal is processed through the Recurring Homelessness Appeals process.

What matters cannot be appealed?

It is worth repeating the Housing Policy which states, '[a]ll decisions relating to the application of OOH policy may be appealed except those decisions that come under the jurisdiction of a statutory body such as VCAT.'[2]

The Housing Policy also states that other non-appealable matters include (not limited to):

  • Rental Arrears Recovery Procedures (possession orders, evictions, notices to vacate)
  • Requests for emergency / responsive maintenance
  • Breaches of the RTA / Tenancy Agreement
  • Tenant responsibility maintenance charges
  • Subletting, and
  • Transfers of Tenancy

Practice issue: Is the decision to issue a Notice to Vacate or a Notice of Breach a matter within the application of OOH policy? See OOH policy 'Tenancy Breaches & Dispute Resolution'. 

What principles govern the appeals process?

The Appeals Policy states that the process is governed by 3 principles:

  • Accessibility: 'All OOH clients have the right to appeal against OOH decisions relating to the provision of housing services they believe are incorrect, provided that those decisions do not come within the jurisdiction of a statutory body such as the Victorian Civil and Administrative Tribunal (VCAT)...'
  • Redress: 'The appeals process allows for decisions to be overturned where policy has not been correctly applied...'
  • Accountability: 'The Housing Appeals, Housing Complaints and Home Finance Review Office must document all decisions clearly and openly to ensure the integrity of the process...'

Practice tip

Request reasons for decision in your housing appeal. A request for reasons is supported by the 'accountability' mandate in the housing policy and the Administrative Law Act 1978 (ALA). Note: section 8 the ALA provides an obligation on 'Tribunals' to provide a statement of reasons for decision. 'Tribunal' is defined in the ALA as a person or body of persons who are by law required (by express direction or not) to act in a judicial manner to the extent of observing one or more of the rules of natural justice (see definition in section 2).

How does a person appeal?

If possible, parties should continue to negotiate and seek to resolve disputes before issuing an appeal.

If after speaking to the Office of Housing the issue cannot be resolved, then a Housing Appeals application form should be lodged (see below). All relevant documentation and evidence should be included with the application. Case workers, housing workers and lawyers can assist with collecting evidence and completing and lodging the form.

Practice tip

Ideally parties will have received a copy of their OOH file before lodging a Housing Appeal. Alternatively, if time does not permit, it may be worth lodging a Freedom of Information request at the same time as lodging a Housing Appeal and noting that further material/amendments/adjournments may be required following receipt of this material.

Housing Applications should generally address the following:

  • Facts: Provide a chronological summary of relevant facts
  • Decision: Identify the decision of the OOH in issue
  • Policy: Identify the policy and specific provisions of the policy which relate to the OOH decision
  • Inconsistency/breach: Relate the facts and the decision to the specific policy provisions. Demonstrate the way in which the decision breaches or is inconsistent with the policy

Note it may also be worth referring to special circumstances of the client (illness, family responsibilities or other hardship) that may be relevant to issues of delay or inconvenience arising from the decision.

The Housing Appeals form is available here.

Housing Appeals Process

There are 2 stages to the appeals process:

  • 'tier one' relates to internal review of a decision by a Housing Service Manager, and
  • where the appeal is unsuccessful at the first stage, it then proceeds to 'tier two' (referred to as 'independent review') where it will be considered by the Manager of Housing Appeals and Complaints.

Ultimately these stages largely detail administrative steps and therefore appear to carry greater internal significance for OOH than for individual applicants. Aside from this, the appeal process for applicants involves:

  1. Identifying a basis for appeal (decision and policy)
  2. Obtaining information and evidence to support position
  3. Attempting to negotiate with the OOH
  4. Lodging FOI application with OOH for client file (if relevant)
  5. Lodging OOH appeal application form (see How does a person appeal?)
  6. Attending an interview if required (advocates should use the application to prepare for this interview)
  7. Waiting for decision
  8. If refused, consider whether further action may be appropriate (eg judicial review, action in VCAT)

Interview

At the tier two stage, the housing file is checked to ensure it contains all relevant information and supporting material and then contact is made with the applicant for an interview to (1) ensure the reasons for the appeal are clear, and (2) provide an opportunity for the applicant to provide their reasons for appealing and any information not previously available.

For more information see the Office of Housing website.

Access to information - FOI

The Appeals Policy does not refer to the ability to obtain information relied upon by housing workers in their decision. Note that part 4.5.8 refers to 'key roles in the Appeal Process - Tier one' and states that the housing office is to 'provide clear and concise information to clients regarding OOH policies and procedures' and to 'provide documentation and information on the appeal application and the basis on which the original decision was made.' Despite this there is no clear directive suggesting the OOH is to provide a tenant file where a Housing Appeal is to be (or has been) made. Further, part 4.6.5 of the Appeals Policy suggests that 'Staff should refer freedom of information requests relating to an appeal, to the Appeals Information Offices. The Appeals Information Officer will endeavour to ensure that the request is processed as quickly as possible to avoid delaying the appeal.'

Practice tip

As discussed above, information may be crucial to establishing that a OOH decision is incorrect or inconsistent with the relevant policy. In light of comments in the appeal policy it seems that although the FOI process is required to obtain access to client information that access may be expedited in relation to matters pertaining to internal appeals.

How else can matters be appealed / reviewed?

There are a number of potential ways in which issues can be reviewed or appealed, including:

  • The Minister
  • VCAT (for matters arising under the Residential Tenancies Act 1997)
  • Victorian Ombudsman (jurisdiction to investigate decisions, actions and conduct of Victorian government departments and statutory bodies),
  • Victorian Equal Opportunity & Human Rights Commission (in relation to discrimination matters)
  • The Victorian Supreme Court (judicial review)

Ministerial appeal

As suggested above, it is possible to write directly to the Minister for Housing in relation to matters of concern.

Ultimately it is likely that a 'ministerial' appeal will be dealt with in a manner similar to appeals under the 'Appeals Policy.' That is, the Minister will request information to confirm that any decision has been made in accordance with housing policy and is unlikely to intervene if housing policy has been followed.

Despite the similarities with the 'Appeals Policy', it may still be worth writing to the Minister in relation to matters where there are special circumstances which apply to the client or where the matter may broadly be considered to be in the 'public interest.'

HPLC lawyers should consult with the HPLC Manager before writing to the Minister. 


[1] Housing Appeals Policy, part 4.5.4, p 4-7

[2] Housing Appeals Policy, part 4.5.4, p 4-7