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About policies, decision-making and administrative law

Most social housing providers have a set of policies that guide their decision-making about eligibility, rent rebates, transfers and other matters. These policies do not create obligations that can be legally enforced against the social housing provider in the same way that the terms of a contract can be enforced. They also don’t give the social housing provider any legal powers or rights that they don’t otherwise have at law, and they don’t displace or override any legal obligations that the social housing provider otherwise has.

Policies do, however, have some legal consequences, at least in relation to public housing and NSW FACS Housing.

When you are dealing with NSW FACS Housing, you can legitimately expect its officers to follow its policies. Where a proposed decision will affect your legitimate expectations (for example, what you expect from a policy) or your legal rights and interests (for example, your tenancy), administrative law requires that the decision-maker follow the rules of ‘procedural fairness’ (or ‘natural justice’): that is, that they inform you of the proposed decision and give you an opportunity to put your case.

Administrative law also requires that the decision-maker take into account all relevant considerations, and no irrelevant considerations, and that the decision be reasonable.

Decisions that are not made according to the rules of administrative law can be reviewed by the Supreme Court. This is a fairly drastic option: you can also seek review of NSW FACS Housing decisions through its own review and appeals process (see the section on Reviews and appeals).

Generally, administrative law applies to government agencies and certain other bodies, not private individuals and companies (it does not apply to private landlords and their agents). It is not clear whether the rules of administrative law apply to non-government social housing providers, such as community housing providers (this issue needs to be tested in the courts). However, these organisations are required, as a condition of their registration under the Housing Act 2001(NSW) (Part 9A), to use ‘fair and transparent processes to determine eligibility for community housing, the allocation of community housing properties, rent and tenure and in terminating leases’ (Housing Regulation 2009 (NSW), Schedule 1, clause 3). They are also required to have review and appeals processes.