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Public housing (NSW FACS Housing)

FACS Housing is part of the NSW Department of Family and Community Services. It manages public housing tenancies and properties for the NSW Land and Housing Corporation, which is the government corporation that owns the properties used for public housing and that enters into tenancy agreements with public housing tenants.

Public housing has previously been provided under different names and different agencies. FACS Housing was previously called Housing NSW, and before that the Department of Housing. Before the NSW Land and Housing Corporation was established in 1985, public housing in New South Wales was owned and managed by the NSW Housing Commission. Each of these old names is still occasionally used to refer to public housing.

Applying for social housing: Housing Pathways

Housing Pathways is the common application process for public housing and community housing. You can fill out an 'Application for Housing Assistance' form at either a FACS Housing office, or the office of a community housing organisation – it doesn’t matter which. You can state whether you want to be considered for public housing only, community housing only, or both. Your application will be considered according to a common policy to determine if you are eligible for social housing and, if you are eligible, whether you may be housed as a matter of priority ('priority housing') or must wait your turn on the Housing Register ('wait-turn').

This is new

Before 2009, there was a separate application form and waiting list for public housing and each community housing provider. Also, FACS Housing previously had different forms for ‘priority’ applications, and ordinary ‘wait-turn’ applications.

Tip

Make sure you keep your contact details on the Register up to date. If a social housing provider tries to contact you and gets no reply, you will be struck off the Register, and will have to apply – and wait – all over again. (In some exceptional circumstances, you may be able to get reinstated to your previous position on the Register.)

There are several eligibility criteria, including that you are a citizen or permanent resident, and can maintain a tenancy with or without support. The most crucial criteria are those about:

  • Income and assets;
  • Former social housing tenants; and
  • 'Urgent housing need' - for priority housing.

Income and assets

The income limits for eligibility vary according to the number and ages of members of your household. Table 6.1 gives the income limits as at May 2016:

Table 6.1. Income limits for eligibility

Household members

Gross weekly income

First adult (18 years and over)

$585

Each additional adult

+$225

First child

+$285

Each additional child

+$95

Most types of income are counted towards the income limits – but there are some exceptions. Deemed income from savings and assets is also included.

If you need to live with a carer, and the carer’s income would put you over the income limit for eligibility, the carer’s income can be disregarded for the purpose of eligibility. Where this happens, however, the carer will not be signed up as a tenant, and they won’t be eligible to take over the tenancy if you leave (see ‘Recognition as a tenant’, below). For the purpose of your rebated rent, however, the carer’s income will be included in the calculation.

Former social housing tenants

Additional eligibility criteria apply if you have previously been a social housing tenant or occupant. When a social housing tenancy is terminated, the social housing landlord categorises each tenant and occupant. Table 6.2 summarises the reasons by which FACS Housing categorises former tenants and occupants (community housing providers may use different reasons), and the effects of each category on the person’s eligibility for social housing into the future.

Table 6.2. Former social housing tenants and eligibility

Category

Reasons

Eligible?*

Satisfactory former tenant

No breach; or

Owe less than $500

Yes

Less than satisfactory former tenant

Owe more than $500; or

Abandoned the premises; or

Left property in unsatisfactory condition; or

Subject of complaints of minor, moderate or serious anti-social behaviour substantiated in Tribunal proceedings

Yes, but:
you will be eligible for a 6 month fixed term tenancy, after which FACS will decide whether to offer a longer tenancy

Less than satisfactory former occupant

Subject of complaints of minor, moderate or serious anti-social behaviour substantiated in Tribunal proceedings

Yes, but:
you will be eligible for a 6 month fixed term tenancy, after which FACS will decide whether to offer a longer tenancy

Unsatisfactory former tenant

Terminated by Tribunal for breach; or

Repeated categorisations as ‘less than satisfactory’

Yes, but:
you must first show that you can sustain a tenancy in private rental for 6 months before you will be offered a social housing tenancy

Ineligible former tenant

‘Extreme breach’, substantiated by Tribunal or the police, including illegal activities at the premises, arson or malicious damage to the premises, or attacks or threats against neighbours or staff

No, but:
'in special circumstances, and at their absolute discretion’, FACS Housing general managers can approve the application

* Provided other eligibility criteria ( for example, income, residency) are satisfied.

Tip

If your application is suspended or declined because FACS Housing says you owe money, ask for more information. Consider asking for the debt to be reviewed (first by FACS Housing, then by the Housing Appeals Committee – see section on ‘Reviews, appeals and the Housing Appeals Committee’). If the debt is older than six years, seek legal advice before acknowledging the debt or entering into arrangement to repay it.

If you are eligible and you are admitted to the Housing Register, your eligibility will be periodically reassessed, including according to the current income limits. Note that if you were admitted to the Housing Register before 27 April 2005, your eligibility can be reassessed according the current income limits, or according to the original income limits – whichever is more favourable to you.

If you disagree with a decision about your application – for example, a decision that you are ineligible, or a decision that you are entitled to wait-turn housing but not priority housing – you can seek review or appeal. See section on Reviews, Appeals and the Housing Appeals Committee.

'Urgent housing need’ - priority housing

To be eligible for priority housing, you must be eligible for social housing according to the other criteria, and additionally show that you have an ‘urgent housing need’. This means showing:

  • Unstable housing circumstances– you are homeless, about to become homeless, or you are living apart from your family because of unsuitable housing; or
  • ‘ At risk’ factors – you or a household member is at risk of harm from domestic violence, sexual assault, child abuse or neglect, or certain other factors; or
  • Current accommodation is inappropriate for basic housing requirements– because of severe overcrowding, dangerous or unhealthy property conditions, lack of essential facilities, or certain other factors; or
  • You are a client under a Shared Access Agreement– these are formal agreements between FACS Housing and certain human services agencies that combine social housing with support services.

You will also need to show that you cannot resolve this need in the private market. A range of factors may be considered, including your ability to afford private rental. For this purpose FACS Housing considers that paying 50 per cent of your income in rent is generally ‘affordable’.

If you’re eligible for priority housing and want to live in a ‘high demand’ area, a ‘locational need assessment’ will be conducted. You will have to show that you have a medical condition or disability that requires weekly access to services in the area, and that you cannot access these services elsewhere. If you cannot show a locational need, you may be offered priority housing in other areas.

Offers

You’re entitled to two reasonable offers of properties to rent; if you knock back the second offer, you will be struck off the Register. Think very carefully before knocking back your first offer – there’s no guarantee that the second will be better. If a property is unsuitable, write to FACS Housing (and, as always, keep a copy) explaining why and insisting that the offer not be counted.

Fixed terms

Until relatively recently, most public housing tenants signed up to tenancy agreements that were periodic agreements or had a fixed term of one week (and so very shortly became periodic agreements). Tenants were also given the expectation that they could remain in public housing as long as they liked, provided they did not breach the terms of their agreements.

Since 27 April 2005, FACS Housing's policy has been to offer tenancies with a fixed term of two, five or 10 years, depending on FACS Housing's assessment of your needs. At the end of the fixed term, FACS Housing reviews your eligibility to continue in public housing (the review considers your household income only). If you are found to be eligible, you will be offered another fixed term agreement (and if you fail to sign up to the new fixed term, FACS Housing can ‘declare’ that a new fixed term applies (section 142(2)). If you are found to be ineligible, FAC Housing will commence termination proceedings under a special provision of the Residential Tenancies Act 2010 (NSW) (the RT Act) (see ‘No longer eligible for social housing’ below).

If you have been a social housing tenant continuously since before 27 April 2005, and you have to sign a new public housing tenancy agreement (because, for example, you’ve transferred to another property), you do not have to sign a fixed term agreement, and should sign a new periodic agreement instead.

In certain limited circumstances FACS Housing offers tenancies for fixed terms of other than two, five or 10 years:

  • Former social housing tenants who are categorised as ‘unsatisfactory’, or ‘less than satisfactory’ because of substantiated anti-social behaviour, may be given a new tenancy agreement with a fixed term of six months.
  • Persons who are not ordinarily eligible for public housing but who are homeless (because, for example, of a natural disaster) may be given a tenancy for a fixed term of three months (Emergency Temporary Accommodation Policy).

Public housing rents

Every public housing tenancy has a ‘market rent’, which is the rent for the premises as stated in the tenancy agreement and increased by FACS Housing from time to time.

Most public housing tenants, however, do not actually pay the market rent. Instead, most receive a subsidy from FACS Housing that reduces the rent they actually pay (the ‘subsidised rent’) to about 25-30 per cent of their household’s income.

Your eligibility for a rent subsidy, and the rate of the subsidised rent, depends on the total amount of your household’s income relative to certain limits.

Table 6.3. Income limits and subsidised rent rates (May 2016)

Total household income (per week)

Subsidised rent rate

Up to the 'moderate income' limit

25 per cent

From the ‘moderate income’ limit to the 30 per cent limit

25-30 per cent (sliding scale)

From the 30 per cent limit to the subsidy eligibility limit

30 per cent

Above the eligibility limit

Ineligible for rent rebate - pay market rent

Table 6.3 shows how the thresholds are calculated for different types of household (as at May 2016). FACS Housing generally considers anyone staying with you for more than 28 days to be a member of the household (See Occupants and visitors section in Access and privacy).

Table 6.4. Income limits for different household types (May 2016)

Household type

‘Moderate income’ threshold (per week)

30 per cent threshold (per week)

Ineligible threshold(per week)

First adult

$745

$931

$1390

Each additional adult

+$200

+$250

+$370

First child

+$145

+$181

+$280

Each additional child

+$100

+$125

+$185

In most cases, your subsidised rent will be equal to your total household income multiplied by the rental subsidy rate. In all cases, if the market rent is less, you pay the market rent.

If your household income is a ‘moderate income’ (that is, between the ‘moderate income’ limit and the 30 per cent limit), your subsidised rent rate is determined on a sliding scale between 25 per cent and 30 per cent. Note that this rate applies to all your income, not just that part of it that’s above the ‘moderate income’ limit. (The same goes if you’re eligible for the 30 per cent rate).

There are, however, some types of income that are treated according to concessional rates: in particular, Family Tax Benefit payments and the incomes of young (18-20 year old) households members are subject to a concessional rate of 15 per cent. These types of income still count towards total household income for the purpose of determining eligibility for a rent rebate and the rate for other types of income.

Finally, in certain limited circumstances you may be eligible to pay $5 per week rent: in particular, if you have had to go into rehabilitation, a nursing home, a refuge or gaol.

Rent Assistance from Centrelink is not available to public housing tenants. Other household members may be eligible for Rent Assistance (in most cases the amount, if anything at all, will be small).

Always keep in mind that it is the tenant on the agreement who is legally liable to pay rent to FACS Housing. If you cannot get a household member to pay their share, your tenancy will be at risk.

Getting your rental subsidy wrong

FACS Housing expects you to inform it if your household changes, or if any household members’ incomes change. It also conducts its own reviews and investigations of tenants’ households and incomes. If FACS Housing has the wrong information about your household and its income, the rebated rent you pay will be wrong. FACS Housing often calls this ‘rental fraud’, and it can lead to serious trouble.

Tip

Inform FACS Housing immediately if your household changes, or if any members’ incomes change. Make a copy or a written note of the information. Keep in mind that if a visitor stays longer than 28 days, FACS Housing will generally regard them as a member of your household.

If FACS Housing believes you’ve been getting the wrong rental subsidy, it will conduct an investigation. It will usually do this by asking you to provide evidence about your household and the incomes of all household members. In many cases there is controversy about whether a particular person is a member of the household: in these sorts of cases, you may have to try to get evidence that a person does not live with you (for example, copies of recent leases or bills that show that the person lives at another address). FACS Housing can ask you for whatever evidence it thinks fit: Housing Act 2001 (NSW), section 58(2).

If, having conducted the investigation, FACS Housing still thinks you’ve been getting the wrong rental subsidy, it can vary your rental subsidy, or cancel it altogether (section 57(1)). It can also backdate the variation or cancellation, which will create a debt – sometimes a very large debt (in a few cases, well over $100,000). FACS Housing treats the debt as rent arrears and and can give you a termination notice on the ground of failure to pay rent: RT Act 2010, section 154A.

It is a criminal offence to make a false statement or representation to FACS Housing in order to obtain housing or a rental subsidy (maximum penalty: three months’ imprisonment and/or a $2200 fine: Housing Act 2001 (NSW), section 69(1)).

Additional terms

Public housing tenancy agreements include a number of additional terms. Some of them come from Part 7 of the Residential Tenancies Act 2010 (NSW): these are discussed below.

Other additional terms are FACS Housing's own creations. These additional terms have varied over the years, so they are not in all agreements or always expressed the same way, but include terms requiring you to provide information to FACS Housing for the purposes of rental rebates; to personally occupy the premises at all times; and to vacate if ‘under-occupying.’

As with any additional terms in tenancy agreements, there is always a question as to whether an additional term contracts out of the RT Act 2010 and is therefore invalid. Note, however, that where one of these additional terms is at issue, FACS Housing will usually have a course of action available to it other than proceedings for breach. For example, if you fail to provide information for the purpose of calculating the correct amount of your rental rebate, FACS Housing will probably not take action against you for breach of the relevant additional term; instead, it will likely cancel your rebate and take proceedings for rent arrears or debt.

The following additional terms come from Part 7 of the RT Act 2010 (so there is no doubt that they are valid).

Water charges

Water charges in public housing do not follow the usual provisions of the RT Act 2010 (that is, at section 39); instead, they are charged according to guidelines approved by the Minister for Fair Trading: section 139(1). The guidelines provide:

  • If your premises are separately metered, you will pay a weekly ‘actual water charge’. The charge is based on the cost of water you used in the previous water billing period. (You will not be charged until you have been in the premises for the whole of a billing period.) Allowances are provided for tenants who use a lot of water because of a health condition, disability or a large family.
  • If your premises are not separately metered, you will pay a weekly ‘percentage water charge’. This charge is calculated by applying a rate (5.7 per cent, as at May 2016) to your subsidised rent, up to a maximum charge of $8.50 per week. This means the amount of the charge will change as your subsidised rent changes, and has nothing to do with the amount of water you use.

Debts

At the reasonable request of FACS Housing, you must enter into and comply with arrangements for repaying debts you may have with FACS Housing (section 140). This includes debts from any previous tenancies you may have had with FACS Housing.

Other things

FACS Housing has distinctive policies and practices for all manner of things that can happen during a public housing tenancy (for example, if you want to get pay TV, see the Pay TV Satellite Dishes and Antennae Policy). The following are some of the most important or distinctive. Keep in mind that policies are not enforceable like the terms of a tenancy agreement are (see section About policies, decisions and administrative law).

Getting to see your file

FACS Housing keeps a lot of information about its clients and you are entitled to see the information it has about you.

You can informally request a copy of your tenancy agreement, condition report, rental account statement, application forms and any of your correspondence with FACS Housing. You can expect to receive this information as soon as practicable (not more than 10 working days) and free of charge.

If you don’t get the information you want, make a formal request. Also make a formal request if you want to see your entire file.

Formal requests are dealt with under the Government Information (Public Access) Act 2009(NSW). Make your request in writing and state the information you seek. Mail the request and application fee to:

The Manager
Right to Information Unit
FACS Housing
Locked Bag 4028
Ashfield NSW 2131

The application fee is $30, but may be discounted to $15 if you show that you’re a pensioner or student, or that you’re in financial hardship. There’s no fee if the information requested is about FACS Housing's internal review of a decision.

Further fees may be payable, depending on the amount of time it takes to process the information. See FACS Housing's Right to Information Policy.

Note that the Government Information (Public Access) Act 2009(NSW) has replaced the Freedom of Information Act 1989(NSW).

Tip

Immediately ask to see your file if FACS Housing commences proceedings against you, particularly termination proceedings.

Modifications

If you are elderly, or have a disability, or care for someone who is elderly or has a disability, you can ask FACS Housing to modify your public housing dwelling.

Under its Modifications policy, FACS Housing will modify a dwelling where it is economically viable to do so. (Otherwise, you may be offered a transfer to more suitable premises.) Modifications are done at no cost to you.

FACS Housing will agree to do minor modifications (for example, install grip rails, hand-held shower sets, lever-style taps and other non-structural changes) on the recommendation of a doctor or other health care professional.

If you request a major modification (for example, ramp access, widened doorways or changed layouts for the kitchen, bathroom or laundry), you will need to support the request with a report from an occupational therapist. FACS Housing will meet with you and the occupational therapist at the premises to discuss options.

For modifications and alterations that are not related to ageing or disability, use the usual provisions of the Residential Tenancies Act 2010 (NSW) (see ‘Making alterations to the premises’ in Repairs and maintenance section).

Repairs

The law in relation to repairs is exactly the same for public housing tenants as it is for other tenants. FACS Housing must provide and maintain your premises in a reasonable state of repair; if it doesn’t, FACS Housing is in breach of the tenancy agreement and you can apply to the Tribunal for a remedy.

Sometimes FACS Housing officers tell tenants that repairs cannot be done because a particular maintenance program is not yet underway, or because of some other reason relating to FACS Housing’s internal processes. None of this is your problem: you have a legal right to get repairs done, and the Tribunal can order FACS Housing to do it.

Notify FACS Housing of any repair requests or damage at the premises through the Housing Contact Centre on 1300 HOUSING (that’s 1300 468 746). Make a written note of your contact.

Tip

If you have to contact FACS Housing by phone, don’t do it when you’re in a rush or about to do something else. Do it when you’ve got some time on your hands. Make a cup of tea. Sit down. You could be in for a wait.

If you have to contact the Housing Contact Centre, keep in mind that it is open 24 hours a day, seven days a week. Don’t wait until 9 am Monday to call (this is still when most people ring, so it is when you will wait longest to get through). Have your diary at hand and make a written note of the time of your call. Ask for a reference number and write it down.

Recognition as a tenant (succession)

If you are an occupant of a public housing dwelling and the tenant dies or leaves to go to a nursing home, health institution or gaol, you can apply to FACS Housing for a tenancy in your own right. FACS Housing calls this ‘recognition as a tenant’ and it will decide whether you can stay according to its Changing a Tenancy Policy. (If the tenant leaves for another reason, different policies may apply – see the discussion at the end of this section.) You cannot apply to the Tribunal to be recognised as a tenant under section 77 of the RT Act 2010: that provision does not apply to social housing landlords.

To make the application, you must lodge an Application for Housing Assistance form, along with the Recognition as a Tenant Supplement, within six weeks of the tenant dying or leaving the premises. If you apply within six weeks, you will automatically get a six-month provisional lease, and FACS will consider whether to recognise you as a tenant with an offer of a standard public housing tenancy (for two, five or 10 years). If you apply outside the six-week timeframe, you will get only a three-month provisional lease, and will not be considered for recognition as a tenant with a standard lease. FACS can extend the six-week timeframe if there are ‘extenuating circumstances’ (for example, you have a disability). FACS may refuse to give you a provisional lease if you are an unsatisfactory former tenant, have been violent to FACS Housing officers or have damaged the property.

The criteria for being recognised as a tenant are stringent. You will be eligible in the following circumstances:

  • You are the tenant’s spouse or de facto partner and are aged 55 or over;
  • You are the carer of children or young persons occupying the premises, and you are eligible for social housing (on a wait-turn basis);
  • You had given up a public housing tenancy to move in as the tenant’s carer, and you are eligible for social housing (on a wait-turn basis);
  • You were an authorised additional occupant for two years or more, and you are eligible for social housing on a priority basis (that is, you have an urgent housing need that cannot be met in the private rental market).

Note that this means if you are the tenant’s spouse and are aged under 55 years, you will have to show that you are eligible for social housing on a priority basis. Similarly, if you are the adult child of the tenant of any age – even over 55 years – you will have to show that you are eligible for social housing on a priority basis.

If you are not recognised as a tenant, you will be able to remain in the premises only for the length of your provisional lease. If you are still in the premises at the end of the fixed term, FACS Housing will proceed to terminate the tenancy – even if at that time you can show that you are eligible for social housing on a priority basis. (Yes, FACS Housing will evict you from public housing while you are a priority for a public housing tenancy.)

There are special provisions for Aboriginal persons applying for recognition as a tenant. If you are an Aboriginal person, the timeframe for making an application is 10 weeks (not six weeks). Also, FACS Housing will not offer a provisional lease, but will instead decide directly whether to recognise you as a tenant with an agreement for two, five or 10 years. You will be recognised as a tenant if:

  • You are the tenant's spouse or de facto partner (no age criteria);
  • You are the carer of children or young people at the premises, and are eligible for social housing (on a wait-turn basis);
  • You had given up a public housing tenancy to move in as the tenant’s carer, and you are eligible for social housing (on a wait-turn basis);
  • You were an authorised additional occupant (no timeframe), and you are eligible for social housing (on a wait-turn basis);
  • You were not an additional occupant when the tenant left, but had been brought up at the premises by the tenant and have a long association with the area, and are eligible for social housing (on a wait-turn basis); or
  • You were not an additional occupant when the tenant left, but the premises were formerly Aboriginal Welfare Board premises and you are a descendent of the original tenant, and you’re eligible for social housing (on a wait-turn basis).

 

This is new

‘Recognition as a tenant’ was previously called ‘succession’. The succession policy was less stringent: generally, you had to show you had been an authorised additional occupant for two years and were eligible for social housing on a wait-turn basis (rather than on a priority basis). The previous policy also did not provide for provisional leases.

Tip

Tenants and additional occupants should consider asking FACS Housing to make you joint tenants. It is easier to get a joint tenancy while the tenant is still living at the premises than for an occupant to get recognition as a tenant after the tenant has died or left.

Other circumstances

If the tenant is excluded from the premises by an apprehended violence order (AVO), an occupant can apply to the Tribunal to be recognised as a tenant under section 79(2). (Unlike section 77, this section applies to social housing landlords.) Note that the AVO must be a final order, not an interim AVO. You will have to show to the Tribunal that you are eligible for social housing.

If there is a breakdown in a family, FACS Housing may offer the family member who moves out (whether they are the tenant, or an occupant) a public housing tenancy in another property. This is treated as a transfer (see below). However, FACS Housing’s policy does not say how it will deal with an occupant remaining behind after a tenant has moved out because of a family breakdown – if you are in this situation, seek advice from a Tenants Advice and Advocacy Service.

Transfers

You can apply to move (‘transfer’) to another social housing dwelling under FACS Housing’s Changing a Tenancy Policy.

Like an application for social housing, a transfer application is done through Housing Pathways, and you can specify if you want to transfer to public housing, community housing, or both. To be approved for a transfer, you must be eligible for social housing (so if your income has increased above the income threshold for eligibility, you won’t get a transfer) and show that your current dwelling or location is unsuitable to your needs.

If you’re approved, you will be placed on the Housing Register for a transfer on either a wait-turn basis or a priority basis; for a priority transfer, you will need to show certain ‘urgent housing need’ factors.

Before you are offered alternative premises, FACS Housing will generally ask that you pay any debts under your current tenancy.

When you move premises you need to sign a new tenancy agreement. If you were part way through a fixed term, you can expect the fixed term of your new agreement to be equivalent to the remainder of the fixed term under your previous tenancy agreement. If you had a periodic agreement, and have been a social housing tenant continuously since before 27 April 2005, you should sign a new periodic agreement.

FACS Housing also allows you to transfer by ‘mutual exchange’ with another public housing tenant. FACS Housing maintains a register of interested tenants to help put them in touch with one another, and will enter into new tenancy agreements with mutually exchanging tenants. FACS Housing will not, however, make a person move if they change their mind – so try to ensure that the tenant with whom you’re mutually exchanging is committed to the move, especially before you start booking removalists and making other arrangements.

Occasionally FACS Housing will initiate the transfer process, either for ‘tenancy management purposes’ (for example, where there is a dispute between neighbours) or ‘portfolio management purposes’ (FACS Housing proposes to redevelop the property). FACS Housing will usually make two offers of alternative premises (in some cases, only one); if you do not accept, it will then move to terminate your tenancy (see ‘Offer of alternative social housing tenancy’, below).

If the transfer is for ‘portfolio management purposes’, you may be asked to indicate if you’d like to transfer back to the area after the redevelopment. Also, FACS Housing may assist with relocation expenses and, if you’ve made improvements to your current property, try to offer you premises with a similar level of amenity. Be prepared to press hard for this sort of assistance.

Stock transfers

In recent years, thousands of public housing properties have been transferred to community housing – including properties that are occupied by tenants. FACS Housing calls these ‘stock transfers’, even though in most cases the Land and Housing Corporation remains the owner of the property (which is headleased to the community housing provider).

If FACS Housing proposes to transfer your dwelling to a community housing provider, it will usually write to you and advise you to sign a new tenancy agreement with the community housing provider. The community housing provider will probably contact you, too. If there is anything you want to know about the community housing provider before you sign – for example, its policies on transfers or pets – ask for it to respond in writing. If you’re not satisfied with a response, consider negotiating with the community housing provider to do better.

If you sign a new tenancy agreement with the community housing provider, your agreement with FACS Housing will terminate (by disclaimer: section 81(4)(g)).

If you refuse to sign, FACS Housing will usually say that the property must be transferred, with or without you in it, and prepare to offer you alternative premises and terminate your current tenancy (see ‘Offer of alternative social housing tenancy’ below).

Ending a Public Housing Tenancy

You can end your public housing tenancy in any of the ways discussed in the section on Ending a tenancy: in most cases, this means giving a written 21-day termination notice. Note that if you are terminating your tenancy during a fixed term, FACS Housing will always consent to termination if you give 21 days’ notice (so there is no problem of being liable for breaking the agreement).

All of the methods of termination available under the Residential Tenancies Act 2010 (NSW) to landlords generally are available to FACS Housing, but it generally does not use termination notices without grounds. In addition, there are a number of special provisions and additional grounds for termination available to FACS Housing as a social housing landlord.

Termination notices without grounds and procedural fairness

FACS Housing’s long-established practice in termination proceedings is not to use termination notices without grounds (in particular, section 85). This is because FACS Housing is subject to administrative law and the rules of procedural fairness. For this reason, FACS Housing generally uses termination notices with grounds, and treats its termination proceedings in the Tribunal as your opportunity to respond to the case against you.

In some unusual circumstances, however, FACS Housing will use a termination notice without grounds. These include where the three-month fixed term of an Emergency Temporary Accommodation tenancy is ending, and where a tenant has died and FACS Housing is giving notice to the tenant’s estate.

FACS Housing also uses the provisions of the RT Act 2010 for termination applications without a prior termination notice: in particular, on the grounds of injury or serious damage (section 90), use of the premises for an illegal purpose (section 91) and threat, abuse, intimidation and harassment (section 92).

‘One strike’ terminations

In some circumstances where FACS Housing takes termination proceedings under section 90 (the injury ground) or section 91 (use of premises for an illegal purpose), special provisions apply to make them ‘one strike’ proceedings. This means that there will be restrictions on what the Tribunal may consider in the case, and its ability to decline to terminate the tenancy will be limited. The provisions are more severe in some circumstances than others.

The more severely dealt-with circumstances (section 154D(1)) are:

  • Manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 (NSW) (the ground at section 91(1)(a));
  • Use of the premises for an illegal purpose (section 91(1)(b)), being storage of a firearm without a licence;
  • Use of the premises for an illegal purpose (section 91(1)(b)), being a ‘show cause offence’ under the Bail Act 2013 (NSW);
  • Injury to the landlord, agent or neighbour (part of the ground at section 90(1)(b)), where the injury constitutes grievous bodily harm. 

For each of these circumstances, where the ground is proved the Tribunal must terminate the tenancy. With regard to the section 91(1)(b) proceedings, if the offence was on the premises or an adjoining property, the Tribunal must assume that the premises were ‘used’ and that the use justifies termination (section 154D(4)).

The less severely dealt-with circumstances (section 154D(2)) are:

  • Injury to the landlord, agent or neighbour (section 90(1)(b)), but less than grievous bodily harm;
  • Serious damage to the property (section 90(1)(a));
  • Use of the premises for an illegal purpose (section 91(1)(b), being:
    • use as a brothel;
    • the production, dissemination or possession of child abuse material;
    • car or boat rebirthing; or
    • any other use for unlawful purpose sufficient to justify termination.

For each of these circumstances, where the ground is proved the Tribunal must terminate unless there are ‘exceptional circumstances’. With regard to the section 91(1)(b) proceedings, if the offence was on the premises or an adjoining property, the Tribunal must assume that the premises were ‘used’ and that the use justifies termination (section 154D(4)).

In proceedings on these types of misconduct, the Tribunal retains discretion, subject to a threshold: where the ground is proved, it may decline to terminate in ‘exceptional circumstances’ only (new section 154D(3)(c)). The three specified illegal uses (brothel, child abuse material, and car and boat rebirthing) are more readily proved, because new section 154D(4)(b) operates to require that the Tribunal assume that the premises were used and that the use justifies termination.

There are some qualifications. The biggest qualification is that the ‘one strike’ provisions do not apply if termination would result in undue hardship to a child, a person in whose favour an apprehended violence order may be made, or a person suffering from a disability who is occupying or jointly occupying the premises. In these cases, the Tribunal retains its ability to decline to terminate the tenancy (FACS Housing can still apply for termination, and the Tribunal can still order termination – but it can also decide not to).

Other specific qualifications are:

  • Storage of a firearm without a licence – ‘one strike’ provisions apply only if the tenant or other person has been charged with an offence;
  • 'Show cause offences’ under the Bail Act 2013 (NSW) – ‘one strike’ provisions apply only if the tenant or another person has been charged with an offence;
  • Injury amounting to grievous bodily harm – ‘one strike’ provisions apply only if the injury arises from an act of the tenant (not another person acting without the tenant).

This is new.

The provisions for ‘one strike’ termination proceedings were enacted in 2015.

Tip.

The ‘one strike’ provisions are complex. If you get notice of termination proceedings against you under section 90 or 91 of the RT Act 2010, seek advice from a Tenants Advice and Advocacy Service immediately.

'Three strikes’

Like other landlords, FACS Housing can take action against a tenant’s breach of their agreement by giving a termination notice and applying to the Tribunal for termination orders. However, FACS Housing can alternatively issue the tenant a ‘strike notice’ (section 154C(1)).

A strike notice must be in writing, give particulars of the breach, and invite the tenant to make submissions disputing the strike notice within 21 days. If you dispute it and FACS Housing decides that the strike notice stands, you can ask the Housing Appeals Committee (HAC) to review the decision (section 154C). Unlike other HAC reviews, this review is binding on FACS Housing (section 154C(7)).

If two strike notices have been recorded against you and FACS Housing thinks you are in breach again, it can record a third strike and serve a notice of termination on the ground of breach (section 154C(9)). When FACS Housing applies to the Tribunal for termination, the Tribunal will consider any strike notices recorded against you. If you did not dispute a strike notice at the time, the Tribunal must take the facts stated in the strike notice as ‘conclusively proved’ – so you won’t get an opportunity to challenge them before the Tribunal. If you did dispute the strike notice in time, the onus is on you to prove to the Tribunal that the facts stated in the strike notice are not true (section 156A).

This is new.

The provisions for ‘strike notices’ were enacted in 2015.

Tip.

If you receive a strike notice, dispute it. Your submission doesn’t have to be perfect; the important thing is to get it in within 21 days of receiving the strike notice. Also ask your Tenants Advice and Advocacy Service for help.

Additional Grounds for Termination

Grounds Period Notes
Not eligible for social housing 60 days Landlord must first conduct eligibility assessment, then give notice of decision and 30 days for review of decision. Termination date not before end of fixed term. If procedure is followed properly, Tribunal must terminate.
Offered alternative social housing 30 days Landlord must first offer alternative premises and give notice of decision to terminate and 14 days for review of decision. May be given during fixed term. If procedure is followed properly, Tribunal must terminate.
Acceptable behaviour agreement – failure or refusal to enter into ABA 14 days  
Acceptable behaviour agreement – breach 14 days Tenant must prove that breach did not occur.

Table 6.5. Additional grounds for termination – social housing

The usual requirements of termination notices under the RT Act 2010 apply (for example, the notice must be in writing and properly served).

No longer eligible for social housing

FACS Housing can use this termination notice to terminate tenancies found to be ineligible at the end-of-fixed-term review (‘eligibility assessment’). Importantly, this notice cannot be given to a person who has been a social housing tenant continuously since before 1 July 2005 (Schedule 2, clause 8). The provisions of the RT Act 2010 for this termination notice also set out how FACS Housing is to conduct the assessment and give an opportunity for review.

Step 1. The eligibility assessment

  • FACS Housing may conduct the assessment not more than six months before the end of the fixed term (section 144(6)).
  • FACS Housing may request from you any information it reasonably requires (section 144(4)). If you refuse, FACS Housing can hold you to be ineligible (section 144(5)).
  • The eligibility criteria for the assessment are set by the Minister for Family and Community Services (presented below in Table 6.6). The criteria must not relate to whether you have complied with a term of the tenancy agreement (section 144(3)); and in fact, the current criteria relate only to income. Table 6.6 shows the current income thresholds; they are higher than the income thresholds for getting into social housing.
Household type Income limit (per week)
First adult $844
Each additional adult +$225
First child +$163
Each additional child +$113
Each person with disability +$85
Each person with exceptional disability +$200

Table 6.6. Income thresholds – eligibility to stay in public housing.

If you are found to be eligible to stay, you will be offered a new fixed term agreement. Apart from that, there is nothing more to the assessment process for you to do. If you are found to be ineligible, go to step 2.

Step 2. Right to review

  • FACS Housing must notify you in writing that it proposes to terminate your tenancy on the ground that you are ineligible. This notice is not a termination notice – that’s step 3.
  • The notice must give particulars of the reasons why you were found to be ineligible, and state that you may apply for a review of the decision to seek termination within 30 days (section 145(2)(a) and (b)). You are entitled to make representations to FACS Housing for consideration in the review (section 145(3)).

Under its policy on lease reviews, FACS Housing may allow an otherwise ineligible tenant to continue in public housing if their circumstances have changed since being assessed as ineligible, or if it will:

  • protect vulnerable children from risk of abuse or neglect;
  • protect a household member with disability from serious risk to their health;
  • support a household member in maintaining education, training or employment; or
  • prevent homelessness, severe overcrowding or other unsuitable housing arrangements.

You will also need to show that private rents in your location are unaffordable (more than 50 per cent of your income), and that you’d face the same risks even if you moved away to a more affordable location (see Housing NSW - Tenancy Policy Supplement – During a Tenancy – lease reviews).

  • If FACS Housing conducts its review in accordance with the provisions of section 145, it is taken to have observed procedural fairness (section 145(6)). This limits the prospect of judicial review of the decision.
  • If on review FACS Housing decides not to seek termination, you will be offered a new fixed term agreement. If it decides to seek termination, go to step 3.

Step 3. Termination notice

  • FACS Housing may give a 60-day termination notice on the ground that you are not eligible for social housing. If it is given during the fixed term of the tenancy, the termination date must also be on or after the end of the fixed term (section 146(2)).
  • The termination notice cannot be given before the end of the 30-day period you have for asking for a review, or before the end of any such review (whichever is the later) (section 146(1)).

Step 4. Tribunal

  • On FACS Housing's application, the Tribunal must terminate the tenancy agreement, provided the termination notice is valid and the provision for the right to review were followed (section 147(1)). The Tribunal is specifically prohibited from doing its own review of your eligibility (section 147(2)).

In practice, very few public housing tenants – about 1 per cent – are found to be ineligible on review.

Offer of alternative social housing tenancy

FACS Housing can use this termination notice where it has offered to transfer you (for either ‘tenancy management’ or ‘portfolio management’ purposes) to another property. The provisions of the Residential Tenancies Act 2010 for this termination notice also set out how FACS Housing is to make the offer and give an opportunity for review.

Step 1. Offer of alternative premises/right to review

  • FACS Housing must offer you a social housing tenancy in alternative premises.
  • FACS Housing must also notify you in writing that it proposes to terminate your current tenancy if you do not accept the offer of alternative premises. This notice may be given at the same time as the offer (section 149(2)). It’s not a termination notice – that’s step 2.
  • The notice must contain particulars of the reasons why FACS Housing wants you to move, and state that you may apply for a review of the decision to seek termination of your current tenancy (section 149(3)(a) and (b)). You are entitled to make representations to FACS Housing for consideration in the review.
  • After conducting the review, FACS Housing will refer the matter and its proposed decision to the Housing Appeals Committee (HAC) for its recommendation. The HAC will make a recommendation within seven days of receiving the referral; and FACS Housing will make a final decision within five days of receiving the recommendation. (Note: this unusual use of the HAC comes from a ministerial guideline. Under section 149(5), reviews must comply with procedures set out in ministerial guidelines.)
  • As a result of the review, FACS Housing may decide to take no further action (that is, you can stay where you are); or it may decide to seek termination (go to step 2, below); or it may make another offer of different social housing premises (section 149(6)).
  • If FACS Housing makes another offer, it’s a repeat of step 1: that is, it again has to give the notice, and the opportunity for review. If it makes any further offers after that, however, the notice and review requirements do not apply (section 149(7)).

Step 2. Termination notice

  • FACS Housing may give a 30-day termination notice on the ground that you are offered alternative social housing premises (section 148).
  • The termination notice cannot be given before the end of the 14-day period you have for asking for a review, or before the end of any such review (whichever is the later) (section 150(1)).
  • The alternative premises must be available for occupation no later than seven days before the termination date – otherwise the termination notice is ineffective (section 150(4)).

Step 3. Tribunal

  • On FACS Housing's application, the Tribunal must terminate the tenancy agreement, provided the termination notice is valid, the provisions for the right to review were followed, and alternative premises are available for occupation (section 151(1)). (At this step in the process, the available alternative premises need not be the premises you were offered earlier: section 151(1)(d).) The Tribunal is specifically prohibited from doing its own review of FACS Housing's reasons for wanting you to move (section 151(2)).

Acceptable behaviour agreements

The RT Act 2010 provides that FACS Housing can ask a social housing tenant to enter into a separate agreement, called an ‘acceptable behaviour agreement’ (ABA), under which the tenant agrees not to engage in anti-social behaviour, as specified in the ABA (section 138(1)). The ABA covers other occupiers of the premises, too (section 138(2)). FACS Housing may ask for an ABA if, in its opinion based on the history of the tenancy or any prior tenancy of the tenant, the tenant or an occupier is likely to engage in the specified anti-social behaviour (section 138(3)).

Failing or refusing to enter into an ABA as requested is grounds for termination (section 153(1)(a)); so is seriously or persistently breaching an ABA (section 153(1)(b)). In termination proceedings on the ground of breach of an ABA, the usual onus of proof is reversed: the tenant must show that they have not seriously or persistently breached the ABA (section 154(b)).

This is changed.

The ABA provisions under the Residential Tenancies Act 1987 (NSW) (the RT Act 1987) gave no discretion to the Tribunal, stating that the Tribunal ‘must’ terminate where the grounds for termination were made out; under the RT Act 2010, the Tribunal ‘may’ terminate, which indicates that it has discretion.

When the ABA provisions were first introduced into the RT Act 1987, FACS Housing conducted a pilot study of their use, along with other methods for dealing with anti-social behaviour. As a consequence of the study, FACS Housing decided to use other methods, and not the ABA provisions. To date, Housing NSW has never entered into an ABA, nor has it applied for termination on the ground of failing or refusing to enter into an ABA.

If you are ever asked to enter into an ABA, or if a housing officer raises the prospect of an ABA, contact a Tenants Advice and Advocacy Service immediately.

Registrable persons: termination by Director-General

There is one final special provision for termination: it sits outside the RT Act 2010 at Part 7A of the Housing Act 2001 (NSW). This provision is very narrow: it applies only to public housing tenancies where the tenant is a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW) – that is, a person who has committed certain serious offences against children.

Section 58B allows the Director-General of the NSW Department of Family and Community Services to make a written order terminating the tenancy of a registrable person where the person is a public housing tenant and the Commissioner of Police has recommended termination because the presence of the tenant places any neighbours in the locality, or the tenant themselves, at risk of physical harm or injury. The order immediately terminates the tenancy, and the tenant must vacate immediately, or be evicted by the police. The tenant is not entitled to any compensation, but alternative housing must be made available (section 58C).

Note that there is no role for the Tribunal in terminations under these provisions, and section 58F purports that neither the Director-General’s decision to make the order, nor the Police Commissioner’s decision to recommend it, can be reviewed by a court. To date these provisions have been used once only.

 

Tenants' Rights Manual by Chris Martin in association with the Tenants' Union of NSW. Published by Federation Press 2012. © Tenants' Union of NSW. Material contained herein may be copied for the non-commercial purpose of study or research subject to the provisions of the Copyright Act 1969 (Cth).

The online version of the Tenants’ Rights Manual was updated in August 2016. Changes include the introduction of the NSW Civil and Administrative Tribunal (NCAT), which replaced the Consumer, Trader and Tenancy Tribunal (CTTT), and changes to the law dealing with public housing, boarding houses, and residential parks.

The information in this resource is intended as a guide to the law and should not be used as a substitute for legal advice; and applies to people who live in, or are affected by, the law as it applies in New South Wales, Australia.