The Disability Act and the Right to Housing

Conroy v Yooralla Society of Victoria [2009] VCAT 1873 (7 September 2009) The Applicant, Mr Conroy had a physical disability and had lived in a community residential unit operated by the Respondent (Yooralla Society of Victoria) for 12 years before receiving two notices to vacate under the Disability Act 2008.  The first Notice alleged that the Applicant endangered the safety of other residents or staff; the second, that he caused serious disruption to the proper use and enjoyment of the premises by other residents.

Neither of the notices to vacate identified particular incidents which were the basis for the eviction but rather, described broadly, allegations dating back to 1997.  The most recent allegation relied upon was 12 September 2008, 9 months before the relevant notice to vacate was issued.

Decision

Detail required in notice to vacate

Lambrick SM found that the Notices were invalid because they did not sufficiently identify the facts upon which the notices were issued.

Section 76(6)(a) of the Disability Act 2008 requires that a notice to vacate ‘must specify the ground on which the notice is given’.  Lambrick SM found that this requires that the notice contain a sufficient degree of detail to enable the tenant to understand the facts alleged as a basis for termination.

In his interpretation of the section, Lambrick SM considered the similarities between s 76(6)(a) of the Disability Act and s 319(d) of the Residential Tenancies Act 1997.  Section 319(d) of the RTA states that a notice is not valid unless it ‘specifies the reason or reasons for giving the notice’.  Lambrick SM referred to the interpretation of this section by Bongiorno J in Smith v Director of Housing  [2005] VSC 46, in which His Honour said (at 71):

The requirement laid down in section 319(d) the Residential Tenancies Act 1997 is designed to require advice to be given to the tenant as to the reason the landlord demands possession with a sufficient degree of detail to enable her to understand the facts being alleged as a basis for terminating the tenancy.  It requires no technical expression, no particular verbal formula and no particular legal knowledge to answer the question ‘Why is this notice being given?’  A basic facility for communication in plain English is enough.

Lambrick SM determined that this interpretation of the degree of detail required in a notice to vacate also applied to notices issued under s 76(6)(a) of the Disability Act.

The Respondent had contended that, on the contrary, the two sections had different meanings and intents.  While the Disability Act refers to the ‘grounds’ on which the notice is given the RTA specifies that the landlord must outline the ‘reasons’ for the notice.  The Respondent argued that the two words are fundamentally different and that the drafters had used the words with different intents.

Lambrick SM rejected this argument and determined that the words could be used interchangeably.  He stated that ‘it cannot have been the intention of the legislation, the stated purpose of which is to reaffirm and strengthen the rights of people with disabilities to fail to require the disability service provider to provide the basic facts when giving a notice to vacate’.

Lambrick SM concluded that neither of the notices issued to the Applicant gave sufficient detail of the basis on which the notice was issued.

Charter of Human Rights and Statutory Interpretation

Lambrick SM also considered s 32 of the Charter of Human Rights and Responsibilities in the interpretation of s 76(6)(a) of the Disability Act.  Section 32 states that legislation must be interpreted in a manner compatible with human rights, so far as is possible to do so consistently with their purpose.

The Applicant referred Lambrick SM to s 13 of the Charter which protects the right of a person not to have their privacy; family or home arbitrarily interfered with.

Lambrick SM determined that the general application of statutory interpretation principles did not bring him to a conclusion that was contrary to the Applicant’s right to privacy or inconsistent with the purpose of the Disability Act, so there was no need to re-interpret the provision using s 32 to attain human rights compatibility.

Notices to vacate based on historic conduct

Lambrick SM also found that a disability service provider is only authorised to give a notice to vacate where the resident is continuing to endanger the safety of other residents or staff or cause serious disruption at the time the notice is given.  He found that the Respondent’s reference to historical events in the Notices was not sufficient cause for eviction.

Lambrick SM stated that he considered that the prima facie interpretation of both of the phrases ‘endangers the safety of’ and ‘is causing serious disruption to’ required the prohibited activity to be ongoing at the time of service of the notice to vacate.  He found that this was consistent with the purpose and scheme of the Disability Act which provides a mechanism for removal of the resident where there is a reasonable basis for concluding that the safety of residents or staff is endangered or that the resident is causing serious disruption – that is that the danger or serious disruption is continuing.

Lambrick SM rejected the argument that the notice was issued on the basis of a course of conduct, stating that if a disability service provider intends to rely on a course of conduct there would need to be some triggering event, contemporaneous with the notice to vacate, that would justify reliance on the earlier course of conduct.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/1873.html.

Caris Cadd is on secondment to the PILCH Homeless Persons’ Legal Clinic from Freehills