Holiday law 2: public housing

Speaking of holiday law, a little while ago a Brown Couch reader asked:

I am a public housing tenant. I was told by a tenant advocate that I can only travel overseas twice in 18 months. Is this true? It is not on my lease. I don't see any reference in my rental rebate form. How do I find out about rules like this?

The 'rule' to which this reader refers is Housing NSW's 'Absence from Dwelling Policy'. It is apt to confuse, but it is also a good point from which to get a clearer understanding of the workings of law and policy. Let's take a closer look.

(Tourism Australia should never have taken its campaign slogan from Housing NSW's Absence from Dwelling Policy.)

The first thing to keep in mind is that in referring to the 'Absence from Dwelling Policy', we're calling it by the old name it had when Housing NSW had separate 'operational policies' for different aspects of its tenancy management practices. Unfortunately, last year Housing NSW reorganised its operational policies, and the effect is as if they chucked the lot into a blender. We now find bits of the old 'Absence from Dwellings Policy' in the 'During a Tenancy Policy' and the omnibus 'Tenancy Policy Supplement'.

Here's the relevant bits of the former:

Being away from the property

Public housing is a scarce resource and a valuable asset for those in need. Housing NSW maximises the benefit gained from this resource by making sure that properties are used as homes and not left vacant for long periods.

How long can a tenant be away from their property?

When Housing NSW provides a property for a client, they are expected to live in it. Tenants must obtain approval from Housing NSW to be away from their home for more than six weeks, even if other people will be staying in the home while the tenant is away. When a tenant applies to be away from their property, Housing NSW will ask the tenant for the date that they expect to return. For more information, go to Approving an absence from the dwelling.

Housing NSW may approve acceptable absences for up to six months. For more information, go to Acceptable absences. Housing NSW will not approve absences of more than 12 months in total over a five year period.

There are some additional requirements for tenants who are incarcerated or who are going into a nursing home. For more information, go to Tenants going to prison and Tenants going into a nursing home.

The tenant may apply for an approval to extend the absence beyond six months where there are unusual circumstances, for example medical conditions which require regular treatment at a location that cannot be accessed from the tenant’s home.

If a tenant is away without approval, or has stayed away for longer than the time Housing NSW approved, Housing NSW may decide to:

• Charge market rent from the time the tenant’s absence is discovered, or from the date the approval expired
• Terminate the tenancy.

After that there's a bit on caring for a property while one's away. And from the Tenancy Policy Supplement:

1. Approving an absence from the property

Housing NSW will approve an absence from the property if it is satisfied that:

• The tenant has made arrangements to pay their tenancy charges, such as rent and water usage, while they are away. In some cases, the minimum rent may apply. For more information see the Charging Rent Policy. In some cases, water usage charges may be adjusted. For more information see the Water Usage Charges Policy.
• The property will be adequately cared for while the tenant is away.
• The tenant has an acceptable reason for going away.

2. Acceptable absences

Acceptable reasons for absences up to six months include:

• Caring for sick/frail family members.
• Hospitalisation, institutional care, nursing home care or rehabilitation.
• Escaping domestic violence, harassment or threats of violence.
• Assisting with immigration matters in the country of origin.
• Holidays.
• Employment, education or training.

Housing NSW will not approve repeat absences relating to holidays, assisting with immigration matters in the country of origin or employment/training.

So, to sum up, Housing NSW expects you to seek its approval for absences longer than six weeks, and says it generally will not approve absences longer than six months, or where the sum of all absences is greater than 12 months in a five year period, or 'repeat absences relating to holidays.' And if your absence is not approved, Housing says it can cancel your rent rebate, or terminate your tenancy.

Bit bossy, isn't it – 'so where the bloody hell are you' indeed! But what is the nature of this rule?

As a 'policy', it's not a law, like an Act of Parliament, so it doesn't empower Housing NSW to do things it cannot already do under law. And it's not a contract, like a residential tenancy agreement or lease, so it doesn't create legal rights and obligations between Housing NSW and yourself that the courts will enforce.

Instead, a policy sets out how you can expect Housing NSW will use its powers under law and enforce its rights and obligation under contract, in its dealings with you. A policy can change without notice, and a court will not enforce any expectation it may give you – but a policy is not without legal consequences. A government agency that proposes to affect a person's rights, interests or legitimate expectations – and a policy can be the basis of a legitimate expectation – is generally required to afford procedural fairness (that is, let you know what it is proposing to do, and give you a chance to put your side of the story before it goes and does it) and, if it doesn't afford procedural fairness, you can seek review of the agency's decision, and the agency can be made to go back and make the decision fairly.

As for what Housing NSW may do, the policy states that it may decide to may 'charge market rent' or 'terminate the tenancy'. Let's consider its actual powers under law to do either of these things.

In relation to rents, Housing NSW's tenancy agreements already provide that the tenant is to pay market rent - what Housing NSW is really talking about here is canceling the rental rebate it applies to most public housing tenants' rents. Housing NSW's legal powers in relation to the cancellation of rental rebates come from the Housing Act 2001 (NSW), which provides, at s 57(1) that Housing NSW 'may, after conducting an investigation under section 58, vary or cancel any rental rebate granted under this Part.' Note the qualification 'after conducting an investigation under s 58'. Turning to s 58, we find that it provides:

(1) [Housing NSW] may make an investigation to determine the weekly income of:

(a) a person who is an applicant for, or a recipient of, a rental rebate under this Part, and

(b) any other resident of the house in which that person resides.

The investigation, then, is directed to a tenant's household income. There is a real question whether the investigation and, by extension, any consequent cancellation, can go to matters not related to income, such as whether a tenant is repeatedly off on holidays or absent for other purposes.

As for terminating the tenancy, Housing NSW's powers are those granted to landlords under their residential tenancy agreements and the Residential Tenancies Act. Both give landlords considerable power, but not without qualification. Amongst the numerous contractual terms prescribed by the Residential Tenancies Act (this goes for both the 1987 Act and the 2010 Act), none require the tenant to seek approval for absences for holidays. The TU knows that Housing NSW has included an additional term in its agreements to the effect that the tenant is required to 'personally occupy the premises at all times', and we note that in several cases the Tribunal has given termination orders on the ground of breach of this term – but none of those cases are about holidays, and there's a good argument that a person who is away on holidays but who has left all their possessions in the premises, to return to after the holiday, is still occupying the premises (just like they are still in occupation when they've popped out to the corner shop for milk).

Of course, under the Residential Tenancies Act, landlords are not limited to giving termination notices on grounds of breach - they can give them without grounds too, and there's nothing in the Act (again, either 1987 or 2010) that stops Housing NSW from giving such a notice. However, it has long been established that in the case of Housing NSW, as a government agency, the decision to give a notice of termination affects the rights, interests and legitimate expectations of the person on the receiving end, so Housing NSW - unlike private landlords - must still give reasons for its termination notices, and an opportunity for you to put your case and try to make it see sense before the matter proceeds all the way to the Tribunal and termination orders.

All these angles are well known to the tenants advocates employed by the Tenants Advice and Advocacy Services. Get your local service's contact number here and, if you're a member of the public housing jet-set, don't leave home without it.