1. If you're already being investigated.
If Housing NSW is investigating you because it suspects you have an unauthorised additional occupant, you can still be protected by the amnesty. You must disclose your occupants to Housing NSW within the amnesty period; when you do, the investigation will be halted. Make sure you provide all the documents necessary for Housing NSW to work out your rental rebate properly – if you don't, 14 days later the investigation will start up again and you won't be covered by the amnesty.
2. If Housing NSW is already proceeding against you.
If Housing NSW has already done its investigation, made a decision and informed you of the decision, you're too late for the amnesty. Expect Housing NSW to continue to proceed against you (and get advice from a TAAS).
3. Does the amnesty protect against court proceedings?
When Housing NSW cancels a tenant's rental rebate because of an unauthorised additional occupant, it usually treats it as a case of rent arrears, and proceeds against the tenant in the Tribunal, per the Residential Tenancies Act. However, there is another possibility: it can also treat it as a debt, and proceed against the tenant in court, per the Housing Act (at section 57). The amnesty fact sheet and webpage mention only the first possibility, not the second.
Housing NSW confirms that the amnesty protects against both. So, if you're covered by the amnesty, there'll be no Housing Act debt proceedings either.
4. Does the amnesty protect additional occupants?
Under the Housing Act (section 72A), Housing NSW can take debt recovery proceedings against additional occupants as well as tenants.
Housing NSW confirms that where a tenant is covered by the amnesty, it will not take proceedings against the additional occupant either. In Housing NSW's words: 'the Housing NSW Amnesty 2013 for unauthorised additional occupants is all encompassing. HNSW will not pursue or seek to recover debts and/or any incurred interest arising from any related debt pursuant to s57 against the tenant or against any unauthorised occupant per s72A.'
For your info, the whole response is reproduced below.
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Question:
We are seeking clarification as to the application of the amnesty in situations where Housing NSW already has some information, from other than the tenant, as to an unauthorised additional occupant and has yet to make a decision on the information (that is, cancellation or variation of the rental rebate)
Response:
If the Tenant Fraud Unit is already investigating a tenant for an unauthorised additional occupant and the tenant declares the unauthorised occupant during the amnesty, the investigation will halt and the tenant will have 14 days to supply all necessary supporting documentation. If they fail to do this, the investigation will continue.
The
Tenant Fraud Unit will conduct investigations after a 3rd party allegation.
The
Housing Contact Centre will refer matters to the Tenant Fraud Unit where:
•
The tenant
requests an interview.
•
The tenant
does not respond within 14 days to a Natural Justice letter. Or;
•
The tenant
denies the allegation
They
will conduct an initial investigation and refer the matter to the Client
Service Team where required.
If
the unauthorised additional occupant had not been proven and substantiated
before the amnesty period commenced they are protected by the amnesty as long
as they come forward and make a declaration during the amnesty period.
Question:
Where Housing NSW has made a decision (and may have commenced proceedings arising from the decision). [will they still be protected under the conditions of the amnesty]
Response:
If
the Tenant Fraud Unit and the Local Team have completed its investigation, made
a decision and have communicated its findings to the tenant the amnesty does
not apply and the tenant cannot receive protection from prosecution under the
amnesty.
This
is no longer an investigation as proceedings have commenced and the tenant is
already informed of these proceedings.
Question:
Housing NSW may seek to recover a
retrospectively cancelled or varied rental rebate as a debt, with interest (s
57(4). This course of action is distinct from proceedings in the Tribunal for
rent arrears; it is enabled by the Housing Act 2001 (not the Residential
Tenancies Act 2010); the proceedings go to court (not the Tribunal); and
interest is payable.
We are concerned that the amnesty, which
assures that a tenant will not have to ‘pay back rent’, may not preclude
proceedings against a tenant under s 57.
Housing NSW may seek to recover a debt
arising retrospectively cancelled or varied rent rebate not only from the
tenant, but from the unauthorised additional occupants (s72A). We are concerned
that the amnesty which is stated to apply to ‘tenants of public housing or
Aboriginal Housing Office properties’, may not preclude s57 proceedings against
occupants per s72A.
Response:
The Housing NSW Amnesty 2013 for unauthorised additional occupants is all encompassing. HNSW will not pursue or seek to recover debts and/or any incurred interest arising from any related debt pursuant to s57 against the tenant or against any unauthorised occupant per s72A.
Source: Amnesty 2013 Fact Sheet - January 2013
If
by not declaring an additional occupant the correct rent has not been paid, or
there is no longer an entitlement to a rental subsidy benefit on the basis of
the additional occupant’s income, under the terms of the amnesty a tenant will
not be prosecuted and won’t have to back rent.
The
tenant will be advised of their new rent amount and, under the terms of the
amnesty, will only pay the new rental amount from the date the additional
occupant/s is declared.
If
an assessment finds that an additional occupant can’t continue to live in the
property, that person will be asked to leave.
If
you declare an unauthorised occupant during the amnesty
Housing
NSW will:
• not take action to end a tenancy unless there are
other reasons to do so, such as rental arrears or anti-social behaviour
• not start proceedings for criminal prosecution or
civil action
• not refuse to offer a lease extension at the end
of the fixed term lease unless there are other reasons not to, such as no
longer meeting the eligibility criteria for public housing assistance.
Only
declarations for unauthorised occupants are protected by this amnesty. No other
fraudulent activity is covered.
Question:
The 2008 amnesty had an express legislative
basis (schedule 1 of Housing amendment (Tenant fraud) Act 2008; thereafter
schedule 3 of the Housing Act 2001). We are unable to find a similar
legislative basis for the present amnesty: schedule 3 of the Housing Act 2012
refers specifically to the 2008 amnesty. We submit that the Housing NSW Act
2011 should be amended to expressly allow occasional amnesties, in terms set
out in a regulation or other instrument issues by the minister or Chief
Executive of Housing NSW.
Response:
The
amnesty is endorsed by the Minister and therefore the Executive arm
of the Government represents a valid open offer by the Government on a
particular issue relating to occupancy. There is no certainty that any
Regulation however
framed will not be subject to interpretative issues or
doubts. There is no reason for the Government to renege on any part of the
amnesty arrangement as this jeopardises trust in Government, revenue and
future amnesties.
The
Minister released a Media Release on Sunday 20 Jan 2013. In this she stated
“The NSW Government is giving tenants two months to declare all additional
occupants. Tenants who do the right thing and declare additional occupants will
have their rent adjusted from the date of declaration, and will not be charged
back rent”.
In
addition all documentation has been endorsed by the Chief Executive Mike Allen.
During this period, tenants will receive protection
from prosecution, and any requirements to repay a debt resulting from failure
to declare information.
Housing NSW will apply its usual policy and processes when determining
if the additional occupants declared through the amnesty will be authorised
to continue living in the property.
Heil Hitler Housing NSW!
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