Monday, October 28, 2013

Goodbye from OPTS

From December, the Tenants Advice and Advocacy Program (TAAP) – administered by NSW Fair Trading, using tenants' money – will no longer fund a separate resource service for older tenants, and the Older Persons Tenancy Service (OPTS) will regretfully close its doors.

From OPTS's legendary tenants advocate Dr Robert Mowbray, a final postcard.


OPTS, along with the Park and Village Service, has received the chop. 

With the loss of OPTS from the TAAP, over 80 years of worker-experience in the community sector may be lost ... and much of this has been in the area of tenant advocacy! But, more importantly, there will be significant gaps left by the chopping of OPTS. NSW Fair Trading advises that TAAP will continue to assist older tenants and park residents, particularly social housing and vulnerable tenants/residents in the same way as previously. But this is nonsense.

Regarding OPTS, what particularly will be missing is support to direct services on older persons issues (for example, dementia, capacity, hoarding), and the complex casework OPTS previously did; for example, with protected tenancies, long-term tenants and older tenants in unusual circumstances. This is a real concern. The changing demographics of renters shows an increasing number of older persons living in the private rental market. Indeed, recent research identifies older, single females in the private rental market as the 'new poor'. Research by the Australian Housing and Urban Research Institute found that renting is no longer temporary but permanent for increasing numbers of people, who have been priced out of the housing market. Indeed, 30 per cent of long-term tenants were aged 45-64. Dr Stone, the researcher, said the potential cost of this older group was a 'policy bomb waiting to go off'!

Direct services generally with no additional funding will not be able to provide the same level of support with complex casework.

Some of OPTS achievements are reflected in a selection of its case studies. Here are some really complex recent matters where OPTS assisted … 

A protected tenant 

Jock has lived in a terrace house in Kirribilli since 1974. The landlord has done little repairs over these years.  Jock paid rent of $300 per week. He contacted OPTS after his real estate agent served a 14-day termination notice, alleging he was 30 months behind in rent and owed $28,000.

OPTS advised Jock that he was a protected tenant and, because his landlord had never lawfully increased the rent, he was liable to pay what he did back when he started his tenancy. Simple arithmetic showed he was in rent credit of over $200,000. Putting this another way, his rent was paid up for another 800 years!

OPTS and his client met with the real estate agent prior to a Consumer, Trader and Tenancy Tribunal hearing. OPTS convinced the agent that the tenant was a protected tenant. The agent withdrew his application.

The owner promptly changed real estate agents and this real estate agent promptly organised a builder’s report which identified works required to bring the property up to scratch. OPTS organised second builder’s and pest controller’s reports and these reports stated that remedial work could be done without the need for Jock to move.  These reports were provided to the real estate agent. Jock sought to settle this matter by proposing repairs being undertaken, regularising a rent increase by signing a ‘17A Agreement’ and a 3-year fixed term lease. In return, Jock would not pursue overpaid rent for the last six years (the maximum period for which he can recover overpaid under the law).

A year later negotiations have led nowhere. The new real estate agent is seeking to have the local government council condemn the house. Council advises that the landlord is known for not doing repairs. Council does not wish to see the tenant out in the street. OPTS has referred Jock to a solicitor for action on overpaid rent and repairs … but Jock is still willing to negotiate a settlement. 

Asbestos in premises 

OPTS tested Section 52(3) of the Residential Tenancies Act 2010 that covers landlord’s complying with statutory obligations relating to health and safety of residential premises. The tenant had been living with asbestos fibres since March 2013. The asbestos roof was breaking down and fibres were falling into the premises because there was no ceiling. The tenant stayed with friends from this date and did not pay rent from that time. OPTS relied on the Division of Local Government's ‘Model Asbestos Policy for NSW Councils’. OPTS argued the asbestos policy is sub-ordinate legislation with powers under Sections 33A and 159 of the Local Government Act 1993.

A copy of OPTS submission was sent to the landlord’s solicitor before the formal Tribunal hearing. He stated the landlord would negotiate an agreement. Consent orders were made that 12-weeks rent be waived until the tenant formally vacated, the tenant’s $750 asbestos report be paid for, whole rental bond be paid back and tenant’s removal costs be covered. 

A Court of Appeal decision revisited 

For some time OPTS has been assisting a group of people who, many years ago, bought their houses but ever since have paid rent for the ground on which they stand. In this case, Lithgow Valley Colliery Company, a mining company, owned land and allowed its workers to build houses on its land. These houses subsequently were transferred to relatives or sold to others. In 2000 the Colliery sold the land to a developer (Ceedive) who sought to evict residents

The Court of Appeal decision in the case of May v Ceedive Pty Ltd [2006] NSWCA 369 (15 December 2006) held that the buildings were fixtures and the ‘ground rent’ agreements were agreements for the lease of ‘premises’. The Court further held that this meant that residents who had ground rent agreements and ‘bought’ their houses prior to 1 January 1986 may be tenants covered under the provisions of the Landlord and Tenant (Amendment) Act 1948.  

Recently OPTS assisted Brendan, a resident in a similar situation, whose parents ‘purchased’ their house but not the land in the 1950s. Following the death of his mother, Brendan became what is known as a 'statutory protected tenant'. Nevertheless, the owner served him a termination notice under the 2010 Act, citing the death of the tenant. OPTS represented Brendan in three hearings of the Consumer, Trader and Tenancy Tribunal. Prior to these hearings it sought advice from a barrister in the May v Ceedive case, which became the basis for the submission to the Tribunal. The questions before the Tribunal were whether the premises are covered by the Landlord and Tenant (Amendment) Act 1948 and whether sections 83A and 83C of that Act apply. The decision on the first question flows from the decision of May v Ceedive. The decision on the second question relates to an occupant becoming a 'statutory protected tenant' following the death of the tenant. The respondent was successful on both accounts.

Housing NSW and heritage property 

An elderly couple contacted OPTS because they required major repairs, including replacement of the roof, to their heritage-listed cottage – built in the 1850s, now owned as public housing by the NSW Land and Housing Corporation (LAHC). OPTS sought to negotiate directly with LAHC who advised that they would do temporary repairs until the place becomes unlivable. At that point in time, Housing NSW will provide an alternate residence for the tenants. OPTS obtained pro bono assistance from a heritage architect who provided a report and a barrister who drafted a letter and agreed to represent the tenants in any proceedings in the Land and Environment Court. Immediately after receipt of that letter, NSW LAHC advised that they already had agreed to replace the roof! Work on a new roof was completed a few months later. The tenants are thrilled. 

A hoarder 

Margy is nearly 80 years of age. Last year her friend rang OPTS stating that sheriff officers were evicting Margy the next morning. Two workers from OPTS attended the premises just before the sheriff officers were due. Clearly, Margy was a hoarder. She wouldn’t allow OPTS into her unit … the unit, the foyer and her unregistered car were chock-a-block with all manner of things.

Shortly afterwards the sheriff officers arrived and then the police. After prolonged negotiations, on the instructions of the sheriff officers, the police removed Margy from her premises. They allowed her to pull together a few possessions to take with her. Over many weeks OPTS negotiated with the owner’s solicitor moving some of her possessions to a storage facility. Much was placed in a skip. Her car was towed away.

Margy organised alternative accommodation at a local backpackers hostel. She started bringing things back to her room. This made it difficult for others who were sharing the room.  She was finally asked to leave and the manager of the backpackers hostel found her a room in a boarding house.

It was clear Margy was neglecting her health and she had difficulty making day-to-day decisions. OPTS organised support through a Boarding House project attached to a neighbourhood centre. Both liaised with a local community care team who made application to the Guardianship Tribunal and a guardian was appointed. The guardian organised for Margy to be admitted to the hospital for a health check and assessment, with the intention of moving her to an aged care facility where she will receive the appropriate care.

At the time of going to hospital her room in the boarding house had become chock-a-block with all manner of things … After thorough assessment in hospital Margy moved to a low care facility in the inner west. 

But not all of OPTS cases are so complex...  

A quandary about water bills 

OPTS has a protected tenant in her 80's who's been in hospital for three months and now finds the landlord has failed to pay the water bill. Sydney Water has disconnected the water supply and this will delay her return home.  (As a protected tenant she is not liable for water usage charges.) Section 62 of the Sydney Water Act 1994 allows her to pay the outstanding bill (including reconnection charges) and count it as rent.

But how does she make this payment, because Sydney Water no longer has a physical location that anyone can visit in order to pay bills? She can't pay it at the Post Office without knowing the Account Number and Sydney Water will not give it to her because she is not the customer. She can't pay it over the telephone unless she has a credit or debit card which she doesn’t have. OPTS discussed this with officers of Sydney Water who were apologetic but said they were unable to do anything.

OPTS resolved this quandary by using its own credit card and paying the amount over the telephone.  The tenant reimbursed OPTS with a cheque.

(Postscript: The tenant has now returned home to running water and rent paid many months in advance with her rent! The landlord is refusing to collect letters sent by ‘Registered Post’ stating that the payment to Sydney Water is rent.) 

Jim can now use his washing machine 

Jim is an older bloke who lives in a social housing property in a rural northwestern town.  He had been living in the property for nearly a year and had no key to the power box in the laundry so he could use the washing machine. Also, there was only one garbage bin for four units.  OPTS was contacted by the local hospital regarding Jim after they learned of his situation. Jim suggested to his neighbour that he also contact OPTS because he had exactly the same problems. OPTS made representations on behalf of both clients to the Housing NSW office and the Housing NSW Contact Centre.  Some 10 months after OPTS first contacted Housing NSW, things finally moved. Jim reports he and his neighbor are now using the washing machine and have extra garbage bins.  

OPTS’s legacy

OPTS’s casework has made a profound impact on the lives of many older renters.  But its legacy is more than just its casework. It developed an expertise second-to-none on ‘protected tenancies’ and long-term tenant matters. Its accumulated knowledge on protected tenancies is recorded in a revised guide to protected tenants that will be used by workers with TAAS. It has also produced a CD that provides an oral history of protected tenants in New South Wales. Over many years it has also resourced the network of TAAS on older persons issues, such as dementia, capacity to make decisions, and hoarding. 

1 comment:

  1. A thankyou to the CPSA for auspicing the OPTS and to Andrew and Robert and other staff who have been so helpful on tenancy matters. The OPTS has its origins, direct and unbroken, I believe, in the Housing Information and Tenancy Services (HITS) program established in the mid 1980s, and I was the first worker employed by the CPA (as the CPSA was then) to establish the CPA's tenancy and housing unit. That was November 1986. The position was called Housing Officer, which caused some confusion because many activists inside the organization thought it has a cross-tenure mandate and expected it to focus on 'aged housing' issues rather than on the particular difficulties facing older private renters. But at the time, the CPA had a dynamic Research Officer, John Barber, who did a lot of work around retirement housing issues. Not too long after I started work, the tenancy and housing unit got its 2nd worker, Margaret Howard, who had already been working at the organization as a physical-fitness buff. With staff moves, John and Linda Adamson moving to the national pensioner body, I went into the job vacated by John, Sarah Fogg got a job vacated by Linda; Margaret was joined in the tenancy and housing unit by Colin Jones. When Margaret left, Colin was joined by Deborah Georgiou. While the HITS program at the state level was disbanded by a new government elected in 1988, the CPSA's unit survived defunding. One of the terrors of the unit in these early foundational years was a public servant in the Department of Housing (the government agency then responsible for the program) who managed the program -- a certain Robert Mowbray. (Robert's copartner in the TAAS-regulatory regime was Harvey Volke.) Robert had the job of ensuring that the grant-funded TAAS services properly kept and reported their casework data, and brought to this role an enjoyment of detail and a relish for accuracy that I hope is a legacy, direct and unbroken, to the TAAP services of this day.


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