Friday, September 2, 2016

Does complaining make a difference?

Last week Fair Trading's Complaints Register was launched and the first months data is available. Unsurprisingly, four of the top 10 most complained about businesses are real estate agencies and their franchises. Those 4 companies shared 69 complaints about tenancy management, which was 21% of the complaints made about the 20 businesses on the register. Only the wide ranging "retail" category had more, covering computers to baby products across 8 businesses.


But what does this tell us about the impact of making a complaint to Fair Trading in New South Wales? We've had a look at the enforcement actions taken and total complaints made over the last year, which are also published by Fair Trading. We've had to make some broad assumptions in order to make the two lists comparable - enforcement actions are expressed as belonging to particular pieces of legislation, where complaints are categorised by complaint topic. For instance, there is some potential overlap between the two - a real estate agent misleading a tenant might fall under the Australia Consumer Law as well as the Residential Tenancies Act, and therefore could go under both Consumer and Tenancy topics below.  You can scroll over each column to see how we've categorised complaints and enforcement action.

Although tenancy and consumer issues are two of the most complained about topics, they receive much less attention when it comes to compliance and law enforcement.

The lion's share of compliance action by Fair Trading NSW is carried out in relation to either the Property, Stock and Business Agents Act (which we have labelled Property) or the three laws relating to trades - the Home Building Act, Plumbing and Drainage Act and Electricity (Consumer Safety) Act. Despite only taking up 7% of the complaints made to Fair Trading over the year, they made up 70% of the enforcement action. Conversely, tenancy made up 9% of all complaints to Fair Trading, but only 0.25% of enforcement.

One way of explaining this gap is that there are different methods to deal with different kinds of complaint. For instance the NSW Civil and Administrative Tribunal is the primary way for tenants to address their issues with landlords and, by extension, real estate agents. Unfortunately, the Civil and Administrative Tribunal hasn't been publishing its annual statistics like its predecessor the Consumer Trader and Tenancy Tribunal did, and it misses much of the detail. The Tribunal's 2015-16 report has not been published yet but in 2014-15 we know that 58,360 applications were made concerning these topic areas (and others) and that more than three quarters (46,351) were about renting. What we don't know is who made those applications - but from historic data we know about 85% of Tribunal applications are made by landlords. So perhaps roughly 7,000 applications are made by tenants each year. This exceeds the 4,500 complaints made by tenants to Fair Trading, and dwarfs the 2 enforcement actions taken in relation to the Residential Tenancies Act.

This suggests to us that some people are expected to enforce the law themselves, and some can expect government will enforce the law on their behalf. The difference, it seems, is whether or not you are a renter.

We encourage tenants to make complaints, even if enforcement action is pretty thin on the ground. At the very least, complaints make Government agencies directly aware of the issues that people face. Fair Trading can use their complaints data to help them understand these issues and relate it to their public policy work, including current work around reforming the Residential Tenancies Act.

You can find sample letters that can help with writing complaints to Fair Trading at this link: here.

2 comments:

  1. Please advise what Tribunal ie. NCAT or AAT for Support/Service agreements that are breached by Community Services providers yet expected to be undertaken by Comm Housing tenants for good or bad, so that they can get funded. For things they dont achieve...

    ReplyDelete
    Replies
    1. Hi Kellie,
      That's a very good question.
      If such a failing amounts to a breach of a residential tenancy agreement - say, a breach of the tenant's right to peace, comfort and private enjoyment of the premises - then it could be taken up in an application to NCAT.
      But perhaps more likely it will be a matter for compliance with the National Code for Community Housing landlords - in which case it could be taken up as a complaint to the Registrar of Community Housing.
      In any case, anyone finding themselves in such circumstances ought to contact their local TAAS for advice. Details at www.tenants.org.au.
      All the best,
      Ned @ TUNSW.

      Delete

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