Public housing amnesty - income, assets and unauthorised occupants

Yes, it's amnesty time again. If you are a public housing or Aboriginal Housing Office tenant this amnesty will cover you.  The amnesty will run from 8am Monday morning (24 April) through until midnight on Sunday 11 June and covers undisclosed income and assets, as well as unauthorised occupants.

The amnesty means if you haven't yet had the chance to update FACS Housing about a change in your income or assets or to tell them that someone has moved in, you can let them know during the amnesty without worrying about having to pay back rent or facing prosecution.

FACS Housing will use the information you disclose about your household income to recalculate your rent and water payments, and you'll be expected to pay this recalculated (likely higher) rent going forward.  They won't, however, raise a debt, prosecute or take action to evict you on the basis of the rent increase.

Providing information about about someone who is living with you that FACS doesn't know about (an "unauthorised occupant") will be treated as an application to approve an additional occupant.  If approved (see FACS policy on this) your rent will be reassessed from the date you provided the new info - again not backdated. If you're trying to figure out when FACS considers someone to be an 'additional occupant' rather than a visitor, this is generally when the person has been or will be staying longer than 28 days in a row (but again see FACS policy for more information).

All public housing and Aboriginal housing tenants will receive some information directly from FACS about the amnesty encouraging them to self disclose.  But it will also be open to members of the public to call in and make 'allegations' about tenants (and unfortunately given past experience we can expect there to be a bit of 'dob your neighbour in' messaging running through mainstream media reports about the amnesty).  Where an allegation is made FACS Housing will provide a tenant with an opportunity to respond to an allegation. If the tenant accepts the allegation at that point they will be protected by the amnesty.  If they challenge the allegation they forfeit protection under the amnesty and FACS will continue to investigate following 'standard business procedures'.

If you are a public housing or AHO tenant and know that FACS has incorrect information about your household's income and assets, or you haven't yet made an application for an 'additional occupant' and someone's already moved in this might be a good opportunity to let FACS know.  Outside of an amnesty FACS Housing will normally vary or cancel a tenant's rebate, raise a debt for rent arrears (sometimes a very significant debt), and then move to terminate on the basis of that debt. So you could be saving yourself a whole lot of hassle ... and perhaps your tenancy.

Some extra detail to consider:

• If you are a tenant of a Community Housing Provider or an Aboriginal Community Housing Provider you are not covered by the amnesty. Any information you provide, or any information provided as an allegation by someone else, will not be passed on by FACS Housing to your relevant provider. Tenants will be encouraged to contact their provider, but will not be protected from any debts or evictions by the amnesty.
• If an investigation around income and assets, or about an unauthorised occupant has already commenced and you have received a letter informing you of this (a 'Natural Justice' letter) you will not be given any protection under the amnesty.
• If you disclose or are found to own/part own property that makes you ineligible for housing assistance, FACS Housing states you will be "required to surrender your tenancy at a time that is agreed"
• Only disclosures about income & assets and unauthorised occupants will come under protection during the amnesty.  FACS notes "tenants who make declarations that don't fall under the protected amnesty categories will be assessed on a case by case basis and may face prosecution".

If you are thinking about calling up during the amnesty but have any concerns or questions you should first get in touch with your local Tenants Advice and Advocacy Service for free advice.

If you have any extra questions about the amnesty, send them through ... we might be able to help answer them or ask FACS Housing to respond.

The original version of this post included information provided by FACS that any allegation or self-disclosures made about Community Housing tenants would be passed on by FACS to the provider. This information was incorrect and the post has been edited accordingly.

More news on the current HNSW amnesty

Some important news on the current HNSW amnesty on undisclosed income, financial assets and property ownership: it does not apply to changes of income because of an undeclared additional occupant.

To be fair, HNSW does mention this in their fact sheet about the amnesty... sort of.

It says:

"Only reports of undisclosed income and financial assets are protected by this amnesty. No other fraudulent activity is covered and will be investigated in the usual way."

We've heard that a number of tenants have contacted HNSW to tell them about new additions to the household, thinking that the amnesty will apply. This is not surprising, given that HNSW conducted an amnesty on undisclosed additional occupants only about a year ago.

But this is not that amnesty.

Tenants who wish to get their house in order by disclosing additional occupants will be subject to the usual investigation.

Because of the way HNSW's rent setting policy works, it is always a good idea to disclose additional occupants. Having extra people living with you means your household's assessable income will go up, and your rent will go up with it.

But beware: when you do disclose your additional occupant, you'll also have to answer questions about how long they've been living with you, and how much income they bring to the household (whether or not they actually pay you anything.) If they've been living with you for awhile, you might find your rent subsidy is not only altered, but altered as of the date they moved in. By backdating a rent subsidy alteration, large debts can be created on top of the increase in your rent.

In some cases, investigations into 'rent subsidy fraud' can also lead to prosecution.

The current amnesty doesn't apply to such situations. If you're planning to tell HNSW's about an undisclosed additional occupant, at the very least you'll need to think about how you'll manage any resulting debt, as well as the higher rent.

As with all things - if you're not sure, speak to a Tenants' Advocate about your circumstances before calling in to the HNSW amnesty on undisclosed income, financial assets and property ownership.

Important limitation to public housing amnesty

The TU is advised by Housing NSW of a limitation to its current amnesty on undisclosed income and assets.

Housing NSW says the amnesty does not apply if you have already received from Housing NSW a letter indicating that Housing NSW believes you have not properly disclosed your income and assets (Housing NSW calls this a 'natural justice letter').

In these circumstances, any disclosures you make will not be protected by the amnesty, and all the usual things may happen: Housing NSW may vary or cancel for rent rebate retrospectively; it may take proceedings to terminate your tenancy; and it may prosecute you for offences under the Housing Act.

If you think you may have received this sort of letter from Housing NSW, please seek advise from your local Tenants Advice and Advocacy Service before disclosing information under the amnesty.

If you've already disclosed under the amnesty and think you may have self-incriminated, seek advise from a TAAS.

If you've any questions about the amnesty at all – seek advise from a TAAS.

Public housing amnesty: undisclosed income and assets

Minister Goward has declared an amnesty for public housing tenants who have not correctly disclosed their incomes and assets to Housing NSW.

 The amnesty factsheet states:

Tenants who declare undisclosed income or financial assets:

• will not be charged back rent
• will not be evicted due to information provided under the amnesty
• will not be prosecuted.

If Housing NSW does not have the right information about your income or assets, we encourage you to consider updating your details with Housing NSW and getting the protection of the amnesty. Seek advice from your local Tenants Advice and Advocacy Service if you've any concerns.

Note that the amnesty documents make special mention of real property assets. The factsheet states (emphasis added):

Head tenants and/or spouses who are found to own or part-own property which makes them ineligible for housing assistance under public housing policy:

• will not be charged back rent
• will be charged full market rent from date of declaration
• will be required to surrender their tenancy at a time that is agreed.

This 'requirement' to surrender the tenancy is not consistent with current Housing NSW policy.

Under current policy, owning a property will, in most circumstances, make you ineligible to get into social housing – but if you're already in social housing, coming into property ownership does not mean you have to surrender your tenancy.

If you're a public housing tenant who has come into property ownership, you will in most circumstances be ineligible for a rental rebate (so you'll pay market rent).

Also, if you're under a two-, five- or 10-year fixed term public housing agreement and own property at the end-of-fixed-term review, you will in most circumstances be ineligible to continue in public housing and you can expect to get an ineligibility termination notice – at that time.
 
But if you're on a continuing public housing agreement (from before 1 July 2005), or are just part-way into a fixed term agreement, you cannot be given an ineligibility termination notice, and there's no provision in Housing NSW's policies about 'During a Tenancy' or 'Ending a Tenancy' for otherwise terminating your tenancy because of property ownership.

If you or your spouse own an interest in property and you live in public housing, seek advice from your local TAAS.

The amnesty runs 7 April to 31 May 2014.

UPDATE: Housing NSW has just this afternoon amended its 'Ending a Tenancy' policy to state that it may 'ask' a tenant to vacate their home where 'the tenant is on a continuous lease and they or their partner/spouse owns a property that they could live in or sell.' (Housing NSW has confirmed that the policy said something different this morning.) No further details are given. 

We'll consider this change to policy in a future post. It should go without saying that on-the-run changes to policies undermine the trust on which amnesties depend. 

Why 'authorise' additional occupants?

As every public housing tenant knows – or should know by now, after the recent amnesty – a tenant must disclose any additional occupants to Housing NSW. There's a few reasons for this, the main one being that Housing NSW needs to know who is in the household and what their income is in order to work out the appropriate rent rebate. That's fair enough.

But it's not the whole story. Once a public housing tenant has disclosed an additional occupant, Housing NSW says it will decide whether to 'authorise' or 'approve' the additional occupant – or, alternatively, refuse to authorise them.

We think this part of the process is not 'fair enough': it's presumptuous, paternalistic and, in all likelihood, counterproductive.

Here's what Housing NSW's policy says about the process for 'authorising' or 'approving' additional occupants. From the 'During a Tenancy' Policy:

Additional occupants

...
Housing NSW will assess all applications for additional occupants. If Housing NSW approves an application for an additional occupant, the new person will become an approved member of the tenant’s household.... For more information on the assessment criteria for approving applications for additional occupants, go to Approving additional occupants.

That link takes us into the Tenancy Policy Supplement, where we find:

9. Approving additional occupants

In most cases, Housing NSW will approve applications for additional occupants if:

• It does not cause severe overcrowding, and
• The additional occupant does not have a poor record of tenancy with Housing NSW, and
• Housing NSW is reasonably satisfied that nuisance will not occur by allowing the person as an additional occupant, and
• The household composition is suitable for the type of property. For example, if an additional occupant wishes to take up residency in a Senior Communities property, Housing NSW will only approve the application if the composition remains consistent with the objectives of Senior Communities, and
• If the additional occupant owes any money to Housing NSW from a previous tenancy, the occupant has made arrangements to repay the debt, and
• If the additional occupant has a current tenancy with Housing NSW, this tenancy must be finalised, and
• The additional occupant is not an unsatisfactory or ineligible former tenant.

Housing NSW may defer approval for an additional occupant if the tenant’s rent account is in arrears.

So there's the list of circumstances in Housing NSW might refuse to approve of a disclosed additional occupant. These are all circumstances that Housing NSW would rightly like to know about – and it will be less likely to find out them, because of the 'approval' question.

Think it through: if a tenant is concerned that Housing NSW will disapprove of their additional occupant because Housing might think that place is getting overcrowded, or they've got a poor record with Housing NSW, or any of those other reasons, the tenant may opt to not disclose the additional occupant at all. If there was no prospect of a high-handed disapproval of their choice of household member (and no vague threats Housing NSW makes about taking action against the tenant if they naughtily persist in keeping a unauthorised disclosed occupant – more on that in a moment), a tenant will be more likely to disclose, and Housing NSW will be more likely to find out about those circumstances it's interested in. 

Now, Housing NSW doesn't want just to know about these circumstances; rightly, it will want to be able to do something about them too. For each of these circumstances, there is a better way of dealing with the situation than disapproving of the additional occupant.

If there's overcrowding: Housing NSW can warn the tenant about the term of their agreement regarding the maximum number of residents (assuming its a reasonable maximum, of course), and take action for breach of the maximum number term, if things get really bad. If the additional occupant has a poor record with Housing NSW, or they're a young person in a seniors' block, or Housing NSW is concerned about possibility of nuisance, it can warn the tenant about the nuisance term of their agreement and vicarious liability, keep a closer eye on things, and take action for breach of that term, if need be. If the additional occupant owes Housing NSW money, Housing NSW can ask them to pay up.

So what does disapproving of the additional occupant achieve? Housing NSW will ask the tenant to get rid of the additional occupant. And what if they don't? Housing NSW's policy is confused and vague on this point. Going back to the 'During a Tenancy' Policy:

If a tenant does not apply for permission for the additional occupant to stay, Housing NSW will consider that person to be an unauthorised occupant. If a tenant has unauthorised additional occupants living in their property, they will be breaching the terms of their tenancy agreement and Housing NSW may take action under the Residential Tenancies Act 2010 or the Rent Subsidy Non-Disclosure Policy. 

The policy confuses 'non-disclosed' additional occupants with 'unauthorised' additional occupants. As we said at the outset, we accept that tenants must disclose and Housing NSW needs to be able to act on non-disclosure – but we're talking here about where the tenant has disclosed and Housing NSW has refused to authorise. The policy is not clear on this.

Strictly speaking, the 'Rent Subsidy Non-Disclosure Policy' is not relevant; and the provisions of the Housing Act for rent rebate cancellations and prosecutions for fraud are not enlivened where the tenant has disclosed everything as required. Looking at a recent Housing NSW tenancy agreement, there's no term requiring the tenant to boot out any occupant who does not meet the approval of the landlord – and if there was, it would arguably be invalid and void for inconsistency with the tenant's right to quiet enjoyment and reasonable peace, comfort and privacy.

In fact, the consequences of having an unauthorised disclosed additional occupant are all a bit uncertain – which indicates that matters don't often get pressed to this point. And this indicates that the question of 'authorisation' is not doing much work for Housing NSW. But it is likely to be putting tenants off disclosing in the first place.

If Housing NSW wants to maximise disclosure – and it should – it should consider ditching its hang-up about 'authorisation'.

Public housing amnesty ends this week

Public housing tenants: beware the Ides of March!

 (Public housing tenant Julius Caesar forgot to get protected by the amnesty)

Actually, you've got until Sunday 17 March to disclose any unauthorised additional occupants under the amnesty and get protected from proceedings by Housing NSW for rent arrears, termination or criminal offences.

But this Friday 15 March will be the last business day of the amnesty, and your last opportunity to seek advice on it from your local Tenants Advice and Advocacy Service.

Also see our info on the amnesty, here and here.

Housing NSW amnesty: some points clarified

When Housing NSW announced its amnesty on unauthorised additional occupants, the TU wrote to Housing NSW and sought clarification on a few points. Housing NSW has now responded. Here's what we've been able to clarify.

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.

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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.

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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.

Housing NSW's amnesty: a leap of faith?

Since the announcement of Housing NSW's amnesty for unauthorised additional occupants, we've received a few questions about it from tenants, advocates and community workers.

These are people who have had unhappy prior encounters with Housing NSW and its bruising way of dealing with people accused of 'rental rebate fraud'. So their biggest question is: what's the legal basis of the amnesty? What's to stop Housing NSW from turning around and using the information I give them against me?

(Indy contemplates the amnesty)

The answer is: the amnesty does not have a clear legal basis. And there's nothing in the law we can point to and say with certainty prevents Housing NSW from proceeding against you despite the amnesty.

But, we hasten to add: we're not discouraging you from using the amnesty. On the contrary: we urge you to consider it. Generally speaking, we reckon it's much, much more likely that you'll get busted by not disclosing your unauthorised additional occupant and getting found out by Housing NSW some other way, than by disclosing and having Housing NSW renege on the amnesty.

Some background. Back in 2008, Housing NSW ran a similar amnesty on 'rental rebate fraud'. The 2008 amnesty, however, had a clear basis in law: it was expressly mentioned in a schedule to the delightfully-named Housing Amendment (Tenant Fraud) Act 2008, which provided for start and finish dates for the amnesty and stated that Housing NSW could not take certain proceedings against tenants who disclosed under its terms.

By contrast, the present amnesty has no legislative basis. There's been no new legislative provisions made specifically for the present amnesty, and the provisions for the 2008 amnesty cannot be used again now (because of the way the start and finish dates are provided for). And there's nothing in the Housing Act 2001 that allows Housing NSW to declare amnesties from time to time.

We think there should be, and have asked the NSW State Government to consider introducing legislation to provide for amnesties from time to time, on terms set out in a Regulation or some other instrument published by the relevant Minister or Chief Executive of Housing NSW.

For the present amnesty, though, you will have to take Housing NSW at its word, as represented in its amnesty fact sheet and webpage, and the public statements of the Minister for Family and Community Services and the Chief Executive of Housing NSW.

 

We urge you to consider it. If you have any queries or concerns, please speak to your local TAAS. 

Public housing amnesty for unauthorised additional occupants

Do you live in public housing or Aboriginal Housing Office Housing? Do you have someone living with you who Housing NSW doesn't know about?

If you do, you should think about informing Housing NSW under its amnesty for unauthorised additional occupants.


The amnesty runs from today, 21 January, to 17 March 2013. Housing NSW states that 'if you make a report relating to an unauthorised additional occupant residing in your property during the amnesty you will be protected from prosecution and won't have to pay back rent or be worried about being evicted.

Housing NSW will use the information you provide to recalculate your rental rebate according to its policy – so you will pay a higher rent, going forward.

But the amnesty may still be a very good deal, because ordinarily Housing NSW will, upon finding out about an unauthorised additional occupant, cancel your rental rebate, backdate the cancellation to when they reckon the person moved in, adjust your rent account accordingly to create a mountain of arrears (we've seen cases where tenants have been presented with arrears well over $100 000), and then give you a termination notice on the ground of the arrears.

The amnesty could save you a lot of trouble – we urge you to consider it. If you've any questions, please speak to your local Tenants Advice and Advocacy Service.

A few things to note:

• For the amnesty to apply, the information has to come from you. Housing NSW says if you get dobbed in by someone else, you'll be told and given one opportunity to 'fess up. If you do, you're covered; if you don't, you're not protected and can expect Housing NSW to proceed against you in the usual way.

• The amnesty relates to unauthorised additional occupants, not other factors in incorrect rental rebates (for example, your own undeclared income).

• The amnesty is for public housing tenants and Aboriginal Housing Office tenants only; it does not apply to community housing tenants or Aboriginal community housing tenants.

[UPDATE: Check out our updates on the amnesty here.]