Selasa, 12 Februari 2013

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.