The Law Handbook 2024

530 Section 6: Houses, communities and the road Social housing policies Social housing policies vary, but they generally serve to regulate the discretion of the social housing provider. For the purposes of the RT Act, unless clearly stated to the contrary, social housing providers are treated the same as any private rental provider. Generally, VCAT cannot consider a social housing provider’s policy in its decisions unless specified in the RT Act. The policy is also not relevant as to how the RT Act is to be interpreted (see Lavaris v Director of Housing (Residential Tenancies) [2017] VCAT 315 (3 March 2017), [37]). However, there are limited circumstances where a policy decision or the circumstances of the director or the community housing provider may be relevant (see Giotopoulos v Director of Housing [2011] VSC 20 (7 February 2011); Alsindi v Director of Housing (Residential Tenancies) [2017] VCAT 1882 (17 November 2017.) If a decision is in breach of a housing provider’s policy or is for some other reason administratively unlawful, the decision cannot be challenged at VCAT. It is a matter for internal appeal, external intervention by an overseeing body such as the Housing Registrar, or – in the case of a decision made by public authorities such as the Office of Housing – a matter of judicial review (Order 56 Supreme Court (General Civil Procedure Rules 2015 (Vic)). With respect to the latter, and similar to appeal, such a decision must have the qualities of an error of law. Further, the state Ombudsman can investigate public housing (including policy decisions) and make recommendations and findings, but they do not have the express power to overturn decisions. Some social housing providers copy the policies adopted by the Director of Housing, but there can be many policy differences between public housing and community housing. According to section 8 of the Freedom of Information Act 1982 (Cth), policy documents used for decision- making should be made available for inspection unless an exemption applies. Note that the Housing Register, which receives housing applications, is hosted on the housing website, and housing data about the wait lists and number of application and other information is located on the Homes Victoria website. Public housing policies are available online at: 1 Housing website: www.housing.vic.gov.au 2 Providers ’ website: https://providers.dffh.vic.gov. au/public-housing-policy-and-practice-manuals 3 Homes Victoria: www.homes.vic.gov.au For community housing providers, policies should form part of the terms of a rental agreement. If policies are not provided, parties should look at making an internal formal complaint, and then approaching the Housing Registrar or applying to VCAT (see ‘Renting and human rights’, below). Rental rebates The most important policy for renters of social housing to understand is the rental rebate policy. You can get this on request from your social housing provider. For renters of public housing, the relevant information is on the housing provider’s website. If your community housing provider does not make the rebate policy available, you should complain to the Housing Registrar. The rental rebate supposes a ‘market rent’. This is the amount the premises would be let at if there was no subsidy. The total household income is assessed in accordance with the Director of Housing or relevant rebate policy. By applying the policy, the rent is discounted or ‘rebated’. This calculation is usually based on the relevant rental provider seeking to ensure that renters pay no more than a particular percentage of their household income as rent. For details about what income is counted as assessable income for rebate purposes, parties should read the policies available on the relevant housing provider’s website. It is important for parties to comply with the policy, as certain guests or licensees may be deemed to be ‘residents’ under the rebate policy for residing in the premises frequently. While they do not become renters, the policy may count their income as part of the household income, causing the rent to increase. As matter of practice, the policy is retrospectively applied to cause an increase or decrease in rent. From 29 March 2021, the RT Act was amended to recognise the rental rebate scheme and to ensure that it is held outside the rent increase mechanisms in the RT Act (s 44(4B)). That is, the RT Act sets out that an application, adjustment or cancellation of a rental rebate that causes an increase in the amount payable by a renter is not considered to be a rent increase.