Contributors

Ben Cording

Principal Solicitor, Tenants Victoria

Lulu Banay

Solicitor, Tenants Victoria

Social housing

Last updated

1 July 2021

What is social housing?

‘Social housing’ is an overarching term that covers both public housing and community housing. Social housing is a type of rental housing that is provided/managed by government or non-government organisations.

Social housing often adopts policies that are in addition to the criteria of the Residential Tenancies Act 1997 (Vic) (‘RT Act’). These polices are designed to regulate and protect the accessibility of financially supported housing.

In October 2017, the Victorian Ombudsman published its findings about the ‘investigation into the management of maintenance claims against public housing renters’. The report made broad-ranging observations, numerous recommendations, and called for a cultural shift within public housing. Since then, many policies have been reviewed and amended. Most importantly, having an outstanding debt with the Director of Housing no longer stops a person from being placed on the public housing waiting list or from accepting a public housing property.

Renters with extensive maintenance debts should seek legal advice (see Chapter 2.4: Legal services that can help).

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 policy based decisions. For example, for certain ‘three strikes’ breaches, a Notice to Vacate will generally only be issued for three strikes of a duty (see Lavaris v Director of Housing (Residential Tenancies) [2017] VCAT 315 (3 March 2017), [37]).

However, there are 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.)

The fact such a decision may be contrary to a social housing’s purpose or constitution is either 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. 

Many social housing providers copy the policies adopted by the Director of Housing.

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. Victorian Housing Register website: https://fac.dhhs.vic.gov.au/funded-agency-channel/victorian-housing-register.

It is important to note that there are 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.

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.

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 retrospec-tively 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(4)). 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.

What is unusual about the rental rebate scheme is the operation of the scheme despite section 27B(1)(c), (f) of the RT Act. The relationship between the rebate policies and rental agreements will likely be the subject of future litigation. Especially as Notices to Vacate for rent arrears now provide that rent paid for a public housing property or for a registered community house is defined as the amount payable by the renter to occupy the premises, less any applicable renter rebate. The ambit and scope of VCAT’s powers will be central to the issue of how VCAT determines whether 14 days’ worth of ‘rent’ is owed.

For rent arrears matters, it is critical to ensure the rebate has been properly assessed and is up-to-date, as this may dictate the validity of a Notice to Vacate. Renters should raise any questions about rental rebates with VCAT to ensure that the rental rebate decision by the provider is final.

Practically, if parties disagree with a particular assessment, they can lodge an application for an internal appeal. Typically, VCAT will adjourn a matter and not make a decision until the rebate assessment and appeal to be finalised. If the application of a rebate policy appears to be error after an internal appeal, parties should seek legal advice.

For more information, see ‘Rental rebate manual’, which is part of the Public Housing Policy and Practice Manuals on the provider’s website.

Temporary leave of absence

Generally, if a sole renter is going to be absent for at least six months, the renter should let the Office of Housing know in writing, so the rental provider does not think the renter has abandoned or sublet the premises. If a renter is absent, they should provide up-to-date contact details, or an emergency contact number. In special circumstances, a sole renter may be eligible for reduced rent for the duration of their absence (for up to six months, generally).

During this period, rent is reduced to $15 a week. Recognised reasons that may entitle a party to reduced rent include experiencing personal or family violence, or being temporarily relocated to a nursing home, or rehabilitation, respite or incarceration (remand or sentenced) facility. Renters should discuss these policies and the relevant documentation with their public housing provider.

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