The Hon Carl Scully MLA,
Minister for Housing
Parliament House
Macquarie Street
Sydney NSW
7 June 2004
Dear Minister
Re: Proposals to reduce
antisocial behaviour in public housing including changes
to the Residential Tenancies Act 1987
I am writing on behalf of the
Multicultural Disability Advocacy Association of NSW
(MDAA), the peak body providing individual and systemic
advocacy for people from a non-English speaking
background (NESB) with disability in NSW. Many of our
members and consumers are public housing applicants or
tenants and for the past four years accommodation has
been the main issue requiring MDAA's advocacy assistance.
My purpose in writing is to comment on the proposals
announced on 4 May 2004 to reduce antisocial behaviour in
public housing, and to outline the likely effects they
will have on people from a NESB with
disability.
Access to affordable housing has
become such a problem for MDAA consumers in recent years
that many are eligible for priority public housing. The
negative experiences of people from a NESB with
disability who applied for or were living in public
housing formed the basis for a report we published in
February 2003, 'Hitting
the Roof' (copy enclosed).
Our concerns about renewable leases are set out in
Hitting the Roof and have not changed since these leases
were introduced. Hitting the Roof also commented on
neighourhood disputes and harassment and made suggestions
about how the Department's good neighbour policy could be
implemented more equitably.
We are concerned that the proposals
announced on 4 May will result in further unfairness to
people from a NESB with disability, particularly people
with cognitive disabilities (eg, intellectual disability
and acquired brain injury) and mental illness. People may
be required to sign an 'acceptable behaviour agreement'
but not understand what they are signing, because of
language/ communication/ cognitive difficulties, or not
be able to comply with it, because their 'unacceptable
behaviour' is an involuntary consequence of their
disability. Instead of providing support to tenants to
maintain their tenancies this proposal appears to be
setting up vulnerable people to fail.
If the proposals are implemented we
believe the risk of becoming homeless will greatly
increase for people from a NESB with disability who live
in public housing, so we ask you to reconsider them. In
our experience, when people from a NESB with disability
are granted public housing they are more vulnerable to
harassment by other tenants because of their different
cultural background and/ or their disability. Hitting the
Roof contains examples of these experiences.
In Hitting the Roof we argue that
current Department of Housing practices do not treat
people from a NESB with disability fairly because we do
not get equitable access to public housing, despite being
among the most disadvantaged members of the community. We
concluded that this unfairness occurs for two main
reasons: people from a NESB with disability do not
understand the housing 'system' in NSW or the Department
of Housing's requirements and Departmental staff do not
understand how culture and disability affect a person's
housing needs. Hitting the Roof therefore recommended
many low-cost strategies the Department could implement
for redressing the current inequitable provision of
services. We had hoped to work strategically with the
Department to implement these recommendations but this
has proved difficult.
We would be very happy to work with
the Government and the Department of Housing to identify
the various reasons for antisocial behaviour in public
(and private) housing and to devise and implement
practical strategies for resolving this problem. Our
members and consumers experience a lot of antisocial
behaviour directed specifically at us because of our
different abilities or cultural background or
both.
I have attached MDAA's comments on
each of the proposals and have sent a copy of this letter
to the Premier and Minister for Disability.
Yours sincerely
Barbel Winter
Executive Director
Comments on Proposals to Reduce
Antisocial Behaviour in Public Housing in NSW
The Multicultural Disability
Advocacy Association of NSW (MDAA) provides the following
comments on the matters raised in the Minister's media
release dated 4 May 2004 'Public Housing Reforms - Fact
Sheet: our comments follow the headings in the media
release.
1. Antisocial behaviour
MDAA agrees that antisocial
behaviour is disruptive to others and that some public
housing tenants behave antisocially, but we are not aware
of any research demonstrating that public housing tenants
are any more antisocial than private rental tenants and
private housing owners. In the absence of such research
it is impossible to say whether public housing tenants
are any more likely to be the 'neighbours from hell' than
people who rent private housing or own their homes. In
our view it is very unfair to make major changes to the
residential tenancy law specifically directed at public
housing tenants without any research information to
warrant it. Singling out public housing tenants will only
add to the stigma already associated with public housing,
particularly large estates.
We also believe the proposals may
be counterproductive and result in many people from a
NESB with disability becoming homeless. In our experience
it is common for public housing tenants from a NESB with
disability to be harassed by other tenants because of
their disability or cultural background or both, and for
the Department to take action against the tenant from a
NESB with disability rather than the harasser. Examples
are on pages 44 to 47 of the enclosed report Hitting the
Roof. In our view, the proposals to curb antisocial
behaviour will exacerbate this.
The Minister's media release and
the Department's 'Information Sheet Antisocial Behaviour'
do not contain any details of how narrowly or broadly
'antisocial behaviour' will be defined or who will decide
this. We are concerned that individual Department of
Housing staff will be the ones who decide what
constitutes acceptable or unacceptable behaviour,
particularly as the Department's information sheet states
that antisocial behaviour '…includes instances where
a tenant (or anyone the tenant allows onto the premises)
either persistently or intentionally causes a nuisance
that interferes with the peace, comfort and privacy of
neighbours...'. It is unclear what effects this will have
on different cultural practices and traditions and to
what extent the Department will consider these
differences acceptable or unacceptable
behaviour.
Would cooking the evening meal
every night in the backyard, using aromatic herbs and
spices, or accompanied by music or singing, be considered
a persistent nuisance if a neighbouring tenant complained
about the smell or the noise? What evidence will the
Department require to establish that the tenant's
behaviour (or that of anyone else on their premises)
persistently or intentionally causes a nuisance to the
peace, comfort and privacy of neighbours? Will the
nuisance have to involve all three elements: peace,
comfort and privacy of the neighbours, or will only one
suffice as evidence of unacceptable behaviour? What if
the behaviour is persistent but not intended to cause a
nuisance, eg, where a person with intellectual
disability, acquired brain injury or a mental illness
repeats actions without understanding or remembering the
consequences to their neighbours, eg, playing loud music
all day, talking or laughing loudly to themselves in the
street, or bouncing a basketball for hours on a concrete
driveway?
2. Residential Tenancies Act
(reversing the onus of proof)
We understand that one of the
new proposals is to reverse the onus of proof in eviction
proceedings for public housing tenants. It is not clear
how this proposal will work in practice. The Department
will have to provide evidence that the tenant's actions
warrant eviction and we assume the Consumer Trader and
Tenancy Tribunal will be required to accept the
Department's evidence as fact unless the tenant can
refute it. The reversal of the onus of proof will put the
tenant in the very difficult position of having to prove
that they did not do something, rather than the
Department having to prove that they did. This difficulty
will be exacerbated for tenants from a NESB with
disability, particularly those with cognitive disability
or mental illness and limited English language or
communication skills.
In the absence of research
demonstrating that public housing tenants behave worse
than other householders (see our earlier comments) we
believe this proposal is grossly unjust and unfair. In a
democratic society based on social justice principles it
should not make any difference whether a person rents
public or private housing in determining whether they
should be evicted. The standards of behaviour for tenants
and the sanctions for breaching them should be the same,
regardless of whether the landlord is a private citizen,
a company or the state. Reversing the onus of proof for
public housing tenants would be a radical departure from
the current law applicable to every tenant and we cannot
support it. This kind of differentiation is common to
both feudal and totalitarian regimes: as many of MDAA's
consumers and members have escaped such systems of
government we do not want to see them replicated
here.
The Department's information sheet
states that in 2002-3 the Department evicted 242 tenants,
and of these only 19 (less than 8%) were due to nuisance
and annoyance. There is no indication of whether this is
a high or low 'success' rate for the number of evictions
sought on this ground, hence we have no idea whether the
Department was successful in 19 out of 20 applications or
19 out of 500, for example. In our view, if the
Department has the evidence warranting eviction in a
particular case it should be in a position to prove it.
If it does not have the evidence, perhaps it needs to try
harder to obtain it or call for assistance from other
government agencies including the police, if criminal
activities are suspected, or change its approach and seek
assistance from community services or mental health teams
if this kind of support would assist the tenant to
maintain their tenancy and avoid eviction.
It is clear that a much higher
proportion of public housing tenants require support now
than 20 years ago, not least because of changing state
and federal government policies. In our view, if the NSW
government is serious about people with cognitive
disability and mental illness living in the community, it
has to start encouraging the community to support people,
not enact laws that make it easier to demonise people
with disability, including people from NESB, and make
them homeless.
We believe the current law provides
the Department with adequate measures for dealing with
antisocial behaviour and if the Department does its
homework or enlists the appropriate kind of assistance
there should be no need to amend the law as
proposed.
3. Specialist Response
Teams
We support the proposal to
pilot specialist response teams involving NSW Police, NSW
Health and the Departments of Community Services and
Education to develop an early intervention and prevention
program for families who need support. Adequate support,
particularly for people with mental health problems, may
well result in people successfully maintaining long-term
tenancies and more harmonious neighbourhoods. We suggest
that the Department also involve the Department of
Ageing, Disability and Home Care in planning and
developing the specialist response teams.
Our 2003 report Hitting the Roof
about the public housing experiences of people from a
NESB with disability indicated that people from a NESB do
not have equitable access to NSW Health's services
because many of us do not know the services exist and
because the services do not adequately accommodate
linguistic and cultural diversity (see page 15). This
means that people from a NESB with mental health problems
are more likely to miss out on getting access to public
housing with the support services required because they
are not connected to crisis teams or other health
services. Similarly, people from a NESB with disability
do not have equitable access to the disability support
services provided by DADHC, for the same reasons. We
recommended stronger partnerships to ensure that our
consumers do not fall through these gaps.
As indicated in point 1 above,
people with intellectual disability and acquired brain
injury, particularly people from a NESB with limited
English language skills, may need support and assistance
from a range of government departments and other
community services. It is harder for people with these
disabilities to learn and remember social etiquette:
where the boundaries or limits of acceptable behaviour
lie. People from a NESB with disability who also have
limited English have additional difficulties in
understanding this.
We note that there is no indication
in the Minister's media release or the Department's
information sheet that additional resources will be
allocated to the specialist response teams and in light
of recent budget cuts we assume this is unlikely. In our
view, without extra resources this proposal is unlikely
to succeed, particularly for people with mental illness,
including people from a NESB who have experienced torture
and trauma in war or totalitarian regimes.
4. Acceptable Behaviour
Agreements
The Department's information
sheet states that these agreements '…will only be
used where a tenant has repeatedly engaged in serious
antisocial behaviour'. As noted earlier there is no
definition of what constitutes serious antisocial
behaviour or whether it will make adequate allowances for
differences in culture and abilities. We note that the
sample agreement attached to the Department's information
sheet includes a reference to swearing at residents or
passers-by. This would not constitute serious antisocial
behaviour in our view.
We believe it is unreasonable to
require people with cognitive disability or mental
illness to sign acceptable behaviour agreements when they
have no control over their behaviour: people need support
and assistance to manage their behaviour, not threats of
homelessness. While behaviour agreements may work in a
therapeutic context we doubt that they will in a
coercive, threatening one. The attitudes of the
Department's client service officers described in Hitting
the Roof (pages 20-24) do not give us any hope that these
agreement will be negotiated with any understanding of
the support needs of people from a NESB with
disability.
5. Renewable Tenancies
MDAA opposed the introduction
of renewable leases for new public housing tenants in
2002. On 12 August 2002 we wrote to the Department
suggesting that it should be setting benchmarks for
people on low incomes, rather than imitating the private
market's lack of security and affordability. We gave the
following reasons for opposing renewable leases.
Security of tenure is essential for
people with low incomes, especially people from a NESB
with disability. We are at a disadvantage competing in
the private rental market not only because of low incomes
but also because of the prejudice we experience from real
estate agents and landlords as a result of having a
disability and coming from a different
culture.
Refugees and other migrants are
also at a disadvantage because, having moved from country
to country, they do not understand the housing 'system'
here. They are seeking security in life: to find a job,
get access to services, and find secure, affordable
accommodation. Most refugees and migrants have difficulty
finding work that provides an adequate income to support
them and their families and many are forced to live in
overcrowded housing or move frequently because they
cannot afford to rent adequate accommodation in the
private market. Security of tenure in housing is crucial
to assisting new migrants and refugees to settle in their
new country.
Renewable tenancies will always
carry some element of doubt about housing security, no
matter how well the tenant carries out their
responsibilities under the lease. MDAA's research on the
public housing experiences of people from a NESB with
disability indicates that we are more vulnerable to
harassment from other tenants because of our culture or
disability or both. We also find that client service
officers of the Department do not understand the effects
of disability or culture on our housing needs. It is
often extremely difficult to persuade the Department to
take these effects into account in determining whether to
grant priority housing. Not having security of tenure
means that those of us who are public housing tenants are
vulnerable to losing our housing because of ongoing
harassment and misunderstandings. Hitting the Roof
provides many examples of these experiences.
The Minister's media release dated
4 May 2004 states that some tenants come to regard public
housing as a permanent entitlement. This raises the
question: why shouldn't they? As indicated above, there
are very good reasons for the community to provide
secure, affordable housing to people who receive low
incomes, including people with disability and people from
a NESB. Permanent housing becomes one less thing to have
to worry about in the ongoing struggle for financial
security. We object to the implication that public
housing tenants are a kind of second class citizen who
should be eternally grateful for having a roof over their
heads. The irony is that if the Department spent time
providing or brokering support and assistance for
tenants, instead of introducing measures to make them
less secure, tenants from a NESB with disability probably
would feel eternally grateful.
6. Department of Housing Client
Profile; Estates
The Minister's media release
states that as a matter of social policy the people most
likely to be provided with public housing are those with
the greatest need. This has always been the case but as
noted above, the mix of tenants has changed in the past
20 years, partly because of changes in state and federal
government policies. This means that some public housing
tenants now need higher levels of culturally appropriate
support to live in the community, particularly those with
mental illness, intellectual disability and acquired
brain injury.
The high support needs of some
tenants may not be understood by other tenants living in
the same building or housing estate, particularly if the
support required is not available. This may well lead to
complaints of antisocial behaviour, harassment and racist
abuse towards the tenant with high support needs. We
accept that the Department cannot meet these needs alone,
but Hitting the Roof makes a range of recommendations
about what it can do to alleviate some of these problems
(see pages 7 to 10). More flexible transfer and choice of
location policies may also forestall or alleviate
disputes between neighbouring tenants. Forging and
strengthening the kinds of partnerships mentioned above
would also assist in preventing the problems experienced
in public housing estates.
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