Appeals and Review of Decisions - EST0015A

Policy Statement

In a range of circumstances, tenants and applicants (clients) can appeal Housing NSW decisions that affect their entitlements. That is, a client can ask for a review of the decision.

The objective of the appeal process is to ensure that the correct decision has been made in each individual case under review. Appeal officers are required to make the original decision again.  They will do this by considering the established and relevant facts.  Based on those facts, and the relevant law and policy, they will decide what the correct decision is.

Housing NSW's appeals process aims to be fair, economical, informal and prompt. Housing NSW:

• Seeks good decision-making at all levels of its service delivery to clients,
• Aims to adequately explain decisions, and
• Will provide useful information on alternative products and services where Housing NSW cannot directly or immediately assist the client.

Housing NSW has this policy to ensure that there is a fair process for decisions to be reviewed if those decisions cannot be considered by other bodies, for example, the Consumer, Trader and Tenancy Tribunal.

Application to Aboriginal Housing Office Clients

This policy also applies where Housing NSW makes a decision about clients of the Aboriginal Housing Office who are applicants for, or tenants of, properties managed by Housing NSW.

Policy Detail

Before asking for a review of a decision, clients are encouraged to speak to a member of Housing NSW staff if they have concerns about Housing NSW's original decision, or if they have additional information relating to their application.

If the client contacts Housing NSW, they can expect Housing NSW staff to:

• Give an adequate explanation of their decision
• Consider any additional information provided
• Seek approval to change the original decision if this is appropriate, or a new application can be made.

If a client believes Housing NSW has made an incorrect decision, they can seek a review of that decision.

A client can ask for a review of an original decision if they believe that an incorrect decision was made because:

• Inadequate consideration was given to their individual circumstances,
• The decision was made contrary to Housing NSW policy,
• The decision involved a poor interpretation of policy, or
• The procedure used to reach the decision was not fair and correct.

This is called a first tier appeal.

Letters informing clients of an original decision will also inform them that they can ask for a review of incorrect decisions.

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First Tier Appeals – Internal Review by Housing NSW

Housing NSW officer who made the original decision that has been appealed will not conduct the review of that decision.  An officer who was not directly involved in the decision being appealed will do that.  The recommendations of that officer will be considered by a more senior member of staff, who will then make the actual decision on the first tier appeal.

Housing NSW will monitor the appeals process to promote quality and consistency in decision-making by Housing NSW staff.

Timeframe in which to Lodge an Appeal

The table below outlines the timeframe for lodging appeals:

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Timeframe for consideration of appeals

First tier appeals are decided within 20 working days from when Housing NSW receives a client’s Application Form requesting a review. Housing NSW will deal with urgent decisions on rental assistance and eligibility for Statements of Satisfactory Tenancy within 48 hours.  Housing NSW will give priority to considering the following appeals:

• Eligibility decisions under s 63D of the Residential Tenancies Act 1987.
• Eligibility decisions relating to a change of circumstances following a lease review. 
• Decisions to terminate tenancies where alternative public housing has been offered.  In these cases the appeal will be finalised within 7 calendar days from receipt of the application for review.  The Housing Appeals Committee may also review the decision. In total 19 calendar days, plus the time taken to get the client's file to the Committee are allowed for any combined review by Housing NSW and the Committee. This is in accordance with the timeframes as determined under the s63G Ministerial Guidelines and Procedures.
• The decision being appealed relates to Consumer, Trader and Tenancy Tribunal action that is underway in respect of the client making the appeal.

Housing NSW will send a letter to the client informing them of the appeal decision. From September 2007 for most first tier appeals, Housing NSW will include the full appeal decision with that letter. 

If the appeal is not resolved within the above timeframes, Housing NSW will write to the client and advise them of the reasons for the delay and the expected timeframe for completion.

Second Tier Appeals - Independent Review by the Housing Appeals Committee

If a client believes the decision made by Housing NSW in the first tier review is incorrect, they can ask the Housing Appeals Committee to review the decision.

The Housing Appeals Committee (www.hac.nsw.gov.au) is an independent agency that can review decisions of Housing NSW. The Committee is informal and accessible to public housing clients. There is no charge to clients for their service.

Clients can only ask the Housing Appeals Committee to review a decision after the first tier review has been completed. The client will be advised of this when Housing NSW informs them by letter of the decision on the first tier review.  A Housing Appeals Committee Appeal Application Form will be enclosed with that letter.

There are two situations where a client’s file will be directly referred to the Housing Appeals Committee for review:

• Where an appeal under the section 63G Ministerial Guidelines and Procedures has been considered and Housing NSW's proposed decision is to issue a Notice of Termination, or to make an alternative offer, the client’s file will be automatically referred to the Housing Appeals Committee.
• Where an appeal under section 63D of the Residential Tenancies Act has been considered and Housing NSW's decision is to issue a Notice of Termination on the grounds that the tenant is not eligible for public housing, the client’s file will be automatically referred to the Housing Appeals Committee. The client’s consent must be held by Housing NSW prior to the transfer of the file.

When considering a second tier appeal the Committee may ask for policy advice from Housing NSW. If the client gives permission, it may also discuss the matter with their advocates or support agencies.

After the Committee communicates their recommendation to Housing NSW, the Committee will send the client a letter telling them about the outcome of the appeal and the reasons for the Committee’s decision. This usually occurs within 21 days of the hearing.

For section 63G appeals, (which are automatically referred to the Housing Appeals Committee) the recommendation of the Committee is to be issued within 7 days of receipt of the matter from the reviewer. This is in accordance with the timeframes as determined by approved section 63G Ministerial Guidelines and Procedures.

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Housing NSW's consideration of the Committee's Recommendations

The Committee may maintain the original decision or recommend that Housing NSW change the decision in full or in part. The Housing Appeals Committee can only make recommendations.  The final decision remains with Housing NSW. However, Housing NSW gives careful consideration to all of the recommendations made by the Housing Appeals Committee.

If the Committee recommends that Housing NSW change a decision, in full or in part, Housing NSW will consider the recommendation and provide a response to the Committee, generally within 6 weeks.  In cases relating to appeals under the section 63G Ministerial Guidelines, if Housing NSW decides, after careful consideration, not to accept the Committee’s recommendation, a response will not be provided to the Committee.

If there is disagreement about the Committee’s recommendation, the matter will be referred to a senior manager of Housing NSW for the final decision.

Consumer, Trader and Tenancy Tribunal (CTTT)

If a tenant believes Housing NSW has breached its obligations as a landlord under the tenancy agreement, they can take the matter to the CTTT.

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Assessment Criteria

Is the decision appealable?

Many decisions made by Housing NSW can be appealed. Matters which can be appealed include:

• Eligibility for the Rentstart Scheme or the Special Assistance Subsidy
• The amount of assistance provided under Rentstart or the Special Assistance Subsidy
• Eligibility for public housing
• Eligibility for Emergency Temporary Accommodation
• Eligibility for a Statement of Satisfactory Tenancy
• Removal from the housing register or backdating of applications
• Priority housing assistance
• The location offered when housing assistance is being provided
• The classification of a rejected offer as ‘reasonable’
• The length of lease offered
• The type and length of lease offered when an offer of a property is made
• Calculation of rental subsidies
• Cancellation of rental subsidies
• Incorrect calculation of water usage charges
• Incorrect calculation of the CRA component of CRA rents in AHO properties 
• Requests for property modifications or improvements
• Requests to purchase Housing NSW property
• Requests for absence from dwelling
• Requests to house an additional occupant
• Succession of tenancy
• Transfers
• Mutual exchange
• Notice under section 63G of the Residential Tenancies Act 1987 that Housing NSW intends to issue a notice of termination where a tenant has been offered alternative social housing premises
• Notice under section 63D of the Residential Tenancies Act that a tenant is no longer eligible to reside in public housing
• Eligibility for an extension of a lease as a result of a change of circumstances following a lease review 

Some decisions made by Housing NSW cannot be appealed.  Matters, which cannot be appealed, include:

• Matters that the Consumer Trader and Tenancy Tribunal (CTTT) can resolve.  For example, if Housing NSW does not meet its obligations to carry out repairs and maintenance to a client’s property, and termination of a tenancy by Housing NSW. See the policy on Consumer Trader and Tenancy Tribunal (REN0020A).
• Decisions that are not directly related to the person or household (for example, the allocation of housing to another person)
• Housing NSW policies, rather than the application of policy to a client’s circumstances
• Matters for which clients cannot make an application to Housing NSW (for example, general upgrades of housing)
• Decisions in relation to the length of lease offered after a Section 14A notice has been issued to an existing tenant.
• Reports made to the Department of Community Services, under the Children and Young Persons (Care and Protection) Act 1998.  See the policy on Child Protection (EST0123A)

First Tier Appeals

Housing NSW officer who made the original decision that has been appealed will not conduct the review of that decision.  An officer who was not directly involved in the decision being appealed will do that. 

The recommendations of that officer will be considered by a more senior member of staff, who will then make the actual decision on the appeal. In contentious, difficult and/or sensitive matters a more senior member of staff will conduct the appeal.

A manager of Housing NSW will conduct appeals under the s63G Ministerial Guidelines and Procedures and Section 63D of the Residential Tenancies Act. 

Note: A review under these Guidelines and Procedures cannot be requested unless a Notice of Intent to issue a Notice of Termination has been issued.

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What does the Appeal Consider?

When reviewing the original decision, the appeals officer will consider such matters as:

• Was the original decision consistent with Housing NSW policy?
• Was the policy narrowly or harshly interpreted?
• Do the client’s circumstances indicate that the decision was inappropriate?
• Were the client’s circumstances and all relevant information fairly and properly considered?
• Was there any bias or prejudice involved on the part of the original decision-maker?
• Did any irrelevant information affect the decision?
• Whether the original decision was made within the applicable legal framework
• Whether any new, relevant information is available.

When reviewing decisions about the issue of a Notice of Intent to issue a Notice of Termination under the section 63G Ministerial Guidelines and Procedures, the manager will consider:

• Any representations made by the tenant
• The particulars of the reasons provided by the original decision maker in accordance with section 63G(3) of the Residential Tenancies Act
• The approved Ministerial Guidelines and Procedures relating to section 63G.

Under section 63D of the Residential Tenancies Act the manager will consider:

• Any representations made by the tenant
• The particulars of the reasons provided by the original decision maker in accordance with section 63D (2) of the Residential Tenancies Act

What will the outcome of a first tier appeal be?

The outcome of the appeal will be any of the following:

• The original decision is reversed and a new decision is substituted in its place
• The original decision is maintained
• The original decision is changed in part
• The appeal is withdrawn by the client
• An alternative solution is found.

The outcome of a review under section 63D and 63G may be any of the following:

• Further offers of accommodation, and the number of offers, should be made (applies to section 63G decisions only)
• A Notice of Termination should be issued
• A Notice of Termination should not be issued

If it appears that a client’s appeal will be declined, they will be offered a phone or face-to-face interview before the review is completed.  This will give them an opportunity to understand Housing NSW's decision-making process and provide any relevant, further information.  In all cases of requests for review under section 63D or 63G, the client will be interviewed.

Second Tier Appeals – Independent Review by the Housing Appeals Committee

Except in the case of a review under section 63G and 63D, clients wishing to appeal to the Committee will need to sign the Housing Appeals Committee Appeal Application Form so that Housing NSW can provide the client’s file to the Housing Appeals Committee.  Housing NSW will not be present at the appeal hearing.

The Housing Appeals Committee will consider whether the original decision:

• Was fair and reasonable
• Was made according to Housing NSW's applicable policy and guidelines
• Fully considered the client’s circumstances.

For reviews under section 63D or 63G, the client’s file will be automatically referred to the Housing Appeals Committee if Housing NSW's proposed decision is to issue a Notice of Termination or, in relation to section 63G, make a further offer.  The Housing Appeals Committee will consider:

• The considerations of the reviewer
• Any representations made by the tenant
• If applicable, the particulars of reasons provided by the initial decision maker in accordance with section 63G(3) of the Residential Tenancies Act
• If applicable, the approved Ministerial Guidelines and Procedures relating to section 63G.
• If applicable, the particulars of reasons provided by the initial decision maker in accordance with section 63D(2) of the Residential Tenancies Act

What will the outcome of a second tier appeal be?

The Committee may:

• Maintain the original decision
• Recommend the decision be changed in full
• Recommend the decision be changed in part

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Evidence Requirements

Housing NSW relies on the following when reviewing a decision:

• Information provided by the client or their support services at the time of the original decision, for example any medical reports
• Any relevant additional information supplied after the original decision was made, for example relevant additional expenses and information provided at interview during the review process 
• Information obtained from discussions or an interview with the client or any of their support workers 
• Information held by Housing NSW in its application and tenancy management records
• Any other relevant information available.

Clients can get a relative, friend or community worker to help with either their first or second tier review. If required, an interpreter will be provided at no cost to the client.

Legislative Requirements

There is no legislative structure for Housing NSW's appeals process.  However, Housing NSW always has to act in a lawful way, including when making decisions on clients’ entitlements. In particular, Housing NSW operates within the following frameworks:

• The rules of procedural fairness in accordance with administrative law
• The Housing Act, 2001
• The Residential Tenancies Act, 1987
• The Privacy and Personal Information Protection Act, 1998
• The Health Records and Information Privacy Act, 2002

Further Information

• 'Reviewing Decisions' Fact Sheet, which includes the Reviewing Decisions Application Form.

In addition to this policy, there are other ways that clients can deal with their concerns. Clients may raise their concerns with:

• The Client Feedback Unit of Housing NSW (Freecall 1800 652 059)
• The Consumer, Trader and Tenancy Tribunal (if the matter is about the client’s tenancy)
• The Minister for Housing
• The client’s local Member of Parliament
• The NSW Ombudsman
• Tenants Advice and Advocacy Services
• The Privacy Commissioner

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