The application of the Residential Tenancies Act 1997 and the Housing Assistance Public Rental Housing Assistance Program 2013

Based on the contribution of Anne Yuille, as amended by Genevieve Bolton, Executive Director/Principal Solicitor of Canberra Community Law and current to January 2018

The Residential Tenancies Act (the RTA) applies to all tenancies in the ACT and governs all contractual matters in relation to public housing tenancies. The Standard Terms, of which there are currently 100 comprising the Schedule to the RTA, set out the obligations of lessor and tenant in respect of maintenance of the premises, rent and other costs, rent increases, access and termination. Some of the terms currently have no application to public tenancies – for example, payment of a bond is not required by Housing ACT.

The obligations of Housing ACT as lessor and the obligations of Housing ACT tenants are the same as for private lessors and tenants, but for 3 exceptions:

1. The first exception is in relation to the imposition of the first rent increase in a public tenancy. Clause 36 of the Standard Terms allows the titular head of Housing ACT, the Commissioner for Social Housing, to increase the rent less than 12 months into the tenancy, providing 12 months has elapsed since the last rent increase for the premises. This provision is to enable Housing ACT to standardise the timing of rent increases across all their tenancies;
2. The second exception arises at s 15(5) of the Act which enables “the housing commissioner” to make the repayment of a debt from a previous tenancy a condition of a new tenancy. This provision is dealt with more fully in Standard Terms.
3. The third exception in s 127A of the RTA enables a public housing tenancy agreement to include a term that the tenant must not give the tenant’s rights under the agreement by will to another person who is not an occupant of the premises. Also, s 127A(2) RTA gives Housing ACT the right to apply to ACAT to adjust the rent or terminate the agreement when a person takes possession of a public housing property under a will. In considering such an application, the ACAT must have regard to the eligibility criteria under the relevant approved housing assistance programs under the Housing Assistance Act 2007 (see s 127A(3) RTA).

Housing ACT’s obligations to maintain the premises and conduct repairs are precisely the same as for a private or community lessor, and the tenant’s obligations to take reasonable care of the premises and pay the rent on time are the same as for any other tenant.

What differentiates a public tenancy is the regulatory framework for the administration of public housing, which sits alongside the RTA and, to an extent, interacts with it.

The scope of the Housing Assistance Public Rental Housing Assistance Program 2013 (the Program)

Housing assistance in the form of a long term tenancy is provided to those who meet the eligibility criteria and, in general, it is provided sooner or later on the basis of an assessment of need, in conjunction with the availability of suitable dwellings.

The current program comprises 34 clauses setting out the requirements of applications for housing, the provision of housing, the provision of rent rebate, and review of decisions. There are also a number of Determinations and Operation Guidelines which are Notifiable Instruments made under the Housing Assistance Act 2007. These detail the procedures in relation to such matters as assessment of category of need, transfers, and the calculation and reassessment of rent rebate. In addition, there are internal policy documents for the guidance of Housing ACT officers.

The legislation is available at http://www.legislation.act.gov.au. Policy is available from the Community Services Directorate website at http://www.communityservices.act.gov.au.